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HomeMy WebLinkAbout08-5415NAN13928 THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. Goldman & Warshaw, P.C. BY: JEFFREY M. PARRELLA, ESQUIRE Identification No.: 201946 PO Box 806 West Caldwell, NJ 07007 973-433-2153 CAPITAL ONE BANK (USA), N.A., successor in interest to CAPITAL ONE BANK 4851 Cox Road Glen Allen VA 23060 Vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : O$ - 5415 0,1vi I (ern AUBREE KITNER 130 E MAIN ST APT 1 SHIREMANSTOWN PA 17011-6398 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 JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S BEDFORD STREET CARLISLE, PA 17013 717-249-3166 COMPLAINT IN CIVIL-ACTION 1. At all times relevant hereto, the defendant (s) was the holder of a credit card, which at the request of the defendant(s) was issued to the defendant(s) by the plaintiff under the terms of which the plaintiff agreed to extend to defendant(s)the use of plaintiff's credit facilities. 2. Defendant(s) accepted and used the aforesaid credit card so issued and by so doing agreed to perform the terms and conditions prescribed by the plaintiff for the use of said credit card. 3. The defendant (s) received and accepted goods and merchand- ise and/or accepted services or cash advances through the use of the credit card issued by the Plaintiff. A true and correct copy of the Statement of Account is attached hereto as Exhibit "A". 4. All the credits to which the defendant (s) is entitled have been applied and there remains a balance due in the amount of $4,810.34. 5. Plaintiff has made demand upon the defendant(s)for payment of the balance due of $4,810.34 but the defendant(s)has failed and refused and still refuses to pay the same or any part thereof. 6. Defendant's last payment on account was made on June 30, 2006. WHEREFORE, plaintiff claims of the defendant(s) the sum of $4,810.34 plus applicable costs, interest and attorney's fees. Goldman & Warshaw, P.C. BY: Jeffrey lla, Esquire Attorney f aintiff THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE THIS COMMUNICATION IS FROM A DEBT COLLECTOR P01A.NAN VERIFICATION The undersigned, Jeffrey M. Parrella Esquire hereby states that he is the attorney for Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. Counsel has signed this verification at the request of Plaintiff as a matter of time and convenience. Plaintiff has represented to counsel that there is a debt due and owing from Defendant to Plaintiff in the amount as set forth within the foregoing pleading. Plaintiff has provided counsel with all relevant information in order to allow counsel to sign this verification. Plaintiff agrees to provide a verification signed by Plaintiff upon request by Defendant. The undersigned understands that the statements herein are made subject to the penalties of 19 Pa.C.S.A Section 4904 relating to unsworn falsification to authorities. By: _ rella, Esquire Jeffrey M/Orplaintiff Attorney EXHIBIT "A" NAN13928 CAPITAL ONE BANK (USA), N.A. AUBREE KITNER 714 .WA MW NARY AFFIDAVIT I, , being duly served sworn according to law, depose and say that: 1. 1 am the agent for the Plaintiff herein and I am familiar with the files relating to this account; 1M 2. 1 have personal knowledge of the facts and circumstances in connection with this case; 3. Plaintiffs files are maintained in the usual and ordinary course of business; 4. This action is based on a claim for breach of contract and that damages are sought as a direct result of said breach; 5. After allowing for all offsets and credits, a balance remains on the subject account having account number 714 in the amount of $3,722.59; and 6. If called upon, affiant can testify at trial as to the facts pertaining to this matter. The above facts are true and correct to the best of my owledge, information and belief. Affiant) Sworn to and Subscribed before me this _ day of MAY 1 8 M otary Public AF,:GNN Nllb ?'I'i NOTARY PUBLIC DEKA.B COUNTY, GEORGIA MY COMMISSION EXPIRES OCT. 29, 2011 CUSTOM Welcome to Capital Ones We are pleased to have your credit card account This Cusnamer Agreement contains Information abocd your account Please read it and keep it For your records. Your contract with us for the card and account ('the Agreement') consists of this Customer Agreement together with any charges to this Customer Agreement that we make as provided below, the Security Account (h applicable), the Security Account Assignment Agreement (ti applicable), Capital One Privacy Notice, any account disclosures provided and delivered to you prior to or at the time your account opened, including disclosures pursuant to requirements of Truth in Lerdkhg Ad (hereinafter'TILA Account DisdosuresI. as well as any subsequent notices of charges to these documents, and any and all documents that include your signature (including any electronic or digital signature) on any application. sales slip or other evidence of indebtedness on your account In this Agreement the words 'you,' 'your and 'yours refer to each person who signed the application for the account (each, a 'joint accountholder') and to anyone else who is authorized to use the acmurit in any way (each, an 'Authorized Usee). Except as specifically stated herein, each of you is individually and jointly obligated under this Agreement. The words 'we; 'us' and 'our' rnean Capital One, F.S.B. and its successors, assigns, agents and/or authorized representatives. If the application for the account stated that the account will be a 'Security Account,' this means the funds you have pledged to us to secure your account. This Agreement and the Security Accent Assignment Agreement (il applicable) do not apply to any other Capital One, F.S.B. amount that you may have, either now or in the future, except as provided in the Arbitration Provision below. Unless you have entered 021/13 ER AGREEMENT away your ability to obtain cash advances. We may honor transactions In excess of your credit limit, even lt those transactions result In an over limit fee. and those transactions and fees will be subject to ft Agreement and the Security Account Assignment Agreement (it applicable). Arry transactions honored in excess of your credit fimh will not result in an Increase of your credit limit unless we expressly notity you otherwise. Additional Benefits and Services. From time to time, we may offer you benefits and services with your account These benefits and services may be provided by us or third parties. Unless expressly made a part of this Agreement and except as provided in the Arbitration Provision below, any such benefits and services are not a pan of this Agreement and are subject only to the terms and Conditions outlined in the benefits or services brochure and other official documents provided to you with respect to the benefits and services. We may adjust add, or delete benefits or services at any tirne in accordance with the brochures or documents you receive. In addition, any such benefits or services offered to you in the most current version of the 'Guide to Benefits' shah replace and supersede the benefits and services that had been offered to you in all previous versions of the `Guide to Benefits; without further notice. Except as provided by applicable law, we are not liable for benefits or services provided by third parties or the actions or omissions of those third parties. into a Security Account Assignment Agreement with us, the account is unsecured. Except as provided in the Security Accent Assignment Agreement (if applicable), the account is not seared by any other property, regardless of the terms of any other contract to which you and we are subject. We can delay enforcing any of our rights under this Agreement without losing them The card is and remains our propery, and you will surrender h to us at any time upon request. Assignment. We may transfer your account, the Security Account (if applicable) the Seamy Account Assignment Agreement (it applicable) and/or our this under this Agreement to an assignee. The assignee will take our place under this Agreement, the Security Account IN applicable), and the Security Account Assignment Agreement (it applicable) with rasped to the agreements and interests transferred. The assignee may or may not be an affiliate of Capital One, F.S.B. You must pay the assignee and otherwise perform all of your obligations under prose agreements. You may not transfer your account or you rights under this Agreement the Seedy Account (If applicable) or the Security Account Assignment Agreement (O applicable) to any person or entity without our express prior written consent Subject to the preceding sentence, this Agreement will be binding and inure to the benefit of your and our respective successors, assigns and representatives. Using Your Account You can make purchases and obtain cash advances (ti rash advances are an option for your account) by using your card, account number and any amount access checks (including Purchase Checks, Convenience Checks, Special Transfer Checks and other similar checks) that we may send b you. Additionally, you may request a slop payment on account access checks, bud we reserve the right to charge you a fee for such services. When we provide you with amount access checks, we will tell you whether they win be treated as purchases, cash advances or special transfers. Unless we tell you otherwise, Convenience Checks will always be treated as cash advances. We may establish different segments for your amount such as a purchase segment a rash advance segment and a special transfers segment Each segment may be subject to terns and conditions that are different than those that are applicable to other segments. Our 8abiTq. If any, for any wrongful dishonor of an amount access check is limited to your actual damages and shall not include any consequential damages, and in no event win it exceed the amount of the check. You agree not to use the card or amount in connection with any Internal or illegal gambling transactions, but any Internet or illegal gambling transactions In which you engage with the card or account nevertheless will be subject to this Agreement and the Security Account Assignment Agreement (n applicable). Your card and account may only be used for valid and W61 purposes. t you use, or authorize someone else to use, the card or amount for any unlawful or impermissible purpose, you will be responsible or such use and may be required to reirrhburse us and MasterCard International Incorporated 'MasterCard or Visa USA, Inc. 'Visa; as applicable, or their successors for all amounts or expenses that we or they pay as a result of such unlawful or impermissible use. In any event any unlawful or nhpermissble transactions; In which you engage with he card or account nevertheless will be subject to this Agreerrhent and the Security Amount Assignment Agreement (h applicable). You agree that we are not responsible it anyone refuses to horror your card or account If you had a prior credit card or other amount with us, or such an account or balance of such an account was transferred to us or one of our affiliates. and you agreed 10 reinstate the balance of the prior amount In the brm of your new amount the new account will accrue finance charges from the date that the new account is opened. Authorized users are not financially responsible for the account. An authorized user may use a credit card, can request certain account Information and can request to be removed tram the acmur t Subject to oLw discretion, an authorized user may not be able to initdate certain actions on the account You agree to provide us with information identifying any persons you authorize to use you account including their name, address, date of birth and other Identifyirg i fomation we may request Exchange Rate. If you make a transaction in currency other than U.S. dollars, VISA International or MasterCard International will convert the charge or credit Into a U.S. dollar amount in accordance with their operating regulations or conversion procedures in effect at the time the transaction is processed. VISA Intemationars regulations and procedures provide that effective April 2, 2005, the exchange rate between the transaction currency and the billing currency used for processing International transactions is either (1) a rate selected by VISA from the range of acceptable ralm in wholesale currency markets for the applicable central processing dale, which rate may vary from the rate VISA itself receives or (2) the government mandated rate in effect for the applicable central processing date. MasterCard Intematonars regulations and procedures provide the currency conversion rate it uses Is either (1) a wholesale market rate or (2) a government mandated rate In effect on the day of the central processing date. Cash Equivalent Transactions. If cash advances are an option for your account you can use your amount to purchase certain hems that we regard as 'cash equivalent transactions' An cash equivalent transactions wig be treated as cash advances and win be billed to the cash advance segment of your amount Cash equivalent transactions include, without limitation, the purchase of wire transfer money orders, bets, lottery tickets, casino gaming chips and other similar products or services. Nothing in this paragraph will be Interpreted to validate any transaction that is unlawful or impermissible. Your Credit Limit. Your initial credit limit win be disclosed when you account is opened (or activated). Either initially, or at any later time, we may establish different credit limits that apply to different segments of your account (such as purchases, rash advances and special transfers). Your anent credit gmhs wig be identified in your periodic statements. You agree not to allow the balance of your amount (Including all transactions, finance charges and othor fees or charges), or the balance of line applicable segments of your account to exceed the applicable credit limits. If you have been given the option to increase your credit limit by adding funds to your Security Amount (11 applicable), we reserve the right not to increase your tredh Ilmh g the additional funds are provided while your account Is in default We may increase or decrease your credit limits at any tree without prior notice to you, may temporarily Increase of decrease your credit limits at any time without prior notice to you, may limit the credit limit for cash advances or may take Making Payments. You promise to pay us and are liable for all amounts due resulting from the authorized use of your card or account Including any finance charges and other charges due under the terms of this Agreement Payments must be made in U.S. dollars. Payments made by a check, money order or other negotiable instrument (an'teml must be in a forth acceptable to us and be drawn on a U.S. financial institution. We may allocate payments and other credits and proceeds among the various segments of your account and to charges and principal due within each segment In any way we determine. Including balances (Including new transactions) with lower annual percentage rates (APRs) before balances with higher APRs. Payments you mail to us at the address for payment stated on your periodic statement will be credited to your account as of the business day we receive it provided (1) you send the remittance coupon portion of your periodic statement and your check in the remittance envelope provided and (2) your payment is recelved in our processing center by file time Indicated on your periodic statement Please allow at least five (5) business days for postal delivery. Payments received by us at any other bcafion or in any other form may not be credited as of the day we receive them. Our business days are Monday - Saturday, excluding holidays. Credit availability may be delayed in our sole discretion to ensure payment in good funds. N we accept a payment at some other piece, we may delay the crediting of the payment for up to five (5) days. This may cause you to incur late payment fees and addirtional finance charges, and may result in your account being declared to be in default. Any minimum payment that is due will be slated in your periodic statement. You must pay at least the minimum payment due by the date stated in your periodic statement to avoid a late payment fee. However. you may pay more than the minimum payment or pay the balance in full. In any case, finance Charges will continue to be assessed during bnnng periods that you carry a balance regardless of whether a not your statement slows a mintnum payment due. We can accept lale payments or partial payments, or hems marked 'payment in full' or other simian language, or payments with a request to apply the payment in a particular manner, wdtroud losing any of our rights under this Agreement including out right to receive payment in lull. No payment shall operate as an accord and satisfaction without our prior written approval. All written communications concerning disputed amounts, including any check or other payment instrument that Indicates that the payment constitutes 'payment in tuir of the amount owed or that Is tendered with other conditions or limitations or as full satisfaction of a disputed amount nest be maned or delivered to Capital One, P.O. Box 85010, Richmond, VA 23285-5010. You will not make payments from funds obained from the account or any other credit amount with us.- If your payment is made to any other address, we may accept the payment without losing any of our rights. When you send us dad(s) to make payment on your acoounL you authorize us to make a one-tlme electronic transfer from your bank account for the amount of the Chad as Indicated by numerical digits. This authorization applies to all check(s) received by us during the billing period even h sent by someone else, who you agree is your agent and was provided with these disclosures in advance. This authorization is not restricted by ft dale on the check and includes resubmissions. We will not be bound by any restrictive legend or condition appearing on the lace or reverse side of line check It we cannot process the electronic transfer, you authorize us to make a charge against your bank account by processing the died, substitute Check, drat or similar instrument We may adjust your account as appropriate to correct errors, returned dents, rejected debts and slmner matters. We may, in our sole discretion, offer an expedited payment service. You are not required to use this service. When you authorize us to process a demand draft electronic ACH debit or other expedited payment method for your amount we may charge you an expedited payment fee in an amount disclosed to you at the time of the service. We are not responsible for any dishonor of the payment by your depository institution and may retain the fee in the event of such dishonor. If you give your account number or odrer account information b another person to make a payment for you or to act on your behalf, you agree that we may discuss your account with that person and process the payment as it h were made by you. You fuller agree that you will be responsible for all consequences of payment or non-payment by such party, including expedited payment return payment late payment and over limit fees. We reserve the right to refuse to accept payment on your behalf of to permit another person to ad on your behalf. Periodic Statement. Each month that you have a credit or debit balance of more than $1 in your account we will send you a periodic stafemenl as and when required by applicable law. The periodic statement will show all transactions billed to your amount during the billing period. The billing period is the time from one statement closing date through and Including the next statement closing dale. The statement dosing date determines the month of a specific billing period. For example, your January billing period Is the billing period with the statement dosing date In January. Finance Charge. You will be assessed finance charges as previously disclosed to you as part of the TILA Amount Disclosures or as we will disclose to you lt required by applicable law. Temporary Reduction in Finance Charge. We reserve the right to not assess any or all finance charges for any given billing period without waiving the right to assess such finance charges in a future billing period. Other Fees and Charges. The following fees will be billed to the purchase segment of your amount and will be treated as a purchase and applied against your available credit limit unless otherwise specified, in every billing period In which they apply: M A late payment fee will be assessed t we do riot receive your payment In time for it to be credited, as provided in this Agreement by the date sated In your periodic satement (ii) an over limit lee will be assessed it the balance of your account (or any segment of 021113 your account) at any lime during the billing cycle, for any reason, Is greater than the applicable temporary or permanent credit kmil, (regardless of whether you went over knit as a result of a transaction, finance charge or any other fee or charge, even I approved by us); J(R) a returned check fee will be assessed 'd we do not honor any account access check for any reason; (N) oopykg charges for duplicate copies of transaction doamenlation or periodic statements will be assessed on a per-page basis, unless required for billing dispute resolution; (v) a returned payment fee wig be assessed IL for any reason, (a) a check, draft or similar instrument is not honored or cannot be processed; or (b) an electronic debit is returned unpaid or cannot be processed. You augrorize us to resubmit retiuned payments in our discretion. At our option, we may assess this fee each time your payment is not honored or paid, even 8 it is later honored or paid following resubmsskm. Any check, draft or similar Instrument may be collected electronically g returned for Insufficient or uncollected funds. We may change any of these fees or charges, or add additional fees and charges, as provided below. We reserve the right to waive any of these fees without prior notification to you while maintaining our right to assess these lees going forward. Cash Advance Fee. If cash advances are pemhited for your amount a cash advance fee finance charge wit be () assessed each time you obtain a cash advance or cash equivalent transaction, (ii) added to the cash advance segment of your account and (i) applied against your available credit limn The amount of the cash advance fee finance charge will be added to other finance charges shown on your periodic statement for the purpose of calculating the annual percentage rate for that billing period. This may cause the annual percentage rate disclosed for that billing period to be greater than the annual percentage rate dl esad to you. Membership Fee. It applicable, a membership fee will be imposed in your first billing period, unless specifically stated otherwise. H the membership lee is assessed annually. I wl8 be assessed in the billing period In which each anniversary of the opening of your account occurs. If the membership fee is assessed monthly, it will be assessed in each billing period. The fee wN be billed to the purchase segment of your account and will be treated as a purchase and applied against your available credit limit The membership fee will not be refunded, in whole or in part even I you or we cancel the account Transfer Fee. A fee wN be assessed for each transfer of funds nom your amount to your Security Account that you request The fee will be bitted to the cash advance segment of your account and will be treated as a cash advance and applied against your available credit Imil Foreign Transaction Charge. For each transaction made in a country other than the U.S., or U.S. Territories, we will assess you a finance charge as previously disclosed to you as part of the TIA Account Dscbsuras or as we will disclose to you t required by applicable law, The fee will be based on the U.S. dollar amount of the transaction. Credit Bureau Information. You agree that we may obtain information about you from credit reporting agencies or others at any time and use It for the purposes of monitoring your credit performance, managing you account and considering you for new offers and programs. Security Interest. The terms and conditions contained within this paragraph apply only it the application for the amount stated that the account oil be a seared account You provided us with certain funds, which have been deposited in the Security Acc ounL To secure payment of the balance of the account and al other amounts owing under the temps of this Agreement and the Security Account Assignment Agreement you have transferred. assigned, pledged and granted to us a security interest in the Security AcmunL all lads contained in the Security Account all proceeds of the foregoing and all proceeds of proceeds. This security merest includes, without Imitation, the Initial funds that were placed Into the Seari(y Amount, any additional funds added to the Security Account by any person and any interest earned to or accrued on the Security Account. The tams of the seedy Inbarest are set forth in the Security Account Assignment Agreement you executed. If () you default or fail to abide by any at the terms of this Agreement or the Security Account Assignment Agreement n you dose your account or (®i) we cancel you account lot any reason, we may then or thereafter, and wilthoul prior notice to you, exercise our security kdarest by deducting from your Security Account the balance due on your account and all other amounts owing under the tarts of this Agreement and the Security Account Assgnmerd Agreement. We may exercise this right to make such deductions from you Security Account periodically as we determine to be appropriate. Within sixty days after the date you account is dosed, we wN send all remaining funds In fire Security Account to the person legally entitled to receive them. Future Offers. The terms of any Wbrre offer relating to the account will be disclosed to you at the time the offer Is made. I you accept an offer, the terms will become elective immediately unless otherwise specified in the offer. Default. We may, in our sole discretion. declare a default under this Agreement it: (a) we do not receive the Wg amount of arty minimum payment on or before the dale it is due, (b) you exceed any credit link or (c) an hem used to make payment on your amount is not honored or cannot be processed, or an eledronk debit to make payment on your account is returned unpaid of cannot be processed. To the extent permitted by applicable law, we may also, in our sole discretion, declare a default under this Agreement it (1) you violate any of the otlher lams of this Agmemerht or Searcy Account Assignment Agreement (If applicable). (2) we have declared you to be In default under the lens of any other agreement w us or any of our affiliates. or (3) we detemhine that you made any false or misleading staterments on your application lor, or regarding the use of, the account or otherwise aflerrpled to dekaud us, (4 bankruptcy or other Insolvency proceedings are hstWled by you or against you or 5) you die or are declared legally tncorpeterd or Incapacitated. At any lime following arty default under M Agreement (or after we give you any notice or right to are the default I required by applicable law), you will be subject to paying Interest finance charges and other fees pursuant to the terms of this Agreement Including any applicable default rate, even after any Judgment Is obtained. Additionally. we may, at our sole option, (x) limit or not allow you to make any new purchases or cash transactors on your aaan s), (y) increase your minimum payment with such noticia as may be required by applicable law or (z) subject to the hinitalk" of applicable fee, dose your aanuhgs) and demand kn mediate payment of the entire outstanding balance plus all other amounts owing under the berms of this Agreement and the Searcy Account Assignment Agreement. To the extend permitted by applicable law, you agree to pay us all of our actual court costs. collection expenses and attorney's lees (whether paid to an attorney who is one of our employees or an attorney who Is not she of our employees) Incurred by us in the oleclon of any amount you acre us under ids Agreement You also agree to pay us al of our actual costs that we Incur In retrieving your cards, Including any costs we may incur by having your account placed on a restricted list Nothing in this paragraph shag be construed to waive or Impede our right to require arbiaatiorh In accordance with The Arbitration Provision below. Account Closure and Suspension of Credit Privileges. (1) We may, at any lime, with or without cause, with or WNW advance notice, and regardless of the existence or nonexistence of a detauft under this Agreement canal the account and/or temporenly or permanently suspend you credit privileges under this AgreemenL I we cancel the account you agree to immediately destroy all cards and unused account access checks. (2) Your obligation fo make payments and your other obligations under this Agreement wig continue in full bra and effect alter the account Is canceled or you credo privileges are temporarily or permanently suspended. Cancellation of the account and/or temporary or permanent suspension of your credit privileges WIN not ailed our security interest in your Security Account (I applicable) or our rights under the Security Account Assignment Agreement (I applicable). You can dose your account by calling our Customer Relations department with the number found on the back of your credit cad or, I different to number stated in your periodic statement and requesting an account closure. You agree to destroy all cards and unused account access checks, cancel all preautrwrized billing arrangements and cease using your card and account If you do not cancel all preauthorized billing arrengements, you and we will consider our receipt of a preauthorizewdebft to your account to constitute your authorization to reopen the account on the terns set forth in this Agreement and the Security Account Assignment Agreement (I applicable). Your account will not be dosed until you pay all amounts you owe us under this Agreement and the Security Account Assignment Agreement (if applicable) including, withal limitation, any purchase and cash advance transactions you have authorized, finance charges, late payment fees, over limit fees, returned check fees, returned payment fees, membership fees, cash advance fees, transfer fees, copying charges and any other fees charged to your account- You are responsible for these amounts whether they have been ncumW at the bme you request a closure of the account or they are incurred subsequent to your request to close the account This may result in charges appearing on your account after you have requested the account to be dosed arid, It the account has already been dosed, the account wit be reopened on the terms set forth in this Agreement and the Security Amount Assignment Agreement (if amicable). For example, h you authorize a purchase from a merchant and we receive line charge from the merchant after your account has been dosed, your amount will be reopened, the amount of the charge will be added to your account and you will be responsible for payment under the terms of this Agreement and the Security Amount Assignment Agreement (I applicable). The membership lee for your account will continue to be charged, to the extent penmlted by applicable law, until the entire account balance has been paid in full, as described above. H the account Is reopened, a new membership lee will be charged to the account as stated above. If you, acting as the primary cardhoder, want to terminate a joint accanthoider's o an authorized user's access to the amount you must call our Customer Relations department and request that temminaton. Immediately thereafter, you agree to destroy that person's cards) and destroy any unused account access checks in that parson's possession. There may be a delay in the effective date of the termination of that person's access b the account. The account will be charged, and you ant any joint accountholders will be responsible, for any charoes through the use of the card or the account by the joint accountholder or authorized user that occur prior to the effective dale of the termination even I the charges do not appear on the account until a later time. If you are unable to destroy the joint accountholder's or authorized user's card(s) or to destroy the unused account access checks in that persons possession, and you ail our Customer Relations department to dose your account, your amount will be dosed in accordance with the preceding paragraph. Either you and/or the joint cardholder, I any, may apply for a new amount Changes In Terms. We may add to, remove, amend or change any part or prevision of this Agreement kxhxlhng the annual percentage mte(s) and any charges, (including adding new provisions of the same or a different nalue as the existing provisions in M Agreement) at any time. II we do so, we will give you nobce at such amendment or charge d required by Federal law or Virginia law (to the extent not preempted by Federal law) unless we had previously notified the customer that the account would be subject to such amendment or change without notice. Notice will be mated to the last b44. address indicated In our rends for the account However, no notice wN be mailed it we previously had notified you that your account would be subject to such amendment or change without notice. Changes to the annual percentage role(s) will apply to your existing account balance from the effective date of the charge, whether or not the account balance Includes transactions billed to the account before the change date and whether or not you conlnue to use the amount Changes to fees and other charges will apply to your account from the effective dale at the charge. Governing Law. WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed In accordance with and governed by the lawn of the United Slates of America and by the Internal laws of the Commonwealth of Virginia without plvlng effect to arry choice of law rule that would cause the application of the laws of any JiNdkilon other than the lairs of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. it will be governed only by Federal law and Vlrginla law {to the extent not preempted by Federal law). N a court decides not to enforce a part of this Agmemerl, this Agreement will then read as it the unenforceable or Invalid part were not there, but the remaining parts will remain In,effect Waivers. You waive the right to receive notice of any waiver or delay or presenbnent demand, protest or dishonor and any right you may have to require us to proceed against another party before prokseding against you. You also waive, to the extend permitted by applicable law, arty statute of limitations defense fa an additional period of time equal to the applicable fimfafions period. Lost or Stolen Cards or Account Access Checks. II your card(s) or account amass checks are lost or stolen or I someone else may be using them widhoul your permission, notify us at once by calling the felephone number on the back of your credit cad or, I different, the telephone number shown on the front of your periodic statements, or by writing us at Capital One, P.O. Box 85015, Richmond. VA 23285-5015. You will not be liable in any amount for unauthorized use of your cards or amourht access checks. You agree to tell us at arcs If you change your name, address, telephone number or employment. You agree to give us written notice of any charge in your billing address at least 10 days before the charge. Charges may be written in the space provided on the remitance coupon portion of your periodic statement or may be sent to the following address: Capital One, P.O. Box 85015, Richrtond, VA 23285- 50115. If you 9aoun is a joint account or if more than one person is permitted to use it you agree that all notices regarding the account may be sent solely to the address shown on our billing records. Comrnunkations. We may release Information to others regarding the status or history of you amount as set forth In the Capital One Privacy Notice, a copy of which has been provided to you We may make Inquiries -of third parties In connection with maintaining and edWcdrg your amount and you authorize such third parties to release information about you to us. We or our representatives may contact you from erne to time regarding the amount or to ask for additional Irdormatlon about you or you experience with Capital One. You agree that such contacts are not unsolicited, are not Wiled except as expressly required by applicable law and may result from contact information you have provided or that is obtained from other sources. For example, we may contact you at your horns or place of employment, during weekends or holidays, on your mobile telephone, veloemal or answering machine, and by email, fax, recorded message, text message or personal vsh. Except as restricted by applicable law, we may monitor or record any calls we make or receive, suppress caller identrfication services and use an automated dialing and announcing device. ARBITRATION. PLEASE SEE ENCLOSED `ARBITRATION PROVISION." PLEASE NOTE THAT THE TERMS INCLUDED IN THE ARBITRATION PROVISION ARE PART OF YOUR CUSTOMER AGREEMENT. 0 2005 Capital One Services, Inc Capital One is a federally registered service mark. All rights reserved. D318-17-0305 ARBITRATION AGREEMENT M-75733 IMPORTANT: THIS ARBITRATION PROVISION 15 A PART OF YOUR CUSTOMER AGREEMENT You and we agree that titer you an we may. A either pinyya soft ejection, ititke INI any Clain es curmed below) be rtsulved by binding arbitration. IF YOU OR WE ELECT ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION DR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR'S DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT INCLUDING THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION. THE FEES ASSDCIA7ED WITH ARBITRATION MAY BE HIGHER THAN THE FEES ASSOCIATED WITH COURT PROCEEDINGS. Special Definitions for this Arbitration Provision. Fa re purposes of IN arbitration provision {'Arbitration Provision'), ere following relinilim shall apish an addition to are defnifione set farm in your Cushier Apeemen ('Agreemeol'). -Claim' mean any calm, controversy a dispute at any kind in natue between yap and ua A This deliNNOn Jnduders, whAOUI limAadon, any Cbim that in any way arises from or relates la • the Agnewre rs and my of its arms ('InclixIl'g any pia agreammus behveen you and m in bdWem you and any oath edtily sand „Rich we arquin a yawn account) • ants NBbrstion Roubion (inckfdng whdher any Claim is s,khd to arbitration] • ft estadisMent, Operation Or lemination at you accurate • an, discasuas, adverfsemerds. proldioro or oft communications rda[ing to you account whether Ley owned before a ayes your attars was oxned • any ranaKlnnf or anerrped Irmuctionn invelvrag your aanisa • any dllrg or CDIeCkm MMWS reNekg to your account • try Oon" at nrods a Service: rt lindusing to y?upad credits) to your arxoua • my bs, inu ed a other Charges assessed to yarn account, in paid UICWatim • arty products. Semkes a Mellp Pro related In or anered id.. conne[don with your account InXing any insuance, deal . tell1 , l r d5.lm a eaende lxr, d savior cadrsh Brackets andeds arty he wo(pams capon) whdN: or .0 sOft d, imoducNed. sold sold in provided them our t o use a disclosure a err • over muserine el at m irwund in in abort you in pit with ai • any over rs Natarin rnp t to your aarAUnf you mlxiwshp with us. 6. This daAnhim also indyndes. whAoul dmhalfnn, any Claim. • agadess of how or when l is bought (lot eaaniple, as an inilid clapn Monfort aasstlaim Inlapleadng at grid-prly claim) • leased on m feat' d neliel a damages (Including money tampons and m loan III Saint palormanea in lolnicahm declaratory or other refillable ref" • an arty Beery d law or egedy lirctuding contract. WL Maud. mnlilli stalule regulation. o pNna a wrongtur acts a adsson5 d m typa. whellNr nplioml. redtless or Imadknal • come by you a Dy ayOM co nKled with you a claiming INOUph a far you (includug a Coappfrad or sullaizid user of you account. Cut apra your reprmenlaf ive, your heirs a a Me in banauwcy) • Whic h we maYy De d'Rdy or i dUacdy table umb cry thee)). I"Ckld , respade4I -In- a (even II we M npl proprry namedal IN, lime me Calm b w • now In aisWce, or that npr rise in the We. Itlawdess a] when the lads ant rlPLnahnca DIa ghe rise to are Claim -ad in when IN Claim mend • made as pal of a Class aafa, private aaacry general action. at arms representative on Wadiw action which Gam shall proceed on an individual bash as ad form more Tully in the Arb"m Provision. Arbitration Adminislralors. tine at IN hollowing abilution administrators (•AdriahuM• a, collec". 'Administrxprs') will intermitted fine sibitationt, JAMS 1920 Man St. Ste. 308 Irvine. CA 92614 www.lamsadccom American Arbllrellon Au'n 335 MIMW Ave., Floor 10 New York. NY 10017455 wwwadcorg Nalldnal Arbitration Forum PC 80 5DI91 Minn MN 55405 www.rWnlion-low.can Procedures and Lew Applinble In Arbllmllnn. This ArbBnlion Prmision Is made pursuant to z transaction -Nine inl-fid, cornnerce and sixll be governed by and enforceable antler the Fedad Arbitration Act (the 'FAA'). psNion abo.4 whdhar arw Claim is subjecl to arbitration shall be ,solved by iner PrO this Arbibalim PluviSian in the Moadesf way N may be enforced, comided with the FAA and the Won; of this Ardbit ad Prov cin The zMbala will apply su islalvive law consistent wllh the FAA and epplkable statutes o1 bmilddns. but Ite validity and edorcernenl of any class action walm is a question for a Cain of o Imisdkliaa, 1701 n arbill to decide. The arbitrator my mar any aregas or Orbit 'del pe tritkd esbi le oWNv?ability of I?Icewlpa2d It haw p oorConsoliidation in Jolydet of Panes; Mow), but ft award dell dnermine per qN3 lend obligaions al defy the named parties and only with respect to Ina Claims In arbitration The rules one pocechwes at The Administrates, wnkh you may obtain from the Adninistralm. snail govern the anbinabon unless they Conflict with mis Arbitration Provision, in wt ich we 0ris Arbitration Provision will apply The arbitrator will nor be bound t and this Nbibalian Provision shall not be subject to. the Iarl. sale or font Ares of InDadne and evidence marl woad apply in any cM. m to state a local laws that relax ID arbitration poccdirgs. You an we inlay have a ha ring in arbitration. Any arbitration hearing the you maid in person Will see dace 21 4 I0tl11en n the Iedenl Indir-W district pre includes your as-eroan dlllnd ada is a a same offer plan upon which you ant we atru. You or ft may be repirmhaM by counsel. R you a we repeat. ft rbaraW will honer claims of privilege recognized under apphcaale ew and WIN use best efforts to protect CahEdeNial inform orin (including [hough De use d proledive ordwl The arbitrary Will make any award In wrslifg and, Y. ft [idly tad" at either party , will provide a wind statement or reasons la IN alrand. Cosh. The party initialing arbitration will pay re Initial Bony IN . Ya nay use a waive of Ins nitia filing ere a any of fit Admdsraar) otter lees (colkrJMy. -Admini5ln., Feet) ado any appliQON min of the Adreinistrara. If you seek but do not quality lot. a waiver, m will faxddei m wrift rcgml by a for m to paf in reiff"t, you lox all a pan d me Aaniaslnlor3 Xeas. We also will pay a mn,"fx yes far all a pad of the AdmiriAnitDry Fees if Its addition, derermhws mine is good reason la us to do m. We will pay my leas and Cosa Wit are riqured to pay by Is. Otherwise. and ezcepl a provided in IN, Agreement, you ad we will bear all of our nespedivz Ares and cash (including IN, Adrhnispalor's Fees and the lam and Cols aWkg a attorneys. carpals and whnNSSes). regardless at who ft d Allocation Of lees ant cans rdrlidg lo appeals in arba alion vn be hurdled n me same namion. No Consolidation or Joinder al Padres. The arbilnban or any Claim mast proceed on an Individual basis, even it die Claim has berm asserted in a court a a Class action, private abornry gercal action or Other IOMMnWim a collective NOWL IAfea elf parties OrdO. roilhef you nor we may join. consofdxe or dAerwise big Claims rattled to Iwo or more aapuds, individuals or accountholders it thn same ifbtrafan. Alm, a7ess all parties consw, neifer you nor We may pursue a Class action. injuries momey general action or Oliver repasenonNe or collective action in arbNmetim nor may you or w faanua bnA Kline n caurif arry party Ms eecUd artaration YDu will hal have ft rya to KI as a class repesmtalrve or parlidpxe as a mardar of a class a-claineas with respect to any Claim a a which arbitration has hen decried . Jwdgmrm. Ealoaamant, Finality and Appeal. The arbbaars drbion will per final and binding env [Rem days adess you on we seek an appeal d One award by-king z wrilem to ro fit Admiddnlcr. The appeal pond, which Will Consist at three arbeeors. Wif cordite, IN adnal and Legal issue anew. Will conduct the appeal In the sane manner a der initial arbitration tad will make dedsfane bawd on ON vole Of fit mealy. The paW3 decision will be final and bindng. Any final decision of IN abaala a of Her appeal Panel Is subject b judicial review only as sat Grin under the FM M awed in statement will be enfonsmbe order fe FM by any tout haying jwisdidion Miscellaneous, Walser, Severablllly, Survival. It you of we do not elect arbibifion at oferw[se enforce the A b"ion Provision In co11n[dion wfh alY particular Claim you a we will not Mho m OrIs Id regdro aDgeBar n correction wig ft of m Ouns Claim his A'bflralon Provision shall survive: (I) saspedslon, lemunalion. nakesca t, clown a chpnga of cob Agreement your aactnl and Pass ndationship wan a; (it) fit bankruptcy of insohency of ay parry. IN rill) any Iruil of you account, or any anmUae owed on yea ". is arty A ed permll Or entity, R m poem e cob nti O deem med risi or ui able, ON dmrniaog pomace at the at the evade of a Rmovbbn s'ull f ravertaaass ranan nis Acad it Wua, Bw evert of a eaatct si Incoaii Initiated INS prim alas Provision and like on Pr pinion shelf this rm Agn pric ought this Arbitration Provision sheif ll Wywdds A A pholoc apy or wind Dy older r image of this la z ZO"w" and" ad doa'neras may be used n place d Its originals ll eurfold Inds ding Rfigaion. Ya may Coned " of IN Admkisladors a obtain information C 2005 Ciaild One Swim, Ire. Calml One is a ederaly legislated aboid rbN.M., arbletalaa nuks and paadures, are schedules and savicos mark All nights reserved. dim arms. Election and Inilialion of Arbitration. You a we may elect arbitration undo this ArbllAbon Provision Will reseed to m Claim even it the Claim is pal d a lamed Gage in Carl Yes in we my cede a nation of mquml In east to comfed arbdatan of any Claim Gouged as qd d any laWNa1. We well not sled or iddlah titillation at ay Cain bouyhe In a NrpB Claims aaat (a fit epailet m lopnqg a fke Claim Nm mnIANcaA.hmadesddyonbdalldnIndividud or !Died wclant bolder and b not mede as pal of a bias ecdon, private atonrey garland action or ofmr rapreserill on collective action. You and we had follow are rvla of the Adminhtrxors to niliae amledion. II you kiliale arDllrxim, you may mousse ON of like AdrdridrRms, ant you ms! mall a ay notice required by the Admirdmela N P.D. Boa 85550, Pidmand. VA 23285.5550. R we initial arbdapA We Will choose are at On Administrators. mal we will mal you any notice mgDire•J far me Adririshaka to your lail-anown billing aklress . It we have h raled separation, we will charge the Administrator aI your repast a you half is In Writing at fe above radial; Within Raw days of the aloe at any notice We send you or our mJRatan or ablcalion W W # o0 o O o Lo ;.nn r 0 SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-05415 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND CAPITAL ONE BANK USA N A VS KITNER AUBREE R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT KITNER AUBREE but was unable to locate Her in his bailiwick. He therefore returns the COMPLAINT & NOTICE , the within named DEFENDANT 130 E MAIN STREET APT 1 KITNER AUBREE NOT FOUND , as to SHIREMANSTOWN, PA 17011-6398 PER POST OFFICE, DEFENDANT LIVES IN YORK COUNTY. Sheriff's Costs: Docketing 18.00 Service 13.00 Not Found 5.00 Surcharge 10.00 00 IbIO,10 46. 00 So an R. Thomas Kline She iff of Cumberland County OLDMAN & WARSHAW 10/01/2008 Sworn and Subscribed to before me this day of A. D. NAN13928 Goldman & Warshaw, P.C. Barry A. Rosen, Esquire PA Identification No: 42951 GOLDMAN & WARSHAW, P.C. 312 W. Broad Street Quakertown, PA 18951 267-373-9730 Counsel for Plaintiff CAPITAL ONE BANK (USA), N.A., successor in interest to CAPITAL ONE BANK VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY c rn z Y t 0 tQ Ts ?? C) =C) CD rn C_- AUBREE KITNER DOCKET NO. : 08-5415 PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above-captioned action, without prejudice. Goldman & Warshaw, P.C. BY: Barry A. sen, ESQUIRE Attorney for Plaintiff P006 I CERTIFICATION OF SERVICE I, Barry A. Rosen, ESQUIRE, hereby certify that I, on the date below, served a copy of Plaintiff's Praecipe to Withdraw Complaint Pursuant to Pa.R.C.P. 1028(c)(1), via First Class Mail, postage pre- paid, to all other parties or their counsel of record. Barry A. osen, ESQUIRE Dated: :aog3O UUMAI SUUad