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Home My WebLink About03-3262DICKINSON COLLEGE, Plaintiff MARGARET M. SMITH and ALLISON H. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. d>J-- ,X CWlL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED 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 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 Plaintiffs. 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: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Date: & OTTO I.D. No. 87326 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, Plaintiff MARGARET M. SMITH and ALLISON H. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMI3ERLAND COUNTY, PENNSYLVANIA NO. o CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED COMPLAINT AND NOW, comes Plaintiff Dickinson College by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. Plaintiff Dickinson College, (hereinafter "Dickinson"), is a Pennsylvania educational institution and nonprofit corporation with its principle place of business at West Street, Post Office Box 1773, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Margaret M. Smith, (hereinafter "Parent"), is an adult individual residing at a last known address of 53 Hartford Road, Sewell, New Jersey 08080. 3. Defendant, Allison H. Smith, (hereinafter "Student"), is an adult individual with a last known address of 5855 Walnut Creek Road, D327, New Orleans, LA 70123. 4. On or about March 23, 2000, Parent and Student entered into a Promissory Note (Note #1) with Dickinson. A copy of Note #1 is attached hereto as Exhibit "A." 5. Note #1 provided for the financing orS 13,683.00, plus interest and costs by Parent and Student on their own behalf, for educational services and benefits to Student at Dickinson. 6. Note #1 grants Dickinson reasonable collection and attomeys' fees which Dickinson has calculated to be $2,052.45. 7. As of April 2, 2003, the principal and imerest due and payable by Parent and Student to Dickinson was $16,899.87 with interest accruing at $2.15 per day from April 2, 2003. 8. The outstanding balance of $16,899.87 represents the total and actual overdue value of the financing provided to Parent and Student under Note # 1 for which Parent and Student have yet to pay. COUNT ! BREACH OF CONTRACT 9. Dickinson hereby incorporates by reference the averments contained in Paragraphs 1 through 8 of this Complaint. Dickinson has fulfilled, performed and complied with all obligations and conditions of 10. Note #1. 11. Parent and Student breached the expressed and implied obligations, conditions and terms of agreement of Note #1 by failing to pay the mounts financed therein. WHEREFORE, Dickinson demands judgment against Parent and Student in the amount of $16,899.87, plus interest in the amount of$2.15 per day fi.om April 2, 2003, collection and attorneys' fees in the amount of $2,052.45 and costs of suit. COUNT II IN OU/INTUM MER UIT 12. Dickinson hereby incorporates by reference the averments contained in Paragraphs 1 through 11 of this Complaint. 13. Having requested Dickinson to loan money, and doing so to the benefit of Student, Student became liable to Dickinson for said money. 14. Student has been unjustly enriched by accepting said money without paying Dickinson reasonable compensation therefor. 15. As of April 2, 2003, Student is liable to Dickinson and/or has been unjustly enriched in the amount of $16,899.87 plus interest in the amount of $2.15 per day form April 2, 2003. WHEREFORE, Dickinson demands judgment against Parent and Student in the amount of $16,899.87, plus interest in the amount of$2.15 per day fi:om April 2, 2003, collection and attorneys' fees in the amount of $2,052.45 and costs of suit. Date: I.D. No. 87326 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff Exhibit A iibO¢C>l DICKINSON COLLEGE FLEXIBLE FINANCING SYSTEM - PLAN B EDUCATIONAL GOODS AND SERVICES RETAIL INSTALLMENT CONTRACT March 23,2000 I. Seller: Dickinson College, Carlisle, Pennsylvania 17013-2896 Buyer(s): Margaret M. Smith 53 Hartford Road Sewell, NJ 08080 If there is more than one Buyer, each of you will be obligated, jointly and severally, for all sums due and for the performance of all agreements as provided in this Educational Goods and Services Retail Installment Contract.(the "Contract"). Under the terms of this Contract, you have agreed to pay the expenses incurred for Goods and Services (as hereinafter defined) to be provided and rendered, as the case may be, to Allison H. Smith (hereinafter "Student") during his/her enrollment at Dickinson College during the 2000 academic year, including tuition, room and board, books and supplies as herein stated (collectively the "Goods and Services"). II. TERMS OF PAYMENT AND PAYMENT SCHEDULE Disclosures Required by Federal Law ANNUAL PERCENTAGE RATE:* Cost of credit as yearly rate FINANCE CHARGE: Dollar amount credit will cost buyer AMOUNT FINANCED: Amount of credit provided by Dickinson College TOTAL OF PAYMENTS: Amount paid by Buyer as total of all scheduled payments TOTAL SALE PRICE: Total cost of purchase on credit, including down payment of 8.75 % $ 6,640.20 $13,683.00 Rev 10/99 $ 20,323.20 $16,052.00 $ 29,735.00 EXHIBIT "A" ~mith Buyer's payment schedule will be as follows: Number of Payments 116 Amount of Payments $ 175.2 When Payments are Due Monthly commencing 03/28/00 until 11/28/09 *Variable Rate: The initial ANNUAL PERCENTAGE RATE disclosed above is a var/able rate and may change(increase or decrease) from time to time. The ANNUAL PERCENTAGE RATE may increase or decrease during the term of this transaction if the prime rate of interest announced in the Wall Street Journal as of the close of business on June 30 of each calendar year increases or decreases, and will be increased or decreased to the prime rate plus I%. The ANNUAL PERCENTAGE RATE will not increase, or decrease, more than once a year, and the new interest rate will become effective on July 1 following the increase or decrease, if any, in the prime rate of interest. Any increase will be in the form of higher payment amounts. If your cost of the Goods and Services sold hereunder were $13,683.00 at 8.75% per annum for 116 months and the prime rate plus 1% were increased to 9.75%, your regular monthly payments would increase to $182.59. Further, the ANNUAL PERCENTAGE RATE will not increase to more than 18% or such other rate as may be permitted under Peimsylvania law. Late Charge: Ifa payment is more than 15 days late, a sum equivalent to 5% of the late payment (but no more than $2.50 and not less than $ 1.00) may be charged. Prepayment: Buyer may prepay the unpaid balance of the AMOUNT FINANCED and any FINANCE CHARGE due through the date of early payment, in full or in art, without penalty. SEE SECTION VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL I/x/FORMATION ABOUT NON- PAYMENT, DEFAULT AND REQUIRED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNT FINANCED. 2. 3. 4. 5. IH. ITEMIZATION OF AMOUNT FINANCED Cash price of Goods and Services: $ Total down payment: Unpaid balance of cash price (1 - 2): Amount paid to others on Buyer's behalf: Amount Financed (3 + 4): $ 29,735.00 16,052.00 13,683.00 13,683.00 IV. .CILED[T INSURANCE Credit life insurance for the term of this Contract is not required. V. NO WARRANTIES THERE AiLE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH SALE OF THE GOODS AND SERVICES COVERED BY THIS CONTRACT UNLESS BUYER HAS BEEN GIVEN A SEPARATE WRITTEN WARRANTY. VI. ADDITIONAL PROVISIONS Buyer agrees to pay Seller the Total Sale Price by making the total down payment and paying Seller the Total of Payments in the number and amount of monthly payments shown in the Payment Schedule. Payments are due on or before the same date of each month as the fn:st payment date. Payments must be made to EFG Technologies, Inc. at the following address: EFG Technologies, Inc. P.O. Box 64974 St. Paul, MN 55164 Buyer's legal rights include the right to pay ali or part of the amounts due on this Contract in advance of their due dates, to obtain a refund or credit of unearned Finance Charge whenever the amount is paid in full in advance, and (with Seller's consent) to reinstate the Conlzact if Buyer timely cures any default. Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the occurrence of any of the following: (a) (b) (c) (d) (e) (0 failure to make any payment on or before the date it is due, failure to make a payment on any other Contract outstanding with Seller, failure to perform any other provision of the Contract, providing Seller with false information or signatures, death, incompetence, or conviction of any Buyer of crime involving fraud or dishonesty, insolvency or bankruptcy of any Buyer. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with notice, by certified marl as required by law, addressed to Buyer's last known address as shown on Seller's records, advising Buyer of the default and of Buyer's fight to cure the default. The notice will provide the time, amount and performance necessary to cure the default. If Buyer does not cure the default as provided in the notice, Seller's fights shall include the fight to declare all sums due on the Contract to be immediately due and payable. The Buyer agrees to pay all attorney's fees and other reasonable collection costs and charges necessary for the collection of any amount not paid when due. Waiver by Seller of any Event of Default shall not be binding upon Seller if Seller should thereafter choose to exercise that or any other fight or a similar Event of Default occurs later. All Seller's rights and remedies shall be cnmulative. Seller's exercise of one or more fights shall not cause Seller to lose any other rights. This Contract is freely assignable by Seller. Buyer agrees that upon receiving notice of thc assignment Buyer shall be obligated to the Assignee of this Contract, which Assignee shall have all of Seller's fight and remedies. If any part of this Contract is held to be illegal, void or unenforceable, that provision shall be deemed not to have been a part of this Contract, which shall otherwise remain fully effective. 3 APPLICABLE LAW: This Agreement, whenever called upon to be construed, shall be governed by the domestic internal laws of the Commonwealth of Pennsylvania except to the extent supplemented, superseded or preempted by federal law. CONSENT TO JURISDICTION, VENUE AND SERVICE: The parties to this Agreement consent and agree that all legal proceedings relating to the subject matter hereof shall be maintained m the Court of Common Pleas of Cumberland County, Pennsylvania, or, if applicable, the United States District Court of the Middle District of Pemasylvazfia, and all parties hereto consent and agree that jurisdiction and venue for such proceedings shall lie exclusively within said court. Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address set forth above. t 0. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representatives. 11. TIME IS OF THE ESSENCE OF THIS CONTRACT. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE TO BUYER: (1) DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE. (2) YOU ARE ENTITLED TO A COMPLETELY FILLED-IN COPY OF THIS AGREEMENT. (3) UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER CERTAIN CONDITIONS TO OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE. BUYER(S) ACKzNOWLEDGE(S) RECEIVING A COMPLETED COPY OF THIS CONTRACT AND INTEND(S) TO BE LEGALLY BOUND BY ITS TERMS. )! I AGREE TO REPAY ALL AMOUNTS DUE ON THIS LOAN IF THE BOP, ROWER(S)/BUYER(S) FALLS TO DO SO IN ACCORDANCE WITH THE TERMS OF THE NOTE: TRANSCRIPT OF A STUDENT'S RECORD WILL NOT BE RELEASED IF LOAN PAYMENTS TO THE COLLEGE ARE IN ARREARS OR DEFAULT. DATE: DICKINSON COLLEGE Plan B 4 VERIFICATION I, THOMAS MEYER, Assistant Treasurer of Dickinson College, acknowledge that I have the authority to execute this Verification on behalf of Dickinson College and certify that the foregoing Complaint is based upon information which has been gathered bymy counsel in the preparation of this lawsuit. The language of this Complaint is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to my counsel, it is trae and correct and to the best of my knowledge, information and belief. To the extent that the content of this Complaint is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities, which provides that ifI knowingly make false averments, I may be subject to criminal penalties. Dickinson College Assistant Treasurer 6TDickinson College Dated: F \FILES DATAF LE/Dickinson College 7619\DickinsonCo[legeCollections7619C/Dccuments\179 pral/cny Created 7/25/03 2:02PM Revised 7/25/03 209PM 7619C 179 DICKINSON COLLEGE, Plaintiff MARGARET M. SMITH and ALLISON H. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-3262 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE FOR VOLUNTARY NON-SUIT Please withdraw the Complaint and terminate this action without prejudice. MARTSON DE)A~,RFF WILLIAMS & ' ~. al~) dNR'urrGb ealrl ~ ,~;2YiE squ[r~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 OTTO Date: July 25, 2003 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Christina N. Yost, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Ms. Allison H. Smith 5855 Walnut Creek Road, D327 New Orleans, LA 70123 Ms. Margaret M. Smith 53 Hartford Road Sewell, NJ 08080 MARTSON DEARDORFF WILLIAMS & OTTO Christina N. Yost (./ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 25, 2003