HomeMy WebLinkAbout03-5363~TTOIHIT;S FOR PI Al :<TIFF
~' Bar:nan, Esquire, I.D. ~'~ .... '
~ussl~,, PA 19406
King of
k~oC,~ I~R BANK
~ch, Allendale Road,
King of Prussia~ PA 19406
...... t LEA~
CONRT OF C,¢>MMON ' S
C, OIINTY OF t,UMBERLANE
TRIAL I)IVI SION
.,IVI~ ACTION
Term
DILIP R ABAYASEKARA
17 ROUND HILL RD
{%AMP HILL, PA 1'7011 26:36
NOT ICE
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 c~aims
set forth against you. You are warned that if you fail to do ,~o the
case may proceed without you and a judgment may be entered again~it yo~
by the oourt without, further notice for any money claimed in thi~ [
complaint or for any other' claim or relief required 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 C FFIt. E
SET FORTH BELOW OR FIND OUT WHERE YOU CAN (iET LEGAL HELP.
AVI SO
Le hah demandado a usted en la corte. Si usted quiere defenders~
de estas demandas expuestas en las paginas siguientes~ usted tiene
veinte (20) dias de plaza al partir de la fecha de la demanda y la
notificacion. Hace falta asentar una comparencia escrita o en person~
o con un abagado y entregar a la corte en forrla escrita sus defensas
o sus objeciones a las demandas en contra de su persona. Sea avisado
qua si usted no se defiende~ la corte tomara medidas y puede continua~
la demanda en contra suya sin previo aviso o notification. A demas 1,
la corte puede decidir a favor del demandante y requiere clue usted
compla con todas las provisiones de esta demanda. Usted puede perder
dinero o sus propiedades u otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATEMENTE. SI NO TIENE ABOGA
0 SO NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN
PER,~(.NA LLAME POR TELEFONO A LA OFICINA CUYA DIREC(3ION SE ENCUENTRA/
...."I - DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAl.
EoL. RITA ABAJO PARA AVERL~LA~
/
LAWYER REFERRAL SERVICE, COUNTY OF CUMBERLAND BAR ASSOCIATION
Address: 2 LIBERTY AVE,, CARLISLE, PA 17013 Tel,: 800-990-9108
<)0.r File No. 180778
ATTORNEYS FOR PLAINTIFF
ERIC M. BERMAN, P.C.
BY: Eric M. Berman~ Esquire, I.D. 83i99t3
BY: Robert M. Kline, Esquire,I.D. 56479
198 Allendale Road, Suite 306
King of Prussia, PA 19406
(610) 285-7720
DISCOVER BANK
c/o ERiC M. BERMAN, P.C.
198 A]lendaie Road, Suite 306
King of Prussia, PA 19406
DILIP R ABAYASEKARA
17 ROUND HILL RD
CAMP HILL~ PA 17011 2636
COURT OF COMMON ILEAl,
C. OUNTY OF CUMBERLANI)
CIVIL Ac,TI t,N
COMPLAINT
1. Plaintiff, DISCOVER BANK ,
is a DELAWARE STATE BANK
authorized to do business in the Co~mnonwealth ef Pennsylvania wi~h
its place of business ab 3311 MiLL MEADOW DRIVE, HILLtARD, OH 43026.
2. The Defendant(s), DILIP
. . 1 ~ .~ll-~b.~b.
resides at 17 R')NNI) HILL RD , L,AM~ HILL, PA
3. There is due from the Defendant(s) the sum of $2,B58.01 for
credit extended by Plaint, iff to I)efendant,(s)? acct. no, 6011003350521~
and which such credit, was drawn and used by the Defendant(s).
Defendant{s) is in default, for failure t,o make payment, s for such use.
4. The Plaintiff has lnade demand upon the I)efendant(s) for paymen
of monies in the sum of $2,858.01 advanced to Defendant(s) throug}l
Defendant(s) use of the above-referenced credit account., but, Defendant
}]as failed and refused to pay the said sum or any part thereof.
5 All al:,px~t, able credits, if any, }]ave been duly applied to
I)efendant(s) credit account,.
WHEREFfRE, Plaintiff claims of the Defendant(s) the sum of $2,85~.~
plus interest, attorneys fees and costs which are justly due and
owing from the I. efendant4, s) to the Plaintiff.
.~003
Elated: OCTOBER 01,
ERIg M. B~/~i~]AN, P.C.
BY: ~
ERiC M EoQUI RE
BY:
R3BERT M. KLINE ESQUIRE
s)
)1
SPACEBER-AW Attorneys for Plaintiff
VERI FI CATI ON
Eric M. Berman, Es<tuire, being duly sworn according to law,
deposes and says that }~e is t,}~e Principal at, t`orney of Eric M.
Berman, ~.C. · attorneys for t`he Plaintiff, and/or Robert M. Kline,
Esquire, being duly sworn according t,o law, deposes and says t, hat,
he is an associate attorney with said firm, and as said attorne}%
is authorized to t~ake this verificat`ion on it`~_~ behalf, and ghat t`he
facts in t`be Complaint as set, fort, h therein are true and correct to
t,}~e best of bis knowledge~ information and belief.
I yeti. fy that tl~e statements made in the withi~ instrument are
true and correct. I understand that false statements are subject,
to the penalties of 18 Pa C.SoA. Section 4~q04 relating to unsworn
falsifications to authorities.
ERIC M. BERMAN, ESQUIRE
Dated: OCTOBER 01, 2005
ROBERT M. KLINE~ ESQUIRE
SPACEBER-AW
ATTORNEY:
ACCOUNT NUMBER:
BALANCE:
CARDMEMBER (S):
BERMAN
6011003330521897
$2858.01
DILIP R ABAYASEKARA
STATE OF OHIO
COUNTY OF FRANKLiN
K. Ray, personally appeared before me, this day and after being duly sworn, according to law,
upon his/her oath and says:
I am a Legal Placement Account Manager for DISCOVER FINANCIAL SERVICES INC., the
servicing agent of DISCOVER BANK, an FDIC insured Delaware State Bank.
THAT this affidavit is made on the basis of my personal knowledge and in support of Plaintiff's
suit on account against the Debtor(s)
THAT, in my capacity as Legal Placement Account Manager, I have control over and access to
records regarding the Discover Card Account of the above referenced Debtor(s), further, that I
have personally inspected said Account and statements regarding the balance due on said account.
DISCOVER FINANCIAL SERVICES, iNC. maintains these records in the ordinary course of
business.
THAT the annexed statement of account is a true and correct statement of what is now due and
owing Discover Bank on the account, and exhibit A is a copy of the Cardmember Agreement
between Discover Bank and the above referenced Debtor(s). The Cardmember Agreement
governs the terms and conditions of the relationship between Discover Bank and the Debtor(s) in
connection with the account.
Based on my review of the account records, to the best of my knowledge and belief the above
referenced Debtor(s) is not engaged in the military service of the United States and is a resident
of the State and of the Country in which this action has been filed.
I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge.
Sworn and Subscribed before me,
This day of Thursday, August 28, 2003.
SHERIFF'S RETURN - REGULAR
CASE NO: 2003-05363 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DISCOVER BANK
VS
ABAYASEKAR3t DILIP R
RICHARD SMITH
Cumberland County, Pennsylvania,
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
the
13th day of October ,
by handing to
together with
says, the within COMPLAINT & NOTICE
ABAYASEKAtlA DILIP R
DEFENDANT , at 1942:00 HOURS, on the
at 17 ROUND HILL ROAD
CAMP HILL, PA 17011
SHARON ABAYASEKARA, WIFE
a true and attested copy of COMPLAINT & NOTICE
2003
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 9.66
Affidavit .00
Surcharge 10.00
.00
37.66
Sworn and Subscribed to before
me this /4 ~-' day of
Prothonotary
So Answers:
R. Thomas Kline
10/14/2003 /~
ERIC BERMAN / / ~
By
~Deo~ut~vS~heri f f
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Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, Pennsylvania 17011
DISCOVER BANK,
Plaintiff,
vs.
DILIP ABAYASEKA ~A
De fen ~ant
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
...... Term ........
No.03-05363 Civil Term
DEFENDANT'S REQUEST FOR ORIGINAL INSTRUMENTS, STATEMENT OF
, · ~ [ DAMAGES AND AFFIDAVIT OF LOSS
COMES N~W the Defendant hereby files with this Court the
above captione~ request which will provide the proof upon which
Defendant can determine the validity of the alleged debt and
attempt to reso
1. Defend,
debts. Defenda
its depositor's
Plaintiff for a
Defendant its o
2. In acc,
3-501, (b)(2),
Defendant the o
lve this matter.
~nt wants to pay all of Defendant's legitimate
2t asserts that Plaintiff loaned none of its or
money to Defendant. Defendant has asked
Ny evidence that Plaintiff did in fact lend
r its depositor's money and has received none.
REQUEST FOR ORIGINAL INSTRUMENTS
)rdance with the Uniform Commercial Code, Section
Defendant requests that Plaintiff provide
riginal instruments that can be verified to
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establish the purported debt. Uniform Commercial Code §3-501 (2)
states:
~Upon demand of the person to whom presentment is made, the
person making the presentment must (i[I exhibit the
instrumentj (ii) give reasonable identification and, if
presentment is made on behalf of another person, reasonable
evidence of authority to do so, and (lii) sign a receipt on
the instrument for any payment made or surrender the
instrument if full payment is made."
REQUEST FOR STATEMENT OF DAMAGES
3. If Plaintiff's claim of debt is legitimate Plaintiff hag
been damaged by Defendant's non-payment. Defendant requests of
Plaintiff a fozmal Statement of Damages to prove claim.
REQUEST FOR AFFIDAVIT OF LOSS
4. If Plaintiff's claim of debt is legitimate Plaintiff has
suffered a loss by Defe~'.~.inQ~rp~yment. Defendant irequests
of Plaintiff ar Affidavit of Loss.
5. Defendant, despite raising a bona fide dispute with
Plaintiff and ~aving never received a point-on-point response,
has previously,i evidenced by Exhibit A, fully accepted for value
and returned f~r value the alleged account in accordance with
HJR-192 and UC~ 3-419, requesting the order of the court to be
released and t~e account to be closed with any public charges
offset b~ the exemption.
being
6. Plaint!iff has dishonored Defendant's presentment,
neither returning it nor rejecting it. Silence is acquiescence
and thus Plaintiff has already accepted tke discharge of
obligation. U~C §3-603 (b) states:
"If tende~ of payment of an obligation to pay an instrument
is made t~ a person entitled to enforce the instrument and
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the tender is refused, there is a discharge, to the extent
of the amount of the tender, of the obligation of an
indorser or accommodation party having a right of recourse
with respect to the obligation to which the tender
relates."
7. The debt has been satisfied in accordance with HJR-192,
UCC §3-419 and UCC §3-603 (b). If Plaintiff refuses to accept
payment in the form of the Acceptance for Value and Return for
Value, the debtlis repudiated as per UCC $2;-603 (b).
Plaintiff's acceptance of the instrument, and acceptance of
discharge means!that no claim can exist.
Defendant Cereby requests the Plaintiff provide, as proof
claim, the abo~e captioned documents or admits acceptance of
the discharge ~f account as settled in full.
Dilip Abayase~z
17 Round Hill Rd.
Camp Hill
Pennsylvania 17011
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Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, Pennsylvania 17011
( 717
DISCOVER BANK, i
Plain¢iff,
DILIP ABAYASEKA~
Defendant
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
...... Term ........
No.03-05363 Civil Term
CERTIFICATE OF SERVICE
This is to certify that on ,/~-~2 -~ I mailed a copy of
this Certificat~ of Service and a copy of the following
documents by first class service with return receipt requested:
1. DEFENDANT'S REQUEST FOR ORIGINAL INSTRI~ENTS, STATEMENT OF
D/LMAG~S AND AFFIDAVIT OF LOSS
To the attorneys or parties of record at their address listed
below:
Attorney for Plaintiff, , Eric M. Berman, P.C., 500 West
Main Street, Suite 212, Babylon New York 11702.
DATED: /P ~ ~--
17 Round Hill Rd.
Camp Hill
Pennsylvania 17011
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Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, Pennsylvania 17011
DISCOVER BANK,
Plaintiff,
VS.
DILIP ABAYASEKA~A
Defendant
COURT 05' COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
...... Term ........
No.03-5363 Civil Term
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Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, Pennsylvania 17011
DISCOVER BANK,
Plainliff,
DILIP ABAYASEKA
Defen
COMES NOW
RA
dant
follows:
1. Neith
2. Admit
3. Denie
money and is
point refused
to prove
4.
5.
money and is
that
Denie
Denie
.ot
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
...... Term ........
No.03-5363 Civil Term
ANSWER TO COMPLAINT
the Defendant and answers ~he complaint as
~r admitted nor denied.
ted.
~. Plaintiff breached the contract, loaned no
ot allowed to lend credit. Defendant has at no
to pay a legitimate debt. Plaintiff has failed
a legitimate debt exists.
~. See (3.) above.
~. Plaintiff breached the contract, loaned no
allowed to lend credit.
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Defendant demands proof
Defendant by producing the
for this Honorable Court,
showing a debit of funds
depositor's accounts
that a loan was made by Plaintiff to
original charge slips and provides,
the accounting [[edgers clearly
from the Plaintiff's accounts or
into Defendant's account.
Dated this ~! day of
the month of d~z~-~f , 2003
/
Dilip Abayas~ara
17 Round[ Hill Rd.
Camp Hill
Pennsylvania 17011
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Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, Pennsylvania 17011
DISCOVER BkNK,
Plaintiff,
VS.
DILIP ABAYASEKARA
Defendant
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
...... Term ........
No.03-05363 Civil Term
DEFENDANT'S FIRST SET OF INTERROGATORIES, REQUEST FOR
ADMISSIONS AND PRODUCTION OF DOCUMENTS
COMES NOW the defendant and requests 'the Plaintiff answer
these discovery requests as required by the rules. These
requests pertain to the disputed account that is the subject
matter of this lawsuit. Each question directly leads to the
proof required to establish that a loan was made by Plaintiff to
Defendant.
INTERROGATORIES
1. Please state your name, occupation and mailing address.
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2. Identify the name of the source of the funds that were
used to fund account number 6011-0033-3052-1897.
3. List the account number of the account from which funds
were debited to fund account number 6011-(]033-3052-18977
4. Who was the owner of each account in 3., or list those
individuals having signature rights to each account in 3?
5. List the names and addresses of ali. lending institutions
from which any funds were Used to fund a loan to account number
6011-0033-3052-1897.
6. Identify the account number from which the funds
originated in order to fund a loan to account number 6011-0033-
3052-1897.
7. Identify or describe the physical location where funds
that were use~ to fund a loan to account number 6011-0033-3052-
1897 were hel~ prior to being used to fund account number 6011-
0033-3052-18971.
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81 If you deny that no other existing account was debited
when account number 6011-0033-3052-1897 was opened or created,
then identify the account number of the account that was
debited to fund a loan to account number 6011-0033-3052-1897
and list the name or names of the debited account's signer,
holder and/or owner, and explain how the funds for this account
were originated.
9. Identify the employee of the bank who authorized the
transaction to open or create account number 6011-0033-3052-
18977
10. If any loan origination system, software or other
procedures were used in the opening of the account number 6011-
0033-3052-1897, please identify the system by name and describe
how it works.
11. According to the alleged loan agreement, was the
purported lender or financial institution involved in the
alleged loan to accept anything of value from the alleged
borrower that !would be used to fund a check or similar
instrument in!approximately the amount of the alleged loan?
YES or NO.
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12. According to the bookkeeping entries, did the purported
lender or financial institution involved in the alleged loan
accept anything of value from the alleged borrower that would
be used to fund a check or similar instrument in approximately
the amount of the alleged loan? YES or NO.
13. Were all material facts disclosed in the written
agreement? YEIS or NO.
14. What is the name and address of any bank auditor,
auditing organization or certified public accountant involved
with or having any relation to the accounting functions
regarding the account number 6011-0033-3052-18977
15. Identify the name of the records or system of accounting
records or ledgers reflecting the transaction of the creation
of account number 6011-0033-3052-1897and the debiting of funds
from an account used to fund the loan to account number 6011-
0033-3052-1897.
16. Were any loan numbers assigned to account number 6011-
0033-3052-18977 YES or NO?
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17. If you answered 'yes' to question 16., please list the
account numbers.
18. Explain how each account in 17. was created or
originated.
19. Explainhow the funds for each account in 17. was
deposited and where the funds originated.
20. Was an account created, then credited with an amount of
money, the s~me amount o~which was then debited to fund
account number 6011-0033-3052-18977 YES or NO?
21. If you ~nswered 'yes' to question 120., please explain
where the funds originated from to create the newly created
account which !was then debited to fund a loan to account number
6011-0033-3052-1897.
R~QUEST FOR ADMISSIONS
22. Admit tihat according to the alleged loan agreement,
purported lender or financial institution involved in the
the
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alleged loan was to use its money as adequate consideration to
purchase the promissory note from the alleged borrower?
23. Admit that according to the bookkeeping entries, the
purported lender or financial institution involved in the
alleged loan tO account number 6011-0033-3052-1897 used their
money as adequate consideration to purchase the promissory note
from the alleged borrower?
24. Admit or deny that the funds used to fund a loan to
account number! 6011-0033-3052-1897 originate from another
account or lending inStitution 0ther than Plaintiff?
25. Admit that it was the intent of the purported loan
agreement that the party that funded the loan should be repaid
the money lenti?
26. Admit that no other account was debited when the account
number 6011-0033-3052-1897 was created.
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27. Admit that Dilip Abayasekara was the depositor for
account number 6011-0033-3052-1897.
28. Admit that the purported lender involved in the alleged
loan follow Generally Accepted Accounting Principles, GAAP?
REQUEST FOR PRODUCTION OF DOCUMENTS
29. Producelall records, reports, memoranda relating to the
source of fund~ related to account number 6011-0033-3052-1897
and list all o~her sources of information such as computer file
and name~ of databases or locations at which related
names
information iai located or accessible.
30. Produce:all documents and information, related in any
way, to your implication or allegation that a loan was provided
to account number 6011-0033-3052-1897.
31. Please ~roduce all records and tangible evidence relatin¢
to the questicns herein and send them along with your response.
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Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, PA 17011
DISCOVER BANK,
Plaintiff,
VS.
DILIP ABAYASEKARA
Defen~ant
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
...... Term ........
No.03-05363 Civil Term
CERTIFICATE OF SERVICE
This is to certify that on /O ~3 I mailed a copy of
this Certificat~ of Service and a copy of the following
.d0c.~me~ts by f~st class service ~ith return receipt r~qUe'sted: '
1. ANSWER TO COMPLAINT
2. DEFEN~ANT' S INTERROGATORIES, REQUEST FOR ADMISSIONS
AND ~RODUCTION OF DOCUMENTS
attorneys or parties of record at their address listed
To the
below:
Attorney f~r Plaintiff,
Main Street, Suite 212,
DATED:
, Eric M. Berman, P.C., 500 West
Babylon New York 11702.
Camp Hill
Pennsylvania 17011
NOTICE OF CARDHOLDER BILLING DISPUTE
THIS IS NOTA REFUSAL TO PAY
Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, PA 17011
Sent by:
[] Certified Mail, Return receipt requested
Cert. Mail
# '7a¢ ~ - ~ ¢~-~' ~- o~o 3 - ~¢¢¢~- ¢'4z '7~
To:
Disputes Department
Discover
P.O. Box 15192
Wilmington, DE 19850-5192
EXHIBIT A
Date: June 28, 2003
Alleged credit card number b011-0033-3052-1897
Amount in dispute $2,952.3~
Greetings:
Th~s letter ~s my nobce to yqu that I am d~sputmg your account rendered for account number 6011-
0033-3052-1897, and that Ilam not refusing to pay said account rendered.
Your account rendered imp
indisputably has ruled that
1. "Banks are not ek
Norton Grocery
"eleemosynary"-,
2. "Banks are expr~
right to loan theil
powers." Howar¢
3. "A bank can len¢
1124.
4. "A bank can lenc
money, not its cr
incidental to ther
Of Banks And Bi
United States Code,Title 12
of banking....by loaning mol
their credit.
If you have not loaned me y
money, please provide me v
said money, owned by bank
transactions.
les that you have loaned me your money or your credit. Case law
bank cannot loan its own credit:
emosynary institutions. They may lend their money but not their credit",
;ompany vs. People's National Bank of Abbingdon, 144 S.E. 501,503.
:haritable, not-for-profit.
ssly authorized...to lend money upon personal security; they are without
credit either under such express authority or under their incidental
and Foster Company vs. Citizen's National Bank 130 S.E. 759
its money but not its credit." First National Bank vs. Monroe, 69 S.E. 1123,
its own money and that of others deposited with it for a profit .... It is
;dit, that a bank is to lend .... Neither as included in its powers nor
1 is it a part of a bank's business to lend its credit.", A Treatise On The Law
nking by John T. Morse, Jr.
Section 24 declares that banks "shall have power to carry on the business
~ey on personal securities." This section does not authorize banks to loan
)ur credit but in fact have loaned me your money or your depositor's
'ith documentary evidence showing from which account you have drawn
or bank's depositors, to fund account number 6011-0033-3052-1897
,chanics, a workbook issued by the Federal Reserve Bank of Chicago, on
.... do not really pay out loans from the money they receive as
n they make loans is to accept promissory notes in exchange for credits to
However, Modern Money M~
page 6 declares that "Banks
deposits...What they do wh~
1. t/'~'"'F~erm¢~¢, CCII~. I am. voluntar,ly' submitting' ' this form letter to state try position in the above matter.
S, gned ,:./~;7 ,.~., .?~/?',-~';?~4/~---~Date ,~'~-~¢''~-'~-~
the borrowers' transaction accounts." Page 7 says that "Loans are made by crediting the borrower's
account, i.e., by creating additional deposit money."
If you have loaned me my credit and by your account rendered are attempting to collect from me an
alleged debt allegedly owed to myself, please be advised that comrnon law and case law irrefutably
declare that no one can owe a debt to himself nor can anyone be compelled to pay to himself a debt
alleged by another to be owed to himself.
Please be advised that I have never authorized you to treat my credit-card- application signature as a
promissory note granting you a loan of my credit. Nor have I authorized you to monetize my credit-
card-application signature and to pay out my monetized credit. If you have monetized my credit-card-
application signature as my promissory note without authority from me to do so and without disclosure
to me that you have done ~o and if you have paid out my monetized credit without authority from me to
do so and without disclosu~'e to me that you have done so, then you have engaged in fraud by omissior
and have fraudulently congealed mater:iai matters of fact from me for purposes of fraudulent conversior
and unjust enrichment.
Aisc, if your account rend6
collect my funds from me t
undisclosed monetized cre
unconscionable, illegal an¢
alleged debt I allegedly ow
false representations an al
and that I have never knov
red to me in the form of a credit-card-statement is an attempt by you to
) replace your unauthorized, undisclosed payout of my unauthorized,
dit, please be advised that such collection is an unscrupulous,
unlawful attempt by you to collect from rne for your possession and use an
~ to myself. Such attempted collection constitutes by false pretenses and
:empt to fraudulently convert to your possession and use funds that I control
ingly, understandingly, willingly and freely granted to you as a loan of my
credit.
if you in fact claim that you
third party's money, please
for you to loan it to me. If:
provide me with document~
Since this is a disputed det
derogatory credit informatk
162 which states:
"After receiving noti
not directly or indire
standing because o
161 (a)(2) and such
have loaned me the bank's money, the bank depositors' money or some
be advised that I have never received such money and that I am still waitin¢
'our credit card statement is an attempt ta collect said loaned money, pleas~
~ry evidence that you have sent and that I have received said money.
,t and not a refusal to pay, you have no right to report to any third party any
,n other than that this debt is disputed per the Fair Credit Billing Act section
:e from an obligor as provided in section 161 (a), a creditor or his agent may
:fly threaten to repot[ any person adversely on the obligor's creditrating or
the obligor's failure to pay the amount indicated by obligor under section
an amount may not be reported delinquent to any third party until the
creditor has met the. requirements of section 161 ."
In accordance with my righ
employer, my bank or any ~
s, this is my written notice to you prohibiting you from contacting me or my
,ther third party by telephone. You may write to me, but do not call me.
This notice of cardholder di ~pute establishes prima facie evidence as to the assertions made herein
and is taken pursuant to th~ Truth in Lending Act & Fair Credit Billing Act, 15 USC § 1666 et seq. and
Public Law 93-495 - Octob ;r 28, 1974, and 12 CFR 226.13, et seq.
I respectfully await your proper response to this notice of dispute within ten days upon receipt thc. reof
Please be advised that if yo~u fail to timely and properly respond to this notice in its entirety, I will
presume that your failure toldo so constitutes a tact admiss on by ye u to me that you totally agree with
me that: I
2 , ~ ,~.,,~,, ,.,GNu. ~ 8m-volunt,~,~y submhung ~h.s iorm ~ett~r .o s,a,e m), position in the above matter.
Discover monetized cardholder's credit and bank paid out cardholder's monetized credit
without authorization from cardholder and disclosure to cardholder constituting fraud by
omission and fraudulent concealment of material matters of fact.
Discover's account rendered in the form of a credit card statement is an unscrupulous and
unconscionable attempt to convert cardholder's property to Discover's unwarranted
possession and use by Discover paying out my unauthorized, monetized credit as if it were
Discover's money and fraudulently billing me for paying out my own unauthorized,
monetized cred,it instead of Discover's own money.
NOTICE & DEMAND
1.1 CEASE AND DESIST COLLECTION ACTIVITIES
CEASE PH ONE CONTACT WITH CARDHOLDER OR ANY THIRD PARTY
3. CEA~ E DERROGATORY REPORTING TO ANY THIRD PARTY
UNTIL THE DEBT IS VALIDATED
PRIOR TO VALIDATION OF PURPORTED DEBT
Pursuant to the F~ir Debt Collection Practices Act, 15 U.S.C., Sec, 1601, 1692 et seq, thi:
constitutes timely written r~otice that the law requires I return the attached errone,o, us purported deb
which is unsigned and uqattested, and which I herein discharge and cancel in it s entirety, withou
dishonor, on the grounds of breach, false represe,n, tation and fraud.
15 U.S.C., Sec. 1¢92 (e) states !,hat a false, deceptive, and misleading representation, il
connection with the collection of any debt includes the false representation of the character or lega
status of any debt. It further identifies as a deceptive practice any threat to take any action that canno
iegally be taken.
The Notice you hav~ sent omits information that is required to be disclosed, such vital citations
disclosing the agency's jcrisdictional and statutory authority. Said Notice further contains false
deceptive and misleading lepresentation, and allegations intended to intentionally pervert the truth fo
the purpose of inducing ope, in reliance upon such, to part with property belonging to them and t¢
surrender certain substantive legal and statutory rights. To act upon this Notice Would divest one o
his/her property and their plerogative rights, resulting in a legal injury.
Pursuant to 15 U.S[C., Sec. 1962 (g)(4) Validati,on of Debts. If you have evidence to validat(
your claim that the attached does not constitute fraudulent misrepresentation and that one owes this
alleged debt to your entity, Jthis is a demand that within ten (10) days, you provide such validation an¢
supporting evidence to substantiate your claim. Until the requirements of the Fair Debt Collectior
Practices Act have been rdet and your claim is validated, you have no ~urisdiction to continue any
collection activities.
This is constructive
must cease and desist any
telephone, in person, at
bank, my employer or ad
Act, will constitute harassr
ir~cludiitg ar]y and all agent~
to a liability for actual dan-
violation plus a further liabil
absent such validation of
notice that, absent the validation of your claim within ten (10) days, you
collection activity and you are hereby prohibited from contacting me, by
wy home, or at work. You are further prohibited from contacting my
y third party. Each and every attempt of such contact, Jn violation of this
'~ent, defamation of character and will subject your agency and/or board
~ in his/her/their capacity, who take part in such harassment and defamation
ages, as well as statutory damages up to $10,000.00 for each and ever,
ty for legal fees to be paid to any counsal which I may retain. Furthermor~
~ur claim, you are prohibited from filinq any notice of lien and/or lev
and are also barred from reporting any derogatory credit information to any Credit Reportin,
A,qency regarding this disputed purported debt.
Should Discover violate any of the following three items:
1. Discover is prohibited from collection activity.
2. Discover may not phone cardholder or any third party.
3. Discover is prohibited from reporting to any third party.
Please be advised that the following penalties may apply to any illegal activity on your part and als~
may apply in the subsequent seeking of damages on my part:
1, AMS-DP - Fed~bral right to due process
2. AM7-TJ - right,to common law trial by jury
3. AM13-SIS - inv~)luntary servitude
4. AM14-DP - Sta~te right to due process
5. 18 USC 35 - false witness
6. 18 USC 208 - dnauthorized financial interest
7. 18 USC 241-{
8. 18USC242-
9. 18 USC 287-
10.18 USC 876-
11.18 USC 1001
12.18 USC 1018
13.18 USC 1341
14.18 USC 1343
15.18 USC 1344
16.18 USC 1345
17.18 USC 1581
18.18 USC 1621
19.18 USC 1622
20.18 USC 1623
21.18 USC 1652
22. 18 USC 1660
23.18 USC 1661
24.18 USC 1951
25.18 USC 1952
26.18 USC I957-
27.18 USC 1961 -
28.18 USC 1962-
29.42 USC 1981 -
30.42 USC 1982-
31.42 USC 1985-
32.42 USC 1986 -
33.42 USC 1944 -
Total possible penal
$ 10,000
$. 10,000
$ 250,000
$ 10,000
$ 1,000
$ 250,000
onspiracy against rights $ 10,000
eprivation of rights $ 10,000
qaking false claims $ 10,000
~ail threats $ 10,000
falsification of documents $ 10,000
executing known false documents $ 1,000
schemes to defraud $1,000,000
wire fraud $1,000,000
bank fraud $1,000,000
fraud $ 10,000
subjecting one to peonage $ 10,000
perjury in any statement $ 10,000
subornation of perjury $ 10,000
false declarations before a court $ 10,000
:itizens as pirates $1,000,000
*eceipt of pirated property $ 10,000
)nshore piracy $1,000,000
nterference with commerce $ 250,000
Jse of mails for unlawful activity $ 250,000
Jnlawful monetary transactions $ 10,000
'acketeering by extortion $1,000,000
ncome from racketeering $1,000,000
'ight to contract $ 10,000
'ight to hold private property $ 10,000
ntedering with civil rights $ 250,000
villful neglect to prevent a crime $ 5,000
4olation of prohibited peonaqe $ 250,000
:les and/or damages: $8,677,000
true, correct and complete.
Date: ~-~%¢:~ I
I hereby attest that, to the best of my knowledge and belief that fha Rhr~ve information is
Signed ,f~?,~.'.'~ /k¢.~,.~¢,~.~_¢~..-¢__~_¢~¢.~_~
4 ~ =~ ~L
{ ,' It~ ~ , a~,vo,untanly submitting this form letter to state my position in the above matter.
S~gned.~.//~I ~- ~¢¢~¢~'~ate ~ %~¢
Our file no. 169552
ATTORNEYS FOR PLAINTIFF
ERIC M. BERMAN, P.C.
BY: Robert M. Kline, ESQUIRE
IDENTIFICATION NO.: 56479
198 Allendale Road, SUITE 306
King of Prussia, PA 19406
(610) 265-7720
DISCOVER BANK :
Plaintiff,
vs.
DILIP ABAYASEKARA
Defendant.
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
No. 03-5363
PLAINTIFF'S ANSWER TO NEW MATTER
Plaintiff, Discover Bank, through its attorneys, hereby files
its Answer to Defendant's New Matter (improperly stated by
Defendant as Affirmative Defenses) as follows:
1. Denied. It is denied that Plaintiff at any time "loaned"
Defendant monies.
2. Denied. It is denied that the UCC section cited by Defendant
applies. Furthermore, the original doucuments were given to
Defendant upon applying for and accepting the credit card
account.
Denied. It is denied that Defendant has been damaged in any
way. Defendant received a copy of his statement of account
which lists the monies owed to Plaintiff.
Denied. It is denied that Defendant has been damaged in any
way. Defendant received a copy of his statement of account
which lists the monies owed to Plaintiff.
Denied. The allegations of this paragraph constitute
conclusions of law to which no further reply is required. To
the extent factual, it is denied that Plaintiff breached any
agreement with Defendant or any fiduciary duty owed to
Defendant and it is denied that Plaintiff committed fraud,
6. Denied. These allegations constitute a conclusion of law to
which no further response is required.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
Denied. It is specifically denied that Defendant applied for
a loan or that Plaintiff makes loans.
Denied. It is denied that Plaintiff extended Defendant a line
of credit.
Denied. These allegations constitute a
which no further response is required.
Denied. These allegations constitute a
which no further response is required.
conclusion
conclusion of
Denied. These allegations constitute a conclusion of
which no further response is required.
of law to
law to
law to
law to
Denied. These allegations constitute a conclusion of
which no further response is required.
Denied. It is denied that Plaintiff received said letter or
that said letter constitutes any type of legitimate complaint.
Denied. It is further denied that Plaintiff had any duty or
requirement to respond.
Denied. To the contrary Defendant has repeatedly refused to
pay his debt.
Denied. It is denied that Plaintiff refused to answer, or
that Plaintiff was required to answer. It is denied that
Plaintiff loaned Defendant any monies.
Denied. These allegations constitute a conclusion of law to
which no further response is required.
WHEREFORE, Plaintiff requests that the Court dismiss
Defendant's New Matter (improperly stated ,ms Affirmative Defenses)
and requests judgment in its favor and against Defendant, and for
such other and further relief as the Court deems appropriate.
Dated: November 21, 2003
BY:
ERIC M. BERMAN, P.C.
ROBERT M. KLINE, ESQUIRE
ATTORNEYS FOR PLAINTIFF
Our file no. 169552
ATTORNEYS FOR PLAINTIFF
ERIC M. BERMAN, P.C.
BY: Robert M. Kline, ESQUIRE
IDENTIFICATION NO.: 56479
198 Allendale Road, SUITE 306
King of Prussia, PA 19406
(610) 265-7720
DISCOVER BANK
Plaintiff,
VS.
DILIP ABAYASEKARA
Defendant.
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
No. 03-5363
PLAINTIFF'S REPLY TO REQUEST FOR ADMISSIONS
Plaintiff, Discover Bank, through its attorneys, hereby files
its Reply to Defendant's Request for Aclmisssions,as follows:
22. Denied.
23. Denied.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
28. Denied.
Dated:
November 21, 2003
BY:
ROBERT M. KLINE, ESQUIRE
ATTORNEYS FOR PLAINTIFF
Our file no. 169552
ATTORNEYS FOR PLAINTIFF
ERIC M. BERMAN, P.C.
BY: Robert M. Kline, ESQUIRE
IDENTIFICATION NO.: 56479
198 Allendale Road, SUITE 306
King of Prussia, PA 19406
(610) 265-7720
DISCOVER BANK :
Plaintiff, :
VS. :
DILIP ABAYASEKERA,
Defendant.
COURT OF CO~ON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
No. 03-3563
CERTIFICATE OF SERVICE
Robert M. Kline, Esquire, counsel for Plaintiff, hereby
certifies that on this date he served a copy of the foregoing
Plaintiff's Answer to New Matter and Reply To Requests for
Admission by regular first class mail postage prepaid upon the
following:
Dilip Abayasakera
17 Round Hill Road
Camp Hill, PA 17011
Dated: November 21, 2003
ERIC~ BERMAN, P.C.
BY:
ROBERT M. KLINE, ESQUIRE
ATTORNEYS FOR PLAINTIFF
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Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, Pennsylvania 17011
DISCOVER BANK,
Plaintiff,
VS.
DILIP ABAYASEKARA
Defendant
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
CIVIL ACTION
...... Term .........
No.03-5363 Civil Term
DEFENDANT'S RESPONSE TO PLAINTIFF'S ANSWER TO NEW MATTER
COMES NOW the Defendant and responds to the Plaintiffs answer to the new matter:
1. Plaintiff is blatantly admitting that the Plaintiff never loaned any of its money to
Defendant. It is incumbent upon any creditor to establish any alleged debt by supplying proof
of said debt. Plaintiffs denial to submit such proof is equivalent to Plaintiffs admission that
no loan was made. If no loan was made, no consideration was given for Defendant's
promissory note at the signing of the agreement, and thus no money can be owed. Ifa debt
existed, then a loan of funds would have been given as consideration in exchange for
Defendant's promissory note and Defendant would admit to owing money. Plaintiff claims it
"extends credit", which case law has indisputably ruled it cannot do.
"Banks are not eleemosynary institutions. They may lend their money but not their credit,"
Norton Grocery Company vs. People's National Bank of Abbingdon, 144 S.E. 501,503.
"eleemosynary"-charitable, not-for-profit. Furthermore "Banks are expressly authorized...to leni
money upon personal security; they are without right to loan their credit either under such express
authority or under their incidental powers." Howard and Foster Compan¥ vs. Citizen's National
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Bank~ 130 S.E. 759 and "A bank can lend its money but not its credit." First National Bank vs.
Monroe, 69 S.E. 1123, 1124.
The United States Code, Title 12, Section 24 declares that banks "shall have power to carry on the
business of banking....by loaning money on personal securities." This section does not authorize
banks to loan their credit..
2. Plaintiff claims it is a corporation. Defendant entered into an agreement as
corporate entities with Plaintiff. Pennsylvania is a signatory to the Uniform Commercial Code
and defendant's New Matter No.2 is in proper order. Plaintiff's refusal to recognize or accept
the Uniform Commercial Code as one of the laws governing contracts between parties is
nnlawful, unjust and against the rules.
3. Plaintiff fails to issue a formal statement of loss because Plaintiff has failed to
lend Defendant any of its money and as such Plaintiffcannot claim any loss. If Plaintiff has
not been damaged and suffered any loss, then this proves that no money was loaned to
Defendant or exchanged in consideration for his promissory note and as such no debt exists
4. See (3.) above.
5. Defendant objects to Plaintiff's denial of Defendant's New Matter no. 5. It is not
the duty of the Defendant to prove the loan exists, but the Plaintiff. Defendant has repeatedly
requested the Plaintiff provide evidence of a loss, of a loan of'money, of exchange in
consideration of Defendant's promissory note and Plaintiff has failed to do so. Providing
statements, which are electronically produced pieces of paper do not validate, confirm or
provide the required proof that money was loaned by Plaintifl~ In fact, Plaintiff has already
admitted to not loaning Defendant any money. In order for a ,debt to be owed, there must be a
loan. No loan exists and therefore no debt exists. Plaintiff agreed to lend money to Defendant,
and by failing to do so breached the agreement.
6. Defendant's denial of New Matter no. 6 is false. Plaintiff did in fact use
Defendant's promise to pay as money and deposited said promise as money into Defendant's
credit card account. Plaintiff failed to use its money or its depositors money to fund
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Defendant's credit card account. Defendant continues to seek the return of either Defendant's
deposit or Defendant's promise to pay.
7. Plaintiff not allowed to lend credit, and is specifically authorized to loan money.
Defendant claims no money was loaned, Plaintiff admits no money was loaned and thus there
is no debt owed.
8. Plaintiff admits that Plaintiff DID NOT extend a line of credit to Defendant.
Plaintiff also admits in New Matter no. 1 that Plaintiff DID NOT make a loan of money to
Defendant. Defendant asserts that if no loan was made and no credit was extended then there is
no debt owed by Defendant to Plaintiff and as such this case is brought with unclean hands and
in bad faith.
13. Defendant herein attaches, as evidence Exhibit A, the documents with
documentary proof of receipt from Plaintiff that the account and its entire balance was disputed.
This dispute falls under the Fair Credit Billing Act as a right of the Defendant to raise a
legitimate, bona fide, good faith dispute with Plaintiff which is also provided for in Plaintiff's
card agreement.
14. Plaintiff is required by the Fair Credit Billing Act to respond within 30 days to all
disputes, complaints raised by cardholders. Plaintiff's cardholder agreement states that they
must investigate and respond. Plaintiff failed to investigate and respond to the allegations
within Exhibit A.
15. Defendant has at no time REFUSED to pay any legitimate debt. Defendant has
continued to assert his right to dispute the purported debt with Plaintiff and all of Plaintiff's
representatives, attorney, collection agencies or staff see Exhibit B.
16. See Defendant's response to No.8.
17. Plaintiff's denial of Defendant's New Matter no. 17 constitutes perjury on the part
of Plaintiff. Plaintiffis well aware that Plaintiff reported to all major credit bureaus a
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delinquency on the part of Defendant, when in fact, as evidenced by Exhibits A and B,
Defendant was continuing to dispute the alleged account without any satisfactory resolution. By
reporting derogatory information, Defendant's credit was damaged in violation of the Fair
Credit Reporting Act and Plaintiff's denial of such activity is perjury. Defendant attaches a
copy of Defendant's credit report as Exhibit C, proving Plaintiff's actions against Defendant and
thus proving their denial to be false concluding perjury by Plaintiff.
WHEREFORE Defendant respectfully requests that the Court dismiss this action based
on Plaintiff's admission that no money was lent and no extension of credit was given. Without
these two elements, Plaintiff breached the agreement and failed to lend Defendant any monies,
thus there is no debt owed and this action is brought in bad faith and with unclean hands.
Dated this t'J-7~ day of the month of~'~e.,~e.-'~r 2003
;ilip A/bayasekara fi/
17 Round Hill Rd.
Camp Hill
Pennsylvania 17011
I hereby certify that a copy of the foregoing was mailed by first class US mail in a pre-paid
envelop to the Attomey for Plaintiff on the [,q.-F/~ day of the month of~~ 2003.
Dilip A~bayesekara
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Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, Pennsylvania 17011
DISCOVER BANK,
Plaintiff,
VS.
DILI~ ABAYASEKARA
Defendant
) COURT 0]7 COMMON PLEAS
) COUNTY OF CUMBERLAND
)
) CWIL ACTION
) ...... Term .........
)
) No.03-5363 Civil Term
)
)
.)
DEFENDANT'S RESPONSE TO PLAINTIFF'S ANSWER DEFENDANT'S REQUEST
FOR ADMISSIONS
COMES NOW the Defendant and responds to the Plaintiff's answer to Defendant's
Request for Admissions:
22. Plaintiff denies that it agreed to loan money to Defendant. Furthermore, Plaintiff
has also submitted an admission that it did not extend a line of credit to Defendant. Since
Plaintiff did not in fact loan money or extend credit, then Defendant requests the Plaintiff explain
to this Court what transactions occurred in the purported agreement, and what the cardholder
agreement states will occur.
23. Plaintiff denies that it used money as consideration in exchange for Defendant's
promissory note, thus proving that Plaintiff monetized Defendant's promissory note; depositing
the promissory note into Defendant s account as money, and thus did not provide any funds to
Defendant for disbursement to vendors/retailers. Plaintiffis admitting that Defendant's
Dilip Abayasekara
17 Round Hill Rd.
Camp Hill, PA 17011
Sent Certified Mail Return Receipt
Requested
Certified Mail
Eric M. Berman, P.C.
500 West Main Street, Suite 212
Babylon, New York 11702
October 5, 2003 EXHIBIT A
Your Ref: 180778
Account #: 6011-0033-3052-1897
Greetings:
I, DiIip Abayasekara, haye receiwd a letter/communication from you, Eric M. Berman, P.C. addressed
to the al!Sged debtor, DILIp ABAYASE, wherein you State that you are handling account number, 6011-
0033-3052~! 897 and vfherein you state that Discover is creditor, and whe?ein you request payment ~f
an allegsd balance due and owing on account number 6011-0033-3052-1897.
Thank you for your recent response to my request for validation. This is not a refusal to pay, but a
notice that your claim remains disputed. Your response did not include sufficient information to
establish your claim or meet the requirements of the Fair Debt Collection Practices Act. Again, I
dispute your debt collection-related allegations, deny the same, and demand strict proof and verification
thereof. This dispute, denial, and demand are made in accordance with federal law.
The documentation provided by you, does not prove that Disco,~er actually loaned [heir or their
depositor's money to DILIP ABAYASE to fund any charges that may have been made by DILIP
ABAYASE. I present the following questions below; which by answering truthfully will prove whether
Discover loaned DILIP ABAYASE the money that they say was loaned.
1. Did Discover, write a check on Discovers own account with Discover's own money to directly
fund account number 6011-0033-3052-1897?
2. Did Discover debit from Discover's own account with Discover's own money and credit account
number 6011-0033~3052~18977
31 ~'r°m'v~hat acc~unt'nurnb~r Wa~S c0°ney transferre~ and Credited t~ a~count number. 6011-0033-
13052;~1897 to fund the alleged ~ransactionspresented on the statements provided? .
41 What !S [he nam~ ~f th~ financial institution(s) Shat fUnded the loan of money to account number
6011-0033-3052-1897?
5. Name the source, or name the account number, from which Discover transferred money to fund
account number 6011-0033-3052-1897.
6. Did Discover endorse Abayasekara's credit card application?
7. Did Discover use an endorsed credit card application to fund a checking account which was
then used as the source of funds to pay retailers/vendors?
8. Did Discover give notice to and get permission from Dilip Abayasekara to deposit said endorsed
credit card application in a checking account?
Form BVC Page 1
9. Identify the source of, or name the account number from which Discover debited its own funds
which was used to fund account number 6011-0033-3052-1897 which was then used to pay
retailers/vendors.
10. If Discover did not use Discover's own money from Discover's own account to fund account
number 6011-0033-3052-1897, identify the financial institution(s) and the account number from
where money was debited to credit account number 6011-0033-3052-18977
In accordance with the UCC §3-501 (2) and in order to prove your alleged claim of a loan made by
Discover to DILIP ABAYASE, please provide the oriqinal credit card application or a certified true,
correct and complete copy of said credit card application which DILIP ABAYASE signed as part of the
loan arrangement.
UCC §3-501 (2) says in pertinent pad:
"Upon demand of the person to whom presentment is made, the person making presentment
must exhibit the instrument .... "
In order to prove that the charges claimed on Discover's alleged statements were charges made by
DILIP ABAYASE, please produce the original credit card vouchers/charge slips with DILIP ABAYASE's
signatures thereon, which will evidence DILIP ABAYASE promise to pay the charges incurred therein to
Discover in accordance with the card member agreement.
Your failure to provide the original charge-slips will cause me, Dilip Abayasekara, to be me justified by
law to refuse to accept and pay your demand to pay pursuant to UCC §3:501 (3) which says:
"Without dishonoring the instrument, the party to whom presentment is made may.., refuse
payment or acceptance for failure of the presentment to comply with ... applicable law."
The applicable law in such case would be UCC §3-501 (2) as quoted above.
Should you fail to present to me the above-demanded account numbers, 1 will presume that your failure
to do so constitutes a knowing and willing tacit admission and confession by you, Eric M. Berman, P.C.
and Discover that Discover did not use Discover's own money to discharge obligations owed to said
retailers/vendors by the alleged debtor, DILIP ABAYASE, but that Discover instead used the credit of
myself, Dilip Abayasekara, to do so.
Please be advised that pursuant to UCC §2-609 (4) should you fail [o present said instruments, such
failure will constitute a repudiation by Discover of the loan agreementJcontract between Discover and
DILIP ABAYASE
Your presentment of statements, which show alleged charges, or another alleged claim, without the
supporting evidence outlined above does not present an evidenced claim against me.
In order for a loan to have been made, there must be consideration. Please identify the consideration
that was given by Discover to DILIP ABAYASE at the time of the signing of any agreement - which
must be evidenced by the ori,qinal application, proving it has not been altered or endorsed without
DILIP ABAYASE's consent.
Form BVC Page 2
In accordance with my rights under the Uniform Commercial Code Section 2-609 and Section 3-501
and the Fair Debt Collection Practices Act, this is my written notice that the contract between Discover
and DILIP ABAYASE has been repudiated by Discover's failure to perform under the terms of the
agreement. This is my demand to you to cease and desist from all collection activities, to cease
and desist phone contact with me or with any third party, and to cease and desist from
derogatory credit reporting to any third party until this disputed debt is resolved by Discover's proper
performance under the agreement and by Discover's presentment to me of each credit card
vouchers/charge slip claimed owed.
You are given thirty (30) days in which to respond to the above questions and demand for production of
original documents including the original charge slips which will evidence DILIP ABAYASE's genuine
signature proving that charges alleged on the statements provided by Discover or by yourself, were
made by DILIP ABAYASE. Your failure to respond to this notice will allow me to presume that you
have ceased all collection efforts in regards to account number 6011-0033-3052-1897.
Sincerely
Form BVC Page 3
NOTICE OF CARDHOLDER BILLING DISPUTE
THIS iS NOTA REFUSAL TO PAY
DiIip Abayasekara
17 Round Hill Rd.
CampHiII, PA 17011
To:
Disputes Department
Discover
P.O. Box 15192
Wilmington, DE 19850-5192
Date: June 28, 2003
Alleged credit card number 6011-0033-3052-1897
Amount in dispute $2,952.35
Sent by:
~ Certified Mail, Return receipt requested
Cert, Mail
EXHIBIT
Greetings:
This letter is my notice to you that I am disputing your account rendered for account number 6011-
0033-3052-1897, and that I am not refusinq to pay said account rendered.
Your account rendered implies that you have loaned me your money or your credit. Case law
indisputably has ruled that a bank cannot loan its oWn credit:
1. "Banks are not eleemosynary institutions. They may lend their money but not their credit",
"eleemosynary"-charitable, not-for-profit.
2. "Banks are expressly authorized...to lend money upon personal security; they are without
r!ght to loan their credit either under such express authority or under their incidental
powers." Howard and Foster Company vs. Citizen's National Bank 130 S.E. 759
3. "A bank can lend its money but not its credit." First National Benk vs. Monroe, 69 S.E. 1123,
1 I24.
4. "A bank can lend its own money and that of others deposited with it for a profit .... It is
money, not its credit, that a bank is to lend .... Neither as included in its powers nor
incidental to them is it a part of a bank's business to tend its credit.", A Treatise On The Law
Of Banks And Banking by John T. Morse, Jr.
United States Code,Title 12, Section 24 declares that banks "shall have power to carry on the business
of banking....by loaning money on personal securities." This sectio~ dees not authorize banks to loan
their credit.
If you have not loaned roe your credit but in fact have loaned me your money or your depositor's
money, please provide me with documentary evidence showing from which account you have drawn
said money, owned by bank or bank's depositors, to fund account number 6011-0033-3052-1897
transactions.
However, Modern Money Mechanics, a workbook issued by the Federal Reserve Bank of Chicago, on
page 6 declares that "Banks .... do not really pay out loans from the money they receive as
deposits...What they do when they make loans is to accept promissory notes in exchange for credits to ·
the borrowers' transaction accounts." Page 7 says that "Loans are made by crediting the borrower's
account, i.e., by creating additional deposit money."
If you have loaned me my credit and by your account rendered are attempting to collect from me an
alleged debt allegedly owed to myself, please be advised that common law and case law irrefutably
declare that no one can owe a debt to himself nor can anyone be compelled to pay to himself a debt
alleged by another to be owed to himself.
Please be advised that I have never authorized you to treat my credit-card- application signature as a
promissory note granting you a icon of my credit. Nor have I authorized you to monetize my credit-
card-application signature and to pay out my monetized credit. If ycu have monetized my credit-card-
application signature as my promissory note without authority from rne to do so and without disclosure
to me that you have done so and if you have paid out my monetized credit without authority from me to
do so and without disclosure to me that you have done so, then you have engaged in fraud by omission
and have fraudulently concealed material matters of fact from me for purposes of fraudulent conversion
and unjust enrichment.
Aisc, if your account rendered to me in the form of a credit-card-statement is an attempt by you to
collect my funds from me to replace your unauthorized, undisclosed payout of my unauthorized,
undisclosed monetized credit, please be advised that such collection is an unscrupulous,
unconscionable, illegal and unlawful attempt by you to collect from me for your ~ossession and use an
alleged debt I allegedly owe to myseIf. Such attempted collection constitutes by false pretenses and
false representations an attempt to fraudulently convert to your possession and use funds that I control
and that I have never knowingly, understandingly, willingly and freely granted to you as a loan of my
credit.
If you in fact claim that you have loaned me the bank's money, the bank depositors' money or some
third party's money, please be advised that I have never received such money and that l am still waiting
for you to loan it to me. If your credit card statement is an attempt to collect said loaned money, please
provide me with documentary evidence that you have sent and that I have received said money.
Since this is a disputed debt and not a refusalto Cay, you have no right to repeal to any third party any
derogatory credit information other than that this debt is disputed per the Fair Credit Billi,~g Act section
t62 which states:
"After receiving notice from an obligor as provided in section 161 (a), a creditor or his agent may
not directly or indirectly threaten to repor~ any person adversely on the obliger's creditrating or
standing because of the obliger's failure to pay the amount incicated by obligor under section
161 (a)(2) and such an amount may not be reported delinquent to any third party until the
creditor has met the requirements of section 161."
In accordance with my rights, this is my written notice to you prohibiting you from contacting me or my
employer, my bank or any other third party by telephone. You may write to me, but do not call me.
This notice of cardholder dispute establishes prima facie evfdence as '!o the assertions made herein
and is taken pursuant to the Truth in Lending Act & Fair Credit Billing Act, 15 USC § 1666 et seq. and
Public Law 93-495- October 28, 1974, and 12 CFR 226.13, et seq.
I rc,~p~r-ff~ dh/ m^/elf VoLIr proper recpence to thi6 nntinn nf flinpllfo within tcn da,?,.~ up,-,~-, r,"_c,*.ipl fl',~, ~, ,r
Please be advised that if you fail to timely and properly respond to this notice in its entirety, I will
presume that your failure to do so constitutes a tacit admission by you to me that you totally agree with
me that:
Discover monetized cardholder's credit and bank paid out cardholder's monetized credit
¢,,~nout out, ,o, ,z~,,~,n from cardholder and disclosure to cardhoider constituting fraud by
omission and fraudulent concealment of material matters of fact.
Discover's account rendered in the form of a credit card statement is an unscrupulous and
unconscionable attempt to conved cerdholder's property to Discover's unwarranted
possession and use by Discover paying out my unauthorized, monetized credit as if it were
Discover's money and fraudulently billing me for paying ()ut my own unauthorized,
monetized credit instead of Discover's own money.
NOTICE & DEMAND
1. CEASE AND DESIST COLLECTION ACTIVITIES
CEASE PHONE CONTACT WITH CARDHOLDER OR ANY THIRD PARTY
3. CEASE DERROGATORY REPORTING TO ANY THIRD PARTY
UNTIL THE DEBT IS VALIDATED
PRIOR TO VALIDATION OF PURPORTED DEBT
Pursuant to the Fair Debt Collection Practices Act, 15 U.S.C., Sec, 1601, 1692 et seq, this
constitutes timely written notice that the law requires I return the attached erroneous purported debt
which is unsigned and unattested, and which I herein discharge and cancel in it's entirety, without
dishonor, on the grounds of breach, false representation and fraud.
15 U.S.C., Sec. 1692 (e) states that a "false, deceptive, and misleading representation, in
connection with the collection of any debt" includes the false representation of the character or legal
status of any debt. It further identifies as a deceptive practice any th'eat to take any action that cannot
legally be ~ ~'~,-
The Notice you have sent omits information that is required tc be disclosed, such vital citations,
disclosing the agency's .jurisdictional and statutory authority. Said Notice further contains false,
deceptive and misleading representation, and allegations intended to intentionally pe~ert the truth for
the purpose of inducing one, in reliance upon such, to part with property belonging to them and to
surrender certain substantive legal and statutory rights. To act upon this Notice Would divest one of
his/her property and their prerogative rights, resulting in a legal injury.
Pursuant to 15 U.S.C., Sec. 1962 (g)(4) Validation of Debts. if you have evidence to validate
your claim that the ~'+o,--~-~, -' ' .
¢~,~,~u does not constitute , , ~, ~ .......... .,a~ one owes
,rau,~u~nt m,s, ep, e~n,~,lu,, and *'- · this
alleged debt to your entity, this is a demand that within ten (10) days, you provide such validation and
supporting evidence to substantiate your claim. Until the requirements of the Fair Debt Collection
Practices Act have been met and your claim is validated, you have ne/urisdiction to continue any
collection activities.
This is constructive notice that, absent the validation of your claim within ten (10) days, you
must cease and desist any collection activity and ~ou are hereby pro.~ibited from contacting me. by
telephone, in ~erson, at my home. or at work. You are further prohibited from contactinq my
bank, my employer or any third party. Each and every attempt of such contact, in violation of this
Act, will constitute harassment, defamation nf nh~r~rffor ~na ~,ill ~'LIJDjeCt ),our agonny nnd/or b,,:,~,rd
u-~ciudir~g ~y and all agents in his/her/their capacity, who take part in such harassment and defamation
to a liability for actual damages, as well as statutory damages up to $10,000.00 for each and every
violation plus a further liability for legal fees to be paid to any counsel which ! may retain. Furthermore,
absent such validation of your claim, you are prohibited from filfng any notice of ffen and/or levy.
state my pcsffion in the above matter
and are also barred from reportinq any derogatory credit information to any Credit Reportinq
Agency, e~o, ~mg, ,,~ u,~pu,ed purporled debt.
Should Discover violate any of the following three items:
1. Discover is prohibited from collection activity.
2. Discover may not phone cardholder or any third party.
3. Discover is prohibited from reporting to any third party.
Please be advised that the following penalties may apply to any illegal actMty on your part and
may apply in the subsequent seeking of damages on my pad:
1, AM5-DP- Federal right to due process
2. AM7-TJ - right to common law trial byiury
3. AM13-SIS - involuntary servitude
4. AM14-DP- State right to due process
5. 18 USC 35 - false witness
6. 18 USC 208 - unauthorized financial interest
7. 18 USC 241 - conspiracy against rights
8. 18 USC 242 - deprivation of rights
9. 18 USC 287- making false claims
10. 18 USC 876- mail threats
11. 18 USC 1001 - falsification of documents
12.18 USC 1018 - executing known false documents
13. 18 USC 1341 - schemes to defraud $1,000,000
14. 18 USC 1343 - wire fraud $1,000,000
15. 18 USC 1344- bank fraud $1,000,000
16. 18 USC 1345-fraud $ 10,000
17.18 USC 1581 - subjecting one to peonage $ 10,000
.18. 18 USC 1621 - perjury in any statement $ 10,000
19. i $ USC 1622 - subornation of perjury $ 10,000
20. 18 USC 1623 - false declarations before a court $ 10,000
21. 18 USC 1652- citizens as pirates $1,000,000
22. 18 USC 1660- receipt of pirated property $ 10,000
23. 18 USC 1661 -onshore piracy $1,6100,000
24. 18 USC 1951 -interference with commerce $ ;'.50,000
25.18 USC 1952 - use of mails for unlawful activity $ 250,000
26.18 USC 1957 - unlawful monetary transactions $ 10,000
27. 18 USC !96i - racketeering by extortion $I,000,000
28. 18 USC 1962- income from racketeering $1,000,000
29.42 USC 1981 - right to contract $ 10,000
30.42 USC 1982 - right to hold private property $ 10,000
31.42 USC 1985 -interfering with civil rights $ 250,000
32.42 USC 1986 -willful neglect to prevent a cdme $ 5,000
33.42 USC 1944- violation of prohibited peonaqe $ 250.000
10,000
10,000
250,000
10,000
1,000
250,000
10,000
10,000
10,000
10,000
10,000
1,000
Total possible penalties a-nd/or damages:
$8,677,000
true, correct and complete.
Date: ~ o ~ ~
I h~rc, h)z ~ff¢¢f +hgt. to tho hnnf nf mv Irnr,,,,,..,,I- -L-~. ~.v,,-I f,.l:~r if, ~l ri .... i .......~ .........
Reference: 1-03288-507524-990
je Two
ccount Name/Number (Sources) Past due Last
Open High Pymt Balance MOP Status Rptd 30 60 90+ MR Dlq
Accounts under subject:
CB&T/ASPIR/4146850002303415 (EFX*,XPN-1238700*,TUC*)
I 07-99 6404 198 6597 R-5 DEL 120 2_0-03
Hist: 09-03 543211111111111111112211 CLSD 09-03
CLOSED
CLOSED BY CREDITOR
$700 PAST DUE; RPTD 10-03
HHLD BANK/5443470000097740 (EFX-163BB17492*,XPN,TUC*)
I 05-95 7435 104 5194 R-9 COLL/P&L 09-03
Hist: 09-03 9 ........... 2 ........ 2--
$204 PAST DUE; RPTD 09-03
ACCOUNT SUBMITTED TO COLLECTION
ACCOUNT IN DISPUTE; RESOLUTION PENDING; RPTD 09-03
ACCOUNT IN DISPUTE
03 01 02 49 09-03
05 01 08 70 09-02
HFC - USA/28026319100007 (EFX-155FP22776*,XPN*,TUC*)
I 01-97 12451 96 4716 R-1 CURRENT 09-03 07 02 02 78 11-02
Hist: 09-03 111111111121212121111121 CLSD 05-03
CLOSED
CLOSED BY CREDITOR
AES/PHEAA/26243136500001 (EFX-496ZZ00510)
I 08-03 4657 4000 4657 I-1 CURRENT 09-03
Hist: 09-03 1 LACT 09-03
STUDENT LOAN
00 00 00 01
CITI/542418003654 (EFX-906BB00040*,XPN*,TUC*)
I 12-84 6800 81 3928 R-3 DEL 60 09-03 01 03 05 99 09-03
Hist: 09-03 312111111111111111111111 LACT 05-03
CLOSED BY CREDITOR
$235 PAST DUE; RPTD 09-03
~DISCOVER FINANCIAL SVC/601100333052 (EFX-155BB03747*,XPN*,TUC*)
-- £ O6-gb 3303 60 2858 R-4 DEL 90 10-03 08 01 05 99 10-03
Hist: 10-03 443111111112211111111211 PYMT (]5-03
$249 PAST DUE; RPTD 10-03
CAPITAL ONE BANK/438864155997 (EFX,XPN-1270246,TUC)
I 05-99 312 15 514 R-1 CURRENT
Hist: 10-03 111111111111111111111111 PYMT
CURRENT ACCOUNT
10-03 O0 O0 O0 53
10-03
CAPITAL ONE BANK/517805217403 (EFX-850BB01498*,XPN*,TUC*)
I 03-02 626 15 476 R-1 CURRENT 09-03
Hist: 09-03 1111111111122111111 LACT 09-03
02 00 00 19 10-02
Exhibit C
~e Five Reference: 1-03288-507524-990
Account Name/Number (Sources) Past due Last
Open High Pymt Balance MOP Status Rptd 30 60 90+ MR Dlq
~,DISCOVER FINANCIAL SV~/601100396018 (EFX*,XPN-3276502*,TUC*)
I 09-95 2376 44 1932 H-3 DEL 60 09-03 05
Hist: 09-03 321111223331111111221111 CLSD 09-03
CLOSED BY CONSUMER
CREDIT LINE CLOSED
$129 PAST DUE; RPTD 09-03
05 00 90 09-03
AMEX/028291285017595282 (EFX-402BB48257*,XPN*)
I 11-91 N/A 38 1283 R-9 COLL/P&L 09-03
Hist: 09-03 9 ....................... LACT 0!5-98
CLOSED BY CREDITOR
$52 CHARGE OFF 05-98
00 00 00 65
FIRST
I
USA BANK N A/5435551101799886 (EFX-458ON12801*,XPN*,TUC*)
03-96 874 17 874 R-9 COLL/P&L 08-02 03 01 08
Hist: 08-02 9555 ........ 666543221111 PYMT 06-02
CLOSED BY CREDITOR
ACCOUNT DEL 180
$131 CFL~RGE OFF 05-98
CAPITAL ONE BANK/438864164851 (EFX-850BB01498*,XPN*,TUC*)
I 01-00 668 0 -0- R-1 CURRENT 10-03
Hist: 10-03 111111111111111111111121 LACT 09-03
02 00 00
MACYS/339207165840 (TUC-D729D017)
I 02-93 2350 0 -0- R-1 CURRENT 12-02
Hist: 12-02 111111111111111111111111 PYMT 09-94
00 00 00
MACYS WEST/GECCCC/339207165840 (EFX,XPN-2311430,TUC)
I 02-93 2350 0 -0- R-1 CURRENT
Hist: 10-03 111111111111111111111111 LACT
CURRENT ACCOUNT
10-03 00 00 00
09-94
MBNA AMERICA/7498 (TUC-B1597029)
I 02-97 -0- 0 -0- R-U UNRATED 0:2-97
Hist: 02-97 - PYMT 02-97
00 00 00
WSFS/0206784274 (EFX-458FS00014*,TUC*)
I 05-91 379 0 -0- 0-9
Hist: 11-99 9 .................. 9
PAID
CHARGE OFF 04-98
30 DAY ACCOUNT
COLL/P&L 111-99
PYMT 04-98
00 00 00
WILMINGTON SAVINGS FUN/0206784274 (XPN-6840332*)
I 10-YR N/A N/A -0- I-1 CURRENT
Hist: 10-99 1 PYMT
PAID 10-99
CHARGE OFF 10-99
10-99
10-99
00 00 00
52 07-02
45 12-01
84
99
01
20
01
Continued on page Six
Our File No. 180778
ERIC M. BERMAN, P.C.
By: Robert M. Kline, Esquire
Identification No. 56479
198 Allendale Road, Suite 305
King of Prussia, PA 19406
(610) 265-7720
Attorneys for Plaintiff
DISCOVER BANK
c/o Eric M. Berman, P.C.
198 Allendale Road, Suite 305
King of Prussia, PA 19406
VS.
DILIP ABAYASEKARA
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION
CASE NO.: 03-5363
PRAECIPE TO SETTLE, DISCONTINUE AND END
TO THE PROTHONOTARY:
Please mark this action Settled, Discontinued and Ended.
Dated: October 20, 2004
Robert M. Kline, Esquire