Loading...
HomeMy WebLinkAbout09-3840a s a 2060172 THIS IS AN ARBITRATION MATTER. ASSESSMENT OF 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 Atlantic Credit & Finance Inc. Assignee from HSBC 2727 Franklin Road Roanoke, VA 24014 VS. CHARLOTTE DYARMAN 3 W MAIN ST WALNUT BOTTOM PA 17266-0034 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : oq - 3840 clvr" 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 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 original creditor under the terms of which the original creditor agreed to extend to defendant(s)the use of original creditor'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 original creditor 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 original creditor. 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 May 14, 2009 in the amount of $5,631.35. 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. I 7. Defendant's last payment on account was made on 1/4/2008. WHEREFORE, plaintiff claims of the defendant(s) the sum of $5,631.35 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I. W NBER , ESQUIRE JOEL M. FLINK ES IRE Attorney for intiff P01A.DB 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. §4904 which provides for certain penalties for making false statements. lvaiiie EXHIBIT °A" ;-ac /q-at ATLANTIC CREDIT & FINANCE, INC. V. CHARLOTTE DYAR IAN AFFIDAVIT OF DEBT AND VERIFIED BILL OF PARTICULARS The undersigned being first duly sworn according to law, deposes and says that she is familiar with the policies and practices, as well as the books and records of the Plaintiff with respect to the matters stated herein, and based on information and belief states as follows: 1. Plaintiffs principal business consists of purchasing charged off receivables. 2. The Defendant defaulted on HSBC Account No. 5458001220970283. Said Account was charged off on 7/31/2008 and subsequently sold to Atlantic Credit & Finance, Inc with a balance of $5631.35. 3. Plaintiff purchased or was otherwise assigned this charged off account along with other debts. As a result of the foregoing sale and assignment, the Plaintiff succeeded to all right, title and interest in the charged off account and it now owns the account. 4. Plaintiff conducted a due diligence investigation to determine, among other things, the accuracy of the account information provided to ascertain whether the statute of limitations was a bar to demand or institution of suit. Further, Plaintiff and/or its predecessor entered into a contract where the predecessor made representations and warranties that 1) it had clear right, title and interest in the account; 2) the account was free and clear of all liens and encumbrances; and 3) it had the power, authority, and full right to sell and convey its interest in the account. 5. According to Plaintiffs records, the last payment date wasl/4/2008 in the amount of $ 134.00. After application of all payments, credits, adjustments, and lawful offsets, if any, there is still a balance due and owing on this indebtedness of $5,631.35. 6. The internal Account Statement of Plaintiff is attached hereto as Exhibit A and displays the account information that was provided to Plaintiff at the time of purchase and assignment. The foregoing is true and correct to the best of my knowledge and belief. i By: C on Authorized Representative 0 'I0 il " -° Subscribed and sworn before me, April 20, 2009. Notary Public: Kristen Collins t ?od?%•L1?S,jC. ? titi THIS COMMUNICATION IS FROM A DEBT COLLECTOR i p tot : ° Gordon & Weinberg, P.C.: CGAFF- 3632087 - 0001715 CREDIT & FINA HXWOMFt3 PO Box 13386 . Roanoke, VA 24033 CHARLOTTE DYARMAN PO BOX 34 WALNUT BOTTOM, PA 17266-0034 SSN: XXX-XX-2097 Account Statement Original Creditor Account Number: 5458001220970283 Original Creditor: HSBC Original Creditor Last Pay Date: 1/4/2008 Original Creditor Last Payment Amount: $ 134.00 Original Creditor Charge Off Date: 7/31/2008 ACF ID Number: 3632087 Purchased ACF Payment Current Balance Balance Activity $5,631.35 $ .00 $5,631.35 ACF Payment Date: CONFIDENTIAL PROPERTY OF ATLANTIC CREDIT & FINANCE, INC. 0 RLE" MCe OF THE PRQi-iCNOTAPY 1009 JUA 10 Pfd 1: 01 P E t N60'`WNNiA. r 1g.50 06 AT" CAC:* .211? as Sheriffs Office of Cumberland County R Thomas Kline ox0v of cltut6ct,4t Edward L Schorpp Sheriff Solicitor A§ Ronny R Anderson Jody S Smith Chief Deputy OFFICE Of THE $4 FUr Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 06/13/2009 08:58 AM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on June 13, 2009 at 0858 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Charlotte Dyarman, by making known unto Ryan Swartz, son of defendant at 3 W. Main Street Walnut Bottom, Cumberland County, Pennsylvania 17266 its contents and at the some time handing to him personally the said true and correct copy of the same. SHERIFF COST: $40.60 June 15, 2009 SO ANSWERS, ICU. IT THOMAS KLINE, SHERIFF Deputy/Sheriff 2009-3840 Atlantic Credit & Finance V Charlotte Dyarman N z CA Cl> .? Lrg ti -G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA ATLANTIC CREDIT & FINANCE, INC., Assignee of HSBC, Plaintiff, V. CIVIL ACTION - LAW CHARLOTTE DYARMAN, DOCKET NO. 09-3840 Civil Term Defendant. Please enter my appearance for the Defendant in the above. /?? Date: Geoffrey M.Bi nger 401 E.Louther Street Carlisle,PA 17013 (717)243-9400 CC- 7W -(?f?MTARY 2w JUN 29 PM 1: 5 4 p NSYLVANA Ci IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA ATLANTIC CREDIT & FINANCE, INC., Assignee of HSBC, Plaintiff, V. CHARLOTTE DYARMAN, Defendant. CIVIL ACTION - LAW DOCKET NO. 09-3840 Civil Term PRELIMINARY OBJECTIONS TO COMPLAINT - CIVIL ACTION Defendant moves for the dismissal of Plaintiff's Complaint - Civil Action, and as grounds therefore avers the following: Failure to Conform to Law and Rule of Court 1. Plaintiff filed a Complaint-Civil Action demanding damages in the amount of $ 5,631.35, plus costs, interest and attorney's fees. 2. Plaintiff alleges it is owed certain funds by Defendant, presumably with an assignor, HSBC, and, by assignment, has a right to collect a debt. 3. Such a writing in the form of an assignment would form the very core of Plaintiff's case, but such writing has not been appended to the Complaint, nor its absence explained, as required by Pa. R. Civ. P. No. 1019(h) and (i). 4. The Complaint fails to attach any agreement between the Defendant and the original creditor which agreement forms the basis of any claim by the original creditor or assignee. 5. The Complaint fails to provide any documentation or accounting of charges allegedly made by the Defendant, which would support Plaintiff's claim of damages, such as a breakdown of charges, payments and interest, so that Defendant could bring a Motion for Summary Judgment based upon affirmative defenses such as the Statute of Limitations and/or counterclaims. More Specific Complaint 6. Paragraphs 1 - 5 are incorporated hereinafter by reference hereto. 7. The Complaint contains alleged claims for money owed, but fails to specifically account for the purported sums outstanding and for the amounts of payments made. 8. The Complaint fails to be specific as to the allegations of the amount due and owing and to state specific services or goods purchased by Defendant. 9. Even if an agreement was implied rather than written, Plaintiff has failed to specifically plead the date of default and provide an accounting of the amounts paid pursuant to an implied contract. 10. Plaintiff fails to state specifically how Defendant was enriched by the use of credit and fails to account for any payments made pursuant to a written agreement, a contract implied in law, or a theory of unjust enrichment. 11. Defendant is entitled to know how she has been enriched by the provisions of goods and or services and how payments have been applied to any alleged goods or services provided. Legal Insufficiency of a Pleading, Demurrer as to Failure to Attach Sinned Agreement 12. Paragraphs 1-11 are incorporated hereinafter in reference hereto. 13. The Complaint fails to attach a signed copy of the purported agreement or the assignment between the original creditor and the Defendant. WHEREFORE, Defendant prays that these Preliminary Objections be sustained and the Defendant's Complaint be dismissed with prejudice. Date: Respectfully submitted: MidPenn Legal Services Ao eys for Defendant At BY: Geoffrey M. Biringer, Esquire 401 E. Louther Street Carlisle, PA 17013 (717) 243-9400 ID#18040 CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing Preliminary Objections To Complaint on this 29th day of June, 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 By: Geoffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 RLED-OfFa OF ff PROTHWI TARY 2009 JUN 29 Pit I: 54 CUMBE LLL-4`li-' f:"OUNTY PENNSYLVANIA ,~~ ~ 2060172 '~_ ~~'°'~ CORDON & WEINBERG, P . C . -, .. `~+ '~~~ ~~ ~ .:? ~; BY: FREDERIC I . WEINBERG, ESQUIRE ~.~~r .t':;f`,_. , ~„ '.~(~ Identification No.: 41360°' '~~' +~ ~+'~f'~' JOEL M. FUNK, ESQUIRE Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 Atlantic Credit & Finance Inc. Assignee from HSBC COURT OF COMMON PLEAS CUMBERLAND COUNTY vS . CHARLOTTE DYARMAN DOCKET N0. 09-3840 PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above-captioned action, without prejudice. CORDON & WEINBERG, P.C. BY: FREDERIC I. WEIN RG, ESQUIRE NOEL M. FLI QUIRE Attorney for Plaintiff P006 CERTIFICATION OF SERVICE I, FREDERIC I. WEINBERG, ESQUIRE, hereby certify that I, on the date below, served a copy of the Praec:ipe to Withdraw Complaint to Pa.R.C.P. 1028(c)(1), via First Class Mail, postage pre-paid, to all other parties or their counsel of record. ~~' ~_ FREDERI EINBERG, ESQUIRE Dated l~% ~ ~ ~ `~'