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HomeMy WebLinkAbout09-1251D000552 THIS IS AN ARBITRATION MATTER. DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 JOEL M. FLINK, ESQUIRE Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 ASSESSMENT OF DIRECT COLLECT, INC. assignee of Household Bank/HSBC a.k.a. GM P.O. BOX 2167 Blue Bell, PA 19422 Vs. LAUREANO PORTILLA 413 W NORTH ST CARLISLE PA 17013 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 0q - 1.151 30"t (aryl NOTICL YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 COMPLAINT IN CIVIL-ACTION 1. Plaintiff is a debt buyer and successor in interest to the original creditor as set forth in the caption of this Complaint. 2. At all times relevant hereto, the defendant(s) was the holder of a credit card, which at the request of the defendant(s) was issued to the defendant(s) by the plaintiff under the terms of which the plaintiff agreed to extend to defendant(s)the use of plaintiff's credit facilities. 3. Defendant(s) accepted and used the aforesaid credit card so issued and by so doing agreed to perform the terms and conditions prescribed by the plaintiff for the use of said credit card. 4. The defendant (s) received and accepted goods and merchand- ise and/or accepted services or cash advances through the use of the credit card issued by the Plaintiff. A true and correct copy of the Statement of Account, if available, is attached hereto as Exhibit "A". 5. All the credits to which the defendant (s) is entitled have been applied and there remains a balance due as of January 6, 2009 in the amount of $1,012.39. 6. Plaintiff has made demand upon the defendant(s)for payment of the balance due but the defendant(s)has failed and refused and still refuses to pay the same or any part thereof. 7. Defendant's last payment on account was made on 6/10/2007. WHEREFORE, plaintiff claims of the defendant(s) the sum of $1,012.39 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I. WE NB RG, ESQUIRE JOEL M. FLINK, QUIRE Attorney for Plaintiff P01A.DB VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff(s) in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. FREDERIC I. WEINBERG, ESQUIRE DC00552 DIRECT COLLECT, INC. assignee of Household Bank/HSBC a.k.a. GM LAUREANO PORTILLA 5499441009778898 VERIFICATION I hereby state that I am the agent for the plaintiff herein, and that the facts set forth in the attached Affidavit which is incorporated by reference in the foregoing Complaint in Civil Action are true and correct to the best of my knowledge, information and belief and is based upon information which plaintiff has furnished to counsel. The language in the Complaint is that of counsel and not of plaintiff. To the extent that the contents of the Complaint are that of counsel, plaintiff has relied upon counsel in making this verification. This verification is made subject to 18 Pa.C.S. 54904 which provides for certain penalties for making false statements. 9002 D000552 DIRECT COLLECT, INC. assignee of Household Bank/HSBC a.k.a. GM LAUREANO PORTILLA 5499441009778898 AFFIDAVIT I, LAUREN YELLIN, being duly served sworn according to law, depose and say that: 1. I am the agent for the Plaintiff herein and I have custody and control of the files relating to this account; 2. I have personal knowledge of the facts and circumstances in connection with this case; 3. Plaintiff's files are maintained in the usual and ordinary course of business; 4. This action is based on a claim for breach of contract and that damages are sought as a direct result of said breach; 5. There is now due and owing from defendant to plaintiff, the amount of $958.65 plus interest of $49.80 at the rate of 6% less credits in the amount of $.00 totaling $1,008.45 as of December 12, 2008. 6. If called upon, affiant can testify at trial as to the facts pertaining to this matter. The above facts are true and or e t to the best of my owledge, information and belief. /1/7,, YELLIN Sworn to and Subscribed before me this day of -?? 2008 Notary Publi?C ;oMMONWEALTH OF pENNSYLVA ?A NOTARIAL SEAL Public LDAVVN M. MARSHALL, Notary ty of philadelphiaPhila. County i mmission Ex iris November I B' 20N 000 t y ?, Fri DIRECT COLLECT, INC., Assignee of Household Bank/HSBC a.k.a. GM Plaintiff V. LAUREANO PORTILLA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : No. 09 - 1251 - Civil Term : CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the Defendant, Laureano Portilla, in the above captioned case. Respectfully submitted, h i'13 Geoffrey Biringer, Esquire MidPenn Legal Services 401 E. Louther Street Date: Carlisle, PA 17013 (717) 243-9400 -rt 1r: 4717 DIRECT COLLECT, INC., Assignee of Household Bank/HSBC a.k.a. GM Plaintiff V. LAUREANO PORTILLA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 09 - 1251 - Civil Term CIVIL ACTION - LAW PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the defendant, Laureano Portilla, by and through his legal counsel, MidPenn Legal Services, and files these PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT, and in support thereof avers the following: 1. Plaintiff is Direct Collect, an assignee of Household Bank/HSBC a.k.a. GM.with a listed address of PO Box 2167 Blue Bell, PA 19422. 2. Defendant is Laureano Portilla (hereinafter "Defendant"). 3. Plaintiff filed its complaint on March 2, 2009. 4. Plaintiff claims that, on assignment, it is owed a balance on account for $1,012.39 for use of a credit card. PRELIMINARY OBJECTION PURSUANT TO PA. R.C. P. No. 1028(a) (4)) (Demurrer) 5. Paragraphs 1 through 4 of Defendant's Preliminary Objections are hereby incorporated by reference hereto. 6. Plaintiff claims they are a successor in interest to the original creditor, but fails to attach any evidence of an assignment which would give this creditor the right to pursue this claim 7. Plaintiff does not allege that there was any agreement between the Plaintiff and the Defendant, or the original creditor, merely an application for a credit card. 8. Plaintiff attaches nothing to its Complaint not even an "Exhibit A," as setout in Paragraph 4 of the Complaint, to indicate, in any way, that Defendant agreed to the terms relating to balance , interest rates, or method of calculating the balance due. 9. Absent such allegations, Plaintiff fails to adequately state a cause of action. 10. Plaintiff's claims that Defendant accepted and used the card, but fails to describe how Defendant was unjustly enriched and does not include an itemization of the goods purchased, information that goes to the very core of Plaintiff's claim. WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with prejudice for failure to state a cause a cause of action. PRELIMINARY OBJECTION PURSUANT TO PA. R. C. P. No. 1028(a)(3) (INSUFFICIENT SPECIFICITY IN A PLEADING) FOR FAILURE TO PROPERLY PLEAD ITEMS OR TIME, PLACE AND SPECIAL DAMAGES 11. Paragraphs 1 through 10 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 12. Plaintiff claims that it is owed a balance of an account in the amount of $1,012.39 and promises a "Statement of Account" at Exhibit "A," but attaches nothing. Pa. R. C. P. No.1019(f) requires that averments of time, place and special damages shall be specifically stated. 13. Plaintiff's general assertion of damages therefore is in violation of Pa. R. C. P. No.1019(f) and renders Defendant unable to properly defend this action. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice for insufficient specificity in a pleading. PRELIMINARY OBJECTION PURSUANT TO PA. R. C. P.No.1028(a)(2) and No.1019(i)(FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT) FOR FAILURE TO ATTACH A WRITING 14. Paragraphs 1 through 13 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 15. Plaintiff bases its claims against Defendant on an application for a credit card and use of the card by Defendant. 16. Nothing is attached to the Complaint, however, of a proper assignment to the Plaintiff, any agreements between the parties, or any list of items purchased by the Plaintiff. 17. Pursuant to Pa.R.C. P.No. 1019(1), when a claim is based upon a writing, the pleader must attach a copy of that writing or provide explanation for its absence. 18. To the extent that any credit agreements between Defendant and Plaintiff, or its assignors are written, Plaintiff's Complaint fails to comply with Pa. R. C. P. No. 1019(1) in that Plaintiff has failed to attach to its Complaint a copy of any such written agreements or any explanation for the absence thereof. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice for failure to conform to a law or rule of court. Respectfully submitted, MidPenn Legal Services > Date ?(p o2f?Y, By. Geoffrey Biringer 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 z CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing Preliminary Objections to Plaintiff's Complaint on this 16th day of March, 2009, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Frederic I.Weinberg, Esquire 1001 E. Hector Street, Ste 220 Conshohocken,PA 19428 B Y: eoffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 Cs ? ?c ? ?,. ? q? ,i .,i GT J i 5 3...- ,, ? t "lti ? ? ..-'" { .. r? ? "'? Sheriffs Office of Cumberland County R Thomas Kline o*,"V" of +caabxrf, Edwazd L Schorpp Sheri #A Solicitor 11 k, Ronny R Anderson n* Jody S Smith Chief Deputy OFF C4 OF THE Sk6Riac Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 03/09/2009 03:09 PM - Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on March 9, 2009 at 1509 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Laureano Portilla, by making known unto Laureano Portilla personally, at 413 W. North Street, Carlisle, Cumberland County, Pennsylvania its contents and at the same time handing to hirr personally the said true and correct copy of the same. SHERIFF COST: $32.92 (PAID) March 14, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF 15elbuty Sheri Docket No. 2009-1251 Direct Collect v. Laureano Portilla r -!"