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HomeMy WebLinkAbout99-04093of V /010 I; U 1 a SEARS, ROEBUCK AND CO., PLAINTIFF VS. MERVYN A. COOK, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claims or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th FI umb 11212d County Courthouse Carlisle. Pennsylvania 17013 Telephone: 717-240-6200 SEARS, ROEBUCK AND CO., IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. %' 9 - yo 4'3 MERVYN A. COOK, DEFENDANT COMPLAINT IN REPLEVIN 1. Plaintiff is Sears, Roebuck and Co. ("Sears"), a corporation organized under the laws of New York with a place of business located at 45 Congress Street, Salem, Massachusetts, 01970. 2. Defendant is Mervyn A. Cook, an adult individual residing at 10 Adams Street, Enola, Cumberland County, Pennsylvania, 17025 ("Defendant"). 3. Defendant opened account no. 05-54794-39993-7 (the "Account") and charged various purchases of merchandise to the account. 4. Sales invoices executed by the Defendant at the times when purchases charged to this Account occurred, granted to "Sears" a security interest in the merchandise purchased until fully paid. Copies of the sales invoices signed by the Defendant are attached hereto, marked as Exhibit "A" and are incorporated herein by reference. 5. Sears' security interest in the merchandise purchased pursuant to the Account is perfected without filing a UCC-1 Financing Statement pursuant to UCC 9-302(a)(4). Sears is a secured creditor of the Defendant and holds a perfected purchase money security interest in the consumer goods identified in Exhibit "B" which is attached hereto and incorporated herein by reference. 6. All payments made by the Defendant on the Account are applied first to any unpaid insurance or finance charges and then to pay for the earliest charges on the Account. 7. The total balance owed by the Defendant as of September 21, 1998 was Two Thousand Four Hundred Fifty-five Dollars and Six Cents ($2.455.06). 8. On September 21, 1998 the Defendant filed a Petition under Chapter 7 of the Bankruptcy Code with the U.S. Bankruptcy Court, Middle District of Pennsylvania to no. 98- 04611RJW. 9. On January 29,1999 the Defendant received a discharge extinguishing his legal liability to pay certain debts including the debt owed to Sears. 10. Sears avers, however, that the discharge of the underlying indebtedness has no legal effect on the validity of its security interest in the merchandise identified in Exhibit "B". See Estate of Lellock vs Prudential Insurance Co of America, 811 F.2d 186 (3rd Cir. 1987). 11. Pursuant to Sears' purchase money security interest in the merchandise identified in Exhibit B", Sears is entitled to possession of such merchandise. 12. Upon information and belief, Defendant is in possession of the merchandise identified in Exhibit B". 13. The fair market value of the merchandise identified in Exhibit "B" totals Eight Hundred Thirty-six Dollars and Fifty-seven Cents ($836.57). 14. Although demanded, Defendant refused and continues to refuse to turn over possession of the merchandise to Sears. WHEREFORE, Sears respectfully requests this Court for a judgment for possession with respect to the merchandise identified in Exhibit "B". Dated: 0 ol Respectfully submitted, BASKIN, LEISAWITZ, HELLER & ABRAMOWITCH `Ch'arles J. Ph' , squi 2201 Ridgewood Road Suite 400 Wyomissing, PA 19610 (610) 372-8427 Attorney for Sears, Roebuck and Co. VERIFICATION I, Debra DeGrenier, state and aver that I am the Manager of Special Accounts of Sears, Roebuck and Co., state and aver that I am authorized by the Company to sign this Verification and that the facts set forth in the Complaint in Replevin are based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Complaint in Replevin is that of counsel and not of the undersigned. The undersigned verify that she has read the attached Complaint in Replevin and that it is true and correct to the best of his information and belief. To the extent that the language of the Complaint in Replevin is that of counsel, the undersigned has relied upon counsel in making this verification. This verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. Dated: w 1a I J n q SEARS, ROEBUCK AND CO. By: ' t cue ?_I no la ??. Debra DeGrenier v C, EXHIBIT "A" TIME: 07:05PM SEARS SEARS #1224 NOW HIRING RETAIN FOR COMPARISON WITH MONTHLY STATEMENT OR FOR RETURN OR EXCHANGE CUSTOMER: MERVYN A. COOK PICK UP DATE: 10/20/97 TRAN# PG/STORE REG# ASSOC# 6325 99 01224 157 11858 MERCHANDISE HOLDING CUSTOMER PICKUP 2057 90427 TABLETP ST MDS 299.99T SUBTOTAL 299.99 TAX 06.000% 18.00 CARD TYPE: SEARS ACCOUNT ACCT #: W0554794399937/000/000 10/20/97 SEARS ACCOUNT TOTAL 317.99 PURCHASED UNDER MY SEARS ACCOUNT AND SECURITY AGREEMENT, INCORPORATED BY REFERENCE. I GRANT SEARS A SECURITY INTEREST IN THIS MERCHANDISE UNTIL PAID, UNLESS PROHIBITED BY LAW. $317.99 ---------------------------------------• i ! ! i ! i !--------------------------------------! PURCHASED BY PICKUP NUMBER 6325 CALL FOR INFORMATION: DELIVERY (800)732-7747 PARTS (800)366-7278 INSTALLATION (800)952-6700 SERVICE (800)473-7247 "-L'S A?LESCHE CK # 01"2241576325 SATISFACTION GUARANTEED -OR YOUR MONEY BACK ? J TIME: 07:17PM SEARS SEARS #1224 NOW HIRING RETAIN FOR COMPARISON WITH MONTHLY STATEMENT OR FOR RETURN OR EXCHANGE TRAN# PG/STORE REG# ASSOC# 5930 99 01224 344 1818 S A L E 44 79557 PEND 10K,H SAL 71.99T SUBTOTAL 71.99 TAX 06.000% 4.32 CARD TYPE: SEARS ACCOUNT ACCT #: W0554794399937/000/000 10/20/97 SEARS ACCOUNT TOTAL 76.31 PURCHASED UNDER MY SEARS ACCOUNT AND SECURITY AGREEMENT, INCORPORATED BY REFERENCE. I GRANT SEARS A SECURITY INTEREST IN THIS MERCHANDISE UNTIL PAID, UNLESS PROHIBITED BY LAW. $76.31 --------------------------- -------- ! i ! i ! i ! i ! i PURCHASED BY S A L E S C H E C K # 012243445930 SATISFACTION GUARANTEED OR YOUR MONEY BACK a TIME: 07:03PM S E A R S SEARS #1224 NOW HIRING RETAIN FOR COMPARISON WITH MONTHLY STATEMENT OR FOR RETURN OR EXCHANGE DELIVER TO: CUSTOMER CUSTOMER: MERVYN A. COOK DELIV. DATE: 10/24/97 DELIV INST'R: ACCROSS STREET FROM OLD SCHOOL TRAN# PG/STORE REG# ASSOC# 6324 99 01224 157 11858 MERCHANDISE ORDERED CENTRAL DELIVERY 57 54142 TV ZTH 50" SAL 1599.99T ORDERED DELIVERY FEE 35.OOT SUBTOTAL 1634.99 TAX 06.000% 98.10 CARD TYPE: SEARS ACCOUNT ACCT #: W0554794399937/000/000 10/20/97 SEARS ACCOUNT TOTAL 1733.09 PURCHASED UNDER MY SEARS ACCOUNT AND SECURITY AGREEMENT, INCORPORATED BY REFERENCE. I GRANT SEARS A SECURITY INTEREST IN THIS MERCHANDISE UNTIL PAID, UNLESS PROHIBITED BY LAW. $1733.09 i i i i i i PURCHASED BY _Vo CALL.:'-i& INFORMATION: DELIVERY b; (800)732-7747 PARTS (800) 366-7278 INSTALLATI9N (800)952-6700 SERVICE - (800) 473-7247 MRRVYN A COOK 03-34794-39993-7 MARCH 06. 1999 S A L E S C H E C K # 012241576324 SATISFACTION GUARANTEED OR YOUR MONEY BACK EXHIBIT "B" Item Purchase Date Tabletop Stereo 10/20/97 I OK Pendant 10/20/97 Zenith 50" Television, Model #864Z5OZ83R 10/20/97 Purchase Price Fair Market Value $299.99 $122.99 $71.99 $57.59 $1,599.99 $655.99 ?' i 1 C (. t J , 1?^-\vvj\y?1 ') ? Y '..?.. ?. ??J' ` ?\``1 V` ??\ q o?` ? ? ?? ? ?? O CASE NO: 1999-04093 P SHERIFF'S RETURN - NOT FOUND COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SEARS ROEBUCK AND CO VS. COOK MERVYN A R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: COOK MERVYN A but was unable to locate Him in his bailiwick. He therefore returns the NOTICE AND COMPLAINT IN REPLEVIN NOT FOUND as to the within named defendant COOK MERVYN A COMPLAINT IS EXPIRED, DEFT. MOVED LEFT NO FWDG WITH THE P.O. SINCE OCT OF 1998. Sheriff's Costs: So answers Docketing 18.00 / Service 9.30 Affidavit .00 Surcharge 8.00 Rmas?ClirS i7leri $35-.= BASKIN, LEISAWITZ, HELLER 07/02/1999 Sworn and subscribed to before me this L).d day of 19?7 A.D. /° ro ono ry i SEARS, ROEBUCK AND CO., PLAINTIFF VS. MERVYN A. COOK, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. W - ilo/3 You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are wanted that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claims or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL IIELP. Court Administrator 4th Fl. Cumberland County Courthouse Carlisle. Pennsylvania 17013 Telephone: 717-240-6200 SEARS, ROEBUCK AND CO., IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. MERVYN A. COOK, DEFENDANT (OMfI,AIN'f IN RFPI VIN Plaintiff is Sears, Roebuck and Co. ("Sears"), a corporation organized under the laws of New York with a place of business located at 45 Congress Street, Salem, Massachusetts, 01970. 2. Defendant is Mervyn A. Cook, an adult individual residing at 10 Adams Street, Enola, Cumberland County, Pennsylvania, 17025 ("Defendant"). 3. Defendant opened account no. 05-54794-39993-7 (the "Account") and charged various purchases of merchandise to the account. 4. Sales invoices executed by the Defendant at the times when purchases charged to this Account occurred, granted to "Sears" a security interest in the merchandise purchased until fully paid. Copies of the sales invoices signed by the Defendant are attached hereto, marked as Exhibit "A" and are incorporated herein by reference. 5. Sears' security interest in the merchandise purchased pursuant to the Account is perfected without filing a UCC-I Financing Statement pursuant to UCC 9-302(a)(4). Sears is a secured creditor of the Defendant and holds a perfected purchase money security interest in the consumer goods identified in Exhibit "B" which is attached hereto and incorporated herein by reference. 6. All payments made by the Defendant on the Account are applied first to any unpaid insurance or finance charges and then to pay for the earliest charges on the Account. 7. The total balance owed by the Defendant as of September 21, 1998 was Two Thousand Four Hundred Fifty-five Dollars and Six Cents ($2,455.06). 8. On September 21, 1998 the Defendant filed a Petition under Chapter 7 of the Bankruptcy Code with the U.S. Bankruptcy Court. Middle District of Pennsylvania to no. 98- 04611 RJ W. 9. On January 29,1999 the Defendant received a discharge extinguishing his legal liability to pay certain debts including the debt owed to Sears. 10. Scars avers, however, that the discharge of the underlying indebtedness has no legal effect on the validity of its security interest in the merchandise identified in Exhibit "B". See Estate ofs,ellock vs Pru tential In m•an e o of Ame ' , 811 F.2d 186 (3rd Cir. 1987). 11. Pursuant to Sears' purchase money security interest in the merchandise identified in Exhibit "B", Sears is entitled to possession of such merchandise. 12. Upon information and belief, Defendant is in possession of the merchandise identified in Exhibit "B". 13. The fair market value of the merchandise identified in Exhibit "B" totals Eight Hundred Thirty-six Dollars and Fifty-seven Cents ($836.57). 14. Although demanded, Defendant refused and continues to refuse to turn over possession of the merchandise to Sears. WHEREFORE, Sears respectfully requests this Court for a judgment for possession with respect to the merchandise identified in Exhibit "B". Dated: Ori Respectfully submitted, BASKIN, LEISAWITZ, HELLER & ABRAMOWITCH ;N TRUE Cnnp%! r . In Testimony, c. h;.r: ;`?? D By:?? ?? / 1 oly hand -Charles-.1. Phri pa?wr? and the saal of said Coon at i;l., Pa. 2201 Ridgewood Road This ... a day of. P.... 19.Aep? Suite 400 rGnR.... „ z.l /r/,?? Wyomissing, PA 19610 '• ?? (610) 372-8427 Prothonotary Attorney for Sears, Roebuck and Co. 1, Debra DeGrenier, state and aver that 1 am the Manager of Special Accounts of Sears, Roebuck and Co., stale and aver that I am authorized by the Company to sign this Verification and that the facts set forth in the Complaint in Replevin are based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Complaint in Replevin is that of counsel and not of the undersigned. The undersigned verify that she has read the attached Complaint in Replevin and that it is true and correct to the best of his information and belief. To the extent that the language of the Complaint in Replevin is that of counsel, the undersigned has relied upon counsel in making this verification. This verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: (alai 6 q - SEARS, ROEBUCK AND CO. By: *!?. e I A Q I?E?InO U ??n Debra DeGrenier r EXHIBIT "A" TIME: 07:05PM SEARS SEARS #1224 NOW HIRING RETAIN FOR COMPARISON WITH MONTHLY STATEMENT OR FOR RETURN OR EXCHANGE CUSTOMER: MERVYN A. COOK PICK UP DATE: 10/20/97 TRAN# PG/STORE REG# ASSOC# 6325 99 01224 157 11858 MERCHANDISE HOLDING CUSTOMER PICKUP 2057 90427 TABLETP ST MDS 299.99T SUBTOTAL 299.99 TAX 06.000% 18.00 CARD TYPE: SEARS ACCOUNT ACCT #: W0554794399937/000/000 10/20/97 SEARS ACCOUNT TOTAL 317.99 PURCHASED UNDER MY SEARS ACCOUNT AND SECURITY AGREEMENT, INCORPORATED BY REFERENCE. I GRANT SEARS A SECURITY INTEREST IN THIS MERCHANDISE UNTIL PAID, UNLESS PROHIBITED BY LAW. $317.99 ------------------------------------' i i i PURCHASED BY PICKUP NUMBER 6325 CALL FOR INFORMATION: DELIVERY (800) 732-7747 PARTS (800)366-7278 INSTALLATION (800) 952-6700 SERVI.QE, (800) 473-7247 SAl ESCHECK # 0 1'2241576 3 25 SATISFACTION GUARANTEED _ OR YOUR MONEY BACK TIME: 07:17PM SEARS SEARS #1224 NOW HIRING RETAIN FOR COMPARISON WITH MONTHLY STATEMENT OR FOR RETURN OR EXCHANGE TRAN# PG/STORE REG# ASSOC# 5930 99 01224 344 1818 SALE 44 79557 PEND 10K,H SAL 71.99T SUBTOTAL 71.99 TAX 06.000% 4.32 CARD TYPE: SEARS ACCOUNT ACCT #: W0554794399937/000/000 10/20/97 SEARS ACCOUNT TOTAL 76.31 PURCHASED UNDER MY SEARS ACCOUNT AND SECURITY AGREEMENT, INCORPORATED BY REFERENCE. I GRANT SEARS A SECURITY INTEREST IN THIS MERCHANDISE UNTIL PAID, UNLESS PROHIBITED BY LAW. $76.31 --------------------------- -------; ! ! i ! i ! i ! i ! i PURCHASED BY S A L E S C H E C K # 0 1 2 2 4 3 4 4 5 9 3 0 SATISFACTION GUARANTEED OR YOUR MONEY BACK TIME:"'07:03PM MERVYN A COOK OS-54794-39993-7 MARCH 06, 1999 SEARS SEARS #1224 NOW HIRING RETAIN FOR COMPARISON WITH MONTHLY STATEMENT OR FOR RETURN OR EXCHANGE DELIVER TO: CUSTOMER CUSTOMER: MERVYN A. COOK DELIV. DATE: 10/24/97 DELIV INSTR: ACCROSS STREET FROM OLD SCHOOL TRAN# PG/STORE REG# ASSOC# S A L E S C H E C K / 6324 99 01224 157 11858 0 1 2 2 4 1 5 7 6 3 2 4 MERCHANDISE ORDERED C E N T R A L D E L I V E R Y SATISFACTION GUARANTEED 57 54142 TV ZTH 50" SAL 1599.99T OR YOUR MONEY BACK ORDERED DELIVERY FEE 35.OOT SUBTOTAL 1634.99 TAX 06.000% 98.10 CARD TYPE: SEARS ACCOUNT ACCT #: W0554794399937/000/000 10/20/97 SEARS ACCOUNT TOTAL 1733.09 PURCHASED UNDER MY SEARS ACCOUNT AND SECURITY AGREEMENT, INCORPORATED BY REFERENCE. I GRANT SEARS A SECURITY INTEREST IN THIS MERCHANDISE UNTIL PAID, UNLESS PROHIBITED BY LAW. $1733.09 i ? i ? i i i ---------------------------------------- PURCHASED BY _.?1, CALL FOR INFORMATION: DELIVERY (800)732-7747 PARTS (800)366-7278 INSTALLATION (800)952-6700 SERVICE (800)473-7247 L 13X111131'1' "I3" ILQm Purchase Dale Purchase Price [air Market Value Tabletop Stereo 10/20/97 $299.99 $122.99 10K Pendant 10/20/97 $71.99 $57.59 Zenith 50" Television, Model #864Z50Z83R 10/20/97 $1,599.99 $655.99 ??? ?? J: SEARS, ROEBUCK AND CO., PLAINTIFF MERVYN A. COOK, TO THE CLERK: Vs. DEFENDANT IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4093-CIVIL PRAECfPE TO END. DISCONTINUE AND SETTLE Please mark the docket in the above-captioned matter as ended, discontinued and settled. Dated: Augustl'' 1999 LEISAWITZ HELLER ABRAMOWITCH PHILLIPS P.C. By: QM Charles J. Phillips, squire 2201 Ridgewood Road, Suite 400 Wyomissing, PA 19610 Attorney for Plaintiff N ? 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