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Home My WebLink About08-5787 Our File No.: 174961 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire, Esq. Attorney I.D.#38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC c/o Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Plaintiff, vs. ALISON SHIMER 414 ALLENDALE WAY CAMP HILL, PA 17011 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.. Gf- S-W7 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 Our File No.: 174961 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire, Esq. Attorney I.D.#38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC c/o Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Plaintiff, vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY ALISON SHIMER 414 ALLENDALE WAY CAMP HILL, PA 17011 Defendant. NO.: O k' Y7'7 CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is PORTFOLIO RECOVERY ASSOCIATES, LLC c/o Apothaker & Associates, P.C., 520 Fellowship Road C306, Mount Laurel, NJ 08054. 2. Defendant(s) is/are ALISON SHIMER, an adult individual residing at 414 ALLENDALE WAY CAMP HILL, PA 17011. 3. Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, is the Assignee and Successor in Interest of Account #5490990997458326; and said account was issued to Defendant(s) by BANK OF AMERICA, the Original creditor. 4. Defendant received, accepted and used the account to its benefit. 5. This account is in default and Defendant(s) has an unpaid balance of $13,652.23. A true and correct copy of the total due and owing is attached hereto, made a part hereof and marked as Exhibit "A". 6. All credits, if any, to which Defendant(s) is entitled, have been applied to the account and are included in Exhibit "A". 7. Although demand has been made, Defendant(s) has failed to make payment of the amount due as above. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $13,652.23 and requests this Court award Plaintiff attorney's fees and costs to the extent permitted by applicable law. APOTHAKER & Ag'SOPIATES, P.C. Attorney or Pl ' tiff A Law Firm Eng ed 7i"Debt Collection BY: Dated: 9/22/2008 David J. ApotWer, Esquire Our File No.: 174961 VERIFICATION David J Apothaker Esquire hereby states that I am counsel for plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904 relatin?to,4nsworn falsification to authorities. David J. A okbakef, Esquire Attnrne or Plaintiff DATE: 9/22/2008 F4gcwed/or. ALISON SHIM ER 5480 99001313 0718 March 2008 Statement 001* 016V :10,000.00 Cashor0mNAM113 s: Silting CYCM and Payment Mbrmafion Summa of Transactions 968 58 512 31 Days in Billing CyGe Previous Balance - , $0.00 03/04/08 Closing Date payments and Credits + ? 04/01/08 Cash Advances ? Payment Due Date 00 0 Purchases and Adjustments + Periodic ? Finance Charges $311.73 . Correll Payment Due 548 Past Due Amount + _$2.995.00 Char Trnrract'nn Fse Fin Chaifaance es $0.00 $0.00 Total Minimum New Balance Total $13,31729 Payment Due BankofAmedca' ` Cal foil-free 1-800.780 ??3178 -rM hsuing4npsked A6Y PMYnsnfs tar BANK OF AMERICA P.O. BOX 15726 WRLMWOTON. DE 19888.5726 Alai'Biin9 b?au?fas fn BANK OF AMERICA P.O. BOX 15026 "LMiNOTON. DE 198505028 ish Advances A. Balance Trar>elers. Checks B. ATM, Bank 0.076857% DLY 0.078857% DLY 27.98% 27.98% 27.918% Annual reruc+uayo - •,.. _ _ -and Transaction Fee Finance C IrlcYides Periodic Rate Finerlos C OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS 04 0133172900347500000409000005490990013130719 BANK OF AMERICA p.0. Box 15726 WILMINGTON, DE 19886-5726 ALISON SHIMER PO BOX 489 NEW CUMBERLND PA 17070-0489-897 n Check hee for a change of eeeiq edd"M Of O am nUM"*4. 06-- era " d aane0d01O en no IippMrae dds. ACCOI/NT NJMBER.6 6=99W13130719 NEW 84LAAfCE TOTAL• $1 %31729 PAYMENT Di/E DATE: 04/01/06 Afaar th(s psyrnenf 0oyo0n ab+g w?YA• r.w0v 0rdsrCfiWW f0: BANK 0FAhWNCA $10.577.55 $0.00 9. N 1:52140222501: 159300i3L307i9ne v N SHERIFF'S RETURN - REGULAR CASE NO: 2008-05787 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PORTFOLIO RECOVERY ASSOCIATES VS SHIMER ALISON MICHELLE GUTSHALL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE SHIMER ALISON DEFENDANT the , at 0014:41 HOURS, on the 2nd day of October , 2008 at 414 ALLENDALE WAY CAMP HILL, PA 17011 ROBERT SHIMER was served upon by handing to SPOUSE OF DEFENDANT a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge /a/lgor q- 18.00 15.00 .00 10.00 .00 43.00 Sworn and Subscibed to before me this day So Answers: R. omas Kline 10/07/2008 APOTHAKER & ASSOCIATES By: Deputy Sheriff of A. D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW PORTFOLIO RECOVERY ASSOCIATES, LLC c/o Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, N3 08054 Plaintiff Vs. ALISON SHIMER 414 ALLENDALE WAY CAMP HILL, PA 17011 Defendant DOCKET No. 08-5787 CIVIL ACTION DEFENDA_NT'S ANSWER TO PLAINTIFF'S COMPLAINT& DEMAND FOR JURY TRIAL AND NOW, this 20`h day of October, 2008 comes the Defendant Alison Shinier, in propria persona and files the within Answer to Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC's Complaint and in support avers as follows: 1. As to paragraph 1 of Plaintiffs Complaint Defendant admits that PORTFOLIO RECOVERY ASSOCIATES, LLC is the named Plaintiff and has no reason to dispute the truth with respect to the stated address of Plaintiff. 2. As to paragraph 2 of Plaintiff's Complaint Defendant admits the truth of the fact that ALISON SHIMER is stated in Plaintiff's Complaint to be the named defendant and that she resides at the stated address. 3. As to paragraph 3 of Plaintiff's Complaint Defendant upon reasonable inquiry and based upon information reasonably available at the time of this Answer Defendant is without sufficient information to form a belief as to the truth of the allegation that Plaintiff is the Assignee and Successor in Interest to the alleged BANK OF AMERICA account stated therein. 4. As to paragraph 3 of Plaintiff's Complaint Defendant denies that Exhibit "A" referenced therein reflects an accurate statement of any debt owed by Defendant to BANK OF AMERICA. 1 5. As to paragraph 3 of Plaintiff's Complaint Defendant denies that Bank of America is a creditor of Defendant and further denies that BANK OF AMERICA loaned any of that bank's funds to Defendant. 6. As to paragraph 4 of Plaintiffs Complaint Defendant denies that any alleged use of the account resulted in a debt of the Defendant to BANK OF AMERICA 7. As to paragraph 4 of Plaintiff's Complaint Defendant denies that the account found as Plaintiffs Exhibit "A" reflects any obligation on the part of Defendant to make any payment at all to BANK OF AMERICA. 8. As to paragraph 5 of Plaintiffs Complaint Defendant denies that the stated account is in default. 9. As to paragraph 5 of Plaintiff's Complaint Defendant denies that the stated and alleged unpaid amount of $13,652.23 is due BANK OF AMERICA. 10. As to paragraph 5 of Plaintiff s Complaint Defendant denies that Exhibit "A" reflects a true and correct copy of Defendant's alleged debt to BANK OF AMERICA. 11. As to paragraph 6 of Plaintiff's Complaint Defendant upon reasonable inquiry and based upon information reasonably available at the time of this Answer Defendant is without sufficient information to form a belief as to the truth of the allegation that all credits have been applied to the alleged account found attached to Plaintiffs Complaint as Exhibit "A» 12. As to paragraph 7 of Plaintiffs Complaint Defendant denies that she has failed to make any payments that are due to BANK OF AMERICA the alleged Original creditor. DEMAND FOR JURY TRIAL 13. The Defendant Alison Shimer hereby demands a trial by jury in this instant case. WHEREFORE, Defendant Alison Shimer respectfully requests that the Complaint be dismissed. Dated this 20th day of October, 2008 Respectfully submitted, Alison Shimer 2 r VERIFICATION The Undersigned hereby states that she is the Defendant acting in propria persona and verifies that the statements made in the foregoing Answer are true and correct to the best of her knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: October 20, 2008 Alison Shinier, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 3 Alison Shimer 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 Defendant, in propria persona. PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff, vs. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ALISON SHIMER Defendant. DOCKET No. 08-5787 CIVIL ACTION- LAW CERTIFICATE OF SERVICE I certify that a copy of the foregoing Defendant's Answer to Plaintiffs Complaint and a copy of this Certificate of Service was sent by the undersigned on the 20th day of October, 2008, by mailing a copy of the same via Certified mail number 7008 0150 0002 5289 5732 Return Receipt Requested to the following person; David J. Apothaker, Esq. Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, N.J. 08054 Alison S ' er C j Y 9 1 -3 X Our File No.: 174961 APOTHAKER & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff VS. ALISON SHIMER Defendant FILED=0,,-- , ,E 2010 JUL - I PH 3: 3J culml,;_, au st_:U?m COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.: 08-5787 Civil Action MOTION FOR SUMMARY JUDGMENT Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, respectfully requests that the Court enter an Order granting Summary Judgment in its favor for the following reasons: 1. There are no genuine issues of material fact to decide. 2. Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, filed a Complaint to recover a $13,652.23 balance on the defendant's delinquent account with BANK OF AMERICA. A copy of Plaintiff's Complaint is attached hereto as Exhibit "A" and incorporated by reference herein. 3. Defendant, ALISON SHIMER, filed an Answer to the Complaint in which defendant essentially denies all averments of Plaintiff s Complaint. A copy of Defendant's Answer is attached hereto as Exhibit "B" and incorporated by reference herein. 4. However, Plaintiff attaches hereto sufficient documentation to conclusively prove that defendant owes the debt at issue herein. 5. Plaintiff attaches the credit card application bearing defendant's name, address, redacted social security number, birth date, maiden name, phone number, occupation, redacted income totals, and signature. 6. Plaintiff attaches the electronic "Approval Record" maintained by the original creditor, Bank of America, evidencing an acceptance of defendant's credit card application. 7. Plaintiff attaches credit card statements from January 2007 through March 2008. 8. Said statements evidence multiple payments made by defendant on the account thereby placing the action within the applicable statute of limitations. 9. The March 2008 credit card statement evidences an outstanding balance in the amount of $13,317.29, the balance at which the account was charged-off on March 29, 2008. 10. Plaintiff seeks the charge-off amount of $13,317.29, plus six percent (6.00%) statutory interest beginning April 22, 2008, just after Plaintiff's purchase of this account, and ending September 23, 2008, just before Plaintiff filed this matter, totaling an outstanding balance due and owing in the amount of $13,652.23. 11. Finally, Plaintiff attaches two Affidavits evidencing the transfer of ownership of defendant's account from Bank of America to Plaintiff on April 8, 2008. 12. One Affidavit is signed by a representative of Bank of America, while the other is signed by a representative of Plaintiff. 13. Defendant has failed to sustain the burden of presenting facts which contradict the averments of Plaintiff's Complaint. 14. Plaintiff has demonstrated that there is no genuine issue of triable fact. WHEREFORE, Plaintiff respectfully requests that a judgment be entered in its favor for the sum of $13,652.23. APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law Firm Engaged4Debt Collection BY: Esquire Dated: June 28, 2010 Our File No.: 174961 APOTHAKER & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff VS. ALISON SHIMER Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.: 08-5787 Civil Action PLAINTIFF'S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Facts Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, by the undersigned attorneys, respectfully submits this brief in support of its motion for an order for Summary Judgment. Plaintiff is a purchaser of debt and as such, is a successor in interest to BANK OF AMERICA, which shall hereafter be defined as the original creditor. Defendant, ALISON SHIMER, entered into a credit agreement with the original creditor. Defendant purchased goods pursuant to the credit agreement. As Defendant has failed to make payments in accordance with the credit agreement on the outstanding balance, defendant is in breach of contract. Plaintiff filed a Complaint on or about September 22, 2008. Defendant filed an Answer, in which defendant essentially denies all of Plaintiff's averments. However, Plaintiff attaches hereto sufficient documentation to conclusively prove that defendant owes the debt at issue herein. Plaintiff attaches: 1. The credit card application bearing defendant's name, address, redacted social security number, birth date, maiden name, phone number, occupation, redacted income totals, and signature. 2. The electronic "Approval Record" maintained by the original creditor, Bank of America, evidencing an acceptance of defendant's credit card application. 3. Credit card statements from January 2007 through March 2008. Said statements evidence multiple payments made by defendant on the account thereby placing the action within the applicable statute of limitations. The March 2008 credit card statement evidences an outstanding balance in the amount of $13,317.29, the balance at which the account was charged-off on March 29, 2008. Plaintiff seeks the charge-off amount of $13,317.29, plus six percent (6.00%) statutory interest beginning April 22, 2008, just after Plaintiff's purchase of this account, and ending September 23, 2008, just before Plaintiff filed this matter, totaling an outstanding balance due and owing in the amount of $13,652.23. 4. An Affidavit evidencing the transfer of ownership of defendant's account from Bank of America to Plaintiff signed by a representative of Plaintiff. 5. An Affidavit evidencing the transfer of ownership of defendant's account from Bank of America to Plaintiff signed by a representative of Bank of America. Plaintiff has successfully established the requisite elements of its claim, a contractual duty, a breach of said duty and resulting damages. Plaintiff has also successfully shown that it is the proper party in interest. As there are no genuine issues of material fact to be decided, Plaintiff is entitled to Summary Judgment. Legal Argument Pa.R.C.P. No. 1035.2 states that a Motion for Summary Judgment may only be granted when there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. Pa.R.C.P. No. 1035.2(1). A material fact for motion on summary judgment is one that directly affects the outcome of the case. Fortney v. Callenberger, 801 A. 2d 594 (Pa. Super. 2002). Application of this rule has held that summary judgment may be granted only in those cases where the right to summary judgment is clear and free from doubt. Laich v. Bracey, 776 A. 2d 1022, (Pa.Cmwlth. 2001). The purpose of the summary judgment procedure is to prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases and avoid unnecessary trials when no genuine issue of material fact is raised. A motion for summary judgment shall be granted if the documents of record show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. § 1035(b); Allen v. Merriweather, 413 Pa. Super. 410, 411 (1992); Beasel v. New Blvd. Baking Co. Inc, 410 Pa. Super. 591, 593 (1991). In making its determination, the Court must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Thompson v Nason, 379 Pa. Super. 115 (1988), aff'd, 527 Pa. 330 (1991). The Court must restrict its review to material filed in support of and in opposition to the motion for summary judgment, and to uncontroverted allegations in the pleadings. Pa.R.C.P. §1035; Overly v. Kass, 382 Pa. Super. 108 (1989). The party requesting Summary Judgment bears the burden of demonstrating clearly that there is no genuine issue of material fact. Driscoll v. Carpenters District Council of Western Pennsylvania, 370 Pa. Super. 295 (1988); aff'd, 525 Pa. 205 (1991); Allen, 413 Pa. Super. at 411; Beasel, 410 Pa. Super. at 594; Hower v. "itmarkAssoc? 371 Pa. Super 443 (1988). In response, the nonmoving party may not rest upon the pleadings, but must set forth specific facts controverting the movant's case. Pa.R.C.P. § 1035.3; Phaff v. Gerner, 451 Pa. 146 (1973). A review of the pleadings as a whole in the instant case reveals that Defendant has failed to sustain its burden of presenting facts which contradict the elements of Plaintiff's claim. Conclusion Plaintiff has demonstrated sufficient facts to warrant summary judgment in its favor. Once Plaintiff satisfies its burden, Defendant must demonstrate facts which would create a genuine issue for trial. Phaff, supra. Defendant has failed to sustain its burden of presenting facts which would contradict the elements of Plaintiff s claim. WHEREFORE, Plaintiff demands Judgment in favor of Plaintiff and against Defendant(s) for the sum of $13,652.23. APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law Firm Engaged iplabt Collection BY: Esquire Dated: June 28, 2010 Our File No.: 174961 APOTHAKER & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff VS. ALISON SHIMER Defendant CERTIFICATION OF SERVICE Civil Action I, Benjamin J. Cavallaro, Esquire, attorney for Plaintiff, certify that on June 28, 2010, I mailed a copy of Plaintiff's Order, Motion for Summary Judgment and Brief in support thereof to: ALISON SHIMER 414 ALLENDALE WAY CAMP HILL, PA 17011 APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law FirW-F.4gaged in jiebt Collection BY: Esquire NO.: 08-5787 Dated: June 28, 2010 YOUR PERSONAL REQUEST FORM y.?a Rtotppa.mmd AM ± 1MJE'Ri J i J . 31070566786 IUW) Alison Shinier RR 1 Box 1079 Leesport PA 19533-9726 Pk-ewkdux.A.. rreod.andra.FfsR*byMg4Im OmmmP.M..P."M-C„ d. OMBIW Vim.AS. Ym- APPROVAL RECORD REFNO:0052641865 SOURCE:IUWX ACCT TYPE:JM ASSO BANK:013 COMBO ASSO BANK: FINIT:A PRIM NAME:A i n*Shimer SSN: 399 SEC NAME: RELATION:N ADDRESS 1:POB 1079 RR 1 ADDRESS 2: CITY:Leesport STATE:PA ZIP:19533 PHONE:6109264278 EMP NAME: OCCUP:59 GRAD YR: SCHOOL CODE: WORK PHONE: MAIDEN NAME:GOULD CRED LINE:0150 LENDER ID:864 ADV AMT:O OVR RSN: THIRD LINE: f CARDS:O1 BILL CYC:4 OUT FEE DATE: INSURANCE: BKO:00693 RISK RATING:5 EXP CODE:36 CB IND:1 CRITERIA LEVEL: FICO SCORE: FRONT END SCORE: ACCT #:5490990013130719 SEC ACCT #: FM DATE:8/8/1996 F-AwWfor AUSON SHIMER 5490 99001313 0719 BankofAmerica January 2007 Statement 0000 Uw $10,000.00 Cash ow CreeditAv b. rar11100MAINMOn nX'rAC0Vg"1Wt • www.bankotemerica.com Summary of Transactions Billing Cycle and Payme nt Information O Previous Balance $11,244.98 Days in Billing Cycle de Ys i 9 Y BAW F AMMERCA ERI ?K OF P.O. BOX 15728 Payments and Credits - $0.00 Closing Date 01/03107 WILMINGTON. DE t9aw-5728 Cash Advances + $0.00 hwBYA7g /nqukim h Purchases and Adjustments + $78.00 Payment Due Date MM1107 BANK OF AMERICA Periodic Rate Finance Charges + $279.58 Current Payment Due $431.00 P.O. BOX 150¢8 Transaction Fee Finance Charges + $0.00 Past Due Amount + $2,729.00 WILMINGTON. DE 19950-5028 New Balance Total $11 602 54 Total Minimum ® Cal ton-free 1.800-789•ti865 , . Pa Due TDO hear -impsked 1.800.348.3178 ?mi Posting Transaction Reference Account Purchases and Adjustments Date Date Number Number Cateaory Amount LATE FEE FOR PAYMENT DUE 01/02 01/03 01/03 1244 C 39,00 OVERUMfr FEE (BASED 01/03 12122 Can C 3900 ON BALANCE 11,244.88] YOUR ACCOUNT IS OVXRLIMIT. TO AVOID AN.OVIRLIMIT FEE ON YOUR NEXT STATEMENT, WE MOST RICMM A CONFORMING PAYMENT, THAT BRINGS AM EEEPS YOUR ACCOUNT SALA24M BELOW THE CREDIT LINE, WITHIN 20 DAYS OF THE ABOVE STATEMENT CLOSING DATE, AND NOT 00 OVERI.IMIT AGAIN. Rate PLUS MILES 0 MONTHLY 5,079 AVAILABLE 27.88% 04 0116025400316000000340000005490990013130719 BANK O F AMERICA Check here for a change of maing addrose or phone rn fftoK . Please podde d convatlons an the arrerse Side. P.O. BOX 15726 WILMINGTON, DE 19886-5726 1rn11111still IeIuInIIuefaIeIenI III rloll is III III ACCQUNTNUAIBEe 5490990013130719 ALISON SHIMER 1225 W LEESPORT RD LEESPORT PA 19533-9320-258 NEW BALAAICE 7OrAL• $11,602.54 PAYMENT DUE DA7E• 02/01/07 ar, [,vwgmrrw,,,wre.ree.a 'a as "a##*FAyrneru C014wn atrg wM a checkOr money ao8rA*Vb1* to BANK OFAMER/CA 1:5 240 2 2 2501: IS 930013 &30? L9118 ^s A A Balance Transfers, Checks 0.078857% DLY 27.98% $10,095.58 B. ATM, Bank 0.078657% DLY 27.98% $0,00 C. Purchases n m•xesoc rv w _ Ptewsedtor. AUSON SHIMER February 2007 Statement Credit Linn. :10,000.00 5490 99001313 0719 Cash arCredd Avadabb. BankofAmerica ? roranuff can on YOWACcomtMgt www.benkWamedmoom Summary of Transactions Billing Cycle and Payme nt Information hwpAwwts to Previous Balance $11,602.54 Days in Billing Cycle 30 BANK OF AME CA P.O. BOX 15726 Payments and Credits - $363.00 Closing Date 024=7 WILMINGTON, DE 18686-5725 Cash Advances + $0.00 BY/ig/nariil xV Purchases and Adjustments + $78.00 Payment Due Date 03/01/07 = BANKOFAMERICA Periodic Rate Finance Charges + $269.34 Current Payment Due $421.00 P.O.80x Is= Transaction Fee Finance Charges + $0.00 Pest Due Amount + $2,797.00 WILMINGTON, DE 19650.5026 New Balance Total $11,588 88 Total Mirtimum Payment Due Cal tolwree 1.600.769-mm TDD hmft.impelred 1-800-346-3176 ' Posting Transaction Reference Account Payments wed Credits Date Date Number Number CatM2r Amount t PAY BY PHONE PAYMENT 01/31 363.00 CA Purchases and Adjustments LATE FEE FOR PAYMENT DUE 02/01 02102 02A02 1289 E C 39 OVERUmrT FEE (BASED 02102 01/23 D/20 . C 39 00 ON BALANCE 11,602.54) , . YOUR ACMINT IS OVERLIMIT. TO AVOID AN OVERLINIT FEE ON YOUR NEXT STATEMENT, WE MUST RECEIVE A CONFORMING PAYMZNT, THAT BRINGS AND MCEPS YOUR ACCOUNT BALANCE BELOW TER CREDIT LINE, WITHIN 20 DAYS OF THE ABOVE STATEMENT CLOSING DATE, AND NOT GO OVERLIMIT AGAIN. PLUS MILES 0 MONTHLY 5,079 AVAILABLE r.?naerg Anrurar aawwo sawmt to Cate_avey PbdodAc Rate Awcentaw Rate FWMVWO Chaare Cash Advances A. Balance Transfers, Checks 0.076657% DLY 27.96% $10,301.88 S. ATM, Bank 0.076657% DLY 27.98% $O,Op rrt a....r.- - -------• -- Rate 27.9896 04 0115868800321800000363000005490990013130719 Ghock here for s chsnpe of rraBFp edWme or phone nuerEeitE BANK OF AMERICA ? Pl?eepipviase?cortecibmonthewraAatlOe. P.O. BOX 15726 WILMINGTON, DE 19886-5726 list lllrlnlulrlul.llnel.lrl"nl4rlrlJlaluIII r!"COUAWNUMBEFt 54909OW13130719 ALISON SHIMER 1225 W LEESPORT RD LEESPORT PA 19533-9320-258 I: S240 22 2 SOi: NEW BALANCE TOTAL: $11,586.88 PAYMENT DUE DATE. 03/01/07 ~Ago ,r Am w&Aw*rwd .r Mal Mils popy en as $= abng witha Check OrMOMYOrder AE)Wbb Ax BANKOFAMERICA I S930013 130719u¦ e o , ca? RAW f- AUSON SHIMER March 2007 Statement BankofAmeri CFO* LarW $10,000.00 5490 99001313 0719 Cash orCM&Avabbb' Summary of Transactions - Biding Cycle and PaLrment Information AIa7Pkyrrwants Ax BANK OF AMERICA Previous Balance $11,588 88 Days in Biding Cycle 28 P.O. BOX 15726 Payments and Credits - $378.00 Closing Date 03402407 VOLM1NOTON, DE 19NO-5726 Cash Advances + $'0.00 AWBU ylnguiies to Purchases and Adjustments + $78.00 Payment Due Date 04102107 BANK OF AMERCA Periodic Rate Finance Charges + $250.73 Currant Payment Due $402.00 P.o. Box 15026 Transaction Fee Finance Charges + $0.00 Pest Due Amount t $2,842.00 WILMINGTON, DE 19NO.5028 Total Minimum Celltall-tree t-800-789-0685 New Balance Total $11,539.81 Payment Due av? TM twyk p-Impaired 1-800.348.3178 Posting Transaction Reference Account Payments and Credits Onto Dale Number Number CeIgEtV Amount PAY BY PHONE PAYMENT 02128 378.00 CR Purchases and Adrinst--*a LATE FEE FOR PAYMENT DUE =01 WAR 03/02 1210 C 39.00 OVERumrr FEE (BASED 03102 .02/72 D/20 C 39.06 ON BALANCE 11,586,88) YOUR ACCOUNT IS OVMMIMIT. TO AVOID AN OVERLIMIT FEY ON YOUR NEXT STATEMENT, Im MST RECEIVE A CONFORMING PAYMENT, TEAT MUNOS AND REPS YOtm ACCOUNT RhTANCE NUAW THE CREDIT LINE, WITHIN 20 DAYS OF THE ADM STATEMENT CLOSING DATE, AND NOT 00 OVYRLIMIT AGUN. PLUS MILES 0 MONTHLY 5,079 AVAILAl3L8 • Comwpondrrg Ann&& Baianctr swiod to Ceteyory Periodic Rate Ae centar7e Rate Finance Charge Cash Advances A. Balarva Translers, Checks 0.07885796 DLY 27.9896 $10,182.56 B. ATM, Bank 0.076657% DLY 27.98% $0.00 27.9896 04 0115396100324400000376000005490990013130719 Check five for a cranpe of rn@*V @Or= or phone nuntegp. BANK.OF AMERICA Pleseeprovidedcortectionaontksrwerasalde. P.O. BOX 15726 WILMINGTON, DE 19886-5726 161111'r1u1u1rlulullsulaillurlu1r1+11ACCOUNTNUMBEa 5490990013130719 ALISON SHIMER 1225 W LEESPORT RD LEESPORT PA 19533-9320-258 NEW BALANCE TOTAL' $11,539.61 PAYMENT OUE DATE.' 04402/07 swrwrr,rr?.redw.s re ]an a" with a A BANK OFAMER/CA 0 w 1:5 240 22 2501: L-5930013&307L911¦ Anwradfor. ALISON SHIMER 5490 99001313 0719 Summarv of Transactions Previous Balance $11,539.61 Payments and Credits - $378.00 Cash Advances + $0.00 Purchases and Adjustments + $39.00 Periodic Rafe Finance Charges + $2«5.33 Transaction Fee Finance Charges + $0.00 New Balance Total 511,485.94 April 2007 Statement Credit[ina $M000.00 Cash or Cm*Ava#ab& Billing Cycle and Payment IMormation Days in Biding Cycle 32 Ckrsing Date 041«3107 Payment Due Date 05)01107 Current Payment Due $435.00 Past Due Amount + $2,888.00 Total Minimum Payment Due BankefAmerica. MAX nbff rKS roc BANK OF AMERICA P.O. BOX 15728 WILMINGTON. DE 19886-5726 Mai ff ft inguift fn• BANK OF AMEFICA P.O. BOX 15(128 WILMINGTON, OE 198505028 Cd toll-free 1-6007894=5 TDO hearn2-I mpaired 14800.345-3178 Mellon • Posting Transaction Reference Account EMMnts and Coedits Date Date Number Number Catesmry Amount PAY BY PHONE PAYMENT 03131 378.00 CR Purchases and Adjusbnw is LATE FEE FOR PAYMENT DUE 04M 04103 04103 1161 C 39.00 Conm pondiV Anmuaf 6tawwo Su4iffa to Godgwy- Redodio Rate 0%wontalye Roe F wnce ChzZ Cash Advances A. Balance Transfers, Checks 0.076657% DLY 2726% $10,011.61 B. ATM, Bank 0.07665796 DLY 2726% $0.00 C. Purchases 0.07665796 DLY 27.98% $1,620.18 Annual Percentage Rate for this Billing Period: llndudes Periodic Rate Finance Charoes and Transaction Fee Finance Charges.) 27.9896 r OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS 04 0114859400330100000378000005490990D1313D719 Cheek here for a chenpe of ffaft addres or phone eunftK4 BANK OF AMERICA ROeea pmvkfa ee correctionsen the mesa ekla. P.O. BOX 15726 WILMINGTON, DE 19886-5726 loll Hill nErr?r?r??ttIIrn111111nieelgill] u1tt[rl ALISON SHINIER 1225 W LEESPORT RD LEESPORT PA 19533-9320-258 ACCOUNT NUMBED 5490 99OD 1313 0719 • NEWBALANCE TOTAL: 511,485.94 PAYMENTDUEVATE.• 05101/07 ^ N AWP AV AW ft; checkorrrsoney?,asy?AoAO.BANKOF auER1CA I:S 240 2 2 2SOt: IS9300 13 &307 MIN Ptcµredfo AUSON SHIMER 5480 99001313 0719 Summarv of Transactions Previous Balance $11,485.94 PsymeMs and Credits - $395.00 Cash Advances + $0.00 Purchases and Adjustments + $39.00 Periodic Rate Finance Charges + $25722 Transaction Fee Finance Charges + $0.00 New Balance Total $11,387.18 May 2007 Statement CAMWLin&, $10,000.00 lash arCredifAta6hbM: Billing Cycle and Payme nt Information Days in Billing Cycle 29 Closing Date 05/02/07 Payment Due Date 08f03f07 Current Payment Due $407.00 Past Due Amount + $2.908.00 Total Minimum Payment Due r BankofAmerica? MaNF§?rrentsfir BANK OF NOCA P.O. BOX 15728 WILMINGTON. DE 18686.5726 Mae §Alr R IngAHM kr BANK OF AMEFOCA P.O. BOX 15026 WrUANGTON,DE 18650-5028 Cell k*kee t-800.768-6865 TDD hearing-knoeired 1-800-3483176 Posting Transaction Reference Account Payments and Credits Date Dade Number Number Category Amount PAY BY J3HONE PAYMENT 04130 395.00 CR Purchases and Ad LATE EE FOR PAYMENT ME DWI 05102 05/02 1090 C 39.00 Corre?rrorrdirgAnrwef Balance Sum to Cats9vry Pwbdic RMe lim"n" Rate Fwuvxo Chaw Cash Advances A. Balance Transfers, Checks 0.078857% DLY 27.98% $9,872.48 B. ATM, Bank 0.078857% DLY 27.98% $0.00 C. Purchases 0.076857% DLY 27.98% $1 B98.03 Annual Percentage Hate for this Billing Period: {Includes Periodic Rate Finance Charges and Transaction Fee Finance Charges.) 27.98% OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS TO HELP YOU SRING.YOUR ACCOUNT BALANCE UNDER THE CREDIT LIMIT, WE HAVE BEGUN TO WAIVE YOUR OVERUMiT FEE. ONCE YOUR BALANCE IS UNDERUMIT, THE FEE WILL BE REINSTATED IF THE ACCOUNT AGAIN EXCEEDS THE CREDIT LIMIT. 04 0113871600331300000395000005490990013130719 BANK OF AMERICA P.O. BOX 15726 WILMINGTON, DE 19886-5725 i.rrur,irri..r,rrer..rr.r.r.?rie„i,ri.rrrrrrrr.rri Check here for a cheap of ndip address or phone numbw(* Pkose Prarkfe d eorredt M on the rWeraa lids. Me a ACCOUNT NUMBER: 5490 99D0 1313 0719 NEW BALANCE TOTAL: $11,387.16 PAYMENT DUE DA7E- 06/03/07 ALISON SHIMER srwna.-- Anm.r 1225 W LEESPORT RD ell LEESPORT PA 19533-9320-258 Me#Mpay wocoyoonalbngwMa cheekorn omyoA*rEaaysM to:AWNKOFAMERM-4 :5240222501: 159300L31304i91Ie m N llgar+ kr.• AUSON SHIMER 5490 99001313 0719 Summary of Transactions Previous Balance $11,387.16 Payments and Credits - $404.00 Cash Advances + $0.00 Purchases and Adjustments + $39.00 Periodic Rate Finance Charges + $290.10 Transaction Fee Finance Charges + $0.00 New Balance Total $11,312.26 June 2007 Statement Credit Gins: $10,000.00 Cash or CieditAvaftbls: Biling Cycle and Pay ment Information Days in Billing Cycle 33 Closing Date 0114M7 Payment Due Date 07/02/07 Current Payment Due $438.00 Past Due Amount + $2.909.00 T otal Minimurn Payment Bankof America 4101. INI payments hr BANK OF AMERICA P.O. BOX 15726 WILMINGTON. DE 191188-5726 W BUy /nquifes ta• BANK OF AMERICA P.O. BOX 1s= WILMINGTON, DE 19850-5026 Cal toll-free 1-800.789-6885 TOD hoamo-inodved 1-80D-346.3176 • Posting Transaction Reterence Account Payments and Credits Date Date Number Number Catfflory Amount PAY BY PHONE PAYMENT 05/31 404.00 CR Pumhases and A liustments LATE FEE FOR PAYMENT DUE 06/03 06/04 0604 0983 C 39.00 Finance C?,arge • Cvmmpvfw%VAnnua/ S&Wwo Sutysot to Cawry P@6010 c Rate Fa entwe Rats France Charge Cash Advances A Bala noe Transfers, Checks 0.076657% DLY 27.9896 $9,689.63 B. ATM, Bank 0.076657% DLY 27.98% $0.00 C. Purchases 0.076657% DLY 27.98% $1.778.18 !Y 11IYY7 r -1 --a- I ,- - - Y II.I YIIIM Ia r G RAJ. 27.98% {IncAides Periodic Rate Finance Charoes and Transaction Fee Finance Charces.l OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS 04 0113122600334700000404000005490990013130719 BANK OF AMERICA Check has for a cheroot of nollnp addreu or phone nur bn(4 Pluse povi0s sr corredbne on the reverse aids. P.O. BOX 15726 WILMINGTON, DE 19886-5726 logo 11111Allloll 1I11IIrirI I nInIrI ACCOUNTNUM801- 5490990013130719 NEW BW ANCE TOTAL, $11,31226 PAYMENT DUE DATE.• 07/02/07 ALISON SHIMER EmorANr.rrwe7ercla..a 1225 W LEESPORT RD ($ LEESPORT PA 19533-9320-258 00 A heed n9rr<sPsyment =4wn40" w/M a checkovmoney wd rpeyable 10 BANKOFAMER/CA I: S 240 2 2 250e: LS9300L31307L in m N RupIrodfo AUSON SHIMER 5490 99001313 0719 Summarv of Transactions Previous Balance $11,31226 Payments and Credits - $409.00 Cash Advances + $0.00 Purchases and Adjustments + $39.0 Periodic Rate Finance Charges + $252.97 Transaction Fee Finance Chartres + $0.0 New Balance Total $11,19523 July 2007 Statement Credit Lk $10,000.00 Cash or Credit AvabbAp: Billing Cycle and Pay ment Information Days in Billing Cycle 29 Closing Date 07/03(07 Payment Due Date 08/01/07 Current Payment Due $401.00 Past Due Amount + $2,938.00 Total Minimum Payment Ow • BankofAmedca440P. AwpAjrnenrs W BANK OF AMERICA P.O. BOX 15728 MWINGTON,DE 1ti98t1.5726 41W S Aglnpuem A2• BANK OF AMEFACA P.O. BOX 15028 MWINOTON, DE INN-5t1¢8 Cora toll-tree 1-800.78&8085 • Posting Transaction Reference Account Paymems and Credits Date Date Number Number Calegory Amount PAY BY PHONE PAYMENT O&W 409.00 CR Purchases and Adjustrents LATE FEE FOR PAYMENT DUE 07/02 07/03 07/03 0903 C 39.00 • Cotra*wmr*V AmW Bdanco Sawed to Catsracry Rsriodc Rate Flrroerrtaae Rate France Char00 Cash Advances A 8atanoe Transfers, Checks 0.076857% DLY 27.98% 59,51847 B. ATM, Bank 0.076657% DLY 27.98% $0.00 C. Purchases 0.076657% DLY 27.96% $1.8m.50 Annual Percentage Rate for this Billing Period: jlncludes Periodic Rate Finance Charges and Transaction Fee Finance Charpes.l 27.98% OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS 04 0111952300333900000409000005490990013130719 Clock hers for a ch•rpe or fto kp ed*m or onne m a'teft BANK OF AMERICA Pk?aepiovides?co?neuoosontheinweedea. P.O. BOX 15726 WILMINGTON, DE 19886-5726 Its III A5490990013130719 ALISON SHIMER 1225 W LEESPORT RD LEESPORT PA 19533-9320-258 NEWBALANCETOTAL: $11,19523 PAYMENTDUEDATE.• 08/01/07 r tar.fpawil AwwwW iaOrQ AWV* psy rawcoupon akwg MM a choakorm"yombrpayedb taBANKOFAMENCA 4 O 'a 1:5 240 2 2 2 501: i59300i3130?L9ll, PA%awedfa: AUSON SHAKER August 2007 Statement CMG* Lkw. $10,000.00 5490 99001313 0719 Cash or Cra*Avad bla Account InIcurnatior, Summary of Transactions Billing Cycle and Paym ent Information Previous Balance $11,19523 Days in Billing Cyde 30 Paymems and Credits - $409.00 Closing Date 05T=7 Cash Advances + s030 Purchases and Adjustments + $030 Payment Due Date 09403107 Periodic Rate Finance Charges + $259.40 Currant Payment Due $367.00 Transaction Fee Finance Charges + $0.00 Past Due Amount + $0.00 New Balance Total $11,045.63 Total Minimum Payment Due •.®i BankofAmw".. MW Ag;s wft to BANK OF AMERICA P.Q. BOX 15720 WILMINGTON. DE 18880-5728 hwB40h91nQUH" la BANK OF AMERICA P.O. BOX 15028 WILMINGTON. DE 19850-5020 call tall-free 1-800.789.8885 TOD gearing-impaired 1-800-348-3178 Payrtments and Credits Date Dante Number Number Cateoo_rv Amount PAY BY PHONE PAYMENT 07/31 409.00 CR Category Fododc Rate Por+cerltam2e Rare Fnarace Chargoe- Cash Advances A. eadlermcs Transfers, Checks 0376657% DLY 27.95% $8.338.50 B. ATM, Bank 0376657% DLY 27.96% $0.00 C. Purchases 0376657% DLY 2798% - $1,941.13 ., 27.98% lrupuria-it Information About You( Account YOUR BALANCE EXCEEDS APPROVED CREDIT OMITS 04 011045630003670000040900000549099001313071,9 BANK OF AMERICA Check hoe for a chwW o1 using addra® or ph- numbeft Pleats provide al corrections on the averse title. P.O. BOX 15726 WILMINGTON, DE 19686-5726 Payfne-,t Information loss I"1III1u111u'1/I'111?IIgloo II 1111I Allis Its III ACCOUNTNUMSEA, 5490990013130719 NEWHALANCE TOTAL- $11,045.63 N PAYMENT DUE DATE- 090103/07 ALISON SHIMER Br-Avm aAnxM6vf,..Q 1225 W LEESPORT RD Cs LEESPORT PA 19533-9320-258 A4a 6%bpwprwm co Boar alav **h a check orRXVW aabrpeyadb Ax a4NK OFAMERCA ,yam 1:5 240 2 2 2 501: 1 S9300 13 L307 19112 P-P- ?' ALISON SHIMER 5490 89M 1313 0719 September 2007 Statement Credlt Lina• $10,000.00 Cwh orCmdrtAl vaftblk Bankof America F-- 1 4 rwwewnarw M TGWA VWr Account Inloimatton www.bankcdanmrica. com Summary of Transactions Billing Cycle and Payment Information AlaitPaHras?rsAa BANK OF A Previous Balance $11,045.63 Days in Billing Cycle 33 P.O. Box 15726 15726 Payments and Credits - $0.00 Closing Date 09104/07 WILMINGTON. DE 18888-5728 Cash Advances + $0.00 hwarav Jnqui?bs Am Purchases and Adjustments + $39.00 Payment Due Date 10/01/07 BANK OF AMERICA Periodic Rate Finance Charges + $282.90 Current Paytnern Due $432.00 P.O. Box 1502e Transaction Fee Finance Charges + $0.00 Past Due Amount + $367.00 WILMINGTON, DE 19850-5028 New Balance Total $11,36753 Total Minimum Payment Due Call W11-free 1.600-7awelw TM fleas -knpdeed 1-800.346-3178 Posting Transaction Reference Account Purchases and Adiurtmerts Date Date Number Number Catettary Amount LATE FEE FOR PAYMENT DUE 0903 09/04 09/04 1045 C 39.00 CatellooJy P&*dic Rate t:0nesio0W0gAN7L r n!!KAta Qe Rate 8WNW@ su"a to Fnaracs Charge Cash Advances , A Balance Transfer, Chede; 0.076657% DLY 27.96% $9,193.62 B. ATM, Bank 0.076657% DLY 27.98% $0.00 C. Purchases 0.076857% DLY 27.98% $1989.75 Annual Percentage Rate for this Billing Period: prxiudes Periodic Rate Finance Charges and Transac.?tiotl Fee Finance Charges.) 27.9896 ImportxII-iformation About Your Account YOUR BALANCE EXCEEDS APPROVED CREDIT UMITS ALL PAYMENTS BY PHONE WILL BE MADE ELECTRONICALLY. YOU MAY AUTHORIZE AN ELECTRONIC PAYMENT BY PROVIDING THE PAYMENT AMOUNTAND DATE, YOUR BANK ACCOUNT NUMBER, AND SECURITY INFORMATION. A SERVICE FEE MAY APPLY. TO CANCEL, CALL US BY 3•.30PM ET ON THE PAYMENT DATE. PLEASE RETAIN THESE TERMS. YOU ARE A VALUED CUSTOMER. WE WANT TO MAKE SURE YOU ARE AWARE THAT WE HAVE NOT RECEIVED YOUR PAYMENT. PLEASE SEND THE AMOUNT DUE TODAY. IF IT HAS BEEN MAILED, THANK YOU. BANK OF AMERICA WILL SPONSOR THE WAR, A KEN BURNS FILM AIRING; 9/23 ON PBS. VISIT BANKOFAMERICA.COM/WW2 FOR 20% OFF THE OVD, CO OR BOOK WITH CODE BOA201 04 0113675300079900000409000005490990013130719 T- Check here for a change of do" adds or phone numbw(* BANK OF AMERICA Plseae prorlda al congodlona on the wearw dit P.O. BOX 15726 E WILMINGTON, DE 19886-5726 Ilse Ills I loll IIrgill I nlnI II ACCOUNTNUMBEfL• 5490990013130719 NEW BALANCE TOTAL- $11,367.53 PAYMENT DUE DATE.• 10101/07 ALISON SHIMER ~AVaurrwe,..eF,.se..a 1225 W LEESPORT RD LEESPORT PA 19533-9320-258 sl $ a/bckormoney omMrpiayadb Itt'BANKOFAMER/CA I: 5 240 22 2501: 159 300 L31307 1911¦ N Ffigamadf r. ALISON SHIMER 5490 99001313 0719 Summarv of Transactions Previous Balance $11,367.53 Paymems and Credits - $0.00 Cash Advances + $0.00 Purchases and Adjustments + $39.00 Periodic Rate Finance Charges + $246.56 Transaction Fee Finance Charnes_+ $0.00 New Balance Total $11,653.08 October 2007 Statement CreditLkw $10.000.00 Cash crCredtAva1"abib: Billing Cycle and Paym ent 6normation Days in Billing Cycle 28 Closing Date 10/02/07 Payment Due Date 11/01/07 Current Psyrnerd Due $399.00 Past Due Amount + $799.00 Total Minimum Payment Due Bankof America AlOai< kc BANK OF RICA P.O. BOX 15726 WILMINOTON,DE 19866-6726 Atarbi7Nw!2zft fa BANK OF AMERICA P.O. BOX 15026 WILMINGTON, DE 19NO-5020 Call toll-free 1600-78948665 • Posting Transaction Reference Account Purchases and Adjustments Date Date Number Number Category Amount LATE FEE FOR PAYMENT DUE 1401 10/02 10/02 1367 C 39.00 Conralvo WkgAnnual Liawwo Su4isa to C80690-ty Padiodio Rats Amnentage Rata Fff' Aw 'a Chafe Cash Advances A. Balance Transfers, Checks 0.078857% DLY 27.98% $9,410.95 B. ATM, Bank 0.078667% DLY 27.98% $0.00 27.98% OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS DID YOU KNOW THE AUTOMATED SYSTEM PROVIDES THE ABILITY TO HEAR YOUR ACCOUNT BALANCE, MAKE PAYMENTS, SELECT PINS, ORDER STATEMENTS AND DISPUTE CHARGES? 04 01165309001198000004090000054909900131,30719 Check two for a change of rr dN address or phone nun8u(* HANK OF AMERICA P4ese provide a$conectloro on the ratltlle dit P.O. BOX 15726 WILMINGTON, DE 19886-5726 Isu1111111 1 ul.IIIIIIII IIIIIlrlutl..leIall r,l.III I ACCOUNTNUMSEt7: 54909=13130719 ALISON SHIMER 1225 W LEESPORT RD LEESPORT PA 19533-9320-258 NEW BALANCE TOTAL. $11,653.09 PAYMENT DUEL947F. 11/fOt/07 AW uds paymentGoLpon &xV wfM a d>ack ormoneyard9rpa)adb to a4NX OFAMERICA s o_ N 1:5 240 2 2 2 501: 159300 L3L307L9110 P-A-dd-b AUSON SHIMER 5490 99001313 0719 November 2007 Statement Credit Lie. $10,000.00 Cash orCna*Available: F, A f t i 'I ccount In ornIZA ,10F, Summary of Transactions Billing Cycle and Pay ment Information Previous Balance $11,853.09 Days in Billing Cycle 31 Payrnems and Credits - $0.00 Closing Date 11/07,/07 Cash Advances + $0.00 Purchases and Adjustments + $39.00 Payment Due Date 12/03/07 Periodic Rate Finance Charges + 5280.18 Current end e $435.00 Transaction Fee Finance Charges + $0.00 Pa st Due Am + $ New Balance Total $11,97225 Total Minimum Payment Due =a Check hate for a charge of Pbaaa morkle al conectio Purchases and Adjustments Date Date Number Number Category Amount LATE FEE FOR PAYMENT DUE 11/01 11/02 1 M 1853 C 39,00 _ Category fwWiv Rate Fi:M&Waae Rate Fkwwo 6fir w Cash Advances A. Balance Transfers, Checks 0.078657% DLY 27.98% $9,626.15 B. ATM, Bank 0.078857% DLY 27.98% $0.00 C. Purchases 0.078657% DLY 27.96% 5216320 Annual Percentage Rate for this Billing Period: 27.98% nnclydm Panodic Rate Finance Charges and Transaction Foe Finance Charm) OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS 04 0119722500163300000409000005490990013130719 BANK OF AMERICA P.O. BOX 15726 WILMINGTON, DE 19886-5726 less IIIII No 11116144 go led III ALISON SHIMER PO BOX 489 NEW CUMBERLND PA 17070-0489 ACCOUNT NUMBED BankofAmedca Ma8P1r?n &-& * BANK OF AMERICA P.O. BOX 15729 WILMINGTON, DE 19898.5728 A?dar'BOw /no4ft Aw BANK OF AMERICA P.O. BOX 15028 WILMINGTON, DE 19850-5028 Can tog-free 1-800-789.9995 TDD hearing-Impaired 1-800-348.3178 addraue or nvarae ddens number(* 5490 99001313 0719 NEW BALANCE TOTAL: $11,97225 PAYMENT OUE DATE.• 12/03107 6N Aow Aaa.v TD a Mel00A PPYONcagaorl abrg *00 a check°rM0n°Y°PdfirFbYabb nv.BANKOPAMER= 1:5 240 2 2 2 501: 1,59300431,307i9ne o_ 8. N Pmaerodfar. AUSON SHIMER 5490 99001313 0719 BankofAmerica? December 2007 Statement Credit Lin& 5101000.00 Cash arCredilAva"km.• P l t MaaAwwnis fu Summary of Transactions Billing Cyc e and ayme n Information - BANK O AMERICA Previous Balance $11,97225 Days in Billing Cycle 32 P.O. BO X IU26 P.O. X 15728 Payments and Credits - $0.00 Closing Date 12AXM7 WILMINGTON. DE 1988e-5728 Cash Advances + $000 Ma M y inquki s Aw Purchases and Adjustments + $39.00 Payment Due Date 01/02108 BANK OF AMERICA Periodic Rate Finance Charges + $29723 Current Payment Due $455.00 P.O. BOX 15028 Transaction Fee F'tnarlce Charges + 50.00 Pas[ Due Amount + 51,833.00 WR MtNGTON, DE 19850.5028 Total Minimum Call toe-tree 1-800-78 New Balance Total $12,308.48 psymelt Due TDD hearing-knpaired 1 -NO -e0D•348-3178 Posting Transaction Reference Account Purchases and Ad' stem, Date Date Number Number Cat o Amount MORE _ FO PAYMENT DUE 12/03 _ 12104 12/04 1972 C 39.00 0 WrAr ffi.Y 4,020 AVAZLhMJt amm-n Nor, Corr meporI ogAnnul Bwmce Sa 4ire to Category Poriodia Rata POMONA9e Rate Farerres Charge Cash Advances A Balance Transfers, Checks 0.076657% DLY 27.88% $9,881.34 B. ATM, Bank 0.076857% DLY 27.96% $0.00 rumuar ruar.?ruayv na.a two urw ourury r-arwu. 27.980A (Includes Periodic Rate Finance Chames and Transaction Fee Finance Charoes ) Important Information About Your ACCCLnI PLEASE SEE ENCLOSED INFORMATION REGARDING RECENT CHANGE IN TERMS. VEA INFORMACION ADJUNTA CON RESPECTO A LA RECIENTE MODIFICACION DE LOS TERMINOS. OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS THANK YOU FOR BEING A VALUED CUSTOMER. 04 0123084800208800000409000005490990013130719 BANK OF AMERICA P.O. BOX 15726 WILMINGTON, DE 19886-5726 In8111,1,aLr1r1u1n118111r}r111milli 11111milli III ALISON SHIMER PO BOX 489 NEW CUMBERLND PA 17070-0489-897 n Check here fore chope of no" sddren or phone number(sk so correcaons on me merge sae. ACCOUAfT NUMBER. 5=990013130719 NEW BALANCE TOTAL: $12,308.48 PAYMENT DUE DATE.- 01/02/08 MWAvp- wr+wrFi,ee..Q a.: a. s Mei Mrsaerrraurf caeraor abiniv Whack or moray an*rpayebb rb.•BANKOFAMER/CA I: 5 240 2 2 2 50i: it 59 300 i 3130 7 1,quo t?-?- ? o S Pr#Fa'edfcr ALISON SHIMER 5480 99001313 0719 January 2008 Statement CreaGt Line.' $10,000.0 Cwh aar Cns&Avabbie: Account Information Summary of Transactions Billing Cycle and Pay ment Information Previous Balance $12,308.48 Days in Billing Cyde 30 Payments and Credits - $0.00 Closing Date 01/03108 Cash Advances + 50.00 Purchases and Adjustments + $39.00 Payment Due Data 07/01/06 Periodic Rate Finance Charges $28826 Current mens a Transaction Fee Finance Charges + $0.00 p A $2,088.00 New Balance Total $12.633.74 _ TPay lment Due BankofAmerica4401. maftonw. fs Ax BANK OF AMERICA P.O. BOX 15726 WILMINGTON, DE 18886-5728 hw8zio 1noL4*s Ax BANK OF AMERICA P.O. BOX ISM WILMINGTON, DE 18850-5026 Cdtoll-free 1-800-788-8885 TDDhearing-impaired 1-a00-346-3178 Posting Transaction Reference Account Purchases and Adiuatmenis Date Date Number Number Category Amount LATE FEE FOR PAYMENT DUE 01/02 01/03 _ 01/03 2308 C 38,00 Cete O GQfM*0"0MAMWff Barence Su4iscr to o ry Poor?ada Rats Pbm"Age Rate Friwwo ChwW Cash Advances -A. Bffiarloe Transfers, Checks 0.078657% IDLY 27.98% $10 098.38 B. ATM, Bank 0.078657% DLY 27.9896 , $0.00 C. Pub 0.078657% DLY 27.9896 $2 34921 Annual Percentage Rate for this Billing Period: , (Includes Periodic Rate Finance Charges and Transaction Fee Finance Qwrom ) 27.9896 Important OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS 04 0126337400253600000409000005490990013130719 BANK OF AMERICA El Check hem tar • ehenpe or RW" KWress or phone nufftw t, Pbese pmvlda el coneetbns on the ISM"". P.O. BOX 15726 WILMINGTON, DE 19886-5726 IrrrII III rrIrrIrIrrIIIIIrnIrIiIruInIrIrII Bills III ACCOUNTNUMBEA 549099001313071 9 NEWBALAAACE TOTAL-$12,633.74 R PAYMENT DUE DATE.• 02/01/06 a ALISON SHIMER 60.ne?nr?oe..rs,wr.ar T PO BOX 489 NEW CUMBERLND PA 17070-0489-897 Mai U* paymentea wn sk ng with a aheckormoney odlarpoyabletha NKOFAAIER/CA 1:5240 2 2 2501: L59 300 13 1307 Me Pntoh f r AUSON SHINIER 5490 99001313 0719 Bankoffterica? February 2008 Statement QW&Lkae: $10,000.00 Cash orCredit Avaftbb: www.bankofamerimcom -- Summary of Transactions Billing Cycle and Payme nt Information TO theatres to-ed I - 885 T[JOhaaring-irnpmpaired -800.348.3178 Previous Balance $12,633.74 Days in Billing Cycle 30 Mala9mm 9 a. Payments and Credits - $0.00 Closing Date 02/02/08 BANK OF AMERICA Cash Advances + $0.00 P.O. BOX 15728 Purchases and Adjustments + $39.00 Payrrront Due Date 03/03108 WILMINGTON. CE 188885728 Periodic Rate Finance Charges + $293.82 Current Payment Due $459.00 AWBASyl gviie 1w Transaction Fee Finance Charges + $0.00 Past Due Amount + $2,538.00 BANK OF AMERICA Total Minimum P.O. BOX t5o28 New Balance Total $12,866.56 Payment Due WILMINGTON, DE 19850.5028 Posting Transaction Reterenos Account Purchases and Adjustments Date Date Number Number Catetlory Amount tA?TE FEE FOR PAYMENT DUE 02/01 02M2 07102 2633 C 39.00 Cash Advances A Balance Transtas, Checks 0.078657% DLY 27.98% $10,333.19 B. ATM, Bank 0.076657% DLY 27.98% $0.00 C. Purchases 0.076657% DLY 27.98% $2,44328 Annual Percentage Rate for this Billing Period: 27.9896 pnctudes Periodic Rate Fehanae Charges and Transaction Fee Finance Charges.) OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT UMITS 04 0129665600299500000409000005490990013130719 ? Check here a` hhe??an address or phone numbw(* BANK OF AMERICA P.O. BOX 15726 - WILMINGTON, DE 19886-5726 less "11111limit IIIIt ACCOuIVTNUMBElt 5490990013130719 NEW BALANCE TOTAL: $12,966.56 PAYMENT DUE DATE.- 03/03/08 ALISON SHIMER I ~ftw aAlm" aa..e PO BOX 489 NEW CUMBERLND PA 17070-0489-897 Mai V* payment coupon abng with a check ormonsy ahbrpaynbb & BANK OF AMERICA 1:5 240 2 2 2 501: 1,5930OL3L307L90 a? N Ar osredfor. ALISON SHIMER 5490 89001313 0718 BmkofAmedca March 2008 Statement Cro* ih $10,00.00 Cash orCooddAlwai/la Summary of Transactions Bil ft Cyde and Pay ment Information TTTM heacin 1-g4ripair ed euo 3445 -3178 Previous Balance 51$988.58 Days in Billing Cycle 31 Aw Phlrrhents lmen ft ta' ll?aP Payments and Credits - $0.00 Closing Date 03/04/08 BANK OF AMEFICA Cash Advances + $0.00 P.O. BOX 15728 Purchases and Adjustments + $39.00 Payment Due Date 04/01/08 WILMINGTON, DE 19888-5728 Periodic Rate Finance Charges + $311.73 Current Payment Due $480.00 AWg!ft 1mufv Aa Transaction Fee Finance Charges + $0.00 Past Due Amount + $2,995.00 BANK OF AMERICA Total Minimum P.O. BOX 15028 New Balance Total $13,31729 Payment Due + r _WILMINGTON, DE 19850.9028 Posting Transaction Reference Account Purchases and Adjustments Date Date Number Number Category Amount LATE FEE FOR PAYMENT DUE 03103 03104 03104 2988 C 39.00 Cornwinm di?g Annual Balance SUtliecr to Category ft-iodic Rate fart "Am Rate Finaiwe Change Cash Advances A. Balance Transfers, Checks 0.076857% ELY 27.98% $10,577.55 B. ATM, Bank 0.076657% DLY 27.98% $0.00 C Purchases 0.076657% DLY 27.9896 $2,540.48 Annual Percentage Rate for this Billing Period: 27.98% Includes Periodic Rate Finance Charges and Transaction Fee Finance Chartres.) OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE YOUR BALANCE EXCEEDS APPROVED CREDIT LIMITS 04 0133172900347500000409000005490990013130719 Cheek here for ¦ change of mding address or phone nun*ad* BANK OF AMERICA Pbeae provbe of corrections an the reverse a1de. P.O. BOX 15726 WILMINGTON, DE 19886-5726 IACCOUNTNUMBER. 5490990013130719 ALISON SHIMER PO BOX 489 NEW CUMBERLND PA 17070-0489-891 NEW BALANCE TOTAL' $13,31729 PAYMENTDUEDAT£.• 04/01/06 Err. F-0 Amav/ ea,..c M" ft pdyntent oopPon d!<vhg W M A d m-k ar money ord*rEheyedb lo: BANK OFAMER/CA I:5240222SO$: L59300L31304L911¦ 8 N I`lLH(s) State of Virginia City of Norfolk ss. AFFIDAVIT OF OWNERSHIP AND SALE OF CLAIM 5 2008 `tf rl, t, the undersigned, Connie Washington, Administrative Manager, for Portfolio Recovery Associates, LLC hereby depose, affirm and state, to the best of my understanding and belief: 1. 1 am an authorized employee of Portfolio Recovery Associates, LLC, ("Account Assignee") which is doing business at Riverside Commerce Center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representations and averments herein. 2. According to the account records provided to the Account Assignee by MBNA/BANK OF AMERICA ("Account Seller'"), there was due and payable from SHIMER,ALISON, ("Debtor") to the Account Seller the sum of $ 13317.29 with respect to account number 5490990997458326, as of 04108/08. 3. According to the account records of the said Account Assignee, which account records are maintained in the ordinary course of business, the account, and all proceeds of the account, are now owned by the Account Assignee, all of the Account Seller's interest in such account having been sold, assigned and transferred by the Account Seller on 04/08108. Further, the Account Assignee has been assigned all of the Account Seller's power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever. At the time of the sale and assignment of the said account by the Account Seller, there was due and owing the sum of $ 13317.29, there being no known un- credited payments, just counterclaims or offsets against the said debt as of the date of the sale. Portfolio Recovery Associates. L.L•.C._ .By-Connie Wa g on, Administrative Manager Subscribed a tti"Q?Q9/08 Commonwoatth of Virginia ry Itt4EG N87t5?64@ `. ? ` 'A CCfi l Sfiipn ESt (851113012011 This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose. 5490990997458326 ATYPA4 AFFIDAVIT OF SALE AND CERTIFICATION OF DEBT STATE OF NORTH CAROLINA CITY OF GREENSBORO Bank of America. N.A. Account Holder. SHIMER,ALISON Account No: 5490990997458326 The undersigned, Brian Kilpakic( , being duly sworn, states and deposes as follows: 1. That Affiant is employed by Bank of America, NA successor in interest to MBNA in the position of Bank Officer and is duly authorized to make this affidavit. 2. That the original contract in this manner may not be available, or no longer accessible to Affiant and that this Affidavit is to be treated as the original document for all purposes. If any originals are discovered, they will be submitted to the court for review. 3. That the statements made in this Affidavit are based on the computerized and hard copy books and records of Bank of America, which are maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction recorded. 4. That account number 5490990997458326 was opened on 08/08/96 by SHIMER,ALISON whose social security number is=5399 (if available). 5. That there is due and payable as of 03/29/08 the sum of $13317.29 not withstanding legally chargeable post charge-off interest, pursuant to the terms of the card member agreement with Bank of America. 6. That said agreement and account was, on 04/08/08 sold, transferred and set over unto Portfolio Recovery Associates, Inc . , with full authority to do and perform all acts necessary for collection, settlement, adjustment. compromise or satisfaction of the said claim. 7. That as a result of the sale of said account, Portfolio Recovery Associates, Inc. and/or its authorized agent, has complete authority to settle, adjust compromise and satisfy same that Bank of America had no further interest in the account for any purpose. 8. That to the best of Affiant's knowledge, information and belief, there were no uncredited payments, just counterclaims or offsets against said debt when sold. DATED THIS W$ 1y of 1' z -_ 2008 BANK OF AMERICA, By: Bank Officer ?f`A D, t Hbed and y4beforre me this - day of_ , 20008 Notary ?sy coiMfe riAl NglAy QbMm. EAPRIL 16, 20otary Public ?O,9 Ti Alison Shimer, in pr pria persona 2012 ??-! r k L. ; 441 14 Allendale Way Camp Hill, PA 1701 Cu : " d FV AJI (717) 506-0645 PORTFOLIO RECO ASSOCIATES, LLC Y COURT OF COMMON PLEAS CUMBERLAND COUNTY vs ALISON SHIMER iff NO. 08-5787 Civil Action MOTION TO (COMPEL AND REQUEST FOR IMPOSITION OF SANCTIONS FOR FAILURE TO COMPLY Pursuant to C.?.R.P. 4001-1 Defendant Alison Shimer, respectfully moves the Court to compel and to produce cop assignor Bank of A for the grant of this discovery in this mai 1. Plaintiff Defendant with a one intiff to provide answers to previous served Interrogatories of previously requested books and records of Plaintiff's Defendant respectfully submits the following reasons ion and proposed Order in support of her right to proper this civil action almost two years ago by serving count Complaint dated September 22, 2008. 1 2. The Comp aint alleged Plaintiff to be the Assignee and Successor in Interest to the alleged original creditor Bank of America with respect to Account #5490 9909 9745 81,26 and, that by reason of a Bank of America assignment to Plaintiff, an unpaid lance was due Plaintiff in the amount of $13,652.23. 3. The Complaint attached a one page copy of a document purportedly labeled as Exhibit " ". That document, which reflected no such exhibit reference, appeared to be a mo thly periodic statement for the month of March 2008 bearing Defendant's name w th respect to a separate account #5490 9900 1313 0719 issued by Bank of Americ that was never referred to by Plaintiff in the body of the Complaint. Plaintiffs entire Complaint and that Complaint's single exhibit are attached hereto as Exhibit # 1. 4. In her Ans er, Defendant denied that the referenced Exhibit "A" reflects an accurate statement of any debt owed by Defendant to Bank of America, denied that Bank of America is a creditor of Defendant, denied that Bank of America loaned any of that bank's funds to Defendant, denied that use of the account resulted in a debt of a Defendant to Bank of America and further denied that the stated amount of $12,652.23 is due Bank of America and that she failed to make any payments due to ank of America as her alleged original creditor. 5. By cover l Ater dated November 15, 2008 (see attached Exhibit #2) Defendant initiated iscovery and forwarded to Plaintiff (by Certified Mail No. 7008 0150 0002 528 5749 return receipt requested) a copy of Defendant's First Set of Interrogatories, First Set of Requests For Admission and First Set of Requests For Production. 6. Request No. 1 listed in Defendant's First Requests For Production dated November 15, 2008 stated: "Please ledger of produce the underlying books and records, including the bookkeeping entries created according to generally accepted 2 account ng principles for account # 5490990997458326 maintained by Ban c. of America from which the periodic monthly statement (attache to your complaint as Exhibit "A") for that account was derived. ' 7. Plaintiff provided a response dated December 12, 2008 to the above cited Request For Production by evasively answering as follows: "All non-privileged, responsive documents will be provided". 8. Request No. 2 listed in Defendant's First Requests for Production dated November 15, 2008 fated: "Please produce copies of all documents, books and records evidencing the amount sued for that you claim Alison Shimer owes you as a alleged assignee of Bank of America." 9. Plaintiff r?sponded on December 12, 2008 as follows: "Please see attached". 10. The docum nts provided to Defendant on December 12, 2008 in response to both of the above cited requests for production were the 15 monthly periodic account statements attached hereto and designated as Exhibit #3 that cover the months of January 2007 through March, 2008. 11. Request No 2 in Defendant's First Set of Request For Admissions dated November 15, 2008 ?ddressed to Plaintiff stated: "Admit that Bank of America cannot demonstrate with evidence that Bank of erica suffered any legal detriment as a result of the failure of Defendant to pay the amount allegedly owed to Bank of America as stated in Count I of the Complaint." 12. Plaintiff as follows: "Denied. refusal to pay." on December 12, 2008 to that Request for Admission of America has suffered a loss as a result of defendant's 3 13. Request Ncf . 6 in Defendant's First Set of Request For Admissions dated November 15, 2008 4ddressed to Plaintiff stated: "Admit th you are not in possession of an account and/or general ledger statement ept by Bank of America in accordance with generally accepted accounting principles verifying through bookkeeping entries the amount as stated in Count I of the Complaint allegedly owed by Defendant Alison Shimer to Bank of America." 14. Plaintiff re nded on December 12, 2008 as follows denying that it was not in possession of the above described documents: "Denied. Plaintiff is in possession of statem nts on this account." 15. Request No 16 in Defendant's First Set of Request For Admissions dated November 15, 2008 addressed to Plaintiff stated: "Admit tha Bank of America's ledger and bookkeeping entries (that are related to and associated with account #5490990997458326) would reveal that no money is due and owing Bank of America from Defendant." 16. Plaintiff ev?ded a direct answer to this particular admission request by responding on December 12, 2008 as follows: "Objection. Plaintiff objects to this request as overly broad, unduly burdensom and made to annoy, oppress or harass." 17. Request No. 17 in Defendant's First Set of Request For Admissions dated November 15, 2008 addressed to Plaintiff stated: "Admit tha an examination of all of Bank of America's ledger and bookkeepin entries for account #5490990997458326 would reveal that no money i due and owing to Bank of America from Defendant." 18. Plaintiff re ponded on December 12, 2008 as follows: "Denied. The defendant owes the s claimed in the complaint." 19. Defendant's First Set of Interrogatories also dated November 15, 2008 were forwarded to laintiff along with Defendant's First Set of Request for 4 Admissions and De endant's First Set of Requests for Production of Documents. Plaintiff never respo nded to Defendant's First Set of Interrogatories. A copy of Defendant's First Se of Interrogatories is attached to this motion and designated as Exhibit #4. To date laintiff has offered no reasonable objection or reason why it refused to respond t this legitimate discovery by the Defendant. 20. Defendant s ent Plaintiff a six page cover letter dated February 2, 2009 by Certified Mail No. 7 07 2680 0002 4736 7214 return receipt requested received by Plaintiff on Febru 4, 2009. (See copy of the same attached hereto and designated as Exhibi #5). 21. In that cov r letter Defendant reminded Plaintiff that the Defendant had not received a resp onse to Defendant's First Set of Interrogatories. Defendant advised Plaintiff as f ollows in the last sentence of paragraph two of that February 2, 2009 cover letter: "P ease be advised I expect a response to those interrogatories or I will seek sanctions from the Court". 22. Defendant' cover letter to Plaintiff dated February 2, 2009 expressed particular concern n page two about Plaintiff's unwillingness to respond to Interrogatory # 5 w 'ch requested "...the name and address of each person with knowledge of the fac s for each cause of action" (listed in the complaint). 23. Because PI intiff had freely admitted to being the assignee of Bank of America and, therefo re, with absolutely no personal knowledge of any of the facts that supported Plainti ff's cause of action, Defendant's cover letter of February 2, 2009 reminded Plain iff of the importance of providing "...the identity of anyone that you will rely u pon at trial who will testify as to facts within their direct knowledge that supp rt your stated cause of action." 24. In her follow up cover letter to Plaintiff dated February 2, 2009 Defendant addressed Plaintiff's response to Request No 2 found in Defendant's First Request for Admissions. text of that request in paragraph 11 above and the text of 5 Plaintiff's written response to that request in paragraph 12 above). Defendant pointed out that Plaintiffs response to that particular request for admission denied that Bank of America could not demonstrate with evidence that Bank of America had suffered a detriment. Plaintiff was, therefore, directed to Request No. 2 found in Defendant's Sec nd Set of Request For Production of Documents (attached hereto as Exhibit # ) also dated February 2, 2009. The verbatim text of that new Request No. 2 and efendant's explanation of the reason for that new request for production was: "Re uest o.2 The periodic monthly account statements previously provided by you to defendant establish only that Bank of America a parently has a computer or other mechanical devise capable of physical y generating paper that appear to monthly account statements. None of fliese statements provide sufficient evidence that Bank of America to ed or provided to the Defendant any money that belonged to Bank of erica. In order to show that Bank of America suffered a legal detriment you will be required to show at trial that Bank of America actually loaned or provided to Defendant money that belonged to Bank of America d was an asset of Bank of America. If Bank of America actually loaned the defendant money that belonged to Bank of America it should be very easy for you to request that documentation from Bank of America and provide that documentation to defendant in response to this request for production. Therefore, please provide all documents, books and record that evidence the fact that the account stated in your complaint effects money that belonged to Bank of America (and therefore as an asset of the bank before the alleged loan) that was actually either loaned or otherwise provided to defendant thereby causing a legal detriment to Bank of America by reason of the defendant's alleged non 25. To date, no second round was reasonable and produce according to repayment. response has ever been provided by Plaintiff to this specific t for production of documents. This documentation request was apparently within the ability of Bank of America to previously provided to the Court by Plaintiff. 6 26. Plaintiff recently filed a motion for Summary Judgment dated June 28, 2010 with the Court with respect to this Civil Action No. 08-5787. Attached to that motion filing was affidavit of Bank of America representative Brian Kilpatrick (See copy of that affidavit attached hereto designated as Exhibit #7). 27. The Court's attention is directed to the paragraph of that affidavit identified with the n ber 3. In that paragraph Mr. Kilpatrick clearly admits and confirms that the statements contained in his affidavit are purportedly based upon "...the computerized and hard copy books and records of Bank of America, which are maintained in the ordinary course of business, with entries in them having been made at or near the t' e of the transaction..." 28. As Defend t pointed out to the Court in her Response filed with the Court today July 20, 010 to Plaintiffs Motion for Summary Judgment none of the periodic account statements provided so far to the Defendant were created "...at or near the time of the transaction..." because each and every periodic monthly statement (including the earliest periodic monthly statement dated January, 2007 (see all such statements attached hereto and designated as a part of Exhibit #3) refer only to a "Pr vious Balance". Not a single periodic monthly statement provided by Plainti to either the Defendant or to the Court lists a "transaction" that occurred at any t?me during the time period covered by that particular periodic monthly statement. o the periodic monthly statements so far provided by the Plaintiff cannot be the books and records documentation of Bank of America referred to by its own representative Brian Kilpatrick. 29. Both the this Court and the confirm possession "supports" the acct Defendant. We al; of America affidavit previously submitted by Plaintiff to tintiffs response to Defendant's Request for Admissions ? Bank of America of documentation that supposedly -y of the periodic monthly statements provided to the know (according to Mr. Kilpatrick) that this written 7 documentation consists of entries "...having been made at or near the time of the transaction...". Since there are no "transactions" listed on any of the periodic monthly statements provided so far to Defendant, it is incumbent upon Plaintiff to produce copies of the books and records documentation that purportedly supports the accuracy of the p 'nted periodic monthly statements. Defendant has repeatedly sought the production of documentation necessary to support the accura y of the alleged debt to Bank of America. As the assignee of Bank of America, the Plaintiff should be required to produce that documentation because it is clearly "best evidence" of not only the existence of the alleged indebtedness but also best evidence of the actual amount (if any) of that indebtedness. Defendant's files indicate that an additional follow up request was made by Certified Mail No. 007 2680 0002 4736 7238 return receipt requested dated March 24, 2009 advising Plaintiff that no response whatsoever to Defendant's second round of disc very had been received as of that date. That letter enclosed another copy of De endant's cover letter dated February 2, 2009 to Plaintiff. Defendant's letter da ed March 24, 2009 is attached hereto as designated Exhibit #8. The final paragra h of that letter expressed Defendant's continuing fiustration at Plaintiff's apparen willingness to simply ignore legitimate discovery. Plaintiff was clearly reminde at that time that "(a) failure to respond to discovery is a serious matter that Lerits sanctions from the Court if the difficulty I have experienced to date is not soon resolved". Almost a month later, by letter dated April 21, 2009 (copy enclosed as designated Exhibit # the Plaintiff's legal counsel provided an enigmatic response to Defendant's letter of March 24, 2009. That letter from Plaintiff dated April 21, 2009 purported to deny the existence of any "enclosures" with Defendant's March 24, 2009 letter. 's March 24, 2009 letter did not purport to contain 8 multiple enclosures but did enclose a single copy of Defendant's previous cover letter dated February 2, 2009 as a courtesy. On May 8, 2 09 Defendant replied to the letter from Plaintiffs counsel dated April 21, 200 . Defendant's reply letter dated May 8, 2009 (see attached Exhibit #10) was se t by Certified Mail No. 7007 2680 0002 4736 7245 return receipt requested. Th e primary purpose of Defendant's reply dated May 8, 2009 was to extinguish an pretense by Plaintiff that it had not received or had somehow "overlooked" Defen dant's cover letter dated February 2, 2009 enclosing Defendant's second ound of served discovery. Again Defendant advised Plaintiff of its failure to respo nd to both the first and second round of Interrogatories. No response to Defenda is second follow up round of discovery dated February 2, 2009 was ever receiv d from Plaintiff. Defendant re pectfully requests that the Court order the immediate production of the derlying books and records that are alleged to support the existence of and the amount of any indebtedness of Defendant to Plaintiff by reason of Plaintiffs standing as the alleged assignee of Bank of America. If Plaintiff refuses to p ovide this "best evidence" with the cooperation of Bank of America, Defendant ?espectfully requests that the Plaintiff be sanctioned with the dismissal of the Com plaint with prejudice. Defendant also respectfully requests that Plaintiff be order to respond immediately to both a first and second set of Interrogatories served upon Plaintiff by Defendant. Defend ant notes that Plaintiff should be precluded from responding to the as yet unansw ered second round of requests for admission served upon Plaintiff by cover le er dated February 2, 2009 and received by Plaintiff on February 4, 2009. Al admissions requested by that second round of discovery by Plaintiff should now a admitted as true. 9 Dated: July 20, 2010 Respectfully submitted, Alison Shimer 10 Alison Shinier, in pr pria persona 414 Allendale Way Camp Hill, PA 1701 (717) 506-0645 PORTFOLIO RECOVERY ) ASSOCIATES, LLC ) COURT OF COMMON PLEAS CUMBERLAND COUNTY Pla' tiff ) vs ) NO. 08-5787 Civil Action ALISON SHIMER ) Defen t ) CERTIFICATE OF SERVICE I, Alison Shimer, the named defendant in the above civil action hereby certify that on July 20, 2010 I mailed a copy of Defendant's Motion to Compel and Request for the Imposition of Sanctions for Failure to Comply, the Proposed Order and this Certificate of Service by Certified Mail No. 7009 3410 0001 5604 9964 return receipt requested to: Benjamin J. Cavallarc Apothaker & Associal 520 Fellowship Road Mount Laurel, NJ 080 Dated: July 20, 2010 Esq., Attorney for Plaintiff S, P.C. 306 >4 Alison Shimer %0 P Alison Shimer, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 2010 v^J? C U 4.j to lo Jut, ao PM K? PORTFOLIO RECOVERY ASSOCIATES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff vs NO. 08-5787 Civil Action ALISON SHIMER Defendant DEFENDANT RESPONSE TO PLAINTIFF MOTION FOR SUMMARY JUDGMENT AND NOW, this 20'hday of July, 2010 comes the Defendant Alison Shimer, in propria persona and files this timely Response to Plaintiff Portfolio Recovery Associates, LLC's Motion for Summary Judgment received by regular mail on July 1, 2010 and respectfully requests that the Court enter an Order denying Plaintiffs Motion for Summary Judgment for the reasons set forth herein. 1 A. The pleadings to date and the documentation attached to Plaintiff's Motion for Summary Judgment fail to meet the clear standard required by settled summary judgment case law for grant of Plaintiff's Motion. There are several genuine issues of material fact to be decided at trial that are not at all resolved by either the pleadings and their exhibits or by the documentation recently attached to Plaintiffs Motion. The first and most obvious issue of material fact is whether or not there is a valid existing debt owed by the Defendant to the Plaintiff's assignor Bank of America. Another issue of material fact is the amount, if any of that alleged debt. Plaintiff does not claim to be the alleged original lender but asserts and admits in paragraph 3 of the Complaint dated September 22, 2008 that it is "...the Assignee and Successor in Interest of Account #5490990997458326; and said account was issued to Defendant(s) by BANK OF AMERICA, the Original creditor." As the admitted assignee of Bank of America, Plaintiff stands squarely in the shoes of its assignor. Smith v. Cumberland G., Ltd. 687 A.2d 1167, 1172 (Pa. Super. 1997). Plaintiff, therefore, clearly has only such right as Bank of America would have to claim that a valid debt exists between that bank and the Defendant. It is also clear that, as the assignee of Bank of America, the Plaintiff and its representatives have absolutely no direct knowledge of the circumstances of Defendant's alleged "debt" to that bank, have absolutely no direct personal knowledge of whether or not the Bank actually ever provided to the Defendant any funds belonging to Bank of America and, if any such funds owned by the bank were ever provided, the actual amount of bank owned funds so provided. Plaintiffs Motion for Summary Judgment acknowledges on page 1, paragraph 3 that Defendant's Answer denied "all averments of Plaintiffs Complaint". Clearly both the existence of a valid debt and the amount, if any, of 2 that alleged debt are matters of clearly disputed fact and those "facts" are clearly critical and "material" to Plaintiffs ability to eventually prevail. B. The "account" referenced in the Complaint and in Plaintiff's submitted supporting affidavits is different from the "account" stated on the submitted periodic monthly statements purportedly issued by Bank of America. The documentation submitted to the Court by Plaintiff's summary judgment motion fails to "conclusively prove" anything other than the fact that Bank of America apparently issued a series of periodic monthly statements bearing Defendant's name with respect to a certain purported "account" 5490990013130719. No such "account" # 5490990013130719 is ever referred to anywhere in the body of the Complaint itself nor is that particular and specific "account" referenced (1) in the Affidavit of Ownership and Sale executed by Plaintiffs Administrative Manager Connie Washington; or (2) in the Affidavit of Sale and Certification of Debt executed the purported Bank of America representative Brian Kilpatrick. Nor is any explanation ever provided to the Court by Plaintiff for this continuing and consistent account number "discrepancy" found on all of the purported periodic statements attached to both its Complaint and now its Motion for Summary Judgment! All that is currently before the Court is the allegation in a now almost two year old Complaint that an unpaid debt exists with respect to a certain alleged account 5490990997458326 at Bank of America for which absolutely no supporting documentation has ever been provided! How in the world does this obvious and glaring factual discrepancy "conclusively prove that defendant owes the debt at issue herein". (See Plaintiff's Motion, page 2, paragraph 4). What is clear and obvious to even the most casual observer is the fact that neither Bank of America nor the Plaintiff are clear about the "account number" associated with the alleged debt. If both the Plaintiff and its apparent assignor 3 Bank of America are unclear about exactly what "account" at Bank of America forms the basis for this civil action, such obvious and compelling lack of clarity and consistency by the Plaintiff is certainly reason enough for the Court to deny Plaintiff s motion. C. Even if Plaintiff is able to somehow resolve the above cited clear and obvious account "discrepancy" to the satisfaction of the Court, the various periodic monthly account statements submitted by Plaintiff as "documentation" and the affidavit of Plaintiff's employee Connie Washington do not at all collectively prove that a valid debt ever existed between defendant and Bank of America and/or its predecessor MBNA. Defendant has pointed out again and again to Plaintiff during discovery that the information contained in a periodic monthly statement issued by Bank of America to any of its card holders cannot and does not exist in a factual or documentary vacuum. The amount of any stated "previous balance" found on a periodic monthly statement has a source in documentation over which Bank of America or its predecessor MBNA (as the original alleged lender) has sole custody and control. That documentation includes books and records including the ledger or bookkeeping entries created according to generally accepted accounting principles that document and reflect the fact that Bank of America or its predecessor MBNA actually provided to the defendant funds that belonged to the bank at the time the alleged "loan" or line of credit was provided. That documentation (which necessarily underlies the information that appears on a periodic monthly account statement) would also confirm the actual amount of the funds belonging to Bank of America or its predecessor MBNA that were allegedly "loaned" or provided to the Defendant and not repaid as alleged in Plaintiff's Complaint. Despite repeated requests for such documentation beginning with Defendant's First Set of Request for Production of Documents dated 4 November 15, 2008 forwarded by Certified Mail No. 70080150000252895749 and received by Plaintiff on November 19, 2008, no such underlying documentation has ever been provided either to the Defendant or now to the Court. It is reasonable to conclude that the only "account records" in the possession of Plaintiff according to its own affidavit bearing a stamped "received" date of December 15, 2008 are the periodic account statements now provided to the Court and previously provided to the Defendant. These "account records" are evidence only of the fact that Bank of America at some time printed and issued a series of periodic monthly account statements. These periodic monthly account statements are similar to a printed invoice issued by any business. If a former customer later disputes the charge during subsequent litigation and asks for documentation of the underlying alleged obligation reflected on an invoice, most businesses with proper accounting documentation would be able to readily produce and provide that underlying documentation to the customer in response to a discovery request. It is both unreasonable, ridiculous and contrary to basic accounting practices to assume that a federally chartered bank such as Bank of America 1 does not maintain accounting records that support the creation of periodic monthly statements mailed to its customers. Repeated requests for such underlying accounting documentation were made immediately by the Defendant through proper discovery. No such underlying accounting corroboration has ever been produced. Common sense would lead a trier of fact to reasonably conclude that any such documentation in the form of supporting accounting books and records in the possession of Bank of America 'That Bank of America is a federally chartered bank has been admitted at true by Plaintiff because Plaintiff never responded to Defendant's Second Set of Request For Admissions dated February 2, 2009 sent to Plaintiff by Certified Mail No. 7007 2680 0002 4736 7214 return receipt requested and received by Plaintiff on February 4, 2009. Requests No. 4 and 5 asked Plaintiff to admit that Bank of America was a federally Chartered Bank subject to Federal Reserve reporting requirements. (See Defendant's Second Set of Request for Admissions dated February 2, 2009 attached to this Response as Exhibit #1). 5 does not apparently support Plaintiff's claim that a legitimate debt exists between the Defendant and Bank of America. As the assignee of Bank of America the Plaintiff and its representatives have absolutely no personal knowledge whether the bank actually loaned any money to Defendant and have no personal knowledge whether any funds belonging to Bank of America were provided in the form of a credit line to Defendant. The affidavit of Plaintiff's representative, Connie Washington, therefore, is clearly insufficient to establish the existence or the actual amount of any alleged debt of Defendant to Bank of America and, therefore, the Bank's assignee Portfolio Recovery Associates, LLC. D. The affidavit of the Bank of America representative Brian Kilpatrick submitted to the Court does not support the requested Motion for Summary Judgment The Affidavit of Sale And Certification of Debt executed by Brian Kilpatrick as an authorized representative of Bank of America is also insufficient to support Plaintiffs motion for summary judgment. That affidavit was submitted to the Court by Plaintiff in support of Plaintiffs summary judgment motion. Defendant would first point out to the Court that Mr. Kilpatrick admits that the "original contract" by and between the Defendant and Bank of America or its predecessor MBNA is unavailable. Why that should be so is not explained. Contrary to Mr. Kilpatrick's assertion, his signed statement referencing a document he has probably never seen and cannot produce should not,,... be treated as the original document for all purposes." Any contention to the contrary by either Mr. Kilpatrick or Plaintiff is absurd. Mr. Kilpatrick's affidavit purports to inform the Court that his written statements "...are based on the computerized and hard copy books and records of 6 Bank of America, which are maintained in the ordinary course of business, with entries in them having been made at or near the time of the transaction recorded." None of the periodic account statements provided to the Court by Plaintiff in support of its motion for Summary Judgment were created "...at or near the time of the transaction..." because each and every periodic monthly statement (including the earliest periodic monthly statement dated January, 2007) refers only to a "Previous Balance". Not a single periodic monthly statement provided by Plaintiff to the Court lists a "transaction" that occurred at any time during the time period for which any of these monthly periodic statements were purportedly issued. D. Plaintiffs Motion For Summary Judgment should be denied because it is a transparent attempt to avoid Defendant's discovery request for documents that are now acknowledged by Bank of America to exist and to also avoid Plaintiff's clear burden of proof with respect to Defendant's alleged debt to Bank of America. If Mr. Kilpatrick's previously cited statement in his affidavit is accurate, then "...computerized and hard copy books and records of Bank of America..." that reflect entries "...having been made at or near the time of the transaction..." do, indeed, exist and should be readily available to the Plaintiff. To date Plaintiff has been unwilling to produce those "books and records" despite Defendant's First Request for Production dated November 15, 2008 and a second Request for Production dated February 2, 2009 sent by Certified Mail No. 70072680000247367214 Return Receipt Requested and received by the Plaintiff on February 4, 2009. Defendants' Second Request for Production, Request No. 2, specifically advised Plaintiff as follows: "The periodic monthly account statements previously provided by you to defendant establish only that Bank of America apparently has a computer or other mechanical devise capable of physically generating paper that appear to monthly account statements. None of these statements provide sufficient 7 evidence that Bank of America loaned or provided to the Defendant any money that belonged to Bank of America. In order to show that Bank of America suffered a legal detriment you will be required to show at trial that Bank of America actually loaned or provided to Defendant money that belonged to Bank of America and was an asset of Bank of America. If Bank of America actually loaned the defendant money that belonged to Bank of America it should be very easy for you to request that documentation from Bank of America and provide that documentation to defendant in response to this request for production. Therefore, please provide all documents, books and records that evidence the fact that the account stated in your complaint reflects money that belonged to Bank of America (and therefore was an asset of the bank before the alleged loan) that was either actually loaned or otherwise provided to defendant thereby causing a legal detriment to Bank of America by reason of the defendant's alleged non repayment." It has been 15 months since Defendant's Second Request for Production was provided by certified mail to the Plaintiff on February 4, 2009. To date, the requested documentation requested has not been produced. Plaintiff is not in a position to deny that such documentation exists because Mr. Kilpatrick's affidavit submitted to the Court in support of Plaintiffs Motion for Summary Judgment confirms that "...books and records of Bank of America... maintained in the ordinary course of business, with entries in them having been made at or near the time of the transaction..." do, in fact, exist! The various periodic monthly statements offered first to the Defendant in response to her attempts at discovery and now offered to the Court in support of Plaintiffs Motion For Summary Judgment cannot possibly be the books and records referred to by Bank of America's representative Brian Kilpatrick in his affidavit because, as noted previously, all of those periodic monthly statements refer to a "Previous Balance" and never reflect a transaction that occurred during the purported time period stated on the periodic monthly statement! Defendant should not be allowed to circumvent and avoid legitimate discovery in this matter 8 by failing to produce for review by Defendant documentation (in the form of books and records admitted by Bank of America to exist) that is directly relevant to disputed essential material facts. Those disputed essential material facts are both the existence and the amount of any alleged debt owed by Defendant to Bank of America. The burden of proof is upon the Plaintiff to establish by a preponderance of the evidence that the Defendant owed and failed to repay to Bank of America funds of Bank of America provided to Defendant in the form of a line of credit or otherwise. Defendant respectfully requests that the Court deny the Plaintiff's Motion for Summary Judgment which is but a transparent attempt to avoid meeting Plaintiff's clear burden of proof at trial. E. The grant of Plaintiffs Motion for Summary Judgment based upon the affidavit of Connie Washington, a representative of Plaintiff and the affidavit of Brian Kilpatrick, a representative of Bank of America is specifically discouraged by established Pennsylvania case law. The official note following Pa. R.C.P. 1035.2 clearly points out that oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. See Nanty- Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). In the present matter the Plaintiff's clear lack of any personal knowledge of the alleged debt of Defendant to Bank of America clearly undermines completely any probative value of the affidavit of Connie Washington for supporting Plaintiffs Motion. As also pointed out, the affidavit of Brian Kilpatrick contradicts any legitimate argument Plaintiff might try to offer for not producing the documentation requested by Defendant that 9 would support and confirm the accuracy of the amounts listed on the Bank of America periodic monthly statements recently submitted to the Court in support of Plaintiff's motion. The "legal argument" contained in Plaintiffs supporting brief is merely a "cut and paste" recitation of established summary judgment case law. The Plaintiff, as the assignee of Bank of America, has alleged a debt on the part of Defendant to Bank of America. Plaintiff stands in the shoes of its assignor and bears the burden of proof with respect to establishing the existence of that alleged debt. According to the affidavit of Bank of America representative Brian Kilpatrick submitted in support of Plaintiff's Motion, the Court is assured that documentation exists in the form of books and records with entries "...made at or near the time of the transaction..." that would clearly have great probative value in establishing the accuracy of Plaintiff's claim. Yet, to date, Plaintiff has not provided that documentation to either Defendant or to the Court! The Plaintiff, instead, offers the Court a "legal argument" consisting of barely one and a half pages that never once attempts to provide any responsible legal analysis for why the summary judgment case law cited in its brief applies to the facts offered the Court in the present matter. Neither the credit card application bearing the defendant's name and address nor the cited electronic "Approval Record" provide any credible evidence of the existence or the amount of the alleged debt. As much as Plaintiff asks the Court to believe otherwise, printed periodic monthly statements issued by a Bank of America computer not supported by underlying documentation (admitted to exist by that bank's own representative) do not confirm either the existence or the accuracy of the amount of the alleged debt. Plaintiff's motion, in effect, asks the Court to assume the accuracy of what clearly 10 appears to be not only an unsubstantiated allegation on the part of Plaintiff but an allegation for which there apparently exists relevant documentation the Plaintiff seems suspiciously determined to avoid providing to both the Defendant and the Court. Conclusion Plaintiff is not entitled to summary judgment as a matter of law. Nothing presented to the Court in either the pleadings or the attachments to Plaintiff's motion resolve the clear material dispute with respect to the existence or the amount of the alleged debt. Plaintiffs Motion for Summary judgment should be denied for all of the reasons stated herein. Dated this 20th day of July, 2010. Respectfully submitted, A ?t x-A, q , Alison Shimer 11 Alison Shimer, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff vs ALISON SHIMER Defendant NO. 08-5787 Civil Action CERTIFICATE OF SERVICE I, Alison Shinier, the named defendant in the above civil action hereby certify that on July 20, 2010 I mailed a copy of Defendant's Response to Plaintiff's Motion for Summary Judgment, this Certificate of Service and Defendant's Proposed Order by Certified Mail No. 7009 3410 0001 5604 9964 return receipt requested to: Benjamin J. Cavallaro, Esq., Attorney for Plaintiff Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Dated: July 20, 2010 L ) - Alison Shimer COURT OF COMMON PLEAS CUMBERLAND COUNTY ti * y Exhibit #I Alison Shinier, in propria persona 414 Allendale Way Camp 1-1i11, PA 17011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff V. ALISON SHIMER Defendant CIVIL ACTION DOCKET No. 08-5787 :DEFENDANT'S SECOND SET OF :REQUEST FOR ADMISSIONS Propounding party: Alison Shimer Responding Party: Portfolio Recovery Associates, LLC. Comes now Alison Shimer, Defendant and hereby serves Plaintiff Portfolio Recovery Associates, LLC, ("Portfolio") with the Second Set of Request For Admissions pursuant to Rule 4014 of the Pennsylvania Rules of Civil Procedure as follows and requests that the same be provided by mail to Defendant no later than 30 days from the date they are received. DEFINITIONS FOR PURPOSES OF DISCOVERY "you" and "your" means Plaintiff Portfolio Recovery Associates, LLC and any and all persons acting for or in concert with Portfolio. "document" means any written, recorded or graphic matter, whether produced, reproduced or stored on papers, cards, tapes, belts, or computer devices or any other medium in your possession, custody or control, or known by you to exist, and includes originals, all copies of originals, and all prior drafts. It includes all original business records, non-identical copies, computations, memoranda of oral or telephone conversations, tabulations, records of correspondence, notes made on other documents, microfilms, etc. "bookkeeping entries" means a recording in an accounting journal of equal debits and credits, with, when necessary, an explanation of the transaction. (See Black's Law Dictionary, 6`h Edition, p. 840) 'bookkeeping" means the art or science of recording business accounts and transactions. (Black's Law Dictionary, 6`h Edition, p. 183) "generally accepted accounting principles (GAAP)"means accounting rules and conventions defining acceptable practices in preparing financial statements. (See Dictionary of Banking, Barons Business Guides, 4th Edition © 2000 p. 210) "ledger" means a book or series of books used for recording financial transactions in the form of debits and credits.-- also termed general ledger. (See Black's Law Dictionary, 7th Edition) REQUESTS FOR ADMISSIONS TO PLAINTIFF The answer shall admit or deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires the party to qualify his answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the answering party states that he or she has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request. That party may, subject to the provisions of Rule 4019(d), deny the matter or set forth reasons why he or she cannot admit or deny it. Each admission shall be answered separately and fully in writing and verified, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections if any, signed by the attorney making them. The matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. REQUEST NO 1. Admit that as the alleged assignee of Bank of America of the alleged debt of Defendant to Bank of America you filed a civil complaint against defendant with only copies of computer generated periodic monthly statements to establish the existence of the alleged debt and that you do not have in your possession now and did not have in your possession at the time you filed the compliant any other documentation such as journal or 2 general ledger statements or any other bookkeeping support or documentation of any kind that would separately support and verify the accuracy of any amount reflected on Exhibit "A" or on any other periodic monthly account statement provided to defendant as a result of her first Request For Production to you dated November 15, 2008. REQUEST NO 2. Admit that your failure to respond to Defendant's Request For Production #1 means that you are not in possession of any separate documentation from Bank of America (other than Exhibit "A" itself or other periodic monthly statements similar to Exhibit "A") that would substantiate the accuracy of the amount allegedly due Bank of America by defendant as stated on Exhibit "A". REQUEST NO 3. Admit that Exhibit "A' attached to your complaint and the other periodic monthly statements provided to defendant pursuant to Defendant's first request for production were not generated out of thin air by Bank of America. REQUEST NO 4. Admit that Bank of America is a federally chartered bank that is subject to the reporting requirements of the Federal Reserve. REQUEST NO 5. Admit that the Federal Reserve imposes upon all federally charted banks periodic reporting requirements. Dated this 2"d day of February, 2009. Respectfully submitted, Alison Shimer 3 PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-5787 CIVIL TERM ALISON SHIMER, Defendant ORDER OF COURT AND NOW, this 22°d day of July, 2010, upon consideration of Defendant's Motion To Compel and Request for Imposition of Sanctions for Failure To Comply, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 21 days from the date of this order. ? Benjamin J. Cavallaro, Esq. Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Attorney for Plaintiff ./ Alison Shimer 414 Allendale Way Camp Hill, PA 17011 Defendant, pro Se :rc eo I'ET '?' ? 3 tv IN RE: DEFENDANT'S MOTION TO COMPEL AND REQUEST FOR IMPOSITION OF SANCTIONS FOR FAILURE TO COMPLY BY THE COURT, Alison Shinier, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 PORTFOLIO RECOVERY ASSOCIATES, LLC - Yi flUa 23 1}M to; AAS t: COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff vs NO. 08-5787 Civil Action ALISON SFMAER Defendant DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL AND REQUEST FOR IMPOSITION OF SANCTIONS 1. The Qggg ition Brief of Plaintiff fails to explain to the Court why Defendant's Interrogatories were never ans?vvered Before the Court is a motion filed on July 20, 2010 at 2:43 PM by Defendant Alison Shinier seeking to compel discovery in this matter and to impose sanctions for Plaintiff's continued and repeated failure to comply with properly served discovery. Discovery has now continued for 20 months since Defendant's first round of discovery dated November 15, 2008. Included in that first round of discovery properly served on Plaintiff was a set of First Interrogatories dated November 15, 2008 (See Exhibit #4 attached to Defendant's July 20m motion). Nothing in the record to date (including Plaintiffs recently filed Brief in 1 Opposition) reflects a contention on the part of Plaintiff that those Interrogatories were not properly served or that the Interrogatories were not in proper form. On page 9 of her July 20`h Motion to Compel and Request for Sanctions Defendant Shimer specifically requested "...that Plaintiff be order(sic) to respond immediately to both the first and second set of Interrogatories served upon Plaintiff by Defendant". Plaintiff's opposition filing dated August 3, 2010 is devoid of any argument or good reason why the Plaintiff should be deemed immune to proper discovery and why Plaintiff should be allowed to continuously and repeatedly ignore these properly served Interrogatories. This particular Plaintiff has apparently adopted the "tactic" of simply pretending that Interrogatories are no longer a part of the discovery process. After more than 20 months of repeated attempts on the part of Defendant to request the identity of each person who has knowledge of the facts that support Plaintiff's cause of action, the identity of any witness that Plaintiff expects to call at trial and the subject matter of any named witness testimony, the Defendant is no closer to knowing any more than she did at the time this civil action was filed on September 29, 2008! This makes a total mockery of the entire discovery process. This information is critical to defending this action particularly since the Plaintiff is merely an assignee of Bank of America and has no direct knowledge of any of the facts that would support the present civil action against Defendant. Plaintiff is apparently unwilling to provide to the Court any argument whatsoever to address in any way its repeated failure to respond to Defendant's first and second set of Interrogatories. Plaintiffs continuing "tactic" is to repeatedly "pretend" that the Interrogatories do not exist! That tactic is clearly 2 reflected in the fact that Defendant's properly served Interrogatories are never mentioned or discussed in Plaintiffs opposition filing. Plaintiff has provided the Court with no good reason for its failure to comply with that properly served discovery. Defendant is now clearly entitled to the sanction relief previously requested in her motion. This matter should now be dismissed by the Court with prejudice. 2. The sanction of dismissal with prejudice requested by Defendant should now be imposed because Plaintiff's legal counsel m seated to the Court the date that notice of its Brief in Opposition was mailed to Defer There is another disturbing pattern of behavior on the part of this particular Plaintiff and its legal counsel that should be brought to the attention of the Court at this time. Defendant notes that Plaintiff s Opposition brief is dated August 3, 2010. Yet Defendant received absolutely no notice whatsoever of that filing until sixteen days later on Thursday, August 19, 2010. (See attached sworn affidavit of Defendant). Plaintiffs attorney Benjamin J. Cavallaro certified to this Court in the Certificate of Service attached to Plaintiffs Brief in Opposition that a copy of his client's opposition filing had been mailed to the Defendant on August 3, 2010. But the envelope in which Plaintiffs opposition filing was mailed to Defendant (see photocopy of the same attached to and accompanying Defendant's attached sworn affidavit) indicates clearly why Defendant did not receive Plaintiffs filing until Thursday, August 19, 2010. It was not actually mailed to Defendant until August 17, 2010--fourteen days later than the date represented to the Court. This is 3 inexcusable. Apparently this particular Plaintiff and its attorney were hoping for a ruling from the Court on Defendant's now pending motion to compel and the imposition of sanctions without further input from the Defendant after the filing of Plaintiff's Brief in Opposition. This particular "tactic" on the part of Plaintiff and its legal counsel is further reason for this Court to grant Defendant's motion and to now dismiss this civil action with prejudice. 3. Plaintiff has NOT provided Defendant with "any and all available documentation that is relevant to the case at issue" and has failed to explain to the Court why the Plaintiff should not be regMkgd to produce the documentation that has been repeatedly requested. This is a civil matter in which the Plaintiff claims to be entitled to payment from the Defendant because the Defendant failed to pay what was allegedly owed by Defendant to the Plaintiffs assignor Bank of America. On page 1 of its Brief in Opposition Plaintiff claims that it has "...provided Defendant with any and all available documentation that is relevant to the case at issue and not otherwise protected." On that same page 1 (continuing to page 2) Plaintiff further states that it has "...made a good faith effort to provide detailed copies of every piece of information that defendant has requested." Neither statement by the Plaintiff or Plaintiff's counsel is true, factual or accurate. The Plaintiff s repeated refusal to provide the documentation requested now leads the Defendant to conclude that the requested documentation simply does not exist. At this point in time it is also reasonable for the Court to conclude likewise. If documentation exists that would clearly establish that Plaintiff's assignor Bank of America actually provided to Defendant funds that were either an asset of Bank of America or that belonged to Bank of America one would be entitled 4 to reasonably conclude that documentation would have been provided to the Defendant by Plaintiff long ago. The issue upon which Plaintiff's case precipitously hangs is very simple and straightforward. Did Bank of America ever suffer a "detriment" of any kind whatsoever? If the alleged transaction between Bank of America resulted in a "detriment" (i.e. the failure of the Defendant to repay money that previously belonged to or was an asset of Bank of America) it should be a very simple and easy matter for the bank to provide documentation that supports that representation by the Plaintiff. On page 3 of Defendant's July 20m motion and request for sanctions filing, the Defendant provided the Court with Request No. 2 from her First Set of Request For Admissions dated November 15, 2008 which specifically asked Plaintiff to admit that it could not demonstrate with evidence that Bank of America suffered any legal detriment as a result of the alleged failure of the Defendant to pay the amount allegedly owed to Bank of America as stated in Count I of the Complaint. Plaintiff responded to that request for admission by specifically stating as follows: "Denied. Bank of America has suffered a loss as a result of Defendant's refusal to pay." The problem for Plaintiff is that it has not produced any documentation whatsoever that shows that Bank of America suffered a "loss" or "detriment" by reason of Defendant's alleged failure to pay despite repeated requests on the part of the Defendant that such documentation be produced. Plaintiff argues on page 2 of its Brief in Opposition that "...defendant's summary of the law is flawed and unsupported..." But on what basis has Plaintiff come to that particular conclusion? That statement is not a legal argument. It is merely an unsupported contention of the Plaintiff. Defendant did not bring this 5 civil action. The Plaintiff did. Yet the Plaintiff offers the Court absolutely no case law or other supporting authority for the Plaintiff's proposition that a plaintiff in a civil action for repayment of an alleged debt or alleged line of credit should not be required to produce proof that the alleged failure to repay resulted in a detriment to the lender or a detriment to the initiator of that alleged line of credit. The Plaintiff's previous answer to Defendant's previous Request for Admissions clearly contends that such a detriment occurred but now purports to suggest to the Court that providing any documentation that supports that allegation is completely unnecessary and that any suggestion to the contrary is "flawed and unsupported". The world in which the Plaintiff inhabits appears to be similar to a Lewis Carroll novel. With all due respect to the Plaintiffs verbal histrionics, if the Court or if the Defendant were to provide a line of credit or a loan of funds to any other person or entity and the borrower failed to repay what was owed, it would be an obviously simple and easy matter to produce sufficient documentation to prove and establish beyond any doubt that the funds that were provided to the borrower existed in the account of the lender before they were "loaned" or otherwise provided to the borrower. That is not a matter of law-it is a matter of simple common sense. That is all the Defendant has repeatedly requested of Plaintiff. Instead, the Plaintiff has only produced the periodic monthly statements apparently issued by a Bank of America computer "somewhere" perhaps by some unknown and unnamed "someone". Whether those periodic statements were intentionally generated by a particular individual employee of Bank of America or whether those periodic monthly statements were generated spontaneously by a computer "somewhere" is not known and probably never will be. The affidavit of 6 Mr. Kilpatrick refers clearly to "...computerized and hard copy books and records of Bank of America, which are maintained in the ordinary course of business, with entries in them having been made at or near the time of the transaction..." Defendant has simply asked for production of that documentation and has previously pointed out why the periodic monthly statements provided to date by Plaintiff cannot be the documentation referred to by Mr. Kilpatrick. These periodic monthly statements generated by Bank of America are the same as any other sort of `invoice" produced by any other sort of business. Documents that are invoices to customers are supported by documentation that either supports or contradicts the accuracy of the information on the "invoice". That supporting "documentation" is apparently what Mr. Kilpatrick is referring to. Defendant has requested the production of that supporting documentation. Why it should be difficult for Bank of America to produce that documentation for the benefit of the Plaintiff (and eventually the Court) is not explained by Plaintiff. Instead Plaintiff argues that Defendant's continued suggestion (reflected in Defendant's letter to Plaintiff dated February 2, 2009) that the production of that documentation (specifically referred to by Mr. Kilpatrick's affidavit) should be "easy" is characterized as "...unfounded, irrelevant and in no way resembles a new request for additional documentation" With all due respect, that is not a legitimate "argument" for Plaintiffs failure to produce the requested documentation. These comments by Plaintiff are more similar to a verbal temper tantrum. Verbal histrionics are hardly an adequate substitute for the production of documentation that Bank of America has indicated not only exists but is apparently readily available. It is reasonable for both the Defendant and the Court to now conclude after all of this time and all of this continued "resistance" on the part of the Plaintiff that 7 . any supporting documentation that would confirm the accuracy of the monthly periodic statements produced by Plaintiff either 1) does not really exist, or 2) does not support the Plaintiff s claim that Bank of America suffered a "detriment". The Plaintiff has been given more than sufficient time to produce the requested documentation. Clearly Plaintiff is either unable or unwilling to do so. The requested sanction of dismissal with prejudice is now appropriate and should be granted by the Court. Dated: Monday, August 23, 2010 Respectfully submitted, c L W% A --4A? 2 Alison Shimer 8 Affidavit of Alison Shimer 1, Alison Shimer, hereby state that I reside at 414 Allendale Way, Camp Hill, PA 17011 and do further state under oath the following: 1. That I did receive by regular first class mail on Thursday, August 19, 2010 a copy of the Brief in Opposition dated August 3, 2010 filed by Plaintiff Portfolio Recovery Associates, LLC in the civil case of Portfolio Recovery Associates, LLC v. Alison Shimer bearing Civil Case No. 08-5787. 2. That I received first notice of this Opposition Brief filing by Plaintiff when I returned home at the end of the day on Thursday, August 19, 2010. 3. That a copy of the envelope mailed to me by Plaintiff's legal counsel containing Plaintiff's Brief in Opposition is attached to this affidavit and that attached copy is a true and accurate and correct copy of the envelope that contained Plaintiffs Brief in Opposition. 4. That the said envelope bears the time stamp of August 17, 2010 indicating that it was not mailed to me from the office of Plaintiff s legal counsel until Tuesday August 17, 2010. 5. That the time it usually takes for first class mail to travel from my home to the Plaintiffs office or from Plaintiffs office to my home is approximately two days. 6. The date of mailing of Plaintiffs Brief in Opposition on Tuesday, August 17, 2010 is consistent with the date that I received that Opposition filing on Thursday, August 19, 2010. w Q7 Alison E. Shimer Page 1 of 2 s- State of Pennsylvania} ) ss County of Cumberland} On this 23'd day of August, 2010, before me, av, ha n <, A/4,6 / , a Notary Public personally appeared Alison Shimer who, being satisfactorily identified to me, did first state under oath that all statements contained in her affidavit are true and correct to the best of her knowledge and belief and then did execute this affidavit in my presence for the purpose stated therein. IN WITNESS WHEREOF I have hereunto set my hand and official seal on this 23rd day of August, 2010. CONMIOPWMEALTH Of PENNSYLVANIA NO A IAL SEAL NIE NEBL, Notary Public EPHA mp Hill Boro, Cumberland County Commission Expires Jan. 25, 20111 [Mcsoy, Notary Public My Commission Expires: it do-b !/ Page 2 of 2 l- : t _ +A •41 ? A r? ?mcn r?= Dm o? 10 ,,18 ji -S? 0 b cn ,o 1p ° Sri I Alison Shimer, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 PORTFOLIO RECOVERY ASSOCIATES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff vs NO. 08-5787 Civil Action ALISON SHINIER Defendant CERTIFICATE OF SERVICE I, Alison Shimer, the named defendant in the above civil action hereby certify that on Monday August 23, 2010 three days after receiving and reviewing Plaintiff's Opposition Brief I mailed a copy of Defendant's Response to Plaintiffs Opposition Brief and accompanying affidavit and its attachment, Proposed Order, this Certificate of Service, and Defendant's Petition for Dismissal with Prejudice by Certified Mail No. 7009 3410 0001 5605 0007 return receipt requested to: Benjamin J. Cavallaro, Esq., Attorney for Plaintiff Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 A Dated: August 23, 2010 Alison Shimer Alison Shimer, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 PORTFOLIO RECOVERY ASSOCIATES, LLC ?r Tt- .ZC3? p R.V? ? S ?rY1 1 O ? S- COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff vs NO. 08-5787 Civil Action ALISON SHIMER Defendant DEFENDANT'S PETITON FOR DISMISSAL WITH PREJUDICE The Court is respectfully referred to Defendant's Motion to Compel and Request For Imposition of Sanctions For Failure to Comply and attached exhibits filed on July 20, 2010, Plaintiff's Opposition Brief dated August 3, 2010 filed with the Court and Defendant's Response to Plaintiffs Opposition filed with the Court today on August 23, 2010. The Plaintiff has been given every opportunity to comply with the reasonable and timely discovery requests of Defendant. Plaintiff has repeatedly and consistently sought to circumvent Defendant's reasonable and properly served discovery and has now provided to the Court no good reason why the relief of dismissal with prejudice requested on page 9 of Defendant's July 20, 2010 motion should not now be granted. 1 Therefore, Defendant Alison Shimer now petitions the Court for the relief previously requested of dismissal of the matter with prejudice. Dated: August 23, 2010 Respectfully submitted, c Alison Shiner 2 PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff V. ALISON SHIMER, Defendant: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 08-5797 CIVIL TERM IN RE: DEFENDANT'S MOTION TO COMPEL AND REQUEST FOR IMPOSITION OF SANCTIONS FOR FAILURE TO COMPLY ORDER OF COURT AND NOW, this 23rd day of August, 2010, upon consideration of Defendant's Motion To Compel and Request for Imposition of Sanctions for Failure To Comply, a hearing is scheduled for Thursday, October 14, 2010, at 3:00 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, -, BenjJamin J. Cavallaro, Esq. Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Attorney for Plaintiff Alison Shimer 414 Allendale Way Camp Hill, PA 17011 Defendant, pro Se :rc I CS -eylg ELL Jf,e-sley Olen'; Ir., J. a ? F s i,3I. N Our File No.: 174961 APOTHAKER & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. 4307949 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff vs. ALISON SHINIER Defendant 21 PM 1: 41 CUMBEH q,.? 30UNTY pENNSY4VANA COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.: 08-5787 Civil Action ANSWER TO DEFENDANT'S MOTION TO COMPEL DISCOVERY Legal Argumen Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, filed suit against Defendant on or about September 22, 2008. Defendant filed an Answer and filed Discovery requests on or about November 15, 2008. Plaintiff timely answered Defendant's Discovery requests in a good faith manner, attaching all relevant, non-protected documents in Plaintiff's possession that relate to the matter at bar on or about December 12, 2008. Defendant filed a Motion to Compel Discovery on or about April 10, 2009. Defendant's motion must be denied because Plaintiff made a good faith effort to provide all relevant documentation to defendant. Plaintiff provided Defendant with any and all available documentation that is relevant to the case at issue and not otherwise protected. Plaintiff fulfilled its burden in answering defendant's discovery request by providing this information. Plaintiff made a good faith effort to provide detailed copies of every piece of information that defendant has requested. Defendant was apparently unhappy with the responses Plaintiff provided. Defendant expressed her unhappiness in a letter dated February 2, 2009, attached to her Motion as Exhibit 45. However, said document is merely a listing of the areas in which defendant felt Plaintiff's responses were deficient. Defendant did not raise any new questions in this request, but rather reiterated the questions Plaintiff already answered. Such a document does not create any further legal obligation on the part of Plaintiff as Plaintiff had already responded to said requests once. Defendant also chose to draft a second set of Requests for Production, attached to her Motion as Exhibit #6. However, while this document is titled "DEFENDANT'S SECOND SET OF REQUEST FOR PRODUCTION OF DOCUMENTS", it barely resembles such a request. Defendant's requests are comprised of either, 1) requests for information already previously requested or 2) threats and her further thoughts about the particular request at issue. For example, defendant's second requests states, in relevant part, "In order to show that Bank of America suffered a legal detriment you will be required to show at trial that Bank of America actually loaned or provided to Defendant money that belonged to Bank of America and was an asset of Bank of America. If Bank of America actually loaned the defendant money that belonged to Bank of America it should be very easy for you to request that documentation from Bank of America and provide that documentation to defendant..." Notably, defendant's summary of the law is flawed and unsupported, while her comments on the ease of obtaining documentation is unfounded, irrelevant, and in no way resembles a new request for additional documentation. Defendant's other requests are equally redundant or irrelevant. Moreover, defendant's confusing assertion that somehow the credit card statements provided by Plaintiff are illegitimate because they do not evidence transactions is meritless. First, each of the statements contains at least one transaction. Second, the statements show the account activity for the relevant billing period. They are generated and sent to the account holder at the close of the corresponding billing period. As such, they are created in the ordinary course of business. Finally, Plaintiff would like this court to note that defendant was provided with more than the final twelve months of account statements for her account, the credit card application bearing her signature, the electronic results of the submission of said application, and an Affidavit signed by a representative of the original creditor which attests to the sale, transfer and assignment of her account to Plaintiff, as well as other identifying information for defendant's account. This information is more than sufficient to inform defendant of the case brought against her so she may properly prepare a defense. WHEREFORE, Plaintiff respectfully requests that this court enter an ORDER denying defendant's Motion to Compel Discovery. APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law Firm Engaged iploe t Collection BY: Esquire Dated: August 23, 2010 Our File No.: 174961 APOTHAKER. & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff vs. ALISON SHIMER Defendant CERTIFICATION OF SERVICE Civil Action I, Benjamin J. Cavallaro, Esquire, attorney for Plaintiff, certify that on August 23, 2010, I mailed a copy of Plaintiff's Order and Answer to Defendant's Motion to Compel Discovery to: ALISON SHIMER 414 ALLENDALE WAY CAMP HILL, PA 17011 APOTHAKER & ASSOCIATES, P.C. Attorney for Pla' iff A Law Firm Engaged i bt Collection BY: //?I vallaro, Esquire NO.: 08-5787 Dated: August 23, 2010 ,-,~ ~ Alison Shimer, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff vs ~AFE~~Q'~~~~~ a.. r} t) G~ T~~. t'~.0 ~ ~3;~,~~~TA~ ~~~~ rCT -5 Pik ~~ ~~ ~~ d{~ YL~'~~~A i ~" ~F ~~. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-5787 Civil Action ALISON SHI1~~R Defendant MOTION TO PERMIT DEFENDANT' S HUSBAND TO SPEAK IN DEFENDANT'S PLACE AND STEAD AT THE COURT SCHEDULED HEARING ON OCTOBER 14, 2010 Defendant Alison Shimer, respectfully moves the Court to allow her husband Robert W. Shimer to speak on her behalf and in her stead at the hearing scheduled by the Court for October 14, 2010 at 3:00 PM in Courtroom No.l with respect to Defendant's Motion to Compel and Request for Imposition of Sanctions for the continuing failure of Plaintiff to comply with properly served discovery. The reasons to grant the motion are as follows: 1 } Defendant Alison Shimer executed a General Power of Attorney dated October 1, 2010 granting her husband Robert W. Shimer broad and unrestricted authority as attorney-in-fact to act for and on her behalf and in her stead on a wide variety of matters that 1 r _.,i r v may affect her including the specific authority to act for and on her behalf in any matter of civil litigation in which she is named as either a plaintiff or defendant. A copy of that executed General Power of Attorney is attached to this motion. 2) Defendant is not a public speaker and would be at a decided disadvantage to be able to adequately express for the benefit of the Court the various factual and legal arguments at the scheduled hearing necessary for the support of her motion. 3) Defendant's husband is an attorney, now retired from the practice of law better able to answer any questions the Court might have in the course of deciding whether or not to grant Defendant's motion. 4) Defendant's husband would not be representing Defendant at the scheduled hearing on October 14~' in the capacity of legal counsel but would act only as the Defendant herself in Defendant's place and stead for and on Defendant's behalf in this civil matter pursuant to the terms of the attached properly executed General Power of Attorney. 5) To grant this motion would recognize Defendant's right to adequately and properly defend her position in as professional manner as possible with respect to the important motion now before the Court. 6} The grant of this motion would be a benefit to the Court in disposing of the matter of the hearing in an expeditious and professional manner. 7} The grant of the motion would not, in any way, impair Plaintiff's ability to present its best opposition to the motion now before the Court for consideration. 2 . _~ 8) Defendant is absent form the State of Pennsylvania at the present time and is not able to execute this motion on her own behalf but has expressed her desire that the present motion be filed for and on her behalf. Dated: October 5, 2010 Respectfully submitted, Robert . Shinier, Attorney-in Fact for and on behalf of Alison Shinier 3 M KNOW ALL PERSONS BY THESE PRESENTS: I, Alison E. Shinier ("Principal's maintaining an address at 414 Allendale Way, Camp Hill, Pennsylvania 17011 do hereby make and appoint my husband Robert W. Shinier ("Agent") maintaining an address at: 414 Allendale Way, Camp Hill, Pennsylvania 17011 my true and lawful attorney-in-fact forme and in my name, and in my behalf. My Agent shall have full power and authority to perform any act, power, duty, legal right or obligation whatsoever that I now have or may later acquire in connection with or relating to any person, item, transaction, thing, business, property, real or personal, tangible or intangible, or matter whatsoever as I could do if personally present. I hereby ratify and confirm alI acts that my Agent, or my Agent's substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights hereby granted. My Agent's powers and authority shall empower him to do any or all of the following: 1. "To make limited gifts." 2. "To create a trust for my benefit." 3. "To make additions to an existing trust for my benefit." 4. "To claim an elective share of the estate of my deceased spouse." 5. "To disclaim any interest in property: , 6. "To renounce fiduciary positions." 7. "To withdraw and receive the income or corpus of a trust." 8. "To authorize my admission to a medical, nursing, residential or similar facility and to enter into agreements for my care." 9. "To authorize medical and surgical procedures." 10. "To engage in real property transactions." 11. "To engage intangible personal property transaction." 12. "To engage in stock, bond and other securities transactions." 13. "To engage in commodity and option transactions." 14. "To engage in banking and financial transactions." 15. "To borrow money." 16. "To eater safe deposit boxes." 17. "To engage in insurance transactions." 18. "To engage in retirement plan transactions." 19. "To handle interests in estates and trusts." 20. "To pursue litigation on my behalf and to defend, not as legal counsel, but solely on my behalf and in my place and stead, as if I were present, any all matters of civil litigation whether I am named as plaintiff or as defendant. 21. "To receive government benefits." 22. "To pursue tax matters." 23. "To make an anatomical gift of all or part of my body." Page 1 of 4 This General Power of Attorney and the rights, powers, and authority of my Agent shall become effective imimediately upon execution of this instrument. The rights, powers, and authority of this document shall remain in full force and effect thereafter until my death or until my disability or incapacity. As used herein, "disability" or "incapacity" shall mean a lack of capacity to receive and evaluate information effectively, to communicate decisions, and/or to manage my financial resources and affairs properly. My Agent shall be entitled m reimbursement of all reasonable expenses incurned as a result of carrying out any provision of this Power of Attorney. If desired, my Agent shall also be entitled to reasonable compensation for aay services provided as my Agent If so requested by myself or any authorized personal representative or fiduciary acting on my behalf, my Agent shall provide an accounting for all fiords handled and all acts performed as my Agent. This Power of Attorney shall be construed broadly as a General Power of Attorney. The listing of specific terms, rights, acts or powers are not intended to restrict or limit the definition or scope of powers granted herein in any mariner. If any part of this document is held to be invalid, illegal or unenforceable under applicable law, then the remainitng unaffected parts of the document shall still remain in fiill force and effect and not be affected by any partial invalidity. No person needs to inquire as to the reasons for the use or issuance of this power-of- attorney or as to the disposition of any proceeds paid to my Agent based on this document. The powers granted to my Agent by this power-of-attorney are limited to the extent necessary to prevent (a) my income to be taxable to my Agent; (b) my Agent to have any rights or ownership with respect to any life insurance policies I may own on the life of my Agent; and/or (c) my assets to be subject to a general power of appointmern by my Agent. Any third party who receives a copy of this document may act under it. Revocation of the power of attorney is not effective as to a third party until the third party has acbaal knowledge of the revocation I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney. If this General Power of Attorney is terminated by operation of law, any person relying in good faith on the authority of this document, without notice of such termination, shall be held harmless. Agent shall not be liable for losses resulting form judgment errors made in good faith However, Agent will be liable for breach of fiduciary duty, failure to act in good faith and/or willfiil misconduct, while acting under the authority of this Power of Attorney. Page 2 of 4 0 I may revoke this Power of Attorney at any time by providing written notice to my Agent. Signed on October 1~` , 2010, at Camp Hill, Pennsylvania. ignature of Principal Witness Signature: Name: City: ~{~~ state: +~1~' Witness Signature: ~-~~- ~-•"---- Name: ~~~`~ /' ~it. ~-.~- city: ~r K f {~~• state: ~f } State of PENNSYLVANIA ) County of Cumberland ) The foregoing instcvment was acknowledged before me this 1'` day of October, 2010 by Alison E. Shimer, who is personally known to me o who has produced a PA Driver's License and U.S. Passport as identification. COMMONWEALTH OF PENNSYLVANIA ~ Notary Public Noterhi seei NattuK+ R. Kato, Nobry PubNc Lemoyne t3o-o, CumbeAarK! County MY Conurdesbn_Expkes Merd128, 2012 Member. Pennaviwani~ Association of Notaries ~,c~f~,d„ ~ K~If~ Name typed, printed, or stamped Page 3 of 4 Acknowledgment by Agent I, Robert W. Shinier, have read the attached power of attorney and I am the person identified as the Agent for the Principal. I hereby acknowledge that in the absence of a specific provision to the contrary in the power of attorney or in 20 Pa.C.S. when I act as agent: I shall exercise the aforementioned powers for the benefit of the principal. I shall act for and on behalf of the principal in all matters requiring any action, statement or acknowledgement by the Principal as if she were fiilly present and acting on her own behalf. I shall exercise reasonable caution and prudence. I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the ' Robert W. Shinier October 1, 2010 Page 4 of 4 Alison Shimer, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 506-0645 PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff vs ALISON SHINER Defendant NO. 08-5787 Civil Action CERTIFICATE OF SERVICE I, Robert W. Shimer, acting for and on behalf of and in the place and stead of Alison Shimer, the named defendant in the above civil action pursuant to a valid and binding General Power of Attorney hereby certify that on October 5, 2010 I faxed a copy of Defendant's Motion to permit Defendant's Husband to speak in Defendant's Place and Stead to Plaintiff s counsel Benjamin J. Cavallaro at the stated fax number of his firm which is (856} 780-1020 and on that same date also mailed a copy of the same by first class mail to Benjamin J. Cavallaro, Esq., Attorney for Plaintiff Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 ('"~ Dated: October 5, 2010 \ ~, Robert W. Shimer for and on behalf of Alison Shimer COURT OF COMMON PLEAS CUMBERLAND COUNTY PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff v. ALISON SHINER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.08-5787 CIVIL TERM IN RE: MOTION TO PERMIT DEFENDANT'S HUSBAND TO SPEAK IN DEFENDANT'S PLACE AND STEAD AT THE COURT SCHEDULED HEARING ON OCTOBER 14, 2010 ORDER OF COURT AND NOW, this 7~' day of October, 2010, upon consideration of the Motion to Permit Defendant's Husband To Speak in Defendant's Place and Stead at the Court Scheduled Hearing on October 14, 2010, the motion is denied. BY THE COURT, J~ ¢~esley Ol , Jr., J. ~ Benjamin J. Cavallaro, Esq. ~' _= Apothaker & Associates, P.C. ~~ r~ ~-- ~.,.~ 520 Fellowship Road C306 ~~ ~ ~ -c, ry Mount Laurel, NJ 08054 ~~ !, tea.-'~t-~' Attorney for Plaintiff ~~ :~ --~, ~~`~' /Alison Shimer ~~ ,~.. ca y W ~ 414 Allendale Way ~ ~ r v _ Camp Hill, PA 17011 Defendant, pro Se :rc Copres j++~• fed J0~7I~~ ~~. 0 e c ~o 0 0 a ` 0 -, b ~ m 1 O _ 4 " ( ~ _^A , [[~~ ~J '/~V J H --, c 1 ~ G `v^\ ~ , N 0 ~, ~ 9 ~~ ~q ~ ~ -~ 0 a ~° ~~ O ~ 7 ~ ,.: _i"~ ~~ S r t~ ~~i ^~~ 1.s ~# ~ff, .:,;,. , SS _ ~E_3 ~~-~'~ ,~_~1 I~ 1 ~ 1 0 i s ~ ~ ~i o 9 IS b 9 S ~1 ~~ C a ~ °~' t ~ o ~ °a R ~ °c -' ~ n o ~ -~ 3 n a ~ ~~ ~ b ;r ~ ~ ,r e `O o 0 ~' '" F 0 x I 6 °.; U W a iw PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALISON SHIMER, Defendant 08-5787 CIVIL TERM IN RE: PETITION FOR DISMISSAL ORDER OF COURT AND NOW, this 14th day of October, 2010, pursuant to an agreement of the parties, the issue or issues raised in Defendant's Petition for Dismissal with Prejudice filed August 23, 2010, shall be included in the issues considered at today's hearing. By the Court, ./ Robert L. Baroska, III, Esquire Jonathan W. Crisp, Esquire 3540 North Progress Avenue Harrisburg, PA 17110 For Plaintiff Alison Shimer, pro se 414 Allendale Way Camp Hill, PA 17011 :mae /o/i4/~o ~.-Y~ ~ C .~, cs c3 '~ `L7 ~ o --~ ~ ~ -~ ~° i ~ ~ r ~ o xo ~ ~ Q 2 '~ ~''~ ~` - orn --+ n,, ~ ~ ~ PORTFOLIO RECOVERY IN THE COURT OF COMMON PLEAS OF ASSOCIATES, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW C c ''Z ~ ~ ~ ALISON SHIMER, ~ ~r ~"~ ~ Defendant 08-5787 CIVIL TERM ~~ ~ , cat?-' n --+o ~ ~ ~~ IN RE: MOTION TO COMPEL & PETITION FOR DI~~SA~ y~ -- rv A ORDER OF COURT -~ ~ =~ ~; AND NOW, this 14th day of October, 2010, upon consideration of Defendant's Motion To Compel and Request for Imposition of Sanctions for Failure To Comply and of Defendant's Petition for Dismissal with Prejudice, and following a hearing held on this date, in which Plaintiff was represented by Robert L. Baroska, III, Esquire, and Jonathan W. Crisp, Esquire, and Defendant represented herself, it is ordered and directed as follows: 1. Defendant's Petition for Dismissal with Prejudice is denied; 2. Plaintiff is directed, within 45 days of the date of this order, to serve upon Defendant, with the customary form of verification for a discovery response, copies of statements pertaining to Bank of America Visa Card Account No. 5490 0900 1313 0719, and Portfolio Recovery Associates, L.L.C., Account No. 5490990997458326, listing all transactions and dates of such transactions by Defendant upon which the ultimate claim by Plaintiff against Defendant in this case is based; or, in lieu thereof, a verified response that such information is not in Plaintiff's possession and cannot be obtained by Plaintiff; and 3. Nothing herein is intended to preclude the filing of a motion for summary judgment by Defendant in the event that Plaintiff responds that it is unable to produce such information. By the Court, Robert L. Baroska, III, Esquire Jonathan W. Crisp, Esquire 3540 North Progress Avenue Harrisburg, PA 17110 For Plaintiff Alison Shimer, 414 Allendale pro se Way Camp Hill, PA 17011 :mae ~~ ~~~ ~o~r4~cv ~~ Crisp and Associates, LLC 3540 N. Progress Avenue, Suite 207 Harrisburg, PA 17110 Telephone: 717-412-4676 Facsimile: 717-412-4679 PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIO DOCKET NO.: 08-5787 rr' ALISON SHIMER Z arr?*« Defendant ?y ?o PRAECIPE TO WITHDRAW APPEARAMCE ? TO THE PROTHONOTARY: Please withdraw our appearance on behalf of the Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, in the above-captioned matter. Robert L. Baroska, 3rd, Esquire Supreme Court I.D. No. 306728 = - ° -? 3540 North Progress Avenue, Suite 207 = . Harrisburg, PA 17110 r?. ? 4 3 (717) 412-4676 J nat an W. Crisp, Esquire S re a Court I.D. No. 83505 354 orth Progress Avenue, Suite 207 Harrisburg, PA 17110 (717) 412-4676 Alison Shimer, in propria persona 414 Allendale Vvvz; Camp Hill, PA 170 11 " 17) 506-0645 COURT OF COMMON PLEAS CUMBERLAND COUNTY PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff vs NO. 08-5787 Civil Action ALISON SHIMER Defendant MOTION FOR SUMMARY JUDGMENT r? i r ` r - = -cam ? .,? 31 ? a Defendant Alison Shimer acting pursuant to C.C.R.P. 1035.2(a) moves the Court for summary judgment and respectfully requests that the Court enter an Order granting Summary Judgment in her favor for the following reasons: 1. Plaintiff began this civil action over two years ago by serving Defendant with a one count Complaint dated September 22, 2008. 2. The Complaint alleged Plaintiff to be the Assignee and Successor in Interest to the alleged original creditor Bank of America with respect to Account #5490 9909 9745 8326 and, that by reason of a Bank of America assignment to Plaintiff, an unpaid balance was due to Plaintiff from Defendant in the amount of $13,652.23. 1 1 3. The Complaint attached a one page copy of a document purportedly labeled as Exhibit "A". That document, which reflected no such exhibit reference, appeared to be a monthly periodic statement for the month of March 2008 bearing Defendant's name with respect to a separate account #5490 9900 1313 0719 issued by Bank of America that was never referred to by Plaintiff in the body of the Complaint. Plaintiffs entire Complaint and that Complaint's single Exhibit A are attached hereto as Exhibit # 1. 4. In her properly and timely filed Answer, Defendant denied that the referenced Exhibit "A" reflects an accurate statement of any debt owed by Defendant to Bank of America, denied that Bank of America is a creditor of Defendant, denied that Bank of America loaned any of that bank's funds to Defendant, denied that use of the account resulted in a debt of the Defendant to Bank of America and further denied that the stated amount of $13,652.23 is due Bank of America and further denied that she failed to make any payments due to Bank of America as her alleged original creditor. 5. Despite repeated discovery requests by Defendant beginning on November 15, 2008 (Exhibit #2) and follow up requests By Defendant in 2009 Plaintiff was unwilling or unable to produce any documentation from its assignor Bank of America other than a series of sequential monthly statements (See Exhibit #3) for an account that is different from the account specifically named in the Complaint. Those series of monthly periodic statements begin with the month of January, 2007 and end with the month of March, 2008. 6. Not a single monthly statement produced by Plaintiff pursuant to Defendant's repeated discovery requests reflect any specific transaction allegedly made by the Defendant with respect to the produced account #5490 9900 1313 0719. The first statement dated January, 2007 merely begins with an 2 undocumented "previous balance" in the amount of $11,244.98. (See page 1 of attached Exhibit #3). 7. All later monthly statements beginning with the following month of February 2007 and ending sequentially with the month of March 2008 merely continue to carry an undocumented "previous balance" forward adding more and more interest. The monthly statement dated March 2008 ends with an alleged balance due of $13,317.29. 8. In response to Defendant's Motion To Compel and Request for Imposition of Sanctions For Failure to Comply filed with the Court on July 20, 2010, and after considering both the Plaintiff s Opposition and Defendant's Response thereto the Court issued an order dated August 23, 2010 (See attached Exhibit #4) scheduling an hearing for Thursday, October 14, 2010 at 3:00 PM in Courtroom No 1. 9) Plaintiffs attorney of record failed to appear at that hearing. Instead, Plaintiff sent Robert L. Baroska III and Jonathan W. Crisp (two attorneys local to the Harrisburg area unfamiliar with the case) to enter an appearance on behalf of and to represent Plaintiff at the hearing. Defendant attended the hearing and represented herself. 10) During the course of that hearing Plaintiff failed to provide any reasonable explanation to the Court a) why two separate sets of Defendant's Interrogatories were never answered by Plaintiff; and b) why documentation repeatedly requested through discovery relevant to the case had not been produced even though such documentation apparently existed according to an affidavit of Bank of America employee Brian Kilpatrick submitted previously to the Court by Plaintiff. (See attached Exhibit #5). 3 11) Upon due consideration of the matter and after hearing from both parties the Court issued an order filed October 19, 2010 (see attached Exhibit #6) requiring Plaintiff "...within 45 days of the date of this order, to serve upon Defendant, with the customary form of verification for a discovery response, copies of statements pertaining to Bank of America Visa Card Account No. 5490 0900 1313 0719, and Portfolio Recovery Associates, LLC., Account No. 5490990997458326, listing all transactions and dates of such transactions by Defendant upon which the ultimate claim by Plaintiff against Defendant in this case is based; or, in lieu thereof, a verified response that such documentation is not in Plaintiff's possession and cannot be obtained by Plaintiff..." 12) It has now been far more than 45 days from the date that Plaintiff was ordered by the Court to produce the required additional documentation of the alleged debt. No such documentation has been provided to Defendant nor has Defendant been provided with the required written confirmation that such information is not in Plaintiff's possession and cannot be obtained by Plaintiff. 13) The Court's order filed October 14, 2010 specifically recognized Defendant's right to pursue a motion for summary judgment in the event that the ordered documentation was not produced by Plaintiff. 14) By reason of the fact that no such documentation has been forthcoming from the Plaintiff and by reason of the fact that the time limit of 45 days has expired, pursuant to Pa.R.C.P. 1035-2(2) summary judgment is now appropriate and should be granted to the moving party as a matter of law "if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." 4 WHEREFORE, Defendant respectfully hereby moves that summary judgment be granted in her favor and that Plaintiffs complaint be dismissed with prejudice. Dated: December 20, 2010 Respectfully submitted, WJw' Alison Shimer 5 dplk PRAECIPI FOR USTWO GASE FORA tGUMENT (Must be typewritten and submitted In triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff V3. ALISON SHIMER, Defendant rncu No. t?3 No08-5787 Civil ` '7 --r°, c«:r .:z State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judianent 2. Identify all counsel who will argue cases: (a) for plaintiffs: Benjamin J. Cavallaro, Esq. and/or Kimberly F. Scian,Esq. and/or David J. Apotbaker, Esq (Name and Address) Apodmker & Associates, 520 Fellowship Road C306, Mount Laurel, NJ 08054 (b) for defendants: Alison Shimer, in propria persona (Name and Address) 414 Allendale Way, Camp Hill, PA 17011 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 18, 2011 sigTlure Print your name Alison Shimer, in propria persona January 4, 2011 Attorney for Date: 13 cA?) INSTRUCTIONS: 1.Ortginst and two copies of a8 briefs must be f1Nd with the COURT ADMINISTRATOR (not the Protondxq) before argumant. * The moving party shall file and serve their brief 12 days prior to argument. * The responding party shall No dwir brief 5 days prior to argument. 4. K Is continued new briefs must be f'fed wk h the COURT AMMMATOR (not the Prothonotary) ~ the case is reiilsted. PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff V. ALISON SHIMER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 08-5787 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE OLER, GUIDO and MASLAND, JJ. ORDER OF COURT AND NOW, this 2°d day of March, 2011, upon consideration of Defendant's Motion for Summary Judgment, and it appearing that Plaintiff has filed a praecipe on February 17, 2011, to withdraw its complaint in this case, the action against Defendant is deemed withdrawn and Defendant's motion for summary judgment is deemed moot. BY THE COURT, Benjamin J. Cavallaro, Esq. Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Attorney for Plaintiff J rn ?, 1 Alison Shimer 414 Allendale Way Camp Hill, PA 17011 Defendant, pro Se :rc C o f"Ps th a . led 31q111 kY L Pk Alison Shinier, in propria persona 414 Allendale Way Camp Hill, PA 17011 (717) 610-1123 1 (7 Pi's {{ 4 -M kt 6lf`?? {/ i3 ?f PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff vs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-5787 Civil Action ALISON SHIMER Defendant MOTION FOR DETERMINATION BY ARBITRATION PANEL WITH RESPECT TO DEFENDANT'S PREVIOUS MOTION FOR DISMISSAL WITH PREJUDICE OR, IN THE ALTERNATIVE, FOR GRANT OF DEFENDANT'S MOTION FOR DISMISSAL WITH PREJUDICE SUA SPONTE BY THE COURT Defendant Alison Shinier acting pursuant to C.C.R.P. 208.3(a) in the interest of fairness and in the interest of achieving complete and final resolution of this matter respectfully requests: a) the Arbitration Panel previously appointed by the Court by Judge Kevin A. Hess's order dated September 26, 2012 now be directed by the Court, pursuant to Judge Thomas A. Placey's Order dated September 28, 2012 directing that arbitration panel to consider and issue a ruling with respect to Defendant's 1 previous Motion For Dismissal With Prejudice filed on September 24, 2012; or, in the alternative, b) the Court act sua sponte and grant Defendant's Motion For Dismissal With Prejudice. In support of this present motion Defendant offers the following: 1. Defendant incorporates by this reference the facts previously recited in paragraphs 1-19 of her Motion for Dismissal With Prejudice filed with the Court on September 24, 2012. 2) A year and a half after Plaintiffs previous Praecipe to Withdraw the Complaint filed with the Court on February 17, 2011 and after the Court's Order dated March 27 2011 issued by Judge J. Wesley Oler, Jr. deeming Defendant's previous motion for summary judgment moot by reason of Plaintiffs Praecipe to Withdraw, Plaintiff filed a Praecipe For Appointment of Arbitrators in this matter dated September 17, 2012 claiming that the matter was still "at issue" 3) Paragraphs 25, 26, 27 and 28 of Defendant's Motion For Dismisal With Prejudice alleged that Plaintiffs counsel had filed the Praecipe For Appointment of Arbitrators in violation of Pa.R.C.P. 1023. 1 (c)(1)(2) & (3). 4) As stated in paragraph 29 of her Motion For Dismissal With Prejudice, Defendant served Plaintiff and its legal counsel Benjamin J. Cavallaro with a proper separate written notice and demand dated September 24, 2012 pursuant to the requirements of Pa.R.C.P. 1023.2 prior to any separate motion for the imposition of sanctions. 5) By Order dated September 28, 2012 the Judge Thomas A. Placey appointed David DeLuce, Esq., John Neblett, Esq., and Aviv S. Bliwas, Esq. as arbitrators in this matter and further referred Defendant's Motion For Dismissal With Prejudice dated September 24, 2012 to those arbitrators "for further consideration". 2 r 6) On October 4, 2012 Defendant sent a letter to Mr. David W. DeLuce (copy attached) requesting the grant of her Motion for Dismisal With Prejudice and offering to provide all appointed arbitrators with a copy of that motion as well as its attached exhibits. All other appointed arbitrators and Mr. Cavallaro were provided a copy of that October 4, 2012 letter. 7) By cover letter dated October 3, 2012 Plaintiff's counsel filed with the Court a Praecipe to Dismiss Without Prejudice (copy attached). 8) By cover letter dated October 10, 2012 Plaintiff's counsel also filed with the Court a Praecipe To Withdraw Praecipe For Arbitration (copy attached). 9) As of today, Wednesday, October 17, 2012 Defendant has received no notice that the Court has issued an order in response to either praecipe. 10) By letter dated today, October 17, 2012 Defendant sent a letter addressed to David W. DeLuce, Esq. (copy attached) noting that until the Court issues an order withdrawing its appointment of arbitrators, the arbitrators appear to still have an obligation to follow the Court's previous order dated September 28, 2012 and consider Defendant's Motion For Dismissal With Prejudice. In the interest of fairness to the Defendant and in the interest of resolving this matter finally, once and for all time, Defendant respectfully suggests that the grant of Plaintiff's Praecipe to Dismiss Without Prejudice is not appropriate in light of Mr. Cavallaro's apparent willingness to resurrect a matter that appeared to have been effectively resolved a) by Plaintiff's Praecipe to Withdraw filed with the Court on February 17, 2011 (see Exhibit 8 attached to Defendant's Motion to Dismiss With Prejudice filed September 24, 2012; and b) the Court's Order dated March 4, 2012 signed by J. Wesley Oler Jr. deeming Defendant's previous motion for summary judgment to be moot by reason of Plaintiff's Praecipe to Withdraw (see Exhibit 9 attached to Defendant's recent motion). 3 WHEREFORE, Defendant respectfully hereby renews her request for dismissal with prejudice and prays the Court to order the arbitrators to now consider and rule on Defendant's current Motion For Dismissal With Prejudice or, in the alternative, to act sua sponte and grant Defendant's Motion to Dismiss With Prejudice in order to provide Defendant what now appears to be the only remedy at this time to effectively and permanently terminate this matter and relieve Defendant from any further harassment by Plaintiff. Dated: October 17, 2012 Respectfully submitted, Alison Shimer 4 Alison Shinier 414 Allendale Way Camp Hill, PA 17011 October 4, 2012 David W. Deluce, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 Dear Mr. DeLuce, Re: Court of Common Pleas Order Filed 9/28/12 in matter of Portfolio Recovery Assoc, LLC v Shinier 08-5787 Civil Action I am in receipt of the Court of Common Pleas Order filed on September 28, 2012 referring the above matter to you and also to Mr. John P. Neblett, Esq. and to Ms. Aviv S. Bliwas Esq. for arbitration. That Order specifically referenced my recent Motion for Dismissal with Prejudice and referred my motion to all appointed arbitrators for further consideration. On Monday, September 24, 2012, upon receiving (on the previous Thursday) a copy of Mr. Cavallaro's Praecipe For Appointment Of Arbitrators dated September 17, 2012 I expeditiously filed my recent motion now referred by the Court to you. Mr. Cavallaro and his firm Apothaker & Associates, P.C. are, in my personal opinion, poster children for every smarmy joke ever penned about the legal profession. His firm appears to be a boiler room operation that spews out innumerable civil complaints in the hope that a sufficient number of recipients, served as a result of those filings, will fail to respond to his "shotgun" approach to civil litigation thus granting him and his firm unopposed "default judgments". Mr. Cavallaro has proven himself in the present matter to be the equivalent of a legal coward when faced with any sort of opposition. Judge Ohler ordered a hearing in this matter for October 14, 2010 at 3:00 PM in Courtroom 1 in response to my previous motions for summary judgment, for dismissal with prejudice and for imposition of sanctions for Plaintiff's consistent and deliberate failure to comply with properly served discovery. Mr. Cavallaro failed to appear at that hearing. Instead, his firm retained the services of two local Harrisburg area attorneys, with absolutely no knowledge of the case, who appeared at that hearing on behalf of the Plaintiff. Both attorneys later filed a joint praecipe to withdraw. Following that October 14, 2010 hearing, Judge Ohler's Order filed on October 19, 2010 gave Mr. Cavallaro and his firm 45 days to serve upon me the documentation specifically described in that order or to provide to me, in lieu thereof, a verified response that such information is not in Plaintiff's possession and could not be obtained by Plaintiff. Mr. Cavallaro and his firm failed to comply with that order. Mr. Cavallaro's recent praecipe for the appointment of arbitrators was a despicable attempt to deceive the Court by: a) circumventing four years of endless discovery correspondence in this matter; b) ignoring my various previous motion filings including a motion for sanctions for failure to comply with discovery; and, c) circumventing the clear and likely consequence for Plaintiff if oral argument had occurred (as previously scheduled by the Court for February 18, 2011) on my final December, 2010 summary judgment motion filing. To avoid that likely consequence, Mr. Cavallaro chose to adopt a last minute cowardly tactic and filed a praecipe on February 17, 2012 to withdraw the complaint--the day before oral argument was scheduled. If you have not yet been provided by the Court with a copy of my most recent motion and its attached Exhibits numbered 1-10 documenting all of the above stated facts that are a matter of record, please let me know and I would be more than happy to provide every appointed arbitrator in this matter with a copy. Mr. Cavallaro was previously served with that motion and its attached Exhibits by certified mail return receipt requested. Contrary to Mr. Cavallaro's representation to the Court in his most recent praecipe, this matter is not still "at issue". As the record clearly reflects, Plaintiff's complaint was withdrawn by praecipe effective February 17, 2011. Once a complaint is "withdrawn" it is not longer before the court for consideration. That is why the Court declared my motion for summary judgment to be "moot" in its Order dated March 2, 2011 signed by Judge Ohler. Contrary to Mr. Cavallaro's deceptive assertion in his praecipe, there is no current "issue" before the Court and, therefore, no "issue" that is now the proper subject of arbitration. My most recent Motion For Dismissal With Prejudice promised, in paragraph 29, to serve Mr. Cavallaro and his firm with a Notice and Demand Pursuant to Pa.R.C.P. Nos 1023.1- .4. Mr. Cavallaro was so served at the time he received my most recent Motion to Dismiss With Prejudice filing. Following the necessary waiting period I will move the Court for the imposition of the severest possible sanctions upon both Mr. Cavallaro and his firm for violation of Pa.R.C.P. 1023. 1 (c)(1), (c)(2) and (c )(3). In the interest of fairness to me, this sort of harassment by Mr. Cavallaro and his firm must stop. His most recent praecipe in this matter was deceptive because it was filed with full knowledge that the complaint associated with this matter had been withdrawn long ago. It is clear abuse of process to require me to spend any more time at all dealing with Mr. Cavallaro and his firm. This matter deserves to be ended swiftly once and for all by the grant of my most recent motion for dismissal with prejudice. Thank you for your prompt collective consideration of this request. Sincerely, Alison Shimer cc: by first class mail: John P. Neblett, Esq.; Aviv S. Bliwas Esq.; Benjamin J. Cavallaro APOTHAKER& ASSOCIATES, P.C. ATTORNEYS AT LAW October 03, 2012 ATTN: GINA PROTHONOTARY CUMBERLAND COUNTY I COURTHOUSE SQUARE CARLISLE, PA 17013 RE: PORTFOLIO RECOVERY ASSOCIATES, LLC v. ALISON SHIMER DOCKET NO.: 08-5787 OUR FILE NO.: 174961 Dear Clerk: As discussed on October 3, 2012, enclosed herein please find Plaintiffs Praecipe to Dismiss with regard to the above captioned matter. Kindly file same and return a copy to this office in the enclosed self-addressed stamped envelope provided for your convenience, and cancel the arbitration panel appointed on September 26, 2012. Thank you for your anticipated cooperation, I remain Very truly yours, APOTHAKER & ASSOCIATES, P.C. /EO Enclosure cc: ,L°ISON SHIMER 520 Fellowship Road C306, PO Box 5496, Mt. Laurel, NJ 08054 800 672.0215 800 757.4928f 856 780.1000 856 780.1020f 215 634.8920 215 634.8421 f info@apothaker. coin Our File No.: 174961 APOTHAKER & ASSOCIATES, P.C. BY: Benjamin J. Cavallaro, Esquire Attorney I.D.# 307949 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorney for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, vs. ALISON SHIMER Defendant. NO. 08-5787 PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & ASSOCIATES, P.C. Attorneys for Plaintiff A Law Firm Engaged in Debt Collection By: Benjami J. Cav laro, Esquire I?w1?IMN????l??l r 41 . . APOTHAKER& ASSOCIATES, P.C. ATTORNEYS AT LAW October 10, 2012 PROTHONOTARY CUMBERLAND COUNTY I COURTHOUSE SQUARE CARLISLE, PA 17013 RE: PORTFOLIO RECOVERY ASSOCIATES, LLC v. ALISON SHIMER DOCKET NO.: 08-5787 OUR FILE NO.: 174961 Dear Clerk: Enclosed herein please find an original and two copies Plaintiff's Praecipe to Withdraw Praecipe for Arbitration with regard to the above captioned matter. Kindly file same and return a copy to this office in the enclosed self-addressed stamped envelope provided for your convenience. Thank you for your anticipated cooperation, I remain Very truly yours, APOTHAKER & ASSOCIATES, P.C. /EO Enclosure cc: Alison Shimer' 520 Fellowship Road C306, PO Box 5496, Mt. Laurel, NJ 08054 800 672.0215 800 757.4928f 856 780.1000 856 780.10201' 215 634.8920 215 634.8421 f inJo(&apothaker. com • • , . Our File No.: 174961 APOTHAKER & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff vs. ALISON SHINIER Defendant Civil Action PRAECIPE TO WITHDRAW PRAECIPE FOR ARBITRATION TO THE PROTHONOTARY: Kindly withdraw Plaintiff's Praecipe for Arbitration. APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law Firm Engaged in Debt Collection NO.: 08-5787 BY: Benjamin avail ro, Esquire Alison Shinier 414 Allendale Way Camp Hill, PA 17011 Wednesday, October 17, 2012 David W. Deluce, Esq. Johnson, Duffle, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 Dear Mr. DeLuce, Re: Portfolio Recovery Associates, LLC v Shinier Docket No. 08- 5787 I am in receipt of the Plaintiff's undated Praecipe to Dismiss Without Prejudice in the above cited matter (copy enclosed) accompanied by a cover letter dated October 3, 2012 to the Prothonotary of the Court of Common Pleas (also enclosed). Plaintiff's October 3, 2012 cover letter also requested cancellation of the arbitration panel appointed by the Court on September 26, 2012. I am also in receipt of the Plaintiff's undated Praecipe To Withdraw Praecipe For Arbitration (copy enclosed) accompanied by a cover letter to the Common Pleas Court Prothonotary dated October 10, 2012 (copy also enclosed). That correspondence and those praecipes were apparently issued by Plaintiff's counsel after receiving my Notice and Demand Pursuant to Pa.R.C.P. 1023.1-1023.4 and my letter to you, dated October 4, 2012 offering to provide all members of the arbitration panel with a copy of my motion to dismiss with prejudice and all 10 exhibits attached to that motion. On September 28, 2012 the Court referred my previously filed Motion to Dismiss With Prejudice to the arbitration panel "for further consideration". Please be advised that motion appears to still be before you for disposition since I have not, as of today, received notice of any order issued by the Court granting the relief requested in either of Plaintiff's most recently filed praecipes. In the absence of an order from the Court directing that the arbitration panel members are relieved of any further responsibility to proceed in this matter, it appears that you are still vested with jurisdiction to resolve this matter once and for all by granting my motion to dismiss with prejudice. 1, therefore, specifically request that you proceed to determine if it is in the best interest of fairness and due process that my motion for dismissal with prejudice be granted. This matter has now gone on for over 4 years. This plaintiff clearly chooses to cleverly side step final resolution on the matter alleged in the original complaint by merely withdrawing whenever it becomes apparent a final determination is imminent. To allow this particular plaintiff to withdraw his current request for arbitration and to receive a dismissal without prejudice is unconscionable. A dismissal without prejudice merely allows this plaintiff in the future to once again file and harass me with respect to this alleged matter. I am entitled to finality as a matter of law. This matter has taken enough of my time and it has also taken enough of the Court's time. I deserve to have this matter dismissed with prejudice once and for all. I am filing a new, separate motion with the Court today (copy enclosed), requesting that the arbitrators assigned to this matter proceed in accordance with the Court's order dated September 28, 2012 and address my previous motion to dismiss with prejudice and issue a ruling with respect to that motion or, in the alternative, grant my motion sua sponte. Sincerely, Alison E. Shimet cc: Court of Common Pleas (as attached exhibit to my new motion) John P. Neblett, Esq. Aviv S. Bliwas, Esq. Benjamin J. Cavallaro, Esq. Our File No.: 174961 APOTHAKLR & ASSOCIATES, P.C. By: Benjamin ,I. Cavallaro, Esquire Attorney I.D. #307949 520 Fellowship Road 0306 Mount Lanirel. NJ 08054 (800) 672.021 ~ Attorneys for Plaintiff PORTFOLIO RECOVERY ASSOCIATES. LLC Plaintiff ~~s. ALISO'.~I SHIMER Defendant Civil Action PRAECIPE TO WITIHDRAW PRAECIPE FOR ARBITRATION TO THE PROTHONOTARY: Kindly withdraw Plaintiffs Praecipe for Arbitration. APOTHAKER & ASSOCIATES.. P.C. Attorney for Plaintiff A Law Firm En~a~,ed in Debt Collection ~- ;, t- i 4 . ~, i~, ~~ . ~~ r. "ei COURT OF COMMON PLI~.AS OF CUMBERLAND COUN"I'Y NO.: 08-5787 BY: - ' .-. Benjamin avall ro_ Esquire PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff V. ALISON SHIMER, Defendant 1f 000' IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-05787 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR DETERMINATION BY ARBITRATION PANEL WITH RESPECT TO DEFENDANT'S PREVIOUS MOTION FOR DISMISSAL WITH PREJUDICE OR, IN THE ALTERNATIVE, FOR GRANT OF DEFENDANT'S MOTION FOR DISMISSAL WITH PREJUDICE SUA SPONTE BY THE COURT ORDER OF COURT AND NOW, this 24th day of October 2012, upon consideration of Defendant's Motion, and upon review of Plaintiffs Praecipe to Dismiss without Prejudice filed on 12 October 2012, Defendant's Motion is DENIED, as there is no case or controversy currently pending before the court in the above captioned case. Thom A. Placey C.P.J. Distribution List: Benjamin J. Cavallaro, Esq. Apothaker & Associates, P.C. mm o =--n 520 Fellowship Road C306 Zz ?-+ -_, Mount Laurel, NJ 08054 o :*v Attorney for Plaintiff r'x °'c' r Shi ?Ali x- n me son 414 Allendale Way Camp Hill, PA 17011 N -{ Defendant, pro se `,c?504&,-/r0/ ?G