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Home My WebLink About08-3597Our`File No.: 169899 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 NORTH STAR CAPITAL ACQUISITION ) LLC c/o Apothaker & Associates, P.C. ) 2417 Welsh Road, Suite 21 #520 ) Philadelphia, PA 19114 ) Plaintiff, ) vs. ) JOSE A YAMAGUCHI ) 326 HIGH MOUNTAIN RD ) SHIPPENSBURG, PA 17257-9663 ) Defendant. ) COURT OF COMMON PLEAS CUMBERLAND COUNTY N 0.: 0 8 - S 597 0, u; L "-aerA 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 ban 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 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 NORTH STAR CAPITAL ACQUISITION LLC c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff, VS. JOSE A YAMAGUCHI 326 HIGH MOUNTAIN RD SHIPPENSBURG, PA 17257-9663 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY OF- 3 S91 NO.. CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is NORTH STAR. CAPITAL ACQUISITION LLC c/o Apothaker & Associates, P.C., 2417 Welsh Road, Suite 21 #520, Philadelphia, PA 19114. 2. Defendant(s) is/are JOSE A YAMAGUCHI, an adult individual residing at 326 HIGH MOUNTAIN RD SHIPPENSBURG, PA 17257-9663. 3. Plaintiff, NORTH STAR CAPITAL ACQUISITION LLC, is the Assignee and Successor in Interest of Account #4031130700746019; and said account was issued to Defendant(s) by PROVIDIAN, the Original creditor. 4. Defendant received, accepted and used the account to its benefit. 5. This account is in default and Defendant(s) has an unpaid balance of $5,259.72. A true and correct copy of the total due and owing is attached hereto, made a part hereof and marked as Exhibit "A". 6. All credits, if any, to which Defendant(s) is entitled, have been applied to the account and are included in Exhibit "A". 7. Although demand has been made, Defendant(s) has failed to make payment of the amount due as above. % WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $5,259.72 and requests this Court award Plaintiff attorney's fees and costs to the extent permitted by applicable law. APOTHAKER AAO IATES , P.C. Attorneaintiff A Law Firm EnR Debt Collection BY: Dated: 6/9/2008 David J: Our File No.: 169899 VERIFICATION David J. Apothaker, EN. 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 t uns orn falsification to authorities. David thaker Attorney for Plaintiff DATE: 6/9/2008 NORTH STAR CAPITAL ACQUISITION LLC c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 JOSE A YAMAGUCHI 326 HIGH MOUNTAIN RD SHIPPENSBURG, PA 17257-9663 STATEMENT OF ACCOUNT Debtor's Name: Account Number Original Creditor: Balance Due: Our File No.: 169899 JOSE A YAMAGUCHI 4031130700746019 PROVIDIAN $5,259.72 EXHIBIT "A" 70 a r?l ell% *iq OD d a C) C._ S, r'- t„ ? N C._ C: CJl -n w -n f 77 FTi v? x'71 0 SHERIFF'S RETURN - REGULAR CASE NO: 2008-03597 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NORTH STAR CAPITAL ACQUISITION VS YAMAGUCHI JOSE A WILLIAM CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon YAMAGUCHI JOSE A DEFENDANT the , at 0018:46 HOURS, on the 17th day of June , 2008 at 326 HIGH MOUNTAIN ROAD SHIPPENSBURG, PA 17257-9663 JO YAMAGUCHI by handing to WIFE OF DEFENDANT 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 18.00 Service 14.00 Affidavit .00 Surcharge 10.00 .00 7 ? 4 2. 0 0 Sworn and Subscibed to before me this day So Answers: R. Thomas Klin 06/18/2008 APOTHAKER & ASSOCIATES By: - Deputy Sheriff of A. D. \w NORTH STAR CAPITAL AQUISTION LLC c/o Apothaker & Associates, PC 2417 Welsh Road, Suite 21 # 520 Philadelphia, PA 19114 Plaintiff V. JOSE YAMAGUCHI 326 HIGH MOUNTAIN RD SHIPPENSBURG, PA 17257-9663 Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 08-3597 CIVIL TERM PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the defendant, Jose Yamaguchi, by and through his legal counsel, Grace D'Alo and MidPenn Legal Services, and files these PRELIMINARY OBJECTIONS TO PLAINTIFF'S CIVIL ACTION COMPLAINT FIRST COUNT, and in support thereof avers the following: 1. Plaintiff is NORTH STAR CAPITAL ACQUISITION LLC, a company with its principal place of business at c/o Apothaker & Associates, PC 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (hereinafter "Plaintiff") 2. Apothaker & Associates is a law firm engaged in debt collection. 3. Defendant is Jose Yamaguchi (hereinafter "Defendant") 4. Plaintiff filed its complaint on June 16, 2008. Plaintiff's Complaint attached hereto as Exhibit A. 5. Plaintiff claims that it is owed the alleged balance on the account of the alleged original creditor PROVIDIAN and demands damages in the amount of $5,259.72 plus attorney's fees and costs. - ? PRELIMINARY OBJECTION PURSUANT TO PA. R. CIV. P. 1028(a)(2) (FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT) AND PA. R. CIV. P. 1028 (a)(5) (LACK OF CAPACITY TO SUE) FOR FAILURE TO PLEAD AND ATTACH ASSIGNMENT 6. Paragraphs 1 through 5 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 7. Plaintiff's Complaint is allegedly based upon a credit agreement entered into by Defendant and PROVIDIAN and has attached a "Statement of Account" to its complaint listing PROVIDIAN as Original Creditor. 8. Plaintiff is not a party to the alleged original agreement between Defendant and PROVIDIAN. 9. Pursuant to Pa. R. Civ. P. 1019(i), when a claim is based upon a writing, the pleader must attach a copy of that writing or provide explanation for its absence. ?U `'" 10. To the extent that any agreement pertaining to the alleged assignment of the account is written, the Complaint fails to comply with Pa. R. Civ. P. 1019(i) in that Plaintiff has failed to attach to its Complaint a copy of any written agreement showing the assignmi6t of the account from the alleged original creditor PROVIDIAN to Plaintiff or any explanation for the absence thereof. 11. Therefore, Plaintiff's Complaint fails to state a prima facie case that it is a valid assignee or holder in due course of PROVIDIAN or that it has lawfully acquired any rights''titi`? and/or interest in Defendant's purported account or debt or that Plaintiff has any standing' or capacity to sue Defendant as an assignee or holder in due course. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice for failure to conform to a law or rule of court'aritt;" lack of capacity to sue. r r PRELIMINARY OBJECTION PURSUANT TO PA. R. CIV. P. 1028 (a)(3) ;,,.: INSUFFICIENT SPECIFICITY IN A PLEADING) FOR FAILURE TO PROPERLY PLEAD ITEMS OR TIME, PLACE AND SPECIAL DAMAGES 12. Paragraphs 1 through 11 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 13. Plaintiff claims that it is owed the alleged balance on the account of the alleged original creditor PROVIDIAN in the amount of $5,259.72 and attaches as sole support thereof a "Statement of Account" purportedly showing such balance. 14. Such "Statement of Account" fails to specify the Defendant's request for products, goods or services or the amount, time and place of individual credit transactions. 15. Plaintiff fails to sufficiently specify the type and/or amount of the alleged debt owed, including the amounts and dates of the alleged charges, the amounts and dates of any payments made, the amounts and dates of any interest charges, and the amounts and dates of any other charges. .r,;i 16. Pa. R. Civ. P. 1019(f) requires that averments of time, place, and special damages shall' be specifically stated. 17. Plaintiff's general assertion of damages therefore is in violation of Pa. R. Civ. P. 101900) and renders Defendant unable to properly defend this action. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's complaint with prejudice for insufficient specificity in a pleading. PRELIMINARY OBJECTION PURSUANT TO PA. R. CIV. P. 1028(a)(2) (FAILURE`;d' PLEADING TO CONFORM TO LAW OR RULE OF COURT) FOR FAILURE TO ATTACH A WRITING 18. Paragraphs 1 through 17 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 19. Plaintiff bases its claim against Defendant on a credit agreement creating the account between Defendant and PROVIDIAN. 20. The "Statement of Account" attached to Plaintiff's complaint purports to represent Defendant's account, but is of unknown origin and authenticity, is not a credit agreement, and is not signed by the defendant. 21. Plaintiff has failed to attach any credit agreement or application for a credit agreement made or signed by Defendant. 22. Pursuant to Pa. R. Civ. P. 1019(i), when a claim is based upon a writing, the pleader must attach a copy of that writing or provide explanation for its absence. 23. To the extent that any credit agreement between Defendant and PROVIDIAN is written, Plaintiff's Complaint fails to comply with Pa. R. Civ. P. 1019(1) in that Plaintiff has failed to attach to its Complaint a copy of any such written agreement or any explanation for the absence thereof. WHEREFORE, Defendant respectfully requests that this Honorable Court'dismiss Plaintiff's Complaint with prejudice for failure to conform to a law or rule of court. PRELIMINARY OBJECTION PURSUANT TO PA. R. CIV. P. 1028(a)(2) (FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT FOR FAILURE TO PROPERLY VERIFY PLEADING 24. Paragraphs 1 to 23 of Defendant's Preliminary Objections are hereby incorporated'as `if fully set herein. 25. Plaintiff's Complaint is verified by David J. Apothaker, Esq. who is identified as Attorney for Plaintiff. 26. Under Pa. R. Civ. P. 1024(c), a verification must be made by "one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or A (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading." 27. The verification of Plaintiff's Complaint fails to conform to Pa. R. Civ. P. 1024(c) because David J. Apothaker does not appear to be one of the parties filing the pleading, nor does Plaintiff allege that all of the parties lack sufficient knowledge or information; or are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice for failure to conform to a law or rule of court. Date: y1o8' By 111 0 Gr 40 er St reet Carlisle, PA 17013 (717)243-9400 Respectfully submitted, MIDPENN LEGAL SERVICES Alo 1 uth NORTH STAR CAPITAL AQUISTION LLC c/o Apothaker & Associates, PC 2417 Welsh Road, Suite 21 # 520 Philadelphia, PA 19114 Plaintiff V. JOSE YAMAGUCHI 326 HIGH MOUNTAIN RD SHIPPENSBURG, PA 17257-9663 Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 08-3597 CIVIL TERM AFFIDAVIT OF SERVICE BY MAIL I, Grace D'Alo, do hereby swear that I served David J. Apothaker with Prelimi fitatiy`'`,J I Objections to Plaintiff's Complaint on June 24, 2008 by U.S. mail, to the person and address below: David J. Apothaker, Esquire North Star Capital Acquisition LLC c/o Apothaker & Associates 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 I, Grace D'Alo, verify that the statements made in this Affidavit of Service are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa.C.S., § 4,904 relating to unsworn falsification to authorities. Date: t 4 90 1 41 ?' r ?. ? . c.,. c? 7a ? ' 7? '? ?".a ? ,,? r t . ? ,? ? ( ? , P Our File No.: 169899 APOTHAKER & ASSOCIATES, P.C BY: David J. Apothaker, Esquire Attorney I.D.# 38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorney for Plaintiff NORTH STAR CAPITAL ACQUISITION LLC Plaintiff, vs. JOSE A YAMAGUCHI Defendant. FLECK-OFFICE THE DROTHONOTAR'f 2011 JUL 13 PM 1= 5 P CUMBERLAND COUNT'S PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-3597 PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & ASS Attorneys f A Law Firm Enga d it By: Dated: 7/5/2011 David J 1111111111111111111111111111 TES, P.C. bt Collection , Esquire