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Home My WebLink About03-3213IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MILL CREEK BANK, INC,, Plaintiff, VS. VIRGINIA A. JENKS, COMPLAINT CODE: 026 Replevin Defendant. Filed on behalf of Plaintiff Counsel of Record for this Party: Timothy P. Palmer, Esquire Pa. I.D. No. 86165 BUCHANAN INGERSOLL PROFESSIONAL CORPORATION One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 Firm I.D. No. 0038 (412) 562-8413 48944-000013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MILL CREEK BANK, INC., ) ) Plaintiff, ) ) - La, VS. ) CODE: 026 Replevin VIRGINIA A. JENKS, ) ) ) Defendant. NOTICE TO DEFEND 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 a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim 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. Please contact the following: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DWISION MILL CREEK BANK, INC., VS. VIRGINIA A. JENKS, Plaintiff, Defendant. ) ) ) ) ) ) CODE: 026 Replevin ) ) ) ) HEARING NOTICE YOU HAVE BEEN SUED IN COURT. The above Notice to Defend explains what you must do to dispute the claims made against you. If you file the written response referred to in the Notice to Defend, a heating before a board of arbitrators will take place in located at , at · IF YOU FAIL TO FILE THE RESPONSE DESIRED IN THE NOTICE TO DEFEND, A JUDGMENT FOR THE AMOUNT CLAIMED IN THE COMPLAINT MAY BE ENTERED AGAINST YOU BEFORE THE HEARING. DUTY TO APPEAR AT ARBITRATION HEARING If one or more of the parties is not present at the hearing, THE MATTER MAY BE HEARD AT THE SAME TIME AND DATE BEFORE A JUDGE OF THE COURT WITHOUT THE ABSENT PARTY OR PARTIES. THERE IS NO RIGHT TO A TRIAL DE NOVO ON APPEAL FROM A DECISION ENTERED BY A JUDGE. NOTICE: YOU MUST RESPOND TO THIS COMPLAINT WITHIN TWENTY (20) DAYS OR A JUDGMENT FOR THE AMOUNT CLAIMED MAY BE ENTERED AGAINST YOU BEFORE THE HEARING. IF ONE OR MORE OF THE PARTIES IS NOT PRESENT AT THE HEAR1NG, THE MATTER MAY BE HEARD IMMEDIATELY BEFORE A JUDGE WITHOUT THE ABSENT PARTY OR PARTIES. THERE IS NO RIGHT TO A TRIAL DE NOVO ON APPEAL FROM A DECISION ENTERED BY A JUDGE. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MILL CREEK BANK, INC., ) ) Plaintiff, ) ) CODE: 026 Replevin VIRGINIA A. JENKS, ) ) Defendant. ) COMPLAINT Plaintiff Mill Creek Bank, Inc. ("Plaintiff'), by and through its undersigned attorneys, Buchanan Ingersoll Professional Corporation, files the within Complaint, averring as follows: PARTIES 1. Plaintiff is qualified to do business in the Commonwealth of Pennsylvania, and maintains a place of business at T302, 7360 S, Kyrene Tempe, Arizona 85283. 2. Plaintiff was formerly known as Conseco Bank, Inc. which was formerly known as Green Tree Retail Services Bank, Inc. 3. By Assignment and Assumption Agreement dated as of June 26, 2001, Plaintiff is the assignee of all rights of Transamerica Bank N.A. and Transamerica Retail Financial Services Corporation (collectively "Transamerica") under Transamerica's financing program associated with various Honda entities. 4. Defendant VIRGiNIA A. JENKS ("Defendant") is an individual who, upon information and belief, resides at 6 Pocono Drive, Mechanicsburg, PA 17055 ("Residence"). BACKGROUND I. Defendant purchased the following property with financing provided by Plaintiff: Motorcycle, Make: Suzuki, Model: GSXR750, Year: 1993, VIN#: JS1GR7BAOP2102748 (the "Collateral"). 2. Defendant participated in Plaintiffs "Transamerica Bank, N.A." program, a copy of Defendant's credit application is attached as Exhibit A. 3. Defendant executed a sales slip ("Sales Slip") for the purchase of the Collateral. A copy of the Sales Slip is attached as Exhibit B. 4. As is further set forth in the Sales Slip, Defendant agreed that the financing provided by Plaintiff was subject to the terms and condition of the Cardholder Agreement and Disclosure Statement for the Transamerica Bank, N.A. ("Agreement"). A copy of the Agreement is attached as Exhibit C. 5. Plaintiff has a purchase money security interest in the Collateral. 6. Defendant agreed to the following terms under the Agreement ("you" refers to Defendant and "us" refers to the Plaintiff): You promise to pay all amounts owed to us under the terms of this Agreement. (Exhibit C, ~ 2). Each cycle you agree to pay us at least the minimum monthly payment reflected on your periodic statement. (Exhibit C, ¶ 4). ·.. you hereby grant to us and we are retaining a purchase money security agreement under the Uniform Commercial Code in the memhandise purchased on your Account until such merchandise is paid in full· If the goods pumhased is a motor vehicle you hereby grant to us and we retain the motor vehicle purchased on your Account until the motor vehicle is paid in full. You agree to assist us in executing any documents necessary to perfect our security interest. If you do not make a minimum monthly payment due on your Account by the applicable payment due date, we may repossess any merchandise which as not been paid for in full, including any merchandise purchased under a Major Purchase Plan. (Exhibit C, ~] 11). You agree to pay us any attorneys' fees and collection costs we incur in connection with your Account. (Exhibit C, ¶ 12). ·.. you will be in default under this Agreement upon (a) your failure to make at least the Minimum Monthly Payment when due... Upon default.., we have the right to (a) terminate your credit privileges under this Agreement; (b) require you to pay your entire Account balance, including Special Payment Plan balances, all accrued but unpaid Finance Charges, and all fees and other amounts owed; and/or (c) repossess any merchandise on which we retain a perfected security interest. (Exhibit C, ¶ 14). 7. Defendant has defaulted under the terms of the Agreement by failing to make the Minimum Monthly Paymems when due. 8. Pursuant to paragraph 14 of the Agreement, the failure of the Defendant to make these payments in a timely manner constitutes an event of default. 9. Pursuant to paragraph 14 of the Agreement, as a result of Defendant's default, Plaintiff is entitled to collect the entire Account balance, including Special Payment Plan balances, all accrued but unpaid Finance Charges, and all fees and other amounts owed. 10. Pursuant to paragraph 14 of the Agreement, as a result of Defendant's default, Plaintiff is entitled to repossess the Collateral· 11. As of March 6, 2003, Defendant's account with Plaintiff was 125 days past due. The total balance due on the account as of March 6, 2003 is $4,373.10. The agreed upon interest rate for the account is 21.99% APR. 3 12. Upon information and belief, the Defendant either has possession of the Collateral or knows of the location of the Collateral. COUNT I -- REPLEVIN 14. Plaintiff incorporates by reference all prior paragraphs as if fully restated herein. 15. Plaintiff was granted a pumhase money security interest in the Collateral. 16. Pennsylvania law and the Agreement authorize Plaintiff to repossess the Collateral upon the occurrence of an event of default. 17. Upon belief, the Collateral is presently located at the Residence. 18. Upon information and belief, the fair market value of the Collateral assuming that it is undamaged, is estimated to be $1,825. 19. Plaintiffhas decided to repossess the Collateral and is entitled to have Defendant assemble and make such Collateral available for removal. 20. Plaintiff has demanded the immediate possession of the Collateral, but Defendant has failed and refused to allow Plaintiff to obtain possession of the Collateral. 21. Plaintiff is entitled to the immediate possession of the Collateral. COUNT II -- BREACH OF CONTRACT 22. Plaintiff incorporates by reference all prior paragraphs of the Complaint as if fully restated herein. 23. Defendant has breached the Agreement by failing to: (a) pay monthly installments to Plaintiff as they have become due; (b) assemble the Collateral and make it available to Plaintiff so that Plaintiff can obtain possession, custody and control of the Collateral. Plaintiff has complied with all of its obligations under the Agreement. 24. 4 25. There is now due and owing from Defendant to Plaintiff on account of such financing the sum of $4,373.10 as of March 6, 2003, and interest accruing thereafter at the contract rate of 21.99% APR. 26. Pursuant to the Agreement, Defendant is obligated to pay Plaintiffs costs and expenses incurred in the collection of the balance of Defendant's obligation, including without limitation actual expenditures for reasonable attorneys' fees and legal expenses incurred herein, and in enforcing Plaintiffs rights and remedies. Plaintiff has been required to retain the services of an attorney to represent it in this proceeding, and is entitled to recover its court costs and reasonable attorneys' fees herein. COUNT III - ACCOUNT STATED 27. Plaintiff incorporates by all prior paragraphs of the Complaint as if fully restated herein. 28. By virtue of Plaintiffs acceleration of the balance of Defendant's obligation due to his default under the Agreement, Plaintiff has stated an account. 29. To date, Defendant has refused to pay to Plaintiff the total amount that is due and owing. COUNT IV -- UNJUST ENRICHMENT 30. Plaintiff incorporates by reference all prior paragraphs of the Complaint as if fully restated herein. 31. Plaintiff financed Defendant's purchase of the Collateral with the expectation that Defendant would repay all amounts advanced and pay finance charges. 32. Defendant has not repaid all amounts that Plaintiff advanced to Defendant to purchase the Collateral. 5 Exhibit A , ~RR-08-2000 NED 03:25 PM FAX NO, P, 02/02 03/07/20~e 12:49 7~7751619~ YAM~'~A Qc CAYF' HILL e~(~ 02 ~.l I I I i t I [ I I I I I I I I I I I I I I I I ZJe I J I I I I I I 'J nnoing' 745 Exhibit B Exhibit C I I I I I I I I I I I I I I I I I i I I I I I I Joint Applicant I I I I I I I I I I I I I I I I I I I I I I I I c,, sm,. z~ ~.,ol I II I II ] I I i I [ I-I I I I-I I I I I si I I hi I I I .o.,,, o., I I F I I I i I I I ~ I I I I I I I I I I I-I I I I-I J I Optional Insurance Protection - Please Complete This Section to Enroll x x Product Information I~..I I I I i I I I I I i I Ou., SI M I I hi I i I.I I I I I I hi I I I 0¥.. 0.o 0.,^ "~'~l I ~ I I I I I I I I I I I I I I r I I I I ' Sl f hi I I M I I ' S l I hi [ I f.~ ' S l I hi r I M I I "si I hi I I I.I I I >si I I,I I I Mil 'si I I,I I I Mil AroroaJ Percentage Rate for Ralanc~ Other Rates CARDHOLDER AGREEMENT AND DISCLOSURE aTAT£I~£NT The following Annual Percrnlag¢ Rales apply as of Oclober {, 200l. Regular Purchases and Special Peymcnl Haro 19.745'o(19.74% minimuml, Regular Purchases and Special Payment Plans $2,000.01-$5,00016.745'o ,,6.?a~ minimum) maio~Purch&~ PInro 9.24%-21.49% The following Annual Percentage Rates apply o~ of Oclober L 2001. Cash Advances 21.90% (2].90% minimum) Variable Rate lnfornrotlon Your APR for purchases may vary. The APR is based on the highest prime rate published in {he "Mouey Rates' seclion of The Wall Street Joun~al on thc last basiness day of Ibc roouth p}as a margin. Tim roi}roving Margins cun'enl{y apply: Purchases $0-$2.000 12.24%. Procha~ $2,000.01-$5.000 9.247~, Major Pmchase Plans 2.24rk-14.49%, Cash Adxances 12.24% Grace Period ror Repayment dthe Balances for Purchases Minimum Finance Charge Method of Computing the Balance for Purchases Trnnsacliou Fee for Access Checks, Cas{~ Advances, or AThl Trnn~aaiom; Late, Over [Jmlt and Return Check Fees Finance Charges accrce from the date of purchase. You have 25 days from the Statemcnl Closing Date for thai Cycle. Io pay thc New Balance in full before a Finance Ch~e is imposed attributable to that New Balance. S.50 (ou balances in any billing cycle that a Finance Charge is due). Average Daily Balance (incluthng new purchases) Access Check, Cash Advance, or ATM Tmroacliou - $3.00 or 3% of trannacliou amount, v.,hichevcr is grcalcc Lain Fcc: 530 ~$t5 in IA) Over Limil Pcs: $301515 i, IAI Relurned Check Fcc: $30 ($20 in IAI ~ ft Ac 'o I i$ ~*..~sidelz. d deli.qtrol t afier ~ . il ~ . lXO~ e~ s .ot made for ro'o crolsectttive bi ling C)'cles a~d will d sqt alify . ¥~ l for e ig ii ty ~,r R~%.tdar Pttrchase. Ctah Adl~tnce attd Special Pa?ate.t Pk.t pr?cing for a mhdmum of $£~ too.tits. JUN 18 2003 14:I4 FR BUCHANAN INGERSOLL ~?~-D~-2003 FEI 10:44 JUN 18 2003 14:15 FR BUCHANAN INGERSOLL ?i8 854 422? TO 14125S~I041 VERIFICATION I, ~tO]'lli~ ~: "~lOtll'r~//[7 , an authorized representative of Plaintiff verify that I have read the foregoing Complaint, that I am authorized to make this Verification on Plaintiffs behalf, and that the statements of fact therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities. Dated: June 0~'~2003 SHERIFF'S RETURN - CASE NO: 2003-03213 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILL CREEK BANK INC VS JENKS VIRGINIA A REGULAR CPL. MICHAEL BARRICK , Cumberland County, Pennsylvania, says, the within COMPLAINT - REPLEVIN JENKS VIRGINIA DEFENDANT , at 1701:00 HOURS, at 6 POCONO DRIVE MECFIANICSBURG, PA 17055 JOHN JENKS a true and attested copy of COMPLAINT Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon on the 29th day of July by handing to the , 2003 - REPLEVIN together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .00 35.59 Sworn and Subscribed to before me this 6 ~' day of ~;&13 A.D. ' Prothonotary ~ So Answers: R. Thomas Kline 07/30/2003 B UCH3kNAN INGERSOLL~