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HomeMy WebLinkAbout09-2214w PAUL J. KLEMM, ESQUIRE NUDELMAN, NUDELMAN, & ZIERING, P.C. 42S EAGLE ROCK AVENUE ROSELAND, NJ 07068 973-618-0000 ID # 92125 ATTORNEY FOR PLAINTIFF CAPITAL ONE AUTO FINANCE, INC. ~. Plaintiff(s) SHIRLEY BISHOP Defendant(s) CUMBERLAND COUNTY COMPLAINT IN CIVIL ACTION 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. 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. COURT ADMINISTRATOR Cumberland County Courthouse 1 Courthouse Square, 4`h Square Carlisle, PA 19013-3387 (717)240-6200 AVISO USTED HA SIDO DEMANDADOIA EN CORTE Si usted desea defenderse de las demandas que se presentan mas adelente en las siguientes paginas, debe tomar acci6n dento de los prGximos veinte (20) dias depu~s de la notificacibn de esta Demanda y Avios radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqua en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mks aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIES QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAD QUE CUALIFICAN. SERVICIO DE REFERENCIA LEGAL COURT ADMINISTRATOR Cumberland County Courthouse 1 Courthouse Square, 4`h Square Carlisle, PA 19013-3387 (717)240-6200 PAUL J. KLEMM, ESQUIRE NUDLEMAN, NUDELMAN, & ZIERING, P.C. 425 EAGLE ROCK AVENUE ROSELAND, NJ 07068 973-618-0000 ID #92125 ATTORNEY FOR PLAINTIFF CAPITAL ONE AUTO FINANCE, INC. Plaintiff(s) v. SHIRLEY BISHOP Defendant(s) CUMBERLAND COUNTY n~. ~ ~- a ~ ~~ ~ lam.-. COMPLAINT IN CIVIL ACTION AND NOW, comes Plaintiff, CAPITAL ONE AUTO FINANCE, INC. , by and through its attorney, Paul J. Klemm and the law offices of Nudelman, Nudelman & Ziering, P.C., and files the following Complaint in Civil Action and in support thereof aver as follows: 1. Plaintiff, CAPITAL ONE AUTO FINANCE, INC., is a corporation licensed to do business in the State of Pennsylvania. 2. Defendant, SHIRLEY BISHOP, is an individual and citizen of the Commonwealth of Pennsylvania, who is believed to currently reside at , 20 ROBIN DR, SHIPPENSBURG PA 17257-9484. 3. At the request and insistence of the Defendant, the aforesaid Defendant entered into a written Automobile Retail Installment Contract (hereinafter "Contract") to purchase a "Vehicle" from a dealer (Seller). NN26192 4. Seller thereafter assigned the Contract to Plaintiff, Capital One Auto Finance, Inc. 5. Pursuant to the terms of the Contract, Defendant was to make payments to Plaintiff. 6. The terms of the Contract provide for termination upon satisfaction by Defendant of all obligations provided thereunder. 7. Plaintiff avers that Defendant defaulted under the Contract by failing to make payments to Plaintiff as promised. 8. Due to Defendant's default under the Contract, Plaintiff exercised its rights to terminate the Contract and retake possession of the vehicle. 9. After calculating early termination charges due to Plaintiff, and proceeds from sale, if any, Plaintiff avers that a deficiency balance of $3,807.59 is due from Defendant as of the present date. 10. The terms of the Contract provide that Defendant will pay Plaintiff's reasonable attorney's fees. 11. Defendant's has made payments totaling $.00 and are entitled to credit for said payments. 12. Despite repeated request, Defendant has willfully failed and/or refused to pay the aforesaid sum due. NN26192 Wherefore, Plaintiff demands Judgment in its favor and against the Defendant in the amount of $3,807.59, plus attorney fees of $1,028.05, continuing interest thereon at the legal rate from the date of Judgment plus anticipated court costs. The damages requested are less than the maximum amount for compulsory arbitration as set by the Court. Respectfully Submitted: NUDELMAN AN & ZIERING, P.C. Paul J. Klemm, Esquire 425 Eagle Rock Avenue Roseland, NJ 07068 (973) 618-0000 NN26192 VERIFICATION The undersigned, Paul J. Klemm, Esquire, hereby states that he is the attorney for Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. Counsel has signed this verification at the request of Plaintiff as a matter of time and convenience. Plaintiff has represented to counsel that there is a debt due and owing from Defendant to Plaintiff in the amount as set forth within the foregoing pleading. Plaintiff has provided counsel with all relevant information in order to allow counsel to sign this verification. Plaintiff agrees to provide a verification signed by Plaintiff upon request by Defendant. The undersigned understands that the statements herein are made subject to the penalties of 19 Pa.C.S.A Section 4904 relating to unsworn falsification to authorities. Date: December 16 2008 Paul J. Klemm, Esquire Nudleman, Nudelman & Ziering, P.C, 425 Eagle Rock Avenue Roseland, NJ 07068 (973) 618-0000 NN26192 (~J a~ z~~~: ~ -~ t ~-f~~,~~-a~u 2Q09 A€'j~ -$ Phi i2~ ~5 $'T8.5o PQ ~o`rN C~~' 1a41 ~ ~3y (05 y ~~' Sheriff s Office of Cumberland County R Thomas Kline ~~~,itp of `~x~nhr;~~~~0 Edward L Schorpp Sheri Solicitor Ronny R Anderson '~~ '~~ Jody S Smith Chief Deputy ~a~== ~~~ r~"F ~'~~~~FF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/14/2009 12:20 PM -Timothy Black, Deputy Sheriff, who being duly sworn according to law,; states that on April 14, 2009 at 1220hours, he served a true copy of the within Complaint and Notice uporh the within named defendant, to wit: Shirley Bishop by making known unto Shirley Bishop personally] at 20 Robin Drive, Shippensburg, Cumberland County, Pennsylvania, 17257, its contents and at the dame time handing to her personally the said true and correct copy of the same. SHERIFF COST: $46.42 SO ANSWER', April 14, 2009 R THOMAS KIINE, SHERIFF . ~~~~ De u e i Docket No. 2009-2214 Capital One Auto Finance v Shirley t3ishop ca ~_ a w ~ L~ - za ~, , , ~ 'v ..,.8 3 ' 'L7 '~ `rl ~ '`~ ~~ ._ t~ Cr'1 •• CAPITAL ONE AUTO FINANCE, INC. Plaintiff v. SHIRLEY BISHOP IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - IN LAW N0.09-2214, Civil Term Defendant NOTICE TO PLEAD To: CAPITAL ONE AUTO FINANCE, INC., through its attorney Paul J. Klemm, Esquire, Nudleman, Nudelman & Ziering, P.C., 425 Eagle Rock Avenue, Roseland, NJ 07068. You are hereby notified to file a written response to the within New Matter, within twenty days from service hereof, or a default judgment may be entered against you. Date: September 28, 2009 Very res ctfully, r ~~ DOUGLAS C. OVELACE, JR., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 Attorney for Defendant CAPITAL ONE AUTO FINANCE, INC. Plaintiff v. SHIRLEY BISHOP Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION - IN LAW NO. 09-2214, Civil Term DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S SECOND AMENDED COMPLAINT AND NOW, September 28, 2009, Defendant, by her attorney, Douglas C. Lovelace, Jr., files this Answer with New Matter to Plaintiffs Second Amended Complaint and avers as follows: ANSWER 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. By way of further answer, Plaintiff s allegation is a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 2. Admitted. 3. Denied. Exhibit "A" to Plaintiff s Complaint is a document that speaks for itself. 4. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. By way of further answer, Exhibit "B" to Plaintiff's Complaint is a document that speaks for itself. 5. Denied. Exhibit "A" to Plaintii~s Complaint, which Plaintiff alleges is a contract between Plaintiff and Defendant, is a document that speaks for itself. 6. Defendant admits that Plaintiff avers that Defendant defaulted under what Plaintiff alleges is a contract between Plaintiff and Defendant. 7. Denied, as stated. Exhibit "A" to Plaintiff's Complaint, which Plaintiff claims to be a contract between Plaintiff and Defendant is a document that speaks for itself. By way of further answer, Plaintiff s allegation is a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, Exhibit "D" to Plaintiff s Complaint is a document that speaks for itself. 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. 9. Denied, as stated. Exhibit "A" to Plaintiff's Complaint, which Plaintiff claims to be a contract between Plaintiff and Defendant is a document that speaks for itself. 10. Denied, as stated. By way of further answer, Defendant specifically denies owing Plaintiff the sum Plaintiff claims. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff s Complaint with prejudice, assess all costs against Plaintiff, and grant such other relief as the Court deems just and proper. NEW MATTER 11. Plaintiff failed to sell Defendant's automobile for fair mazket value or for a reasonable price. On the contrary, Plaintiff sold Defendant's automobile for a price well below fair mazket value. 12. At the time Plaintiff repossessed Defendant's automobile, the automobile's fair market value exceeded what Defendant owed on the vehicle. 2 15. Plaintiff's damages, if any, are the result of Plaintiff's own actions, not those of Defendant. 16. Plaintiff's claim is barred by the doctrine of failure to mitigate damages. 17. Plaintiff s claim is barred by the doctrine of estoppel. 18. Plaintiff s claim is barred by the doctrine of laches. 19. Plaintiff s claim is barred by the defense of accord and satisfaction. 20. Plaintiff s claim is barred by the doctrine of consent. 21. Plaintiff s claim is barred by the doctrine of duress. 22. Plaintiff s claim is barred by the doctrine of release. 24. Plaintiff s claim is barred by the doctrine of waiver. 25. Plaintiff s claim is barred by the doctrine of collateral estoppel. 26. Plaintiff s cause of action is barred or limited by Plaintiff's failure to off-set properly any amount Defendant may owe Plaintiff, by the fair market value of the vehicle Plaintiff claims to have repossessed from Defendant. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice, assess all costs against Plaintiff, and grant such other relief as the Court deems just and proper. Dated: September 28, 2009 Respectfully submitted, Douglas C. Lovelace, Jr., Esq. Attorney and Counselor at Law 36 Donegal Drive Carlisle, Pennsylvania 17013 (717) 385-1866 Attorney for Defendant 3 CAPITAL ONE AUTO FINANCE, INC. Plaintiff v. SHIRLEY BISHOP Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - IN LAW NO. 09-2214, Civil Term VERIFICATION The undersigned does hereby verify, subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities, that the facts and circumstances set forth in the foregoing Defendant's Answer with New Matter to Plaintiff's Second Amended Complaint are true and correct to the best of her knowledge, information, and belief. Date: September 28, 2009 Shirley B' Defendant CAPITAL ONE AUTO FINANCE, INC. SHIRLEY BISHOP Plaintiff v. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - IN LAW NO. 09-2214, Civil Term CERTIFICATE OF SERVICE I, Douglas C. Lovelace, Jr., attorney for the Defendant hereby certify that on September 28, 2009, I served a true and correct copy of the foregoing Defendant's Answer with New Matter to Plaintiff's Second Amended Complaint in Civil Action upon the below named individual by depositing the same in the United States mail, first class, postage prepaid, at Carlisle, Cumberland County, Pennsylvania. SERVED UPON: Paul J. Klemm, Esquire Nudleman, Nudleman & Ziering, P.C. 425 Eagle Rock Avenue Roseland, NJ 07068 Attorney for Plaintiff ~Yt~4. Douglas (:. Lovelace, Jr., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 Attorney for Defendant {~"~_~ ~ t ,-4 ~r , {ice 2~~9 SEP 2g aY~ '~~ I '~~°~ Gbh ~ `-q .. ` ~ . . !. : i ~ 4. Ftl OFi 1C PAUL J. KLEMM, ESQUIRE PROTHONOTP,Rl NUDELMAN, KLEMM & GOLUB, P.C. '013 JUN 10 PM 2: 15 425 EAGLE ROCK AVENUE ROSELAND,NJ 07068 t;UMBERLANO COUNTY 973-618-0000 PENNSYLVANIA ID #92125 ATTORNEY FOR PLAINTIFF CAPITAL ONE AUTO FINANCE CUMBERLAND COUNTY COURT OF COMMON PLEAS V. SHIRLEY BISHOP NO. 09-2214 ORDER TO DISCONTINUE AND END WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly mark the above-captioned matter as discontinued and ended without prejudice upon payment of your costs only. Date: June 7, 2013 Respectfully Submitted: NUDELMAN, B, P.C. Paul J. Klemm, Esquire 425 Eagle Rock Avenue Roseland,NJ 07068 (973) 618-0000 NN26192