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HomeMy WebLinkAbout04-1103(H OF PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND JUDICIAL DISTRICT O9-1-O1 NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON.LEASNo. NOTICE OF APPEAL Notice is g~ven that the appellant has filed in the above Court of Common Pleas an appear from the iudgment rendered by the District Justice on the date and in the case mentioned below. DIRECT MERCHANTS CREDIT CARD BANW C/O BURTON NEI__L & SSOCIATES, P.C. W~ST CHFSTER PA 19381 cO3/O2/04,~,..o_ DIRECT MERCRAMTR CREDTT 20 ~ LT 20 ~ ~ This block will be signed ONLY when this notation is required under Pa. ~ ' . .... R.C .... P d P No. 1008B ~/1~ appeuant was ~la~mant (see Pa. R.C.P.J.P. This Notice of Appeal,~wben received by the District Justice, will operate as~-- No. 1001(6) in action before District Justice, he a SUPERSEDEAStothe judgment for possession in this case. ~ MUST FILE A COMPLAINT within twenty ~20) days after f~ling his NOT/CE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(?) in action before District Justice. IF NOT USED, detach from copy of not~ce of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon (Common Pleas No, , appellee(s), to file a complaint in this appeal Name of appellee(s) ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. RULE: To , appellee(s) Name of appellee ($) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of serwce of this rule upon you by personal serwce or by certified or registered mail. (2) If you do not file a complaint withi.n this time, a JU.DGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was~oy mail:is the date of mai~ing, Date: 20 AOPC 312-84 COURT FILE TO BE FILED WITH PROTHONOTARY I ,A'!, OF COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag DiSL No.: 09-1-01 CHARI~ES A. CLEMENT, Add~ess 400 BRIDGE STREET OLDE TOWNE COMMONS -SUITE 3 NEW CUMBERLAND, PA T~epho,e: (717) 774-5989 17070 DIRECT MERCHANTS CREDIT CARD BANK POB 356 C/O BURTON NEIL & ASSOC WEST CHESTER, PA 19381-0356 'r s 'rD NO F¥ YOU 'mA'r: Judgn~&~nt: [] Judgment was entered for: (Name) ]Judgment was entered against: (Name) NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS rDIRECT MERCHANTS CREDIT CARD BANK POB 356 C/O BURTON NEIL & ASSOC ~EST CHESTER, PA 19381-0356 / VS. DEFENDANT: NAME and ADDRESS ~-BRILLHART, FRED 152 LANCASTER BLVD MECHANICSBURG, PA 17055-3550 Docket No.: CV- 0000021- 04 Date Filed: 1/21/04 in the amount of $ .00 on: (Date of Judgment) ~/02/04 [] Defendants are jointly and severally liable. Da g e~s~J ] ma es willbe ass e on: [] This case dismissed without prejudice. [] Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 $ ~1 Portion of Judgment for physical damages arising out of residential lease $ (Date & Time) Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total Post Judgment Credits Post Judgment Costs Certified Judgment Total $ .00 $: .00 $ .oo $ .oo $ .oo $ $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETFLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. "A" 2'20"'Date ~ O' ~'~.~L' , District Justice certify that this is a true and correct copy of the record of the proceedings containing ihe judgment. Date , District Justice My commission expires first Monday of January, 2008 . AOPC315-03 DATE PRINTED: 3/02/04 2:33:21 PM SEAL BURTON NEIL & ASSOCIATES, P.C. By: Yale D. Weinstein, Esquire Identification No. 89678 26 South Church Street West Chester, PA 19380 (610) 696-2120 Attorney for Plaintiff DIRECT MERCHANTS CREDIT CARD BANK N.A. : Kierland 1, Suite 300, 16430 N. Scottsdale Road Scottsdale, Arizona Plaintiff FRED BRILLHART 152 Lancaster Blvd., Mechanicsburg PA 17055-3550 Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Oq--llt CIVIL ACTION - LAW COMPLAINT 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 (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 claim 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERENCE AND INFORMATION SERVICE Cumberland County Bar Assoc. 32 South Bedford Street Carlisle, PA 17013 Telephone No. 717-249-3166 or 800-990-9108 03-987 BURTON NEIL & ASSOCIATES, P.C. By: Yale D. Weinstein, Esquire Identification No. 89678 26 South Church Street West Chester, PA 19382 610-696-2120 Attorney for Plaintiff DIRECT MERCHANTS CREDIT CARD BANK N.A. Kierland 1, Suite 300, 16430 N. Scottsdale Road Scottsdale, Arizona Plaintiff FRED BRILLHART 152 Lancaster Blvd., Mechanicsburg, PA 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Defendant CIVIL ACTION - LAW Complaint 1. The plaintiffis Direct Memhants Credit Card Bank, N.A., with place of business located at Kierland I, Suite 300, 16430 N. Scottsdale Road, Scottsdale, Arizona. 2. The defendant is Fred Brillhart, who resides at 152 Lancaster Blvd., Mechanicsburg, Cumberland County, Pennsylvania. 3. At the defendant's request, plaintiff issued the defendant a credit card for the defendant's use in making credit purchases and securing cash advances subject to the terms and conditions governing the use of the credit card. Attached hereto, made a part hereof and marked Exhibit A is a true and correct copy of the terms and conditions. 4. The defendant accepted the credit card and the terms and conditions governing its use for the purchase of goods, merchandise and services and/or for cash advances from vendors who accepted plaintiff's credit card. In using the credit card, the defendant agreed to comply with the terms and conditions governing its use which included the obligation to pay plaintiff for all charges made in full upon receipt of the statement or in installments subject to monthly finance charges. 5. The defendant utilized the credit card by making/obtaining purchases of goods, merchandise and services and/or cash advances from vendors who accepted the credit card. Monthly statements were sent to the defendant which detailed the charges made to the account including finance charges, late and/or, over limit charges. The balance due for the charges made by the defendant including any finance charges, late or over limit charges is $3,852.70. 6. Defendant did not pay the balance due in full upon receipt of the billing statements and failed to make the required minimum monthly payment set forth in the billing statement. As such, defendant is in default of the terms and conditions governing the use of the credit card. 7. Although demand has been made by plaintiff upon defendant to pay the sum of $3,852.70, the defendant failed and refused to pay all or any part thereofi 8. Plaintiff alleges it is entitled to recovery of its attorneys fees from defendant pursuant to the terms and conditions governing the account. Plaintiff seeks recovery of attorneys fees in the sum of $770.54. Wherefore, plaintiff demands judgment against the defendant in the sum of $3,852.70, attorneys fees in the sum of $770.54 and the costs of this action. BURTO~ By: gEIL & ASSOCIATES, P.C. Weinstein, Esquire Iorney for Plaintiff The law firm of Burton Neil & Associates, P.C. is a debt collector. VERIFICATION Yale D. Weinstein, Esquire, being duly sworn according to law, deposes and says that he is the attorney for plaintiff, Direct Merchants Credit Card Bank, N.A., in the foregoing matter, that he is authorized to take this verification on its behalf; and that the facts set forth in the foregoing complaint are tree and correct to the best of his knowledge, information and belief subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Date: ~[//'~ / /~re / AFFIDAVIT L" NOTARIAL SIAL ] Joanne M. DiFrancesco, Notar,/Public] city orW~t ch~ste~ ch~t~ cotmty| Comml'tSiOll F~ItL~ July 25, ;OMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS,- JUDICIAL OISTRICT 09-1-01 NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMO. P EASNo. DY-- NOTICE OF APPEAL c Notice ~s gwen that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. appellant was C/a/mant (see Pa. R.C.P.J.P. ¥o. 10~7~(6) in action before District Justice, he MUST FILE A COMPLAINT w/thin twenty (20) days after fih'ng his NO TICE of APPEAL. This block will be signed ONLY when this notation is required un,er Pa. R.C.P.J.P. No. 1008B. , This Notice of Appeal, when received by the District Justice, will d;perate as~ a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy PRAEClPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT(see Pa. R.C.P.J.P. No. 1001(7) i'n action before District Justice. IF NO T USED, detach from copy of notice of appeaJ to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon (Common Pleas No. appellee(s), to file a complaint in this appeai Name o f appellee ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. RULE: To appellee(s) Name of appellee(s/ (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the.:date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WI LL BE ENTER ED AGAI ~I~_T_ Y(~ (3) The date of service of this rule if service was by mail is the date of mailing. Da~e: 20__. AOPC 312~ COURT FILE DEFENDANT FRED BRILLHART'S PRELIMARY OBJECTION PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 1028 AND 1033: MOTION TO CORRECT NAMES OF PARTIES: DIRECT MERCHANT cREDIT CARD BANK N.A. KIERLAND 1, sUITE 300 sCOTTSDALE ROAD scOTTSDALE, ARIZONA PLANTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND cOUNTY PENNSYLVANIA CIVIL ACTION - LAW TERM Nt~mber NO. 04-1103 FRED BRIILLHART 152 LANCASTER BLVD. MECHANICSBURG, PA. 17055 DEFENDANT DEFENDANT'S FRED BR1LLHART'S pRELIMARY OBJECTIONS pURSUANT TO PENNSYLVANIA RULES OF CILVIL PROCEDURE 1928 AND 1033: MOTION TO cORRECT NAMES OF PARTIES: COUNS~L__OF RECORD:. B~TON NEIL & ASSOCIATES, P.C. Yale d. Weinstein, Esquire ATTORNEY I.D. NO. 89678 26 south 26 SOUTH cHURCH sTREET WEST cHESTER, PA. 19382 FRED BRILLHART, PRO SE., pRF, LIMARY OBJEFCTIONS PURSUANT TO PENNSYLVANL~ RULES OF CIVIL PROCEDURE, 1028 AND 1033: MOTION TO CORRECT NAMES OF MPARTIES: R.CIV.P. 1033 NOW COMES, Defendant FRED BRILLHART, Pro Se moving to amendI and/or correct the name of the parties, under the Leave of Court, such that this Motion serves as Defendant's Preliminary Objection in response to the Plaintiffs Complaint; 1. The Plaintiff is not DIRECT MERCHANTS CREDIT CARD BANK, N.A. it is BURTON NElL &ASSOCIATES P.C. who is a debt collector.2 Pa. Rules of civil Procedure, Rule number 1033 2 Title 15 USCA section 1692(a)(6) The term "debt collector" means amy person who uses any instrumemality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692 f (6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of The Defendant moves for leave of the Court to file Preliminar./Objections on the ground that this BURTON NElL & ASSOCIATES, P.C. AND YALE D. WEINSTE1N, ESQUIRE, is a debt collector,3 who "regularly" engages in consumer- debt-collection activity, even when that activity consists of litigation in complete contravention to the laws of this Commonwealth4, and of this United States.~ which is the enforcement of security interests. HEINTZ v. JENKINS C.A. 7 (Ill.) (1995) 115 S. Ct. 1489, 514 U.S. 291,131 L. 2d 395; JUSTICE BREYER delivered the opinion of the Court. The issue before us is whether the term "Debt Collector" in the Fair Debt Collection Act, 91 Stat,874, 15 U.S.(;. 1692-1692o (1988 ed. Supp. V), applies to a lawyer who "regularly," through litigation, tries to collect consumer debts. The court of appeals for the Seventh circuit held that it does. We agree with the Seventh circuit and we affirm its judgment. Title 73 P.S. chapter 42, section 2207.03 "Debt Collector" (1) a person not a creditor conducting business within this Commonwealth, acting on behalf of a creditor, engaging directly or indirectly in collecting a debt owned or alleged to be owed a creditor or assignee of a creditor. Pursuant to title 15 USCA 16920): (b) Authorization of actions: _N~thino in this subehapter shall be construed to authorize the bringing, of le~,al actions by debt collectors. 3. The Plaintiff, BURTON NElL & ASSOCIATES, P.C. AND YALE D. WEINSTEIN, ESQUIRE is a Debt collector who is perpetrating a fraud6 upon on this Court, and the rights of this Defendant and has no legal standing to commence the claim in this Court?, and further Plaintiff, BURTON NEIL & ASSOCIATES, P.C. AND YALE D. WEINSTEIN, ESQUIRE has no legal standing to initiate legal action. 4. The Plaintiff BURTON NEIL & ASSOCIATES, P.C. AND YALE D. WEINSTEIN, ESQUIRE documents to this Court that state plainly on their face, that it is a debt collectors. 5. The Plaintiff, BURTON NEIL & ASSOCIATES, P.C. AND YALE D. WE1NSTEIN, ESQUIRE moved in a deceptive practice in violation of the laws of this Commonwealth9, and this United States.~° Wherefore, based on The Plaintiff's lack of legal standing to pursue this cause of action under the laws of this Commonwealth, the Defendant respectt~lly begs of this honorable Court: 1) To allow the Defendant's request and adopt this document as such Preliminary Objections in the interest of Justice. 2) Dismiss the Plaintiff's complaint with prejudice for its failure to state a proper claim upon which relief shall be granted under the laws of this Commonwealth. 11 And to reconsider the Judgment for the sake of justice. 3) That the Defendant recover reasonable cost and Pursuant to Pa. R.C.P. 1028(a)(5): Preliminary objections may be filed by any party to any pleading and are limited to the followino orounds: (5) [Llack of capacity to sue~ Pursuant to title 15 USCA 1692(i): (b) authorization of actions Nothing in this subchapter shall be construed to authorize the bringing of legal actions by debt collectors. Plaintiffhas served in this honorable court a Civil Action-Law, Complaint in Mortgage Foreclosure and the caption page is clearly marked, "THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." 9 Title 73 P.S. chapter 42, 2270.4. Unfair or deceptive acts or practices (a) By debt collectors.~It shall constitute an unfair or deceptive debt collection act or practice reader this act if a debt collector violates any of the provisions of the Fair Debt Collection Practices Act. (Public Law95-109, 15 U.S.C. §1692 et seq.). ~0 Title 16 CFR-Chapter 1 - Part 901, This part establishes procedures and criteria whereby States may apply to the Federal Trade commission for exemption of a class of debt collection practices within the Pennsylvania Rules of Court, State, Rules of civil Procedure, rule 1033 n Pursuant to Pa. R.C.P. 1512 NonSuit: the court may enter a nonsuit against the Plaintiffunder the same circumstances, subject to review in the same manner and with the same effect as in actions at law. 4) For such further relief that this hg~norable Court deems just3 and proper under the laws of this Commonwealth,'L and this United States. Wherefore, in light of the foregoing, the Defendant most laumbly and fervently moves this honorable court and grants Defendant's Preliminary Objections. For the sake of Justice, I am Very respectfully yours; APRIl; 6, 2004 FRED BRILLHART, Pro se Defendant ~2 Title 73, P.S. chapter 42, section 2270.5. enforcement and penalties (a) Unfair trade practices,--If a debt collector or creditor engages in an unfair or deceptive debt collection act or practice under this act, it shall constitutes a violation of the act of December 17, 19158 (P.L. 1224, No. 387), known as the Unfair Trade Practices and consumer Protection Law. ~3 Title 15 USCA Fair Debt Collection Practices Act. 5 PROOF OF SERVICE Now Comes, FRED BRILLHART, Pro-se and certifies that I did serve a copy of the foregoing document upon the following persons, BURTON NElL & ASSOCIATES, P.C., YALE D WEINSTEIN, 26 SOUTH CHURCH STREET, WEST CHESTER, PA. 19389 by placing a copy in an envelope with pre-paid first class postage addressed as follows and depositing same in a receptacle for pick up by the U.S. Postal Service. FRED BRILLHART, Pro se, Defendant APRIL 6, 2004 6 VERIFICATION I VERIFY THAT I HAVE REVIEWED TIlE FOREGOING DOCUMENT AND THAT I AFFIRM AND BELIEVE THAT IT IS THE TRUTH TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF BASED UPON MY PERSONAL AFFIRMATION SUBJECT TO THE PENALTIES OF 18 Pa. C.S. § 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. FRED BRILLHART, Pro se, Defendant APRIL 6, 2004 7 BURTON NEIL & ASSOCIATES, P.C. Yale D. Weinstein, Esquire, Id. no. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-692-2120 Attorney for Plaintiff DIRECT MERCHANTS CREDIT CARD BANK, N.A. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRED BRILLHART Defendant NO. 04-1103 CIVIL ACTION - LAW Answer to Preliminary Objections 1. Denied in part. Admitted in part. It is denied that the plaintiff is Burton Neil & Associates, P.C.. To the contrary, Burton Neil & Associates, P.C. is a law firm which represents the plaintiff Direct Merchants Credit Card Bank, N.A. in this action. It is admitted that the law firm of Burton Neil & Associates, P.C. as defined by federal and state law is a debt collector. 2. Admitted in part. Denied in part. It is admitted that the law firm of Burton Neil & Associates, P.C. engages in consumer debt collection activity. Plaintiff does not comprehend the intent of the allegation that the collection "activity consists of litigation in contravention of the laws of this Commonwealth and of this United States." Plaintiff believes and avers that the defendant down-loaded the objection from some web-site without any thought involved pertaining to the filing of preliminary objections. Plaintiff denies that its counsel filed the instant lawsuit in contravention of any law. To the contrary, the lawsuit was filed to recover a sum of money due plaintiff said indebtedness arising from the defendant's use of a Direct Merchants Credit Card Bank, N.A. credit card. 3. Admitted in part. Denied in part. It is admitted that the law firm of Burton Neil & Associates, P.C. as defined by federal and state law is a debt collector. It is denied that by filing this action on behalf of Direct Merchants Credit Card Bank, N.A. it perpetrated a fraud on the court. To the contrary, the action was filed on plaintiff's behalf to recover the balance owed it on a credit card account by the defendant. The allegation is further denied as being scandalous and impertinent. Plaintiff's counsel, by virtue of his license to practice law in the Commonwealth of Pennsylvania has "standing" to bring this action on behalf of plaintiff. By way of further response, defendant's inclusion of non-record foomoted material makes these objections impermissible "speaking demurrers." Finally defendant's pell-mell effort to evade his lawful obligation to pay his Direct Merchants Credit Card Bank, N.A. credit card bills incorrectly takes required statutory notices out of context and tries to make them sustain his mis-characterization of plaintiff's counsel's representation of its client. 4. Admitted. It is admitted that the Complaint states that the plaintiffs law firm is a debt collector. 5. Denied. The allegation which contains scandalous and impertinent matter and sets forth no facts in support of its conclusion is denied. The bald allegation that plaintiff s counsel moved in a deceptive practice is scandalous and impertinent and is otherwise denied as the allegation is a legal conclusion not supported by any facts to which a responsive pleading is required. Wherefore, plaintiffprays your Honorable Court will dismiss the preliminary objections. In making this communication, we advise our firm is a debt collector. ~n Neil/~ssociates, P.C. ~mey for Plaintiff Verification Yale D. Weinstein, Esquire is attorney for Plaintiff Direct Merchants Credit Card Bank, N.A. and verifies that the statements of fact made in the foregoing ~raswer to preliminary objections are tree and correct to the best of his knowledge and belief. The undersigned understands that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to the authorities. Dar . Yale D 'einstein, Esquire c ~ 'm PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. DIRECT MERCHANTS CREDIT CARD BANK Plaintiff V. FRED BRILLHART Defendant No. 1103 Civil Action-Law 2004 1. Matter to be argued: Defendant's Preliminary Obiections and Plaintiff's Answer thereto 2. Identify counsel who will argue case: (a) for plaintiff: BURTON NEIL & ASSOCIATES, P.C. Yale D. Weinstein, Esquire ID# 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 (b) for defendant: Pro Se Defendant Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055-3550 3. I will notify all parties in writing within two days that 1.his case has been listed for argument. 4. Argument Court Date: November 10, 2004 Yale D. Weinstein, Esquire Attorney for Plaintiff BURTON NEIL & ASSOCIATES, P.C. Yale D. Weinstein, Esquire, Id. no. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff DIRECT MERCHANTS CREDIT CARD BANK Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04 - 1103 CWIL FRED BR1LLHART Defendant: CWIL ACTION - LAW Certificate of Service Yale D. Weinstein, Esquire, being duly sworn according to law', deposes and says that he is attorney for plaintiff Direct Merchants Credit Card Bank, that he served a true and correct copy of the Praecipe for Argument and the Request to Sy~rtli ~n Briefs Only on the pro se defendant by first class U.S. Mail, postage prepaid on the~e set 25rth below. Y ~instein, Esquire PRAEC1PE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARy OF CUMBERLAND COUNTY: Please list the within matter for the next Argan~ent Court. DIRECT MERCHANTS CREDIT CARD BANK Plaintiff FRED BR1LLHART Defendant No. 1103 Civil.Action-Law 2004 1. Matter to be argued: Defendant's Preliminarv Objections and Plaintiff's Answer thereto 2. Identify counsel who will argue case: (a) for plaintiff: BURTON NEIL & ASSOCIATES, P.C. Yale D. Weinstein, Esquire ID# 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 (b) for defendant: Pro Se Defendant Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055-3550 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 10, 2004 / a/!e,//~i.~;instein, E squire l'tomey for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIRECT MERCHANT CREDIT CARD BANK Plaintiff, VS. FRED BRILLHART Case No.: 04 -1103 DEFENDANT'S OBJECTION TO SUBMISSION ON BRIEFS ONLY PUiRSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 211~ ORAL ARGUMENTS: Defendant DEFENDANT'S OBJECTION TO SUBMISSION OF BRIEFS ONLY PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 211 Ms. Taryn N. Dixon Court Administrator, Cumberland County One Courthouse Square Carlisle, Pa. 17013 Dear Ms. Dixon, Defendant hereby objects to Plaintiff's request for submission on briefs only. Pursuant to Rule 211 of Pa. C.R.P it is clear that, "Any party shall hawe the right to argue any motion and the court shall have the right to require oral argument. Defendant request oral arguments are heard on November 10, 2004. FrEd Bri'llfi~art, Pro-se IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIRECT MERCHANT CREDIT Case No.: 04 -1103 CARD BANK Plaintiff, VS. FRED BRILLHART Defendant CERTIFICATE OF SERVICE This is to certify that I, Fred Brillhart, certify that I served a copy of the foregoing documents thisthe 25th day of October ~ 2004, via U.S. Mail upon the following: Mr. Burton Neil & Associates, P.C. Yale d. Weinstein, Esquire 1060 Andrew Drive, suite 170 West Chester, PA 19380 Fred Brillh~rt~ ~ 152 Lancaster Blvd. Mechanicsburg, Penna. 117055 Ph. 1-717-766-1332 Pro-se IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIRECT MERCHANT CREDIT CARD BANK Plaintiff, VS. FRED BRILLHART Defendant Case No.: 04 -1103 DEFENDANT'S NOTICE TO PLAINITFF TO PRODUCE ORIGINAL DOCUMENTS PURSUANT TO PA. R.C.P. 205.3(b): DEFENDANT'S NOTICE TO PLAINITFF TO PRODUCE ORIGINAL DOCUMENTS PURSUANT TO PA. R.C.P. 205.3(b) NOTICE TO PLAINTIFF NOW COMES Defendant, Fred Brillhart and hereby gives Notice to Plaintiff, DIRECT MERCHANT CREDIT CARD BANK to produce the original documents concerning the above caption matter notice within 14 days of this notice to the terms of Pennsylvania Rules of Civil Procedure 205.3(b). Respectfully Submitted, Pro-se Dated: CERTICATE OF SERVICE Now Comes NON-ATTORNEY FRED BRILLHART, Pro Se, and certifies that on the above referenced date he did serve the person(s) listed below at the address indicated a copy of Defendant's NOTICE TO plaintiff under Pa. R. Civ. P. 205.3(b) in the above captioned matter by faxing a copy of same to 610-696-4111 and by mail by depositing same in a receptacle for the pick-up by the U.S. Postal Service, first class postage prepaid. Burton Neil & Associates, P.C. Burton Neil, Esquire 1060 Andrew Drive West Chester, Pa. 10380 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA DIRECT MERCHANT CREDIT CARD BANK · Plaintiff, Vs. FRED BRILLHART Defendant Case No: 04-1103 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as co-counsel of choice on behalf of the Defendant, Fred Bfillhart, in the above-captioned case. LIN MICHAEL CONKLIN Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle, Esquire I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 7614540 mcd@jdsw, com Attomeys for Plaintiff DIRECT MERCHANTS BANK, N.A., CREDIT Plaintiff CARD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-1103 FRED BRILLHART, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: AND NOW, this I0'~k day of November, 2004, enter the appearance of Mark C. Duffle, I.D. 75906, on behalf of Plaintiff in the above-captioned matter. The undersigned will act as second counsel to Burton Neil& Associates, attorneys for Plaintiff. :23891O Respectfully submitted, JOHNSON, DUFFLE, STE/~T.~IDNER I~rk C. Duffle ~. Attorney I.D. No. ?5906 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this ~[¢'- day of November, 2004, the undersigned does hereby certify that he did this date serve a copy of the within Praecipe to Enter Appearance upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Yale D. Weinstein, Esquire Burton Nell & Associates, P.C. 26 South Church Street West Chester, PA 19382 Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055 JOHNSON, DUFFLE, STE~.~%WEIDNER ~/Ioal~nsCo~,Dl~u~i~,Es~lUist~,v~ae~ & Weidner 301 Market Street Lemoyne, PA 17043-0109 Johnson, Duffie, Stewart & Weidner By: Mark C. Duffle, Esquire I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcd@jdsw.com Attorneys for Plaintiff DIRECT MERCHANTS BANK, N.A., FRED BRILLHART, Plaintiff Defendant CREDIT CARD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1103 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAEClPE TO WITHDRAW APPEARANCE AND NOW, this ~ on behalf of the Plaintiff. Plaintiff. ~k day of November 2004, kindly withdraw the appearance of the undersigned The offices of Burton Nell & Associates will remain counsel of record for the JOHNSON, DUFFLE, STEWART & WEIDNER Marl( C. Duffie / / Attorney I.D. No. 75906 :239170 CERTIFICATE OF SERVICE AND NOW, this /r2'~' day of November, 2004, the undersigned does hereby certify that he did this date serve a copy of the within Praecipe to Enter Appearance upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Yale D. Weinstein, Esquire Burton Nell & Associates, P.C. 26 South Church Street West Chester, PA 19382 Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055 JOHNSON, DUFFLE, STEWART & WEIDNER Deborah J. ,Z,C'e~m~, I..~gal Assistant Johnson, D~ie, S'~/'art & Weidner 301 Market Street Lemoyne, PA 17043-0109 DIRECT MERCHANTS CREDIT CARD, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRED BRILLHART, DEFENDANT 04-1103 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND HESS, J. AND NOW, this ORDER OF COURT ~ day of November, 2004, the preliminary objections of defendant to plaintiff's complaint, ARE DISMISSED. ,~, i . . ~ale D. Weinstein, Esquire Burton Nell & Associates, P.C. 1060 Andrew Drive, Suite 170 West Chester, PA 19380 ~lark C. Duffle, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 For Plaintiff ~red Brillhart, Pro se 152 Lancaster Blvd. Mechanicsburg, PA 17055 :sal IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIRECT MERCHANTS CREDIT CARD BANK Plaintiff v Fred Brillhart Defendant CIVIL ACTION-LAW NO. 04-1103 ANSWER AND NEW MATTER TO PLAINTIFF' S COMPLAINT CONTAINING CROSS-COMPLAINT Direct Merchants Credit Card Bank, David Westlink, individually And Jointly and Severally Plaintiff~Cross-Defendants Vs. Fred Brillhart Defendant\Cross-Plaintiff Fred Brillhart 152 Lancaster, Blvd. Mechanicsburg, Pa. 17055 717-766.-1332 Burton Neil & Associates Yale D. Weinstein, Esquire 1060 Andrew Drive West Chester, PA 19380 THE DEFENDANT/Cross-Plaintiff, Fred Brillhart, acting as my own attorney Brillhart hereby answers the Plaintiff's/Cross Defendant's [Brillhart hereinafter referred to as Plaintiff and/or Plaintiff/Cross-Defendant} 1. Defendant/Cross-Plaintiff suspects the Plaintiff is who it says it is, but is without sufficient information to conform or deny that fi~ct. 2. Admitted. 3. Defendant/Cross-Plaintiff denies, for the cause .of fraud, and related causes, paragraph no. 3 of PlaintifiPs Complaint. These reasons will be set forth, at least in outline form, in the Cross-Complaint below. The Visa account was funded by Defendant's/Cross-Plaintiff's credit application not the assets of DIRECT MERCHANTS CREDIT CARD BANK. 4. Admitted in Part and denied in part. The account was started with an account balance. Denied, Plaintiff did not give consideration. The Note[s] and contract speak for themselves as to their contents and it is affirmatively averred on information and belief that the averment in Complaint Count 1 through 8 is unenforceable for the 2 reason that on information and belief, the Bank altered the contracts by adding their undisclosed purpose to furnish no new consideration for the loan[si from funding sources other than the Defendants' Note[s]; It is further affirmatively averred that all Affirmative Defenses interposed in this answer are repeated hereinafter verbatim and asserted to this averment. 5. Admitted The Note[s] and contract speck for themselves as to their contents and it is affirmatively averred on information and belief that the averment in Complaint Count 1 through 8 is unenforceable for the reason that on information and belief, the Bank altered the contracts by adding their undisclosed purpose to furnish no new consideration for the loan[si from funding sources other than the Defendants' Note[s]; It is further affirmatively averred that all Affirmative Defenses interposed in this answer are repeated hereinafter verbatim and asserted to this averment. 6. Denied. It is admitted that the Note[s] and contracts speak for themselves as to the their contents and it is aff~rmatively averred on information and belief that the Bank altered the contracts by adding their undisclosed purpose to furnish no new consideration for the loan[s] from funding sources other than the Defendants' [s] Note[s]; It is further affirmatively averred that all Affirmative Defenses interposed in this Answer are repeated verbatim and asserted to this averment. 7. It is admitted that the Note[s] and contracts speak for themselves as to their contents and it is affirmatively averred on information and belief that the collection action is not effective within the meaning and terms of 13 Pa.C.S. §9203 [bi for the reason the Bank failed to make full disclosure of all the particulars of the transaction within their fiduciary duty to Defendant, did not give value for the Credit Application and/or Negotiable Instrument[s] and/or Note, The Bank did not give additional consideration of value to Defendant making the Credit Application and/or Note[s] unenforceable under Section [a] of 13 Pa. C.S.. §9203; It is further affirmatively averred that all Affirmative Defenses interposed in this answer are repeated hereinafter verbatim and asserted to this averment. o It is admitted that the Note[s] and contract speck for themselves as to their contents and it is affirmatively averred on information and belief that the averment in Complaint Count 1 through 8 is unenforceable for the reason that on information and belief, the Bank altered the contracts by adding their undisclosed purpose to furnish no new conside, ration for the loan[s] from funding sources other than the Defendants' Note[s]; It is further affirmatively averred that all Affirmative Defenses interposed in this answer are repeated hereinafter verbatim and asserted to this avermerLt. NEW MATTER COUNTERCLAIM 8a. Defendant/Cross-Plaintiff reaver and reassert and incorporate by reference paragraphs 1 through 8a above and same as if repeated herein. Defendant/Cross-Plaintiff reserves, by demand, his right to amend this Counterclaim, in the interest of justice, as the discovery process proceeds and new information become available to Defendant/Cross-Plaintiff [Brillhart} Cross Plaintiff and/or Defendant/Cross-Plaintiff]. 10. Defendant/Cross-Plaintiff for his counterclaim states to this Court the following: 4 11. Cross-Defendant DIRECT MERCHANTS CREDIT CARD BANK, [here after "Bank" and or Plaintiff/Cross-Defendant and/or Cross-Defendant] is possibly a chartered organization under the laws of the Commonwealth of Pennsylvania. 12. Cross-Defendant David Westlink is a Bank employee, loan officer and Assistant Manager of the Cross-Defendant Bank. 13. The Cross-Plaintiffs entered into a purported transaction on or about November 1988 under which Brillhart intended to borrow funds from the Bank. 14. Through the individual Cross-Defendant, David Westlink and Bank represented to Cross-Plaintiff that the Bank would commit to pay to Brillhart a "loan" of money, which sum of money it was understood by Cross-Plaintiff was to be an advance of new money funded by Cross Defendant Bank. 15. Cross-Plaintiff, David Westlink and Bank failed to disclose and/or deliberately and intentionally concealed from Cross-Plaintiff that the Cross- Defendants knew or should have known that the ]Bank intended to utilize the negotiable instrument signed or required by the Cross-Plaintiff to be signed by Cross-Defendant as the only value funding the loan, using generally accepted accounting procedures to create funds for the, "loan" by depositing the negotiable instrument signed by Cross-Plaintiffto the Bank's Demand Deposit Account thus increasing the assets and liabilities of Bank. According to Federal Reserve Literature, Congressional research, including a Congressional Committee on Banking Literature, the American Banking Association, expert witnesses, including former bank executives, documentations from other court cases and a former employee of the Federal Reserve Bank of New York and Cleveland will show that the Bank actually deposited Fred Brillhart's negotiable instrument allowing Brillhart to basically use his own value of his credit application to fund his purchases. 16. On information and belief, the Bank and Cross-.Defendant, David Westlink followed the aforementioned procedure with regard to the Note, which they required Cross-Plaintiff to sign. 17. The deposit by Cross-Defendant of the promissory note and/or negotiable instrument signed by Cross-Plaintiff was the sole source of funding for the face amount of the "loan]"granted to Cross-Plaintiff by Cross-Defendant. 18. The issuance by the Bank of a bank loan, using; a book keeping entry credit upon its books as a source of funds, is simply an even trade of the value of the promissory note for the cash created by the Bank as a result of the transaction, which facts were not disclosed to Cross-Plaintiff by the Cross-Defendant, but were concealed and hidden from the Cross-Plaintiff. 19. Without regard to the fact that Cross-Plaintiff had already been paid in full for the loan, (properly referred as an even exchange:) with his signed Promissory Note and/or Negotiable Instrument by depositing his note into a demand deposit bank account. 20. The Promissory Note and/or Negotiable Instrument was proffered as a separate contract and upon his signature became an immediate negotiable instrument available to the Bank for trading and/or selling in the stream of commerce, Brillhart by enabling the Bank to double its money received in the form of the promissory note(s), for which the Bank gave no new money or value within the meaning and terms of the unifoma commercial code. 21. The Cross-Defendants deliberately and intention:ally concealed the true nature of the transactions from the Cross-Plaintiff with the intention of defrauding Cross-Plaintiff out of further monies while fully knowing that Cross Plaintiff 11 were relying upon the Bank and Bank personnel's standing in a fiduciary relationship with Cross-Plaintiffto make full disclosure. 22. Such concealment and non-disclosure by Cross-Defendant vitiated Bank's rights under the contracts, notes and security agreements entered into between the parties, leaving Cross-Plaintiff exposed to actually pay the Bank twice, once with the value of the Cross-Plaintiff's Negotiable Instrument and the second by making payments and interest for a purported loan that was an even exchange. The Bank will be required to show the transactions or complete money trail covering four weeks prior and four 'weeks after the alleged credit card was issued. 23. Cross-Plaintiff demands a full accounting across the board of all account entries concerning the signed promissory note(s) in question that Bank put in the stream of commerce or otherwise posted for value on the books of the Bank. 24. Cross-Plaintiff further demand a full accounting of all funds and profits made by Bank, in the form of payment method (cancelled checks, money transfers, wire transfers and/or any other method of payments) to third parties arising out of or utilizing book-keeping entries posted to my demand deposit account and/or any ledger account bearing my name. If bank deposited Brillhart's Note, without his consent is that not conversion, fraud in the factum, non- disclosure, truth in lending violations, no consideration plus other state and 12 federal violations. 25. Cross-Plaintiff Brillhart demand a full accounting of all funds and 26. Profit's posted on the Bank's books based upon the Bank's transactions with the Cross Plaintiff. 27. WHISEFORE, Cross-Plaintiff demand judgment against Bank for all costs and damages occasioned by Cross-Defendant breaches of contract and the laws of Pennsylvania. COUNT 11- BREACH OF CONTRACT: 28. Cross-Plaintiff reaver and reassert and incorporate by reference paragraphs 1 through 28 above and same as if repeated BrillharL. 29. Cross-Plaintiff admits that he executed a promissory note and/or negotiable instrument -- which loan was represented by Bank officer to be a single loan transaction with a source of funding independent of the documents which Brillhart was required to sign; it is affirmatively averred on information and belief that this representation by Bank and Cross-Defendant was false and was a fraud on the Cross-Plaintiff in the following particulars: to wit: it is affirmatively averred on information and belief that: a. The Bank and Brillhart deposited the Note to a demand deposit account, 13 which increased the assets and the liabilities of Bank by the amount of the loan. Bank just monitized the value of Brillhart's promissory note, credit application and/or negotiable instrurnent and just simply deposited into an demand deposit account. Expert witnesses and former banking officials will testify to this under oath. This is the same as stealing the negotiable instrument of Brillhart without just compensation. This can be verified through discovery by an audit of the accounting ledgers of the Bank by a expert witness(s) Certified Public Accountant and other experts. The Bank's records through exarnination will show that Bank follows Generally Accepted Accounting Procedures ("GAAP") This was an even exchange of value not a loan. b. The Bank and Westlink committed fraud on the Brillhart by failing to disclose to his that Bank was monetizing the note and strictly funded the loan with the use of the Brillhart signed note. Brillhart's note actually "funded" the loan. Under the use of GAAP, Bank did not lend Brillhart anything. Brillhart funded his own loan with the value of his note. The Bank did not risk anything in this transaction. Co The Bank and Westlink further committed fraud on Brillhart by failing to disclose to Brillhart that the Negotiable Instrument(s) that Brillhart was being required to sign were negotiable instrument(s) which the Bank could then put into the stream of commerce and sell or trade for value, 14 eo by increasing the assets of the Bank, before any payments were made by the Brillhart. The Bank and Westlink committed fraud on the Brillhart by failing to disclose from the inception of their dealings with Brillhart that the Bank fully intended to double, triple and quadruple the Bank's profits on the transaction by requiring Brillhart to pay interest for the use of the Brillhart own valuable note. The Bank's having proceeded with the transaction in spite of its own knowledge that it was not funding the loan in question with a valuable consideration of Brillhart than that belonging to the Brillhart, constitutes an unauthorized alteration of the instrument of the Negotiable Instruments taken from the Brillhart contrary to section §§ 3407 of the Pennsylvania Uniform Commercial Code on Alteration. 30. Bank altered the contract by adding their undisclosed purpose to furnish no new consideration for the loan(s) from funding sources of Brillhart than the Cross-Plaintiff' Note. 31. The terms and provisions of 13 Pa. C.S.. §9203 have not been met under the totality of the circumstances of the dealings by the Bank with the Cross- Plaintiff; the Bank could not be a holder in due course of the promissory note and/or negotiable instrument(s) within the provisions of Pennsylvania's Uniform Commercial Code 13 Pa.C.S. §§ 3302. The bank did not make full disclosure of the manner in which the amount of money advanced or deposited 15 was being funded by the Debtors' own negotiable instruments; it is expressly denied that Cross-Defendants, David Westlink and Bank complied with all provisions of the uniform commercial code governing the law of contracts and are not enforceable by the Bank. 32. The facts of this case, as plead Brillhart rendered the Promissory Note and/or negotiable instruments that funded this purported loan and are unenforceable under Section (a) of 13 Pa. C.S. §9203; and 33. It is further affirmatively averred that all Affirmative Defenses and all paragraphs interposed in this Cross-Complaint are repeated verbatim and asserted to this averment. 34. Cross-Plaintiff admits placing his signature on a negotiable instrument in November of 1988 and affirmatively aver that same is unenforceable under the terms and provisions of the cited sections of the uniform commercial code as more particularly plead in his Answer and Cross-Complaint. 35. Cross-Plaintiff admits that the contract and agreement of the parties speak for themselves and it is affirmatively averred that the tYaud in the inception by the Bank and David Westlink vitiated any rights of the Bank in the Negotiable instrument and/or promissory note and the contract between these parties should be set aside and held for naught and full dmnages, and cost to make the Cross-Plaintiff whole are demanded. 36. Any claim by the Bank made under a default is subject to the terms and provisions of the Uniform Commercial Code at title 13 of Pa.C.S., including but not limited to §§ 3304 (c) and all sections cited in this Cross-Complaint; Any claim by Cross-Defendant is set off by the dmnages and claims accruing to the Cross-Plaintiff by virtue of the breaches by the Bank including its fraud 16 in the inception of the dealings between the parties, non-disclosure, consideration, breach of agreement and fraud in the factum. 37. DIRECT MERCHANTS CREDIT CARD BANK and David Westlink, Jointly; severely and individually liable under the fasts of this case. no are 38. WHISEFORE, Cross-Plaintiff demands judgment for compensatory damages for the wrongful acts of cross-defendants and for such of actions and further relief as is shown by the proofs in the premises of this action. RELIEF REQUESTED For his relief, Defendant/Cross-Plaintiff states and demands: 1. Defendant/Cross-Plaintiff, untrained in the law, reserves his right to amend this Cross- Complaint in the interest of justice, as more, information is made available to his. 2. Trial by jury on all issues triable by jury. A complete investigation into David Westlink's and/or his employees sworn verification subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsifications to authorities. o A Declaratory Order, from this Honorable court, that Defendant/Cross-Plaintiff can introduce predicate acts under the State Racketeer Influenced Corrupt Organizations Act. Including Mail, Wire Fraud and of other acts including and not limited to violations of any section of Title 15, U.S.C. that is discovered after discovery. The actual return of my negotiable instrument(s) arid or zeroing out this purported and disputed loan. 6. Punitive damages and other damages to be determined by the jury. 7. A complete investigation into the activities of Mr. 'Westlink and Burton Neil, 17 Esquire and Burton Neil & Associates because of'possible violations for lack of knowledge in this case and/or violations of Pennsylvania Law, Federal Law and the Pennsylvania's Canon of Legal ethics. 8. Such other relief as this Honorable court deems just, proper and equitable. Respectfully submitted Fred Brillhart Date 18 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIRECT MERCHANTS CREDIT CARD BANK Plaintiff v Fred Brillhart Defendant CIVIL ACTION-LAW NO. 04-1103 ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT CONTAINING CROSS-COMPLAINT VERIFICATION I, Fred Brillhart, verify that I have reviewed the foregoing document(s) and I Brillhart, hereby affirm and believe that it is the truth to the best of my knowledge, information and belief based upon my personal affirmation to the penalties of 18 Pa. C.S. {}4904 relating to unswom falsifications to authorities, ~Date~ //~ Fred Brillhart, Pro-se 19 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIRECT MERCHANTS CREDIT CARD BANK Plaintiff v Fred Brillhart Defendant CIVIL ACTION-LAW NO. 04-1103 ANSWER AND, NEW MATTER TO PLAINTIFF'S COMPLAINT CONTAINING CROS S- COMPLAINT CERTIFICATE OF SERVICE This certifies that I have, on this day of December 13, 2004, placed a true and exact copy of my ANSWER & CROSS-COMPLAINT in the U. S. Mails, first class postage prepaid, addressed to: Burton ]',Ieil & Associates Fred Brillhart Yale D. Weinstein, Esquire 1060 Andrew Drive West Chester, PA 19380 Date 20 BURTON NEIL & ASSOCIATES, P.C. NOTICE TO PLE,ad2): You are notified to plead to the Yale D. Weinstein, Esquire within Plaintiff's Preliminary Objections within twenty Identification No. 89678 (20) days of semice or a default judgment may be entered against you. West Chester, PA 19380 (610) 696~2120 Attorney for Plaintiff /v}tte D. Weinstein, Esquire, Attomey for Plaintiff DIRECT MERCHANTS CREDIT CARD BANK, N.A. :IN TI~COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. 04 - 1103 FRED BRILLHART Defendant :CIVIL ACTION - LAW Plaintiff's Preliminary Objections to Defendant's Answer and New Matter to Plaintiff's Complaint Containing Cross-Complaint(Counterclaim) Plaintiff, Direct Merchants Credit Card Bank, N.A., by its counsel, Burton Neil & Associates, P.C., hereby preliminarily objects to pro se defendant Fred Brillhart's "Answer and New Matter to Plaintiffs Complaint Containing Cross-Complaint" (Counterclaim), as follows: A. Failure to Conform to Law of Rule of Court-Pa.R.C.P. 1028(a)(2) 1. Defendant styles his pleading as "Answer and New Matter to Plaintiff's Complaint Containing Cross-Complaint." 2. Pa.R.C.P. 1017 provides the pleadings that are permitted irt a Civil Action. 3. Defendant utilizes Cross-Complaint and Counterclaim in his responsive pleading. 4. A Cross-Complaint isn't a responsive pleading pursuant t¢, Pa.R.C.P. 1017. WHEREFORE, plaintiff moves the Court to strike defendant's Cross-Complaint against plaintiff under Pa. R.C.P. 1028(a)(2) as per the proposed Order attaclhed. B. Failure to Conform to Law or Rule of Court-Pa.R.C.P. 1028(a)(2) 1. Defendant's Answer alleges Affirmative Defenses interspersed within his Answer. 2. Pa. R.C.P. 1030 provides that Affirmative Defenses "shall be pleaded in a responsive pleading under the heading 'New Mater'." 3. Defendant fails to plead his Affirmative Defenses under "New Matter." WHEREFORE, plaintiff moves the Court to strike defendant's Answer and Affirmative Defenses against plaintiff under Pa. R.C.P. 1028(a)(2) as per the proposed Order attached. C. Failure to Conform to Law or Rule of Court-Pa.R.C.P. 1028(a)(2) 1. Defendant alleges a "Note" was executed throughout his Answer, New Matter and Cross- Complaint. 2. Defendant does not aver time and place of this "Note" in violation of Pa.R.C.P. 1019(f). 3. Defendant does not attach a copy of this "Note" to the pleading in violation of Pa.R.C.P. 1019(I). 4. Plaintiff is unable to respond to these allegations. WHEREFORE, plaintiff moves the Court to strike defendant's Answer, New Matter and Cross Complaint against plaintiff under Pa. R.C.P. 1028(a)(2) as per the proposed Order attached. D. Failure to Conform to Law or Rule of Court-Pa.R.C.P. 1028(a)(2) 1. Defendant avers that Plaintiff committed fraud in paragraph 3 of his Answer. 2. Defendant fails to plead the allegation of fraud with material facts which violates Pa.R.C.P. 1019(a). 3. Defendant fails to plead his averment of fraud with particularity pursuant to Pa.R.C.P. 1019(b). WHEREFORE, plaintiff moves the Court to strike defenda:at's Answer, plaintiff under Pa. R.C.P. 1028(a)(2) as per the proposed Order attached. E. Failure to Conform to Law or Rule of Court-Pa.R.C.P. 1028(a)(2) 1. Defendant demands for evidentiary documents, where evidence is not required in the pleadings under Pa.R.C.P. 1019 and a demand for documents is outside the scope of pleadings allowed under Pa.R.C.P. 1017(a). 2. Defendant fails to plead his cause of action and defense with the material facts in violation of Pa. R.C.P. 1019(a). WHEREFORE, plaintiff moves the Court to strike defendaaat's Answer, New Matter and Cross Complaint against plaintiff under Pa. R.C.P. 1028(a)(2) as per the proposed Order attached. F. Legal Insufficiency of a Pleading (Demurrer)-Pa.R.C.P. 1028(4) 1. Defendant alleges that he provided a negotiable instrument to Plaintiff to fund his loan in his Answer, Affirmative Defenses and Cross-Complaint. 2. Plaintiff pled that a credit card was issued to the Defendant. 3. Attached as Exhibit "A" to the Complaint were the terms and conditions of the account. 4. Defendant failed to pay the balance due Plaintiff. 5. Defendant fails to establish a cause of action and is therefore legally insufficient. WHEREFORE, plaintiff moves the Court dismiss with prejudice Defendant's Affirmative Defenses and Cross Complaint under Pa. R.C.P. 1028(a)(4) as per the proposed Order attached. G. Legal Insufficiency of a Pleading (Demurrer)-Pa.R.C.P. 1028(4) 1. In paragraph 4 of the "Relief Requested" Defendant requests a Declaratory Order...that Defendant/Cross-Plaintiff can introduce predicate acts under the State Racketeer Influenced Corrupt Organizations Act." 2. Defendant has not pled the material elements of a cause of action under this Act to request a Declaratory Order. WHEREFORE, plaintiff moves the Court dismiss with prej ducice Paragraph 4 of Defendant's "Relief Requested" under Pa. R.C.P. 1028(a)(4) as per' the proposed Order attached. II. Scandalous and Impertinent Matter in a Pleading -Pa.R.C.P. 1028(a)(2) 1. In paragraph 15 of the Counterclaim the Defendant alleges that "David Westlink and Bank failed to disclose and/or deliberately and intentionally concealed from Cross-Plaintiff" the use of his negotiable instrument. 2. Defendant's allegation is baseless, false, scandalous and impertinent and should be stricken under Pa. R.C.P. 1028(a)(2). 3. Plaintiff issued the Defendant a credit card, not a loan, as was pled in Plaintiff's Complaint. 4. In paragraph 7 of the "Relief Requested" Defendant requests an "investigation into the activities of Mr. Westlink and Burton Neil, Esquire and Burton Neil & Associates because of possible violations of lack of knowledge in this case and/or violations of Pennsylvania Law, Federal Law and the Pennsylvania's Cannon of Legal ethics." 5. Defendant's allegation is baseless, false, scandalous and impertinent and should be stricken under Pa. R.C.P. 1028(a)(2). WHEREFORE, plaintiff moves the Court strike Defendant's Cross Complaint under Pa. R.C.P. 1028(a)(2) as per the proposed Order attached. I. More Specific Pleading - Affirmative Defenses and Counterclaims-Pa. R.C.P. 1028(a)(3) 1. In the alternative to the foregoing, if defendant's affirmative defenses and counterclaims are not stricken or dismissed, they should be ordered to be more specifically plead, at minimum to cure the manifest failures to observe the requirements of the civil procedural rules noted above. 2. Plaintiff is unable to prepare a response in the absence of defendant's pleading the required material facts, pleading time, place and items of special damage with specificity, alleged fraud with particularity and attaching documents on which the alleged affirmative defenses and counterclaims are based. WHEREFORE, in the alternative to the foregoing, plaintiff moves the Court order defendant plead his affirmative defenses and counterclaims more specifically under Pa. R.C.P. 1028(a)(3). BURTON~EIL & ASSOCIATES, P.C. NOTICE: Burton Neil & Associates, P.C. is a debt collector. BURTON NEIL & ASSOCIATES, P.C. BY: Yale D. Weinstein, Esquire Identification No. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff DIRECT MERCHANTS CREDIT CARD BANK, N.A. :IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA Vo FRED BRILLHART :NO. 04 - 1103 Defendant :CIVIL ACTION - LAW Certificate of Service Yale D. Weinstein, Esquire, being duly sworn according to law, deposes and says that he is attorney for plaintiff Direct Merchants Credit Card Bank, N.A., that he served a true and correct copy of plaintiff's Preliminary Objections to Defendant's Answer and New Matter to Plaintiffs Complaint Containing Cross-Complaint and proposed Order on defendant by first class U.S. Mail, postage prepaid on the date set forth below. Dated: //_~ -/~"- In making this communication, we advise our firm is a debt collector.