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HomeMy WebLinkAbout08-5732IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NCO Portfolio Management ASGNE OF MBNA CIVIL ACTION 507 Prudential Road Horsham, PA 19044 Plaintiff vs. NO: O$ - 573a C;vi l (ef {4.l JAMES BURGETT 70 STATION RD NEWVILLE PA 17241 Defendant : NOTICE TO DEFEND 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 to Defend are served, by entering a written appearance personally or by an 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 ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT REDUCED FEE OR NO FEE. MIDPENN LEGAL SERVICES 401 EAST LOUTHER STREET CARLISLE, PA 17013 717-243-9400 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NCO Portfolio Management ASGNE OF MBNA CIVIL ACTION 507 Prudential Road Horsham, PA 19044 Plaintiff VS. NO: 0 p. 5 7 3a JAMES BURGETT 70 STATION RD NEWVILLE PA 17241 Defendant COMPLAINT Plaintiff, NCO Portfolio Management ASGNE OF MBNA, by and through its attorneys, Edwin A. Abrahamsen & Associates, P.C., complains of the Defendant as follows: 1. Plaintiff, NCO Portfolio Management ASGNE OF MBNA, (hereinafter "Plaintiff") is a Pennsylvania corporation with a principal place of business located at 507 Prudential Road Horsham, PA 19044 2. The Defendant JAMES BURGETT (hereinafter "Defendant") is an adult individual residing at 70 STATION RD NEWVILLE PA 17241. 3. At all relevant times herein, Plaintiff was engaged in the business of debt purchase and collection. 4. Defendant applied for and received a credit card issued by ASGNE OF MBNA NCO with the account number 4264293997940311. 5. The within account was sold by ASGNE OF MBNA NCO to NCO FINANCIAL SYSTEMS, INC for valuable consideration and all rights under said accounts were assigned to NCO FINANCIAL SYSTEMS, INC. 6. Use of the ASGNE OF MBNA NCO credit card was subject to the terms of the Cardmember Agreement, a copy of which was sent to the Defendant along with the credit card. 7. Defendant used the ASGNE OF MBNA NCO credit card account number4264293997940311, for purchases, cash advances and/or balance transfers. 8. The Defendant was mailed account statements relative to the Defendant's use of the subject credit card. (See, Card Statements attached hereto as Exhibit "B.") 9. The Defendant defaulted under the terms of the Agreement by failing and refusing to make monthly payments on the account as they became due. 10. The account became delinquent January 8, 2005. 11. The principal amount was $13,187.12 at the time it was received by Plaintiff. 12. Pursuant to the account agreement, any unpaid balance accrues interest at the rate of 21.49. 13. The total amount due and owing the Plaintiff including interest, is $21,255.00. 14. Pursuant to the terms of the Agreement, Defendant is liable to Plaintiff for court costs and reasonable attorney's fees. WHEREFORE, Plaintiff requests judgment in its favor and against Defendant in the amount of $21,255.00 plus costs of suit, reasonable attorneys' fees and any other relief as the Court deems just and appropriate. Respectfully submitted, Edwin A. Abrahams & ssoc. Michael F. Ratc rd, Esquire Heather K. W odruff, Esquire Attorney I.D. Nos.: 86285/207805 1729 Pittston Avenue Scranton, PA 18505 mratchford@eaa-law.com hwoodruff@eaa-law.com VERIFICATION I, Michael F. Ratchford, attorney for Plaintiff, NCO Portfolio Management ASGNE OF MBNA, am fully familiar with the facts set forth in the within Complaint and am authorized to make this Verification on behalf of Plaintiff. I Verify that the facts set forth in the within allegations are true and correct to the best of my knowledge, knowing that any false statements are punishable by law pursuant to 18 C.S.A. 4904. ?' J ? o o 00 ? ? -t; rr _a ' j ar r> = rn SHERIFF'S RETURN - REGULAR CASE NO: 2008-05732 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NCO PORTFOLIO MANAGEMENT VS BURGETT JAMES SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being du?y sworn according to law, says, the within COMPLAINT & NOTICE was served upon DTTDr2L rrr .7hMVQ the DEFENDANT , at 2017:00 HOURS, on the 30th day of September, 2008 at 70 STATION RD NEWVILLE, PA 17241 by handing to JAMES BURGETT II, SON 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 jp/t,q/07 6Y- So Answers: 18.00 11.00 _ 00 _ 10.00 R. Thomas line .00 39.00 10/01/2008 EDWIN ABRAHA EN Sworn and Subscibed to before me this of By: day /?'] 1%puty A. D. SOCIATES r NCO Portfolio Management : COURT OF COMMON PLEAS ASGNA OF MBNA Plaintiff VS. JAMES BURGETT Defendant : CUMBERLAND COUNTY, PA : 08-5732 Civil Term Praecipe for Entry of Appearance Please enter my appearance on behalf of the Defendant above. Geoffrey M. iringer MidPenn Legal Services 401 E.Louther Street Carlisle, PA 17013 (717) 243-9400 Supreme Court ID#18040 ? -y. ? ha ? ?, `? .? ?? ' ,.? ; ` --a t nos 1 ( i ` : _?}:. S _ : '?, [_? te. .A' py., ... ? + ? i y ? fF .,,.w .a NCO Portfolio Management ASGNA OF MBNA Plaintiff VS. JAMES BURGETT Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA 08-5732 Civil Term PRELIMINARY OBJECTIONS TO COMPLAINT - CIVIL ACTION Defendant moves for the dismissal of Plaintiff's Complaint - Civil Action, 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-Civil Action demanding damages in the amount of $21,255. 2. Plaintiff alleges it is an assignee of MBNA NCO, but fails to attach a copy of any assignment. 3. Plaintiff alleges it is owed certain funds pursuant to a credit card agreement but fails to attach a signed written contract between the Plaintiff or any other party and the Defendant. Such a writing would form the very core of Plaintiff's case, but such writing has not been appended to the Complaint, nor its absence explained, as required by Pa.R.C.P.No 1019(h) and (i). 4. The 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. 5. The Complaint refers to an Exhibit "B," yet said Exhibit is not attached to the Complaint. 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) 6. Paragraphs 1-5 are incorporated herein by reference hereto. 7. 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. 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. 9. 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. 10. Defendant is entitled to know how he 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. Failure to Properly Verify Pleading Pa.R.C.P.No.1028 (A)(2) 11. Paragraphs 1-10 are incorporated herein by reference hereto. 12. The Complaint is verified by the attorney for the Plaintiff who is not a party to the proceeding , who has not alleged that the party is outside the jurisdiction of the Court or why the verification is not made by the party. WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed for an improper verification. Respectfully submitted: MidPenn Legal Services Atto eys for Defendant BY: o Geoffrey M. Biringer, iL 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 to Plaintiff's Complaint on this 20th day of October, 2008, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Edwin A. Abrahamsen and Associates 1729 Pittston Avenue Scranton, PA 18505 MIDPENN LEGAL SERVICES By: Geoffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 C`) ? ::? ??-? ? ? ' -? m ? z '?: ? i . ? __ ? Aga ?, a . ??? ? = ?? ?", i'iti , C:_ * .?: > r' 4't ?_.? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NCO Portfolio Management Assignee of MBNA CIVIL ACTION 507 Prudential Road Horsham, PA 19044 Plaintiff NO: 08-5732 VS. James Burgett 70 Station Road Newville PA 17241 Defendant : NOTICE TO DEFEND 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 Amended Complaint and Notice to Defend are served, by entering a written appearance personally or by an 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 ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT REDUCED FEE OR NO FEE. MIDPENN LEGAL SERVICES 401 EAST LOUTHER STREET CARLISLE, PA 17013 717-243-9400 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NCO Portfolio Management Assignee of MBNA 507 Prudential Road Horsham, PA 19044 Plaintiff CIVIL ACTION NO: 08-5732 VS. James Burgett 70 Station Road Newville PA 17241 Defendant AMENDED COMPLAINT Plaintiff, NCO Portfolio Management Assignee of MBNA, by and through its attorneys, Edwin A. Abrahamsen & Associates, P.C., complains of the Defendant as follows: 1. Plaintiff, NCO Portfolio Management Assignee of MBNA, (hereinafter "Plaintiff") is a Pennsylvania corporation with a principal place of business located at 507 Prudential Road Horsham, PA 19044 2. The Defendant James Burgett (hereinafter "Defendant") is an adult individual residing at 70 Station Road, Newville PA 17241. 3. At all relevant times herein, Plaintiff was engaged in the business of debt purchase and collection. 4. Defendant applied for and received a credit card issued by MBNA with the account number 4264293997940311. 5. The within account was assigned by MBNA to NCO Financial Systems, Inc. for collection purposes. 6. Use of the MBNA credit card was subject to the terms of the Cardmember Agreement, a copy of which was sent to the Defendant along with the credit card. (See, Cardmember Agreement, attached hereto as Exhibit "A. ') 7. Defendant used the MBNA credit card account number 4264293997940311, for purchases, cash advances and/or balance transfers. 8. The Defendant was mailed account statements relative to the Defendant's use of the subject credit card. (Card Statements are not currently accessible to Plaintiff, but generally they set forth the activity on the subject account.) 9. The Defendant defaulted under the terms of the Agreement by failing and refusing to make monthly payments on the account as they became due. 10. The account became delinquent January 8, 2005. 11. The principal amount was $13,187.12 at the time it was received by Plaintiff. 12. Pursuant to the account agreement, any unpaid balance accrues interest at the rate of 21.49%. 13. The total amount due and owing the Plaintiff including interest, is $21,535.08. 14. Pursuant to the terms of the Agreement, Defendant is liable to Plaintiff for court costs and reasonable attorney's fees. WHEREFORE, Plaintiff requests judgment in its favor and against Defendant in the amount of $21,535.08 plus costs of suit and any other relief as the Court deems just and appropriate. Respectfully submitted, Scranton, PA 1 mratchford@eaa-law.com VERIFICATION I, Michael F. Ratchford, attorney for Plaintiff, NCO Portfolio Management Assignee of MBNA, am fully familiar with the facts set forth in the within Amended Complaint and am authorized to make this Verification on behalf of Plaintiff. I Verify that the facts set forth in the within allegations are true and correct to the best of my knowledge, knowing that any false statements are punishable by law pursuant to 18 C.S.A. 4904. Michael F. Rat Exhibit "A" P. 002 P. 02 Credit Curd Agreement General in this credit Card Agreement, the words "you" and "your" refer to each and all of the persons who accept a credit card issued by us or under an account we hold. This Credit Card Agreement (the "Agreement") consists of this document and the terms and conditions set forth in the Required Federal Disclosures section of the accompanying card carrier, which is incorporated herein and made a part hereof. The words, "we," "us," "our" and "MBNA America" mean MBNA America Bank, N.A. When you accept or,use the account, you agree to the terms in this Agreement. You should sign your card before you use it. You consent to and authorize MBNA America, any of its affiliates, or its marketing associates to monitor and/or record any of your telephone conversations with our repre- sentatives or the representatives of any of those companies. All capitalized terms not defined herein shall have the meaning as defined in the Required Federal Disclosures section of your card carrier. In formation Gathering and Sharing From time to time, we may obtain updated informa- tion about you including, for example, credit Informa- tion. We may share information about you with credit reporting agencies and others, including merchants, and among companies affiliated with us. You may request that information about you not be shared among our affiliates, other than information pertaining solely to transactions or experiences between you and-us (or an MBNA America affiliate), by writing us at MBNA, Affiliate information Sharing, RO, Box 15342, Wilmington, DE 19850-5342. Please include your name, address, home phone number and all MBNA America account numbers. If you believe that inaccurate or incomplete information about you or your account has been shared by us with a credit reporting agency, write to us at: MBNA, Credit Reporting Agencies, P.O. Box 17054, Wilmington. DE 19884-7054. Please Include your name', address, home phone number, and account number,-and explain which information you believe is inaccurate or Incomplete. P. 003 P. 03 How To Use Your Account s i 4 i You may use your credit card to purchase or lease goods or services from persons who honor the card. You may also use your card to obtain Cash Advances. You may not use a Check Cash Advance, or any other Cash Advance, to make a payment on this or any other credit account with us. You may riot use your account for busi- ness or commercial purposes. Certain establishments may cash your personal checks upon presentment of your card. In the event we are required to pay the amount of a check cashed in this way because the check is not paid for any reason, we will charge your account for a Cash Advance in the amount of the check and any processing charge we actually incur. If you permit any person to have access to your card or account number with the authorization to make a charge, you may be liable for all charges made by that person Including charges for which you may not have intended to be liable. The transaction date for Check Cash Advances and Balance Transfers is the date you or the person to whom the check is made payable first deposits or cashes the check. The transaction date for a returned payment (a Bank Cash Advance) is the date that the corresponding payment posted to your account. You may request a stop payment on Check Cash Advances by providing us with the check number, dollar amount, and payee exactly as they appear on the Check Cash Advance. Oral and written stop payment requests on Check Cash Advances are effective for six months from the day that we place the stop payment on your account. You may not use a.postdated Check Cash Advance to obtain credit under your account. if you cio postdate a Check Cash Advance, we may elect to honor It upon pre- sentment or return It unpaid to the party which presented it to us for payment, without in either case awaiting the date shown on the Check Cash Advance. We are not liable to you for any loss or expense Incurred by you arising out of the action we elect to take. Repaym nt You promise to pay us the amounts of all credit you obtain; this includes all purchases, cash advances, fees, 2 P. 004 P. 04 charges, and insurance premiums we assess against your account and Finance Charges. You may pay the entire amount outstanding at any time. You must pay each month at least the minimum payment shown on your monthly statement. If you over- pay or if a credit balance is otherwise created in your account, we will not pay interest on such amounts. Your . payment will be allocated in a manner we determine. In most Instances, we will allocate your payments to balances (including new transactions) with lower APRs before valances with higher APRs. This will result in new bal- ances with a lower rate of interest being paid before any other existing balances. All payments will be credited to your account for the billing cycle in which each payment is received; however, your available credit may not be increased by the amount of the payment until your funds have cleared. Minimum monthly payments can- not be made in advance and payments made in any billing cycle which are greater than the minimum pay- ment due will not affect your obligation to make subse- quent minimum payments each month. We can reject payments not denominated in U.S. dollars or not drawn • on a U.S. Bank. No payment shall operate as an accord and satisfaction without the prior written approval of a senior officer of MBNA America. All persons who initially or subsequently request, accept or use the account are individually. and together responsible for any outstanding balance. if two or more persons are responsible to pay any outstanding balance, we may refuse to release any of them from liability until all of the unexpired cards outstanding under the account have been returned to us and the balance is paid in full. ` Reasons for Requiring Immediate Payment You will be in default and we can require immediate } payment of all amounts you owe if: (1) you fail to make any required payment by the Payment Due Date; (2) your New Balance Total exceeds your credit limit. or if we have established a separate Cash Advance credit limit for you. your outstanding Cash Advance balance exceeds your Cash Advance credit limit; or (3) you fail to abide by any other terms of this Agreement. : If you default, unless prohibited by applicable law, we 3 P. 005 P. 05 can also require you to pay the collection and court costs we incur in any collection proceeding, and a rea- sonable attorney's fee if we refer your account for collec- tion to an attorney who is not our salaried employee. our failure to exercise any of our rights when you default does not mean that we are unable to exercise those rights upon later default. naument Holidaus We may allow you, from time to time, to omit a monthly payment. We will notify you when this option Is available. If you omit a payment, Finance Charges and credit insurance premiums, if any, will accrue on your balance in accordance with this Agreement. The requirement that you make a minimum payment each month will resume following your payment holiday. Charges Made In Foreign Currencies if you incur a charge in a foreign currency. the charge will be converted by Visa international or MasterCard international, depending on which card you use, into a U.S. dollar amovnt in accordance with the operating regulations or conversion procedures in effect at the i time that the transaction is processed. Currently. -those regulations and procedures provide that the currency conversion rate to be used is either (1) a wholesale { market rate or (2) a government-mandated rate in effect i one day prior to the processing date, increased by one percent in each case. Visa or MasterCard retains this I one percent as compensation for performing the curren- cy conversion service. The currency conversion rate in j effect on the processing date may differ from the rate in effect on the transaction date or the posting date. Billing Cycle `r A billing cycle begins on the day after the closing date shown on your account's preceding monthly statement f and ends on the closing date that appears on your account's statement for the current month. Account Fees and Charaes Account Fees: The following fees, which are set forth on your card carrier, are assessed as Purchases in the billing cycle in which such charges accrue: (1) a Late l=ee; (2) if your account is overlimit (even if fees or P. 006 P. 06 Finance Charges assessed by us cause your New Balance Total to exceed your credit limit) on the last day of a billing cycle, an Overlimit Fee Is charged to your account as of the day in the billing cycle that your account went over the credit limit; (3) a Returned Payment Fee If a pay- ment on your account is returned for insufficient funds or for any other reason, even if It is paid upon subsequent f presentment; (4) a Returned Check Fee If we return a Check Cash Advance unpaid for any reason. even if the Check Cash Advance is paid upon subsequent present- ment; (5) if your account Is open or If you maintain an account balance, whether you have active charging privi- leges or not, an Annual Fee. Abandoned Property Charges: Unless prohibited by applicable law, we will charge your account, as a Purchase, for any costs incurred by us associated with complying with state abandoned property laws. Additional Account Fees and Charges: Please review the Required Federal Disclosures section of your card carrier for additional fees and charges that may apply to your account. Benefits You will be offered certain benefits which will be sub- ject to the restrictions outlined in the benefits brochure provided tQ you by MBNA America. MBNA America reserves the right to adjust, add, or delete benefits and services at any time and without notice. Refusal to Honor Your Card We are not liable for any refusal to honor your card or any Cash Advance or for any retention of your carts by us, any other bank, or any seller or lessor of goods or services. Termination We may suspend or terminate your right to obtain credit at any time for any reason. Your obligations under this Agreement continue even after your right to obtain credit has been suspended or terminated. You must return all credit cards to us on request. Amendments We may amend this Agreement at any time by adding P. 007 P. 07 deleting, or changing provisions in compliance with the applicable notification requirements of federal law and the laws of the State of Delaware. if an amendment gives you the opportunity to reject the change, and if you reject the change in the manner provided in such amendment, we may terminate your right to receive credit and may ask you to return all credit devices as a condition of your rejec- tion. -The amended Agreement (including any higher rate or other higher charges or fees) will apply to the entire unpaid balance, including the balance existing before the amendment became effective. We may replace your credit card with another card at any time. Assignment r' We may at any time, and without notice to you, assign your account, any sums due on your account, this Agreement or our rights or obligations under your account or this Agreement to any person or entity. The person or entity to whom we make any such assignment shall be entitled to all of our rights and/or obligations under this Agreement, to the extent assigned. Credit Limit Your credit limit is shown on your card carrier and gen- erally on each monthly statement. We may change your credit limit or limits from time to time, and we will notify you if we do. The total amount of credit outstanding at any time must not be more than your credit limit. We may also establish a separate credit limit for cash Advances. if we do, your outstanding Cash advance balance may not exceed this Cash Advance limit. Request for Credit Over Your Credit Limits if you request credit in any form which, if granted, would result in either your total outstanding balance or your Cash Advance balance, including. authorized transac- tions not yet posted to your account, being more than your credit limit or your Cash Advance credit limit, if we have established one for you, (whether or not such bal- ances before the request were more than the respective credit limit), we may: (1) honor the request without per- manently raising your credit limit; (Z) honor the request and treat the amount which is more than your credit limit 6 P. 008 P. 08 as immediately due; or (3) refuse to honor the request. We may advise the person who made the request that it has been refused. If we refuse to honor a Check Cash Advance or Balance Transfer, we may do so by advising the person presenting the Check Cash Advance or Balance Transfer that credit has been refused, that there are insufficient funds to pay the Check Cash Advance or Balance Transfer, or in any other manner. If we have previously honored requests for credit over your credit limit, it does not mean that we will honor further overlimit requests. if we decide to honor such a request, we may assess an overlimit Fee as provided in this Agreement. Unauthorized Use of Your Card ?• Please notify us immediately of the loss, theft, or possible unauthorized use of your account at 1-800-789-6701. Governing Law This Agreement is made in Delaware. It is governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and by any applicable federal laws. If any part of this Agreement is found to be invalid, the rest remains effective. Our failure or delay in exer- cising any of our rights under this Agreement does not mean that we are unable to exercise those rights later. ' Litigation The Arbitration provisions below apply to you unless you were given the opportunity to reject the Arbitration provisions and you did so reject them; in which case. you agree that any litigation brought by you against us regarding this account or this Agreement shall be brought in a court located in the State of Delaware. Arbitration: Any claim or dispute ("Claim") by either you or us against the other, or against the employees, agents-or assigns of the other, arising from or relating in any way to this Agreement or any prior Agreement or your account (whether under a statute, in contract, tort, or otherwise and whether for money damages, penalties or declaratory or equitable relief), including Claims regarding the applicability of this Arbitration Section or the validity of the entire P. 009 P. 09 Agreement or any prior Agreement, shall be resolved by binding arbitration. The arbitration shall be conducted by the National Arbitration Forum ("NAF"), under the Code of Procedure in effect at the time the Claim is filed. Rules and forms of the National Arbitration Forum may be obtained and Claims may be filed at any National Arbitration Foram I office, www.arb-fotum.com, or P. O, Box 50191, Minneapolis, Minnesota 55405, telephone 1-800-474-2371. If the NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, indepen- dent arbitration organization that uses a similar code of procedure. At your written request, we will advance any arbitration filing fee, administrative and hearing fees which you are required to pay to'pursue a Claim In arbi- tration, The arbitrator' will decide who will be ultimately responsible for paying those fees. In no event will you be required to reimburse ut; for any arbitration filing. administrative or hearing fees in an amount greater than what your count costs would have been if the Claim had been resolved In a state court with jurisdiction. Any arbitration hearing at which you appear will take place within the federal judicial district that includes your billing address at the time the Claim is filed- This arbitra- tion agreement-is made pursuant-to a transaction - involv-ing interstate'coinmerce, and shall be-govemed by the Federal Arbitration Act, 9 U.S.C. §§.)-16 ("FAA"). Judgment upon any arbitration award may be-entered in any court having jurisdiction. The arbitrator shall fpllow -existing substantive law to the extent consistent with the FAA and applicable statutes of limitations and shall-honor any claims or privilege recognized bylaw. )f any-party requests, the arbitrator shall write an opinion containing the reasons for the award. No Claim submitted to arbitration is heard by a jury and no Claim may be brought as a'class action or as a private' attorney general. You do not have the right to act as.a class representative'or participate as a member of a class of claimants with respect to any Claim. This Arbitration Section applies to all Claims now in existence or that may arise In the future. This Arbitration Section shall survive the termination of your account with us as well' as any voluntary pay- meet of the debt In full by you, any bankruptcy by you 8 P. 010 P, 10 or sale of the debt by us. For the purposes of this Arbitration Section, "we" and "us" means MBNA America Bank. N.A., its parent, sub- sidiaries, affiliates, licensees, predecessors, successors, assigns, and any purchaser of your account, and all of their officers, directors, employees, agents and assigns or any and all of them. Additionally, "we" or "us" shall mean any third party providing benefits, services, or products in connection with the account (including but not limited to credit bureaus, merchants that accept any credit device issued under the account, rewards or enrollment services, credit insurance companies, debt collectors and all of their officers. directors, employees and agents) if, and only if, such a third party is named by you as a co-defendant in any Claim you assert against us. Also, for the purposes of this Arbitration Section, "you" or "yours" shall mean any person or entity approved by us to use the Account, including but not limited to all per- sons or entities contractually obligated on the Account and all authorized users of the account. If any part of this Arbitration Section Is found to be Invalid or unenforceable under any law or statute consis- tent with the FAA, the remainder of this Arbitration Section shall be enforceable without regard to such invalidity or unenforceability. THE RESULT OF THIS ARBITRATION AGREEMENT IS THAT, EXCEPT AS PROVIDED ABOVE, CLAIMS CAN- NOT BE UTiGATED IN COURT, INCLUDING SOME CLAIMS THAT COULD HAVE BEEN TRIED BEFORE A )URY. AS CLASS ACTIONS OR AS PRIVATE ATTORNEY GENERAL ACTIONS. Platinum Plus Coverage .Credit Insurance Benefits, Limitations, Costs & Exclusions Piatf m Phis C gverase pays your minimum monthly payment' up to your balance on the date of loss (not to exceed $15,000), until you return to work' 111( you are involuntarily unemployed, oat disabled, or if you or 1 your spouse takes covered family leave. Platinum Plus j Coverage also pays your insured outstanding balance up to the least of your outstanding balance, your credit limit, i. or S 15,000 If you die. 9 P. 011 P. II rn ibili : One insured per account (insured must be the primary cardholder or a co-applicant, authorized users are not eligible), under age 66 (70 in AZ, NV & VA; 71 in i FL, GA, MI, MO & OK; 72 in NM). Your coverage ends at 1 these same ages (except family leave in AZ, FL & SD & i unemployment unless in TX), When enrolled, certificates will be mailed explaining your coverage & effective date. In MN, unemployment coverage is effective 61 days from your certificate effective date. For unemployment or fami- ly leave benefits, you must be gainfully employed working at least 30 hrs/wk (not self-employed or an independent i contractor) for 90 consecutive days before the date of loss (CO - before application date), (PA - on the date of loss), (TX - before coverage effective date for unemployment). Employees. of professional corporations may be eligible. Coverages & Menefts: Platinum Plus Coverage covers: your death; involuntary unemployment due to job loss, general strike, unionized labor dispute or lockout; total disability due to sickness or injury if you are unable to perform the material & substantial duties of your job (or, ' any job after the first 18 mos. In CA, Hl, N), TN & WI-. 12 mos. in PA); your or your spouse's unpaid leave of absence from employment due to. care of your newborn or newly adopted child or an Incapacitated immediate family 1 member (must be spouse, child, stepchild or parent in '. AK), mandatory recall to active military duty, jury duty (except In AK), or residence in a federally declared'dlsas- ter area. Loss (not death) must continue at least 30 days before benefits begin. In NY, for strikes, unionized labor disputes & lockouts. you must be unemployed for 7 consecutive weeks & qualify for state unemployment benefits before benefits begin. A daily benefit is paid for each day of loss over 30 days for unemployment in NY & PA, and disability in CA, CT, NY, MI, PA & SC. You may cancel this coverage at any time. If canceled within first 30 days of coverage, all premiums will be refunded. Exclusions: Life: suicide in the first 6 months of coverage (not MD & MO). Involuntary Unemployment: retirement, resignation, voluntary forfeiture of income or job loss due to wfllful-or criminal misconduct, disability, strikes in IL, military discharge in NY, normal seasonal unemployment in TX. Disability: normal pregnancy or childbirth (not CA, MA & NV), intentionally self-inflicted injuries (not MD)' or a pre-existing medical condition 10 R 012 P. 12 during first 6 months of coverage (not NJ). Family leave benefits are not paid if you are eligible for or receiving unemployment benefits or are disabled. This is only a brief description of coverage, and cover- ages vary by state. Please refer to your certificates for a full explanation of coverage. doss per 9I00 aer Manth qf Average Daily Balance: Costs apply to Life (L), Disability (D), Unemployment (U) & Family Leave (F): AL 49.84; AK 78c; AZ 99c: AR 97.50: CA 89.94; CO 52.351; CT 42.894; DE 96.970: DC 95.34; FL 89c; GA 88c; HI 89.91 c; ID 95.24 (L 8.6c, D 12.64, U 54c, F 20c); IL 801; IN Oft; IA 95.64 (L 7.2c, D 14.44, U 541, F 20C); KS 85.44: KY 97.44; LA 89.70: MD 70.544: MA 18.44; Ml 85.74; MN 30.654; MS 85.20; MO 61.10; MT 93.94; NE 95.80; NV 95.34: NH 95c; NJ 97c: NM 58.94; NY 52.51 (L 8.80, D 26,84, U 16.90; NC 74.34; ND 94.10; OH 99C; OK 92.40: OR 84.74; PA 38. f C; PR 99C; RI 93.154; SC 80c: SD 96.894; TN 92.54; TX 33.74 (L 53C, D 12c, U 160); UT 91.880; VT 28.44 (L 5.990, D 6.414. F 16c); VA 840 (L 6.1c, D 8.90, U 49C, F 20c); WA 84C: WV 95.20; WI 93.64 (L 5.70, D 8.90, U 59c, F 20c); WY 95.54. Av ilk ability: This coverage is not available in ME. Involuntary Unemployment is not available in MA or VT. Family Leave is not available in AL. CT, MA, MD, MN, NM, NY, PA, or TX. Lnderwrid umI2an1e;molicy: Involuntary Unemployment: American Security/LOI (5/85), LOi NY(3/93), AS LOI TX (6/92), LOIC-IP-KS (2/96)r and LOIC• IP; Standard Guaranty/SG LOI (5/85) (NH only). Life & Disability: Union Security Life/L-1-Z: Standard Guaranty Life (TX only)/L-I-Z (8/92)(3.53RA): First Fortis Life (NY Life only)/NYLM0013; and American Security (NY Disability only)/W-S-A. Family leave: ?Amerfcan Security/FLP (4/97), FLP-FL (12/97) in FL, FLP-NC (3/98) In NC, FLP-OK (4/97) in OK, FLP-VA (2/98) in VA, FL-IP (A7.)(7/98) in AZ, FL-IP (4/97) in'IL & IN, FLIP-KS (12/97 in KS, FL-IP-WY (4/97) in WY; Standard Guaranty/FLP (4/97) in NH; Union Security Life/FLP-VT (4/97) in W. Soliciting agents for Mississippi and Florida are Charles M. Gordon and Pamela Curtis respectively. This product is not an insured deposit account, is not FDIC insured, is not guaranteed by MBNA America Bank, N.A., and is not a condition of obtaining credit. P. 013 P. 13 'Less past due and over credit limit amounts. In Ml, coverage pays 5% of the balance on your date of disability up to $750. In NY, coverage pays the minimum payment due on your date of loss. r `The number of monthly benefit payments will not exceed 9 for family leave; 12 for unemplpyment In AL, AK, CT, 1L, MI, MN, MO. NM, NC, NY, PA, SC D TX; 12 for disability except In CA, HI, IN, KS, MI, N), NY, PA, TN, TX & WI. NY, NJ & TX Residents Only: To-purchase coverages separately, write to Assurant Group, P.O. Box 50355, Atlanta, GA 30302. Applications will be sent to you. i i MBNA America Bank, N.A., Is the exclusive issuer and administrator of this and other Plalinum Plus,credit•card accounts. MBNAAmerica® is a federally registered service mark of MBNA America Bank, N.A. Z 2000 MBNA America Bank, N.A. NEXT90 (Revised 4/2000) DISC-58• 4/1/00 M130AULOI (MBNA-UD/Uncapped LOI/FL) 12. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NCO Portfolio Management Assignee of MBNA CIVIL ACTION 507 Prudential Road Horsham, PA 19044 Plaintiff NO: 08-5732 vs. James Burgett 70 Station Road Newville PA 17241 Defendant CERTIFICATE OF SERVICE I, Michael Ratchford, Esquire, hereby certify that I caused a true and correct copy of the Plaintiffs Amended Complaint to be served via first class U.S. mail, postage prepaid on the date indicated upon the following: Goffrey M. Biringer, Esquire MidPenn Legal Services 401 E. Louther Street, Suite 103 Carlisle, PA 17013 Attorney for Defendant Date: ?' d b Attorney I.D. No.: 86285 Edwin A. Abrahamsen & Associates ~. ? t r .? a NCO Portfolio Management COURT OF COMMON PLEAS ASGNA OF MBNA CUMBERLAND COUNTY, PA Plaintiff vs. : 08-5732 Civil Term JAMES BURGETT Defendant PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT Defendant moves for the dismissal of Plaintiff's Complaint - Civil Action, 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-Civil Action demanding damages in the amount of $21,255. 2. Defendant filed Preliminary Objections on October 20, 2008. 3. Plaintiff filed an Amended Complaint on December 8, 2008. 4. Plaintiff alleges it is an assignee of MBNA NCO, but fails to attach a copy of any assignment. 5. Plaintiff alleges it is owed certain funds pursuant to a credit card agreement but fails to attach a signed written contract between the Plaintiff or any other party and the Defendant. Such a writing would form the very core of Plaintiff's case, but such writing has not been appended to the Complaint, nor its absence explained, as required by Pa.R.C.P.No 1019(h) and (i). 6. The 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. 5. The Complaint refers to inaccessible card statements, but fails to set forth the substance of the statements. 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) 6. Paragraphs 1-5 are incorporated herein by reference hereto. 7. 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. 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. 9. 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. 10. Defendant is entitled to know how he 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. Respectfully submitted: MidPenn Legal Services Attorneys for Defendant BY: j Geoffrey M. 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 f Preliminary Objections on this 23rd day of December, 2008, foregoing by placing same in the United States mail, first class, postage prepaid, addressed as follows: Michael F. Ratchford, Esquire 1729 Pittston Avenue Scranton, PA 18505 MIDPENN LEGAL SERVICES . By: Geoffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 . . NCO Portfolio Management -) r CD ASGNE OF MBNA In the Court of Common Pleas of ., CUMBERLAND County, Pennsylvar o rz-n Plaintiff Civil Division z= cam-) -,r" wf- f ;:0Q C) vs. fir- `J j 4© >? = o-tj NO: 08-5732-CIVIL TERM 5? b? JAMES BURGETT Praecipe to Withdraw Civil Complaint 70 STATION RD NEWVILLE PA 17241 Defendant PRAECIPE TO WITHDRAW To the Prothonotary of CUMBERLAND County Pennsylvania: Please enter the above Praecipe to Withdraw the Civil Complai Thank you, Michael F. RhtcRTord, Esquire Edwin A. Abrahamsen & Associ es, P.C. Lawyer ID # 86285 120 N. Keyser Avenue Scranton, PA 18504 Subscribed before me this h I! day of ? C__ o kot? Pub lic NOTARIAL SEAL LEE PERRICONE Notary Public SCRANTON CITY. LACKAWANNA COUNTY My COmmIssion Expires Apr 2, 2014 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NCO Portfolio Management ASGNE OF MBNA vs. JAMES BURGETT Plaintiff Defendant CIVIL DIVISION NO: 08-5732-CIVIL TERM CERTIFICATE OF SERVICE I, Michael F. Ratchford, Esquire, hereby certify that on the date indicated below, I served a copy of the Praecipe to Withdraw in the above captioned matter by mailing the same via First Class United States mail, postage prepaid addressed as follows: Geoffrey M. Biringer, Esquire MIDPENN LEGAL SERVICES 401 e. Louther St/Suite 103 Carlisle, PA 17013 Edwin A. Abrahamsen & Associates, P.C. Date: December 3, 2010 Michael F. Ratchford, Esq Attorney I.D. No.: 86285 120 N. Keyser Avenue Scranton, PA 18504 (570) 558-5510