HomeMy WebLinkAbout09-0484
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
DISCOVER BANK
Plaintiff
VS.
KEVIN RAY ZYGMUNT
Defendant
No: o 9 - -ye ? ?!,. ? L
COMPLAINT IN CIVIL ACTION
FILED ON BEHALF OF
Plaintiff
COUNSEL OF RECORD OF
THIS PARTY:
James C. Warmbrodt,42524
WELTMAN, WEINBERG & REIS CO., L.P.A.
436 Seventh Avenue, Suite 1400
Pittsburgh, PA 15219
(412) 434-7955
FAX: 412-338-7130
07184547 C A Pit ABR
LAND IN THE COURT OF COMMON PLEASCOF ILCUMBE VR IS ON COUNTY, PENNSYLVANIA
DISCOVER BANK
Plaintiff
vs.
KEVIN RAY ZYGMUNT
Defendant
Civil Action No
COMPLAINT AND NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the
claims set forth in the following pages, you must take action within
twenty (20) days after this complaint and notice are served, by entering
a written appearance personally or by an attorney and filing in writing
with the court your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the
court without further notice for any money claimed in the complaint or
for any other claim or relief requested by the plaintiff. You may lose
money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
LAWYER REFERRAL SERVICE
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
(717) 249-3166
COMPLAINT
1. Plaintiff, is a corporation with offices at 6500 New Albany Rd,
New Albany, OH 43054.
2. Defendant is adult individual(s) residing at the address listed
below:
KEVIN RAY ZYGMUNT
16 BELLMORE RD
CAMP HILL, PA 17011
3. Defendant applied for and received a credit card issued by
Plaintiff bearing the account number XXXXXXXXXXXX8942 . A copy of
Plaintiff's Statement of Account s attached hereto, marked as Exhibit
"A" and made a part hereof.
4. Defendant made use of said credit card and currently has a balance
due and owing to Plaintiff, as of January 16, 2009 , in the amount of
$5887.49 .
5. Defendant.is in default by failing to make payments when due.
6. Plaintiff avers that the Agreement between the parties provides
that Defendant will pay Plaintiff's attorneys' fees.
7. Plaintiff avers that such attorneys' fees will amount to $1000.00
8. Although repeatedly requested to do so by Plaintiff, Defendant has
willfully failed and/or refused to pay the balance due to Plaintiff.
Wherefore, the Plaintiff prays for Judgment in its favor and
against Defendant , KEVIN RAY ZYGMUNT INDIVIDUALLY , in the amount of
$5887.49 with interest at the legal rate of 6.000% per annum from date
of judgment plus attorneys, fees of $1000.00 , and costs.
James Wa ro t,42524
WELT WEINBERG & REIS CO., L.P.A.
436 Seventh Avenue, Suite 1400
Pittsburgh, PA 15219
(412) 434-7955
FAX: 412-338-7130
07184547 C A Pit ABR
This law firm is a debt collector attempting to collect this debt for
our client and any information obtained will be used for that purpose.
vsd\.%W V GR
CARD
15 SDSN6A010002687
KEVIN ZYGMUNT
16 BELLMORE RD
CAMP HILL PA 17011-7901
Address, e-mail or telephone change? Print change in space
above, or go to Discover.com. Print your e-mail address to
receive important Account information and special offers.
000001986458427861535058874900000000588749
Discover More Card Account Summary
Closing Date: November 15, 2008 page 1 of 1
Account number ending in 8942 Previous Balance $5,887.49
Payment Due Date December 14, 2008 Payments And Credits 0.00
Minimum Payment Due $5,887.49 Purchases + 0.00
Credit Limit $7,200.00 Cash Advances + 0.00
Credit Available $0.00 Balance Transfers + 0.00
Cash Credit Limit $0.00 Finance Charges + 0.00
Cash Credit Available $0.00 New Balance = $5,887.49
EXHIBIT
tashback Bonus® Opening Cashback Bonus Balance $ 0.00
New Cashback Bonus Earned + 0.00
Cashback Bonus Balance $ 0.00
Cashbock-Bonus& Anniversary -... _ _ - - _ .... - - - - Avx ilable-to-Redeem. --- _ - - - _ - - - - _ _ .. - - - $ - - - - ...0.00 -----
;Date: October 15
How Can We Help You? 1 • Visit Discover.com to pay your bill for no cost, view our
P latest Account information, earn and redeem rewards and more
It's your choice - 3 ways to help 2. Call 1.800-DISCOVER (347-2683) For Fast, easy self-service
options or to speak with a Customer Service Account Manager
Please have your Discover Card available. 3. Write us at Discover Card, PO Box 30943,
For TDD (assistance for hearing impaired) see reverse side Salt Lake City, UT 84130
'Transactions $0 Fraud Liability Guarantee Use your Discover Card with confidence.
Information For You
While we are permitted under the Cardmember Agreement to increase the APRs on your Account because your payment
was late, we have chosen not to do so at this time. We have terminated, however, any introductory or promotional rate on
purchases and any special balance transfer rate, and applied the standard APR for purchases to your outstanding balance of
purchases and balance transfers. However, we reserve the right to increase the APRs on your Account if you fail to pay the
minimum payment due by the payment due date. See the Default Rate Plan section of the Cardmember Agreement For
details.
,Finance Charge Summary
Nominal Transaction
Average Daily ANNUAL ANNUAL Periodic Fee
Daily Periodic PERCENTAGE PERCENTAGE FINANCE FINANCE
Balances Rates RATES RATES CHARGES CHARGES
current billing period: 15 days
Purchases $0 0.08216% 29.99% F 29.99%
Cash Advances $0 0.08216% 29.99% F 29.99% $0 none
previous billing period: 19 days $0 $0
i Purchases $0 0.08216% 29.99% F 29.99% $0 none
The rates that apply to your Account are either fixed (F) or they may vary (V) as noted above.
55,887.49 1$5,887.49
Payment Due Date
December 14, 2008
Enter Amount Enclosed Below
$ 1 777-1
Please make check payable to Discover Card.
Minimum a ment due includes a post due
amount of $1,231.00.
/
\ Y?
Will your payment get to us on time? Pay
your bill online and your payment can be
made to your account on the same day. Visit
Discover.com/payments today.
PO BOX 6103 IllrrrlL?rrrrllrl,I,Jr?ll
CAROL STREAM IL 60197-6103
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VERIFICATION
The undersigned does hereby verify subject to the penalties of 18 PA.C.S. §4904 relating to
unworn falsifications to authorities, that he is Steve Ball
(Name)
Accounts Manner of DFS Services LLC , plaintiff herein, that
(Title) (Company)
he is duly authorized to make this Verification, and that the facts set forth in the foregoing Complaint
in Civil Action are true and correct to the best of his knowledge, information and belief.
(Signature)
WWR# 7184547
Kevin R. Zygmunt
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Kevin Ray Zygmunt
16 Bellmore Road
Camp Hill, PA 17011-7901
Defendant in Pro Per
Court of Common Pleas
Civil Division
State of Pennsylvania, Cumberland County
DISCOVER BANK Cause/Case No. 09-484
Plaintiff
Vs.
KEVIN RAY ZYGMUNT
Defendant
Motion to Compel Arbitration
Kevin Ray Zygmunt ("Defendant") hereby answers the complaint of Discover Bank ("Plaintiff') for it's
self alone as follows and moves this court to bar, stay or dismiss Plaintiffs claim based on the following:
1. Plaintiff filed a complaint against the defendant(s) for a credit card balance due.
2. Defendant moves this court to compel binding arbitration based on the Credit Card
Agreement provided by the Plaintiff.
a. The parties are bound by Credit Card Agreement to settle disputes by binding arbitration,
not litigation, upon the election of either party. This Motion constitutes notice of election
by the undersigned to have this dispute resolved by binding arbitration, as provided for in
the Credit Card Agreement.
3. Plaintiff has never sought to take the defendant to arbitration.
4. The Federal Arbitration Act ("FAA"), 9 USC, Section 1-2, provides:
a. "A written provision in any maritime transaction or a contract evidencing a translation
involving commerce to settle by arbitration a controversy thereafter arising out of such a
contract or transaction, or the refusal to perform the whole or any part thereof, or an
agreement in writing to submit to arbitration an existing controversy arising out of such a
contract, transaction, or refusal, shall be valid, irrevocable and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any contract."
5. Defendant requests that pending the court's ruling on this Motion this action be stayed.
6. "FAA", 9 USC, Section 1-3 provides:
a. "If any suit or proceeding be brought in any of the courts of the United States upon any
issue referable to arbitration under an agreement in writing for such arbitration, the court
in which such suit is pending, upon being satisfied that the issue involved in such suit or
proceeding is referable to arbitration under such an agreement, shall on application of one
of the parties stay the trial of the action until such arbitration has been had in accordance
with the terms of the agreement, providing the applicant for the stay is not in default in
proceeding with such arbitration."
WHEREFORE, Defendant requests that:
1. This honorable court, stay the Plaintiffs complaint and any and all action related to this case.
2. This honorable court, compel the Plaintiff to seek binding arbitration per the terms and conditions
of the Credit Card Agreement.
Dated: Z- °r 2-oo°l
Kevin Ray Zygmunt
Defendant in Pro Per
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SHERIFF'S RETURN - REGULAR
CASE NO: 2009-00484 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DISCOVER BANK
VS
ZYGMUNT KEVIN RAY
RONALD HOOVER , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
ZYGMUNT KEVIN RAY the
DEFENDANT , at 1859:00 HOURS, on the 3rd day of February-, 2009
at 216 BELLMORE RD
CAMP HILL, PA 17011
KEVIN RAY ZYGMUNT
by handing to
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
Sworn and Subscibed to
before me this
of
So Answers:
18.00
11.70
* 00
10.00 R. Thomas Kline
.00
39.70 02/04/2009
WELTMAN WEINBERG REIS
By W
day Deputy Sheriff
A.D.
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State of Pennsylvania, Cumberland County
Cause/Case No. 09-484
DISCOVER BANK
Plaintiff
Vs.
KEVIN RAY ZYGMUNT
Defendant
Kevin Ray Zygmunt ("Defendant") hereby answers the complaint of Discover Bank ("Plaintiff") for it's
self alone as follows and generally denies the allegations due to the complaint based on lack of
information and belief.
First Affirmative Defense
"(Agreement to Arbitrate)
The credit card agreement may state that disputes may be resolved by binding arbitration.
Defendant elects to have all disputes related to the credit card agreement resolved by binding arbitration."
Second Affirmative Defense
"(Amount in Dispute)
The account balance claimed by Plaintiff is not accurate and the total amount that is owed is in
dispute."
Third Affirmative Defense
"(Financial Hardship)
Due to a serious financial crisis, defendant does not have sufficient funds to pay the full amount
of undisputed debt, if any.
Due to on an ongoing medical condition I was placed on short term disability with my employer.
This employment status caused my pay to be cut in half. Most recently I was placed on long term
disability and my income continues to be strained based on my employment status. My household
income has been drastically reduced whereas my expenses remain the same. I have contracted with a debt
settlement company, Solve Debts, to help reduce and eliminate my debt.
WHEREFORE, Defendant requests that:
1. Plaintiff takes nothing by way of his complaint; and
2. For Defendant's costs of suit.
Dated: Z -- /d/ - Z 009
7(? R
Kevin Ray Zygmunt
Defendant in Pro Per
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DISCOVER BANK, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
KEVIN RAY ZYGMUNT,
DEFENDANT 09-0484 CIVIL TERM
ORDER OF COURT
AND NOW, this ?i day of February, 2009, a Rule is entered % against plaintiff, Discover Bank, to show cause why the relief requested to compel
arbitration, should not be granted. Rule returnable twenty (20) days after service.
Ziames C. Warmbrodt Esquire
For Plaintiff
?Kevin Ray Zygmunt, Pro se
16 Bellmore Road
Camp Hill, PA 17011-7901
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
DISCOVER BANK,
Plaintiff,
No. 09-484
TYPE OF PLEADING:
vs. PLAINTIFF'S ANSWER TO
DEFENDANTS' MOTION TO
COMPEL ARBITRATION
KEVIN RAY ZYGMUNT,
FILED ON BEHALF OF:
Defendant. Plaintiff
COUNSEL OF RECORD OF
THIS PARTY:
James C. Warmbrodt, Esquire
PA I.D. # 42524
WELTMAN, WEINBERG & REIS CO.,
L.P.A.
1400 Koppers Building
436 Seventh Avenue
Pittsburgh, PA 15219
(412) 434-7955
WWR # 7184547
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
DISCOVER BANK,
Plaintiff, No. 09-484
vs.
KEVIN RAY ZYGMUNT,
Defendant.
PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO COMPEL
ARBITRATION
AND NOW, comes the Plaintiff, by and through its attorneys, Weltman, Weinberg &
Reis, Co., L.P.A., and files the following Answer to Defendant's Motion to Compel
Arbitration:
1. It is admitted that the Agreement between the parties contains a provision for
binding arbitration.
2. As the party electing to submit this dispute to arbitration See, Paragraph 2a of
Defendant's Motion), Defendant is required to initiate the arbitration proceedings,
pursuant to the terms of the Agreement.
3. Plaintiff does not oppose Defendant filing a claim for arbitration pursuant to the
agreement between the parties, nor does Plaintiff oppose a stay of the proceedings
in the within matter while Defendant files a claim for arbitration pursuant to the
agreement between the parties.
4. Plaintiff believes and therefore avers that the Defendant's motion has been filed
by the Defendant for the purpose of delaying the Plaintiffs recovery of the debt
owed by the Defendant.
5. Should Defendant fail to pursue arbitration pursuant to the agreement, Plaintiff
wishes to proceed before this Honorable Court in the within action.
6. Should Defendant file a claim for arbitration and should Plaintiff prevail in the
arbitration proceedings, Plaintiff wishes to proceed before this Honorable Court to
enforce its arbitration award, pursuant to Pa.R.C.P. 1329(e)(1).
7. Plaintiff requests that the Court impose a deadline upon the Defendant to initiate a
claim for arbitration to prevent undue delay in the resolution of the dispute
between the parties, and that the Court permit Plaintiff to seek the reinstatement
of the within action in the event that Defendant fails to file a claim for arbitration
within the time specified by the Court.
WHEREFORE, Plaintiff humbly requests that this Honorable Court enter an order
granting the Defendant's Motion to Compel Arbitration in part, and directing the Defendant
to proceed with a claim for arbitration by a date certain, and staying the within proceedings
without prejudice to Plaintiff to seek reinstatement of these proceedings should Defendant
fail to timely file a claim for arbitration, as set forth in Plaintiff's proposed Order, together
with any further relief which this Honorable Court deems appropriate.
Respectfully submitted,
JamjD brodt, Esquire
PA 25 4
Weleinberg & Reis, Co., L.P.A.
140rs Building
436 t h Avenue
Pitts , PA 15219
(412) 434-7995
WWR# 7184547
VERIFICATION
The undersigned does hereby verify subject to the penalties of 18 Pa. C.S. §4904
relating to unsworn falsification to authorities, that he is an attorney for the Plaintiff
herein and makes this Verification based upon the facts as supplied to him by the Plaintiff
because the Plaintiff is outside the jurisdiction of the court and the Plaintiff's Verification
cannot be obtained within the time allowed for the filing of this pleading; and that the
facts and circumstances set forth in this pleading, are true and correct to the best of his
knowledge, information and belief.
James Cf'Warmbrodt, Esquire
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
DISCOVER BANK,
Plaintiff,
vs.
KEVIN RAY ZYGMUNT,
Defendant.
No. 09-484
ORDER OF COURT
AND NOW, this day of , 2009, upon
this Court's consideration of Defendant's Motion to Compel Arbitration, it appearing to the
Court that Defendant has elected to submit all matters in contention in the underlying matter
to binding arbitration pursuant to the Agreement between the parties, it is ORDERED,
ADJUDGED and DECREED that the Defendant shall file a claim for binding arbitration,
pursuant to the terms of the agreement between the parties, within 30 days from the date of
this Order, and it is further ORDERED, ADJUDGED and DECREED that the within matter
be and hereby is stayed pending the arbitration of this matter, provided, however, that
nothing in this Order shall preclude Plaintiff from petitioning this court for relief from the
stay imposed from this Order and/or for reinstatement of the within action alleging
Defendant's failure to comply with this Order.
By the Court:
J.
CERTIFICATE OF SERVICE
A true and correct copy of the within Plaintiff's Answer To Defendant's Motion to
Compel Arbitration has been served by U.S. Mail, Postage Pre-Paid, on the 164`'
of
-tkd4_, 2009 upon the following:
Kevin Ray Zygmunt
16 Bellmore Road
Camp Hill, PA 17011
BY:
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