HomeMy WebLinkAbout08-4683Our File No.: 159938
' --A'POTHAKER & 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
LVNV FUNDING, LLC
c/o Apothaker & Associates, P.C.
2417 Welsh Road, Suite 21 #520
Philadelphia, PA 19114
Plaintiff,
vs.
DENNIS MARTIN
116 SOUTHSIDE DR
NEWVILLE, PA 17241
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: CO_ 4(0&3 Civil ksm
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.
'-BV: David J. Apothaker, Esq.
Attorney I.D.# 38423
2417 Welsh Road, Suite 21 #520
Philadelphia, PA 19114
(215) 634-8920
Attorneys for Plaintiff
LVNV FUNDING, LLC
c/o Apothaker & Associates, P.C.
2417 Welsh Road, Suite 21 #520
Philadelphia, PA 19114
Plaintiff,
VS.
DENNIS MARTIN
116 SOUTHSIDE DR
NEWVILLE, PA 17241
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 09- q(- ;3 (!" 7-e,-
CIVIL ACTION COMPLAINT
FIRST COUNT
1. Plaintiff is LVNV FUNDING, LLC c/o Apothaker & Associates, P.C., 2417 Welsh Road, Suite
21 #520, Philadelphia, PA 19114.
2. Defendant(s) is/are DENNIS MARTIN, an adult individual residing at 116 SOUTHSIDE DR
NEWVILLE, PA 17241.
3. Plaintiff, LVNV FUNDING, LLC, is the Assignee and Successor in Interest of Account
#6011310000563046; and said account was issued to Defendant(s) by WAL-MART, 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 $3,661.60. 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
$3,661.60 and requests this Court award Plaintiff attorney's fees and costs to the extent permitted by applicable law.
APOTHAKER & ASS TES, P.C.
Attorney ftiA Law Firm Enaag Collectioi
BY:
Dated: 7/29/2008
David J.
Our File No.: 159938
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
subject to the penalties of 18 Pa.C.S.A. 4904 relating to
understands that the statements therein are made
to authorities.
David J. Apothaker
Attorney for Plaintiff
DATE: 7/29/2008
DENNIS MARTIN
116 SOUTHSIDE DR
NEWVILLE, PA 17241
STATEMENT OF ACCOUNT
LVNV FUNDING, LLC
Debtor's Name: DENNIS MARTIN
Account Number: 6011310000563046
Original Creditor: WAL-MART
Balance Due: $3,661.60
Our File No.: 159938
EXHIBIT "A"
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LVNV FUNDING, LLC
Plaintiff
VS.
DENNIS MARTIN,
Defendant
: IN THE COURT OF COMMON
:PLEAS, CUMBERLAND COUNTY
: No: 08-4683 Civil Term
:CIVIL ACTION - LAW
DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S
COMPLAINT
Pursuant to Pa.R.C.P. No's 1017(a) and 1028, Defendant Dennis Martin, by and
through his attorneys, MidPenn Legal Services, preliminarily objects to Plaintiff's
Complaint and moves for its dismissal as follows:
1. MOTION TO STRIKE/FAILURE OF PLEADING TO CONFORM TO LAW
AND
RULE OF COURT
Plaintiff filed a Complaint demanding damages in the amount of
$3,661.60 plus interest, fees and costs.
2. Plaintiff alleges it is owed certain funds pursuant to an assignment, from
the "original creditor," Wal-Mart, to itself, which would form the very core of Plaintiff's
standing to pursue this claim, but such writing has not been appended to the Complaint,
nor its absence explained, as required by Pa.R.C.P.No. 10 19(h) and (i).
3. Plaintiff has also failed to attach to the Complaint any signed written
contract between Defendant and the original Plaintiff or any assignee. Although
this/these contracts would form the core of Plaintiff's case, such writing(s) have not been
appended to the Complaint, nor their absence explained, as required by Pa.R.C.P.
No.1019(h) and (i) and No. 1028(a)(2)
4. Although Plaintiff avers that Defendant used the account for the purchase
of products, goods, and services, no description of products, goods or services forming
the basis for the Complaint were attached to the Complaint.
5. In addition, while Plaintiff claims in Paragraph 5 that Defendant has a
balance due on the account, Plaintiff fails to attach any documentation of charges or
payments which would evidence such a balance.
WHEREFORE, Defendant Martin demands the Plaintiff's Complaint be stricken
without prejudice to the filing of an Amended Complaint.
II. MOTION TO STRIKEANSUFFICIENT SPECIFICITY OF PLEADING
6. Paragraph's 1-5 are incorporated herein by reference hereto.
7. As a whole, the Complaint is grossly vague and lacking in factual
averments such that Defendant is without knowledge or information sufficient to form a
meaningful response and prepare a defense.
8. The Complaint fails to provide any documentation or accounting of
charges allegedly made by Defendant, which would support Plaintiff's claim of damages,
such as a breakdown of charges, payments, and interest, so that Defendant can properly
formulate a response and assert any counterclaims.
9. Given the generality of Plaintiff's allegations and failure to attach any
documentation to support its claim, the Complaint fails to satisfy the Pennsylvania Rules
of Civil Procedure, Pa.R.C.P.No.1028(a)(3) and (4).
WHEREFORE, Defendant Martin demands that Plaintiff's Complaint be stricken
without prejudice to the filing by Plaintiff of an Amended Complaint.
III. IMPROPER VERIFICATION
10. Paragraphs 1-9 are incorporated herein by reference hereto.
11. The verification is signed by the attorney for the Plaintiff, but fails to set forth
the source of the information or a reason why the verification is not made by
the party.
WHEREFORE, Defendant Martin demands that Plaintiff's Complaint be stricken
without prejudice to the filing of an Amended Complaint.
Date: fl12 /QS MIDPENN LEGAL SERVICES
By.
Geoffrey M. Biringer, Esquire
401 E. Louther Street
Carlisle, PA 17013
(717) 243-9400
Sup. Ct. ID #18040
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date stated below, he served a true
and correct copy of the within Preliminary Objections, by mailing same to the office of
Plaintiff's attorney of record by first class U.S. mail, postage prepaid, addressed as
follows, which service satisfies the requirements of Pa.R.C.P. No. 440:
David J.Apothaker, Esquire
2417 Welsh Road, Suite 21 #520
Philadelphia,PA 19114
a
Date:
By:
Geoffrey M. Biringer
MidPenn Legal Services
401 E. Louther Street
Carlisle, PA 17013
(717) 243-9400
Supreme Court ID#18040
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LVNV FUNDING, LLC. : COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY
VS.
NO.08-4683
DENNIS MARTIN,
Defendant
PRAECIPE FOR ENTRY OF APPEARANCE
To Curtis R. Long, Prothonotary:
Please enter my appearance on behalf of the Defendant, Dennis Martin, in the
above captioned case.
/?d4!?5
Date:
Respectfully submitted,
Geoffrey Biringer, Esquire
MidPenn Legal Services
401 E. Louther Street
Carlisle, PA 17013
(717) 243-9400
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Our File No.: 159938
APOTHAKER & ASSOCIATES, P.C.
BY: Kimberly F. Scian, Esquire
Attorney I.D.#55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
LVNV FUNDING, LLC
c/o Apothaker & Associates, P.C
520 Fellowship Road C306
Mount Laurel, NJ 08054
Plaintiff,
vs.
DENNIS MARTIN
116 SOUTHSIDE DR
NEWVILLE, PA 17241
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 08-4683
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
Our File No.: 159938
APOTHAKER & ASSOCIATES, P.C.
BY: Kimberly F. Scian, Esquire
Attorney I.D.#55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
LVNV FUNDING, LLC
c/o Apothaker & Associates, P.C.
520 Fellowship Road C306
Mount Laurel, NJ 08054
Plaintiff,
VS.
DENNIS MARTIN
116 SOUTHSIDE DR
NEWVILLE, PA 17241
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 08-4683
AMENDED COMPLAINT
FIRST COUNT
1. Plaintiff, LVNV FUNDING, LLC, is a company with its principal place of business located at 15
South Main Street, Suite 500, Greenville, SC 29601.
2. Defendant(s) is/are DENNIS MARTIN, an adult individual residing at 116 SOUTHSIDE DR
NEWVILLE, PA 17241.
3. Plaintiff, LVNV FUNDING, LLC, is the Assignee and Successor in Interest of
#6011310000563046; and said account was issued to Defendant(s) by WAL-MART, the Original creditor.
4. Defendant(s) received, accepted, and used the account to its benefit.
5. This account is in default and Defendant(s) has an unpaid balance of $4729.34.
6. All credits, if any, to which Defendant(s) is entitled, have been applied to the account.
7. At present, additional documents evidencing Defendant's indebtedness are not accessible. Per Pa.
R.C.P. 1019 (i), Plaintiff is retrieving all documents and will provide same.
8. Although demand has been made, Defendant 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
$3,661.60 and requests this Court award Plaintiff attorney's fees and costs to the extent permitted by applicable law.
APOTHAKER & ASSOCIATES, P.C.
Attorney for Plaintiff
A Law Firm Enaged in Debt Collection
Dated: 9/3/2008
Our File No.: 159938
VERIFICATION
Kimberly F. Scian, Esquire hereby states that I am counsel for plaintiff in this action, and that I am authorized to
take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to
the best of my knowledge, information, and belief. The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unworn falsification to authorities.
Kimberly Scian, Esquire
Attorney f r Plaintiff
DATE: 9/3/2008
Our File No.: 159938
APOTHAKER & ASSOCIATES, P.C.
BY: Kimberly F. Scian, Esquire
Attorney I.D.#55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
LVNV FUNDING, LLC
Plaintiff,
VS.
DENNIS MARTIN
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 08-4683
CERTIFICATION OF SERVICE
I, Kimberly F. Scian, Esquire, attorney for Plaintiff, certify that on 9/3/2008, I mailed a copy of the
Amended Complaint by Regular mail to
MIDPENN LEGAL SERVICES
ATTN: GEOFFREY M BIRINGER, ESQUIRE
401 E LOUTHER STREET, SUITE 103
CARLISLE, PA 17013
Date: 9/3/2008
/F. Scian, Esquire
for Plaintiff
Our File No.: 159938
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SHERIFF'S RETURN - REGULAR
CASE NO: 2008-04683 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LVNV FUNDING LLC
VS
MARTIN DENNIS
JASON VIORAL , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
MARTIN DENNIS the
DEFENDANT
at 0017:56 HOURS, on the 7th day of August , 2008
at 116 SOUTHSIDE DRIVE
NEWVILLE, PA 17241 by handing to
DENNIS MARTIN DEFENDANT
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
rilo P
So Answers:
18.00
11.00
.00
10.00 R. Thomas Kli e
.00
39.00 08/08/2008
APOTHAKER & ASSOCIATES
Sworn and Subscibed to By:
before me this day
of , A.D.
a
LVNV FUNDING,LLC : COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY
VS.
DENNIS MARTIN,
Defendant
: NO.08-4683
PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT
Defendant moves for the dismissal of Plaintiff's Amended Complaint, and, as
grounds therefore avers the following:
Failure to Conform to Law and Rule of Court
Pa.R.C.P. No.1028(a)2) and 1019(f)(h)(i)
1. Plaintiff filed a Complaint demanding damages in the
amount of $3,661.60.
2. Defendant filed Preliminary Objections on August 12, 2008.
3. Plaintiff filed an Amended Complaint on September 3, 2008 demanding
damages in the amount of $4,729.34.
4. Plaintiff again alleges it is an assignee owed certain funds pursuant to a
credit card agreement but fails to attach an assignment(s) or a signed written contract
between the Plaintiff and the Defendant. Such writings would form the very core of
Plaintiff's case, but such writings have not been appended to the Complaint.
5. By way of explanation for these failures, Plaintiff alleges that he
documents are not accessible, and that when retrieved, they will supply same.
6. The Amended Complaint fails to state the date of the alleged default.
7. The Amended Complaint fails to provide any documentation or
accounting of charges allegedly made by the Defendant, which would support Plaintiff's
claim of damages, such as a breakdown of charges, payments and interest, so that
Defendant could bring a Motion for Summary Judgment based upon affirmative defenses
such as the Statute of Limitations and/or Counterclaims.
8. Plaintiff has failed to set forth the substance of the writings it intends to
submit in the future.
WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with
prejudice for failure to conform to law or a rule of court.
More Specific Complaint
Pa. R.C.P.No.1028(a)(3)
9. Paragraphs 1-8 are incorporated herein by reference hereto.
10. The Complaint contains alleged claims for money owed, but fails to
specifically account for the purported sums outstanding and for the amounts of payments
made.
11. The Complaint fails to provide the date of the alleged default.
12. The Complaint fails to be specific as to the allegations of the amount due
and owing and to state specific services or goods purchased by Defendant.
13. Even if an agreement was implied rather than written, Plaintiff has failed
to specifically plead the date of default and provide an accounting of the amounts paid
pursuant to an implied contract.
14. Plaintiff fails to state specifically how Defendant was enriched by the use
of credit and fails to account for any payments made pursuant to a written agreement, a
contract implied in law, or a theory of unjust enrichment.
15. Defendant is entitled to know how she has been enriched by the provisions
of goods and or services and how payments have been applied to any alleged goods or
services provided.
WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with
prejudice for failure to file a more specific complaint.
Demurrer, Pa.R.C.P.No.1028(a)(4)
16. Paragraphs 1-15 are incorporated herein by reference hereto.
17. Plaintiff has not alleged or attached an agreement between the parties, an
agreement implied in law, or any other theory of recovery.
WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with
prejudice for failure to state a cause of action.
Respectfully submitted:
MidPenn Legal Services
Attorneys for Defendant
I( ??? A %-
BY:
eoffrey V. Birin er, Esquire
401 E. Louther Street
Carlisle, PA 17013
(717) 243-9400
ID#18040
V
CERTIFICATE OF SERVICE
I, Geoffrey M. Biringer, being a member in good standing of the Bar of
Pennsylvania, hereby certify that I served a true and correct copy of the foregoing
Preliminary Objections to Plaintiff's Complaint on this 9th day of October, 2008, by
placing same in the United States mail, first class, postage prepaid, addressed as follows:
Kimberly F. Scian, Esquire
520 Fellowship Road, C306
Mount Laurel, NJ 08054
MIDPENN LEGAL SERVICES
B ? , <<
Y:
Aeoffrevy M. Biringer
Attorney for the Defendant
401 E. Louther Street
Carlisle, PA 17013
(717)243-9400
Supreme Court ID#18040
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Our File No.: 159938
APOTHAKER & ASSOCIATES, P.C.
BY: Kimberly F. Scian, Esquire
Attorney I.D.#55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
LVNV FUNDING, LLC
c/o Apothaker & Associates, P.C.
520 Fellowship Road C306
Mount Laurel, NJ 08054
Plaintiff,
Vs.
DENNIS MARTIN
116 SOUTHSIDE DR
NEWVILLE, PA 17241
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 08-4683
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
Our File No.: 159938
APOTHAKER & ASSOCIATES, P.C.
BY: Kimberly F. Scian, Esquire
Attorney I.D.#55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
LVNV FUNDING, LLC
c/o Apothaker & Associates, P.C.
520 Fellowship Road C306
Mount Laurel, NJ 08054
Plaintiff,
VS.
DENNIS MARTIN
116 SOUTHSIDE DR
NEWVILLE, PA 17241
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 08-4683
AMENDED COMPLAINT
FIRST COUNT
1. Plaintiff, LVNV FUNDING, LLC, is a company with its principal place of business located at 15
South Main Street, Suite 500, Greenville, South Carolina 29601.
2. Defendant is DENNIS MARTIN, an adult individual residing at 116 SOUTHSIDE DR
NEWVILLE, PA 17241.
3. Defendant applied for and received a credit card from WAL-MART account number
6011310000563046.
4. Defendant used the credit card, account number 6011310000563046, and as of August 19, 2008
there was an outstanding balance due and owing in the amount of $3,661.60.
5. Plaintiff purchased this account and presently owns and holds this account.
6. When Plaintiff purchased this account there was an outstanding balance due and owing of
$3,661.60. Attached hereto as Exhibit "A" are the Statements.
WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of
$3,661.60 and requests this Court award Plaintiff attorney's fees and costs to the extent permitted by applicable law.
APOTHAKER & ASSOCIATES, P.C.
Attorney for Plaintiff
A Law Firm Engaged in ebt Collection
BY:
Kim ly . Scian, Esquire
Dated: 11/3/2008
Our File No.: 159938
VERIFICATION
Kimberly F. Scian, Esquire hereby states that I am counsel for plaintiff in this action, and that I am authorized to
take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to
the best of my knowledge, information, and belief. The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unsi rn falsification to authorities.
Attorney fir Plaintiff
DATE: 11/3/2008
C
Our File No.: 159938
APOTHAKER & ASSOCIATES, P.C.
BY: Kimberly F. Scian, Esquire
Attorney I.D.#55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
LVNV FUNDING, LLC
Plaintiff,
vs.
DENNIS MARTIN
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 08-4683
CERTIFICATION OF SERVICE
I, Kimberly F. Scian, Esquire, attorney for Plaintiff, certify that on 11/3/2008, I mailed a copy of the
Amended Complaint by Regular mail to
GEOFFREY M BIRINGER, ESQUIRE
401 E LOUTHER STREET, SUITE 103
CARLISLE, PA 17013
Date: 11/3/2008
KitnRi Scian, Esquire
Attorney or Plaintiff
Our File No.: 159938
Current Owner: LVNV Funding LLC
Original Creditor. GE Capital) Wal-Mart
Previous Owner: GE Capital
Statement Closing Date: 2/15/2008 12:00:00 AM
LVNV Purchase Date: 09/26/2007
Account Origination Date: 06109/2005
Account number 6011310000563046
Owing Collected Balance
Dennis Martin Principal $ 2,609.30 $ - $ 2,609.30
***-**-7285 Interest $ - $ - $ -
116 SOUTHSIDE DR Atty Fee $ - $ - $ -
NEWVILLE, PA 17241 Misc Cost $ - $ - $ -
New Balance $ 2,609.30 $ - $ 2,609.30
TRANSACTIONS
Transaction Date Description Amount
This statement is not an original.
This statement has been generated on behalf of LVNV Funding LLC, account owner.
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LVNV FUNDING,LLC
Plaintiff
vs.
DENNIS MARTIN,
Defendant
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.08-4683
PRELIMINARY OBJECTIONS TO SECOND AMENDED COMPLAINT
Defendant moves for the dismissal of Plaintiff's Second Amended Complaint,
and, as grounds therefore avers the following:
Failure to Conform to Law and Rule of Court
Pa.R.C.P. No.1028(a)2) and 1019(f)(h)(i)
1. Plaintiff filed a Complaint demanding damages in the
amount of $3,661.60.
2. Defendant filed Preliminary Objections on August 12, 2008.
3. Plaintiff filed an Amended Complaint on September 3, 2008 demanding
damages in the amount of $4,729.34.
4. Defendant filed Preliminary Objections on October 9, 2008.
5. Plaintiff filed a second Amended Complaint (titled "Amended
Complaint,") on November 3, 2008.
6. Plaintiff again alleges it is an assignee owed certain funds pursuant to a
credit card agreement but fails to attach an assignment(s) or a signed written contract
between the Plaintiff and the Defendant. Such writings would form the very core of
Plaintiff's case, but such writings have not been appended to the Complaint.
7. By way of explanation, Plaintiff attaches documents characterized
"Statement," but one is not an original, and the other shows a balance, if any is actually
due of $127.50.
8. The Amended Complaint fails to state the date of the alleged default.
9. The Amended Complaint fails to provide any documentation or
accounting of charges allegedly made by the Defendant, which would support Plaintiff's
claim of damages, such as a breakdown of charges, payments and interest, so that
Defendant could bring a Motion for Summary Judgment based upon affirmative defenses
such as the Statute of Limitations and/or Counterclaims.
WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with
prejudice for failure to conform to law or a rule of court.
More Specific Complaint
Pa. R.C.P.No.1028(a)(3)
10. Paragraphs 1-9 are incorporated herein by reference hereto.
11. The Complaint contains alleged claims for money owed, but fails to
specifically account for the purported sums outstanding and for the amounts of payments
made.
12. The Complaint fails to provide the date of the alleged default.
13. The Complaint fails to be specific as to the allegations of the amount due
and owing and to state specific services or goods purchased by Defendant.
14. Even if an agreement was implied rather than written, Plaintiff has failed
to specifically plead the date of default and provide an accounting of the amounts paid
pursuant to an implied contract.
15. Plaintiff fails to state specifically how Defendant was enriched by the use
of credit and fails to account for any payments made pursuant to a written agreement, a
contract implied in law, or a theory of unjust enrichment.
16. Defendant is entitled to know how she has been enriched by the provisions
of goods and or services and how payments have been applied to any alleged goods or
services provided.
WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with
prejudice for failure to file a more specific complaint.
Demurrer, Pa.R.C.P.No.1028(a)(4)
17. Paragraphs 1-16 are incorporated herein by reference hereto.
18. Plaintiff has not alleged or attached an agreement between the parties, an
agreement implied in law, or any other theory of recovery.
WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with
prejudice for failure to state a cause of action.
Improper Verification, Pa.R.C.P. No. 1024
19. Paragraphs 1-18 are incorporated herein by reference hereto.
20. The verification is signed by the attorney for the Plaintiff, but fails to set
forth the source of the information or a reason why the verification is not made by the
party.
WHEREFORE, Defendant demands that Plaintiff's Complaint be stricken
without prejudice to the filing of an Amended Complaint.
Respectfully submitted:
MidPenn Legal Services
Attorneys for Defendant
BY:
Geoffrey A Biringer, Esquire
401 E. Louther Street
Carlisle, PA 17013
(717) 243-9400
ID#18040
CERTIFICATE OF SERVICE
I, Geoffrey M. Biringer, being a member in good standing of the Bar of
Pennsylvania, hereby certify that I served a true and correct copy of the foregoing
Preliminary Objections on this 24th day of November, 2008, by placing same in the
United States mail, first class, postage prepaid, addressed as follows:
Kimberly F. Scian, Esquire
520 Fellowship Road, C306
Mount Laurel, NJ 08054
MIDPENN LEGAL SERVICES
By:
Geoffrey M. Biriger
Attorney for the Defendant
401 E. Louther Street
Carlisle, PA 17013
(717)243-9400
Supreme Court ID#18040
LL'7
Our File No.: 159938
LVNV FUNDING, LLC
Plaintiff
vs.
DENNIS MARTIN
Defendant
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for
Argument Court.
1. Matter to be Argued: Defendant's Preliminary Objections
2. Counsel who will argue cases:
Benjamin J. Cavallaro, Esquire
Attorney for Plaintiff
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
GEOFFREY WRINGER
Attorney for Defendant
401 E LOUTHER STREET
SUITE 103
CARLISLE, PA 17013
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: October 7, 2011
BY:
njamin . Cavallaro, Esquire
Attorney for Plaintiff
Dated: August 24, 2011
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
Our File No.: 159938
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
LVNV FUNDING, LLC
Plaintiff,
VS.
DENNIS MARTIN
Defendant.
IT 98 pm
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 08-4683
PRAECIPE TO DISMISS WITHOUT PREJUDICE
TO THE PROTHONOTARY:
Kindly dismiss this action without prejudice.
APOTHAKER & ASSOCIATES, P.C.
Attorneys or Plaintiff
A Law Firm En e Debt Collection
By:
Dated: 10/20/2011
David J-Apothaker, Esquire