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Home My WebLink About07-6070t -. Our File No.: 117718 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esq. Attorney I.D.#38423 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff, VS. STEPHEN J NIECE 28 HATHAWAY DR CARLISLE, PA 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: bq - (0070 O'N i ( (arm 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 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. CUMBERLAND COUNTY BAR ASSOCIATION Lawyer Referral and Information Service 800-990-9108 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse do estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o con un abogado v entregar a la corte en forma escrita sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del edemandante y requiere que usted compla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes pare usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION Lawyer Referral and Information Service 800-990-9108 • 4 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esq. Attorney I.D.#38423 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff, vs. STEPHEN J NIECE 28 HATHAWAY DR CARLISLE, PA 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: D 7- Ua 10 &i t 7-61- CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, is a company with its principal place of business located at c/o Apothaker & Associates, P.C., 2417 Welsh Road, Suite 21 #520, Philadelphia, PA 19114 2. Defendant is STEPHEN J NIECE, an adult individual residing at 28 HATHAWAY DR CARLISLE, PA 17013. 3. At the special instance and request of Defendant, Plaintiff sold and delivered to Defendant goods and/or services at the times, of the kinds, in the quantities, and for the prices set forth in Plaintiffs records. A true and correct copy of which is attached hereto, incorporated herein by reference and designated Exhibit "A". 4. Defendant received and accepted the goods and/or services described in Exhibit "A". 5. The prices set forth in Exhibit "A" are the fair, reasonable and market prices for said goods and/or services, and the prices which Defendant agreed to pay. 6. All credits, if any, to which Defendant is entitled, are set forth in Exhibit "A". 7. In addition, Plaintiff avers that Defendant has failed and continues to fail to make any payments, leaving a balance due and owing of $14,504.47. ... 8. Although demand has been made, Defendant has failed to make payment of the amount due as above. 9. The original creditor is HOUSEHOLD. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $14,504.47 plus costs, and reasonable attorney's fees. APOTHAKER & ASSOCIATES, P.C. Attorney fo mtiff A Law Firm Enga in ebt Collectioi BY: Dated: 10/8/2007 David J. Our File No.: 117718 , ,. VERIFICATION David J. Apothaker, Esq. hereby states that I am counsel for plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. DATE: 10/8/2007 Attorney for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 STEPHEN J NIECE 28 HATHAWAY DR CARLISLE, PA 17013 STATEMENT OF ACCOUNT Debtor's Name: STEPHEN J NIECE Account Number: 500000828749 Original Creditor: HOUSEHOLD Balance Due: $14,504.47 Our File No.: 117718 EXHIBIT "A" v) Q C.I7 -4 T f C ? 1 01 0 03 0 w Portfolio Recovery Associates, LLC 2417 Welsh Road, Suite 21 # 520 Philadelphia PA 19114 V. Stephen J. Niece : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY : DOCKET NO.: 07-6070 CIVIL ANSWER OF DEFENDANT AND NOW comes Stephen J. Niece, defendant, who answers plaintiff's complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. After reasonable investigation the defendant is without knowledge or information sufficient to form a belief as to the matter averred. M 6. Denied. After reasonable investigation the defendant is without knowledge or information sufficient to form a belief as to the matter averred. 7. Denied. After reasonable investigation the defendant is without knowledge or information sufficient to form a belief as to the matter averred. 8. Denied. After reasonable investigation the defendant is without knowledge or information sufficient to form a belief as to the matter averred. 9. Admitted. WHEREFORE, the defendant respectively requests this Court to dismiss the complaint of plaintiff based on no proof ever provided to defendant of all fees interest, and other charges. Defendant requested proof of all fees, interest, and charges from attorney several times with no satisfaction. Attorney also continued to contact defendant at his place of employment after being asked not to, for fear of losing his job. 4 VERIFICATION I, Stephen J. Niece, hereby states and verify the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand the statements made herein are subject to the penalties of 18 Pa.C.S.A. section 4904 relating to unsworn falsification to authorities. AFFIDAVIT OF SERVICE STATE OF PENNSYLVANIA ) . SS.. COUNTY OF CUMBERLAND ) I, Stephen J. Niece, forwarded a copy of the Answer of the Defendant, by First Class Mail, to Apothaker and Associates, P.C., for Plaintiff on November 13, 2007. Stephen J. Niece 4 4 p ?, 4 ?i A ,? ? "?? c"f ? ? _ 4 ?? ~ LJ "a:! ,? Our file No.: 117718 APOTHAKER & ASSOCIATES, P.C. ' 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff Kimberly F. Scian, Esquire Attorney ID #55140 PORTFOLIO RECOVERY ASSOCIATES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff, vs. STEPHEN J NIECE NO.: 07-6070 Civil Action Defendant. MOTION FOR SUMMARY JUDGMENT Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, respectfully requests that the Court enter an Order granting Summary Judgment in its favor in the above captioned matter for the following reasons: 1. There are no genuine issues of material fact to be decided. 2. Defendant filed an answer on or about November 13, 2007, a copy of which is attached hereto as Exhibit A and incorporated by reference herein, wherein he admits that he that purchase and accepted goods and/or services from the plaintiff. 3. Plaintiff has provided an affidavit that defendant is in default and set forth the amount owed by the defendant. 4. Defendant has failed to sustain his burden of presenting facts which contradict the averments in Plaintiff's complaint, nor has he offered any legal defense to same. 5. Plaintiff has clearly demonstrated that there are no genuine issues of triable fact in this matter. WHEREFORE, Plaintiff respectfully requests that judgment be entered in its favor for the amount due with interest and costs as prayed for in the Complaint. Respectfully Submitted, /I be Kim F. S ian Attorney f Plaintiff Dated: 12/17/2007 Our file No.: 117718 APOTHAKER & ASSOCIATES, P.C. ' 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff Kimberly F. Scian, Esquire Attorney ID #55140 PORTFOLIO RECOVERY ) ASSOCIATES, LLC ) Plaintiff, ) VS. ) STEPHEN J NIECE ) Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.: 07-6070 Civil Action CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs Motion for Summary Judgment, Brief in support thereof and Motion Court Cover Sheet was served by regular mail on defendant at the address listed below: STEPHEN J NIECE 28 HATHAWAY DR CARLISLE, PA 17013 Date: 7 mbe jKian Attorney ntif Dated: 12/17/2007 Our file No.: 117718 APOTHAKER & ASSOCIATES, P.C. y 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff Kimberly F. Scian, Esquire Attorney ID #55140 PORTFOLIO RECOVERY ASSOCIATES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff, vs. STEPHEN J NIECE NO.: 07-6070 Civil Action Defendant. PLAINTIFF'S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Facts Plaintiff is a credit card company. Plaintiff extends credit for purchases made by customers who assent to a credit agreement. In the agreement, Plaintiff promises to extend a line of credit to the customer in consideration of the customer's promise to repay in full the outstanding balance due plus interest incurred. Defendant, STEPHEN J NIECE, entered into a credit agreement with the Plaintiff. Defendant purchased goods pursuant to the credit agreement. On June 29, 2004 the outstanding balance due and owing the Plaintiff was $13927.53 together with interest of $ 737.21. As Defendant has failed to make payments in accordance with the credit agreement on the outstanding balance, the Defendant has breached his contractual duty and is liable for the full amount due as well as reasonable attorney's fees as provided for in the credit agreement. Plaintiff filed a complaint on or about October 08, 2007. Defendant filed his answer on or about November 13, 2007 wherein he admits that he owes a debt to the plaintiff. As there exists no genuine issue of material fact to be decided, Plaintiff is entitled to a summary judgment. Argument Summary judgment for plaintiff is appropriate on the record before this court. Pennsylvania Rule of Civil Procedure 1035.2 states that a motion for summary judgment may only be granted when there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report ........42 Pa. C.S.A. 1035.2(1). A material fact for motion on summary judgment, is one that directly effects the outcome of the case. Fortney v. Callenberger, 801 A. 2d 594, Super. 2002. Application of this rule has held that summary judgment may be granted only in those cases where the right to summary judgment is clear and free from doubt. Laich v. Bracey, 776 A. 2d 1022, Cmnwlth. 2001. A motion for summary judgment shall be granted if the documents of record show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Allen v. Merriweather, 413 Pa. Super. 410, 411, 605 A. 2d 424 (1992); Beasel v. New Blvd. Baking Co. Inc, 410 Pa. Super. 591, 593, 600 A.2d 610 (1991). Summary judgment may be entered prior to the completion of discovery in matters where additional discovery would not aid in the establishment of any material fact. Gatling v. EatonCorp., A. 2d, Super. 2002. The moving party bears the burden of demonstrating clearly that there is no genuine issue of triable fact. Driscoll v. Carpenters District Council of Western Pennsylvania, 370 Pa. Super. 295, 536 A. 2D 412 (1988); affirmed, 525 Pa. 205, 579 A. 2d 863 (1991); Allen, 413 Pa. Super. at 411; Beasel, 410 Pa. Super. at 594; Hower v. Whitmark Assoc 371 Pa. Super 443, 381 A. 2d 524 (1988). In response, the nonmoving party may not rest upon the pleadings, but A must set forth specific facts controverting the movant's case. Pa. R. C. P. 1035.3. Phaff v. Lerner, 451 Pa. 146, 303 A. 2d 826 (1973). A review of the pleadings as a whole in the instant case reveals that Defendant has failed to sustain their burden of presenting facts which contradict the elements of Plaintiff's claim. Conclusion The purpose of the summary judgment procedure is to prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases and avoid unnecessary trials when no genuine issue of material fact is raised. In making its determination, the Court must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Thompson v Nason, 3 79 Pa. Super. 115, 535 A.2d 1177 (1988), affirmed, 527 Pa. 330, 591 A. 2d 703 (1991). The Court must restrict its review to material filed in support of and in opposition to the motion for summary judgment, and to uncontroverted allegations in the pleadings. Pa.R.C.P.1035. Overly v. Kass, 382 Pa. Super. 108, 545 A 2d 970 (1989). Plaintiff submits that is has demonstrated sufficient facts to warrant summary judgment in its favor. Plaintiff has provided an affidavit that he defendant is in default and set forth the amount owed by defendant. Defendant admits that purchased goods and/or services from the plainitff. Therefore, plaintiff maintains that it has produced sufficient evidence to establish that there is no genuine issue of material fact to be decided. Once Plaintiff has satisfied its burden, Defendant has a responsibility to demonstrate facts which would create a genuine issue for trial. Phaff, supra. Defendant has failed to sustain his burden of presenting facts which would contradict the elements of Plaintiffs claim. WHEREFORE, Plaintiff respectfully requests that a judgment be entered in its favor for the amount due with interest and costs as prayed for in the Complaint. Respectfully submitted, Z KimbeF. cian Attorney fb Plaintiff Dated: 12/17/2007 Portfolio Recovqry Associates, LLC : IN THE COURT OF COMMON PLEAS 2417 Welsh Road, Suite 21 # 520 : CUMBERLAND COUNTY Philadelphia 'A 19114 V, Stephen w.. L-V-.4_.__ _ C _ rn 20 Niece DOCKET NO.: 07-6070 CIVIL ? ca ANSLALER OF DEFENDANT AND complaint as 2. 3, 4 V comes Stephen J. Niece, defendant, who answers plaintiffs Ws: 5. Denped. After reasonable investigation the defendant is without knowledge or information sufficient to farm a belief as to the matter averred. 6 ;d. After reasonable investigation the defendant is without ledge or information sufficient to form a belief as to the matter 7. Den ed. After reasonable investigation the defendant is without knowledge { or information sufficient to form a belief as to the matter averred. 8. Denied. After reasonable investigation the defendant is without knowledge z or i4ormation sufficient to form a belief as to the matter averred. 9. WHf REFORF, the defendant respectively requests this Court to dismiss the compla+ of plaintiff based on no proof ever provided to defendant of all fees interest, ans, other charges, Defendant requested proof of all fees, interest, and i charges fro attorney several times with no satisfaction. Attorney also continued 1 to contact defendant at his place of employment after being asked not to, for fear of losing hi! job. VERIFICATION 1, Stephen J. Niece, hereby states and verify the statements made in the foregoing pleading are true and correct to ft best of my knowledge, information and belief. I understand the s*ments made herein are subject to the penalties of 18 Pa.C.S.A. section 4904 relating to uns om falsification to authorities. 4 , 3 AFFIDAVIT OF SERVICE STATE OF COUNTY OF I, :Answer of the Apothaker anc November 13, SYLVANIA ? SS , . BERLAND ) tephen J. Niece, forwarded a copy of the Defendant, by First Class Mail, to Associates, P.C., for Plaintiff oft 007. Stephen J. Niece - ?, n ` rZ'`a ?} LQ ?? ? ,a } --? '?{_[ `` CJ[? _ e. "1 ....3 SHERIFF'S RETURN - REGULAR CASE NO: 2007-06070 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PORTFOLIO RECOVERY ASSOCIATES VS NIECE STEPHEN J WILLIAM CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE NIECE STEPHEN J DEFENDANT , at 1407:00 HOURS, on the at 28 HATHAWAY T)RT17P CARLISLE, PA 17013 STACEY FOLTZ, ADULT IN CHARGE by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Ion ?? 0o Sworn and Subscibed to before me this of So Answers: 18.00 r 4.80 00 10.00 R. Thomas Kline .00 32.80 11/07/2007 APOTHAKER & ASSOCIATES By. day Deputy Sheriff A. D. was served upon the 6th day of November , 2007 Our File No.: 117718 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D.# 3 8423 52a Fellowship Road C306 Mount Laurel, NJ 08054 (800)672-0215 Attorney for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff, vs. STEPHEN J NIECE Defendant. J ~1~.~D-0~'F'1C a~" TIC ~~~Ti~U~~flTAi~`~' 2QlOO~T -4 P~~ (~ S7 ~~1t~S~EFL~~~ CDU~#T~' ~' Ft~ ~sS Y! 4:~F~a~~l O.~e COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 07-6070 PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & S CIATES, P.C. Attorne s for laintiff A Law Firm E aced ' Debt Collect By: Dated: 9/29/2010 David J. A~atl~ er, Esquire ~mmiinmi a