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HomeMy WebLinkAbout08-3898 Our File No.: 163649 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esq. Attorney I.D.938423 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff, VS. JUSTIN G WEARY 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065- 1144 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 0?- 3F g P eke m ,l ?Z' 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. 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 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 ATLANTIC CREDIT & FINANCE INC. ) ASSIGNEE FROM HSBC ) c/o Apothaker & Associates, P.C. ) 2417 Welsh Road, Suite 21 #520 ) Philadelphia, PA 19114 ) Plaintiff, ) VS. ) JUSTIN G WEARY ) 19 TRINE AVE ) MOUNT HOLLY SPRINGS, PA 17065- ) 1144 ) Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 0 8- 3 3") p Ct( ,J- e.,,.,- CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC c/o Apothaker & Associates, P.C., 2417 Welsh Road, Suite 21 #520, Philadelphia, PA 19114. 2. Defendant(s) is/are JUSTIN G WEARY, an adult individual residing at 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065-1144. 3. Plaintiff, ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC, is the Assignee and Successor in Interest of Account #5499441091411176; and said account was issued to Defendant(s) by HSBC, 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 $2,349.74. 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 $2,349.74 and requests this Court award Plaintiff attorney's fees and costs to the extent permitted by applicable law. APOTHAKER & CIATES, P.C. A Law Firm Eng,*ed in lbebt BY: David J. Dated: 6/23/2008 Our File No.: 163649 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/unjorn falsification to authorities. David J. Apothaker Attorney for Plaintiff DATE: 6/23/2008 ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC JUSTIN G WEARY 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065-1144 STATEMENT OF ACCOUNT Debtor's Name: JUSTIN G WEARY Account Number: 5499441091411176 Original Creditor: HSBC Balance Due: $2,349.74 Our File No.: 163649 EXHIBIT "A" rQ? G? E.. M ? ? rr? N rr GJ '-? SHERIFF'S RETURN - REGULAR CASE NO: 2008-03898 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ATLANTIC CREDIT & FINANCE INC VS WEARY JUSTIN G BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE WEARY JUSTIN G DEFENDANT was served upon the at 0011:00 HOURS, on the 10th day of July 2008 at SHERIFF'S OFFICE CARLISLE, PA 17013 JUSTIN G WEARY CUMBERLAND COUNTY COURTHOUSE by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 6.00 .00 10.00 00 ?0 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 07/10/2008 APOTHAKER & ASSOC By: Deputy S eriff of A. D. ATLANTIC CREDIT & FINANCE INC ASSIGNEE FROM HSBC c/o Apothaker & Associates 2417 Welsh Road, Suite 21 # 520 Philadelphia, PA 19114 Plaintiff V. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 08- 3898 JUSTIN G. WEARY 19 TRINE AVE : CIVIL TERM MOUNT HOLLY SPRINGS, PA 17065- 1144 Defendant PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the Defendant, Justin G.Weary, in the above captioned case. Respectfully submitted, Geoffrey Biringer, Esquire MidPenn Legal Services 401 E. Louther Street Carlisle, PA 17013 (717) 243-9400 7?'Z/moo Date: e,N ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC c/o Apothaker & Associates 2417 Welsh Road, Suite 21 # 520 Philadelphia, PA 19114 Plaintiff V. JUSTIN G. WEARY 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065- 1144 Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 08- 3898 CIVIL TERM PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the defendant, Justin G. Weary, by and through his legal counsel, MidPenn Legal Services, and files these PRELIMINARY OBJECTIONS TO PLAINTIFF'S CIVIL ACTION FIRST COUNT, and in support thereof avers the following: 1. Plaintiff is ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC c/o Apothaker & Associates, P. C., 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 Justin G. Weary (hereinafter "Defendant"). 4. Plaintiff filed its complaint on July 1St, 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 HSBC and demands damages in the amount of $2,349.74 plus attorney's fees and costs. PRELIMINARY OBJECTION PURSUANT TO PA. 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 HSBC and has attached a "Statement of Account" to its complaint listing HSBC as Original Creditor. 8. Plaintiff is not a party to the alleged original agreement between Defendant and HSBC. 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. 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 assignment of the account from the original creditor HSBC 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 HSBC or that it has lawfully acquired any rights, title 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 and lack of capacity to sue. 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 HSBC in the amount of $2,349.74 and attaches as sole support thereof a "Statement of Account" purportedly showing such balance. 14. The "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. 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. 1019(f) 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 OF 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 HSBC. 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 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 HSBC is written, Plaintiff's 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 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 A PLEADING TO CONFORM TO LAW OR RULE OF COURT) FOR FAILURE TO PROPERLY VERIFY PLEADING 24. Paragraphs 1 through 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 (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. Pl. 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. Respectfully submitted, Date 7 ? 2 1? 0 MidPenn Legal Services By: Geoffrey Biringer 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Our File No.: 163 649 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 ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff, VS. JUSTIN G WEARY 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065- 1144 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 0k- 331 &? '- 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. 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 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 ATLANTIC CREDIT & FINANCE INC ASSIGNEE FROM HSBC c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff, VS. JUSTIN G WEARY 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065- 1144 Defendant. ) ) COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 6 ?- 3 0-??? 7c-,.- CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC c/o Apothaker & Associates, P.C., 2417 Welsh Road, Suite 21 #520, Philadelphia, PA 19114. 2. Defendant(s) is/are JUSTIN G WEARY, an adult individual residing at 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065-1144. 3. Plaintiff, ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC, is the Assignee and Successor in Interest of Account 45499441091411176; and said account was issued to Defendant(s) by HSBC, 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 $2,349.74. 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 $2,349.74 and requests this Court award Plaintiff attorney's fees and costs to the extent permitted by applicable law. APOTHAKER & ? S5 IATES, P.C. A Law Firm Engaged in BY: Dated: 6/23/2008 Our File No.: 163649 David I rRuE COPY FROM REGORU testimony Owned, I here unto yet my hand I the of said C et wkde, Pa. !! -- -1 4y ` oy VERIFICATION David J. Apothaker, EM. 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/' orn falsification to authorities. David J. Apothaker Attorney for Plaintiff DATE: 6/23/2008 ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC JUSTIN G WEARY 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065-1144 STATEMENT OF ACCOUNT Debtor's Name: JUSTIN G WEARY Account Number: 5499441091411176 Original Creditor: HSBC Balance Due: $2,349.74 Our File No.: 163649 EXHIBIT "A" ATLANTIC CREDIT & FINANCE INC ASSIGNEE FROM HSBC c/o Apothaker & Associates 2417 Welsh Road, Suite 21 # 520 Philadelphia, PA 19114 Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 08- 3898 V. JUSTIN G. WEARY 19 TRINE AVE MOUNT HOLLY SPRINGS, PA 17065- 1144 Defendant : CIVIL TERM CERTIFICATE OF SERVICE I, Geoffrey Biringer, Esquire, of MidPenn Legal Services hereby certify that I have served a copy of the foregoing Preliminary Objections on the following date and in the manner indicated below: U.S. First Class Mail David J. Apothaker, Esquire ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC c/o Apothaker & Associates 2417 Welsh Road, Suite 21 # 520 Philadelphia, PA 19114 Date: --7L z D Geoffrey Biringer MidPenn Legal Services 401 East Louther Street Carlisle, PA 17013 (717)243-9400 (J ..? ?_ hi Our File No.: 163649 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D.# 38423 520 Fellowship Road C306 Muunt Laurel, NJ 08054 (800) 672-0215 Attorney for Plaintiff ATLANTIC CREDIT & FINANCE INC. ASSIGNEE FROM HSBC Plaintiff V5. JUSTIN G WEARY Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-3898 PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & A Law Firm By: Dated: 9/812010 iSOC ATES, P.C. r PI ntiff in ebt Collection David J. Apothaker, Esquire r? =n l< * 4 1 6 3 6 4 9 D I S N 1-* --- '? W -<