HomeMy WebLinkAbout09-4224ROBERT D. KODAK, ESQUIRE
KODAK & IMBLUM, P.C.
407 N FRONT STREET, PO BOX 11848
HARRISBURG, PA 17108-1848
(717) 238-7159 Attorney for Plaintiff
BRANCH BANKING & TRUST CO '•. IN THE COURT OF COMMON PLEAS
Plaintiff Cumberland COUNTY, PENNSYLVANIA
v NO. f7q _ Haab Ctvi l T?,IIM
DAVID LUPO
Defendant(s) CIVIL ACTION - LAW
NOTICE/AVISO
YOU HAVE BEEN SUED IN
COURT. If you wish to defend against the
claim set forth in the following pa es, 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
t dgment may be
proceed without you and au
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.
USTED HA SIDO DEMANDADO/A EN
CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en
las siguientes paginas, debe tomar accion
dentro de los proximos vemte (20) dias despues
de la notificacion de esta Demanda y AVISO
radicando personalmente o por medio de un
abogado una comparencencia 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 accion 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
reclamacion o remedio solicitado por el
demandante puede ser dictado en contra suya
por la Corte sin mas 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 VAYAA LA SIGUIENTE
OFICINA. ESTA OFICINA PUEDE
PROVEERLE INFORMACION A CERCA DE
COMO CONSEGUIR UN ABOGADO.
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 ATA REDUCED FEE
OR NO FEE.
SI USTED NO PUEDE PAGAR POR
POSIBLERQUE ESA OFICINAOLE DPOEDA
PROVEER INFORMACION SOBREAGENCIAS
QUE OFREZCAN SERVICIOS LEGALES SIN
CARGO O BAJO COSTO A PERSONAS QUE
CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
TWO LIBERTY AVENUE
CARLISLE PA 17013
717-249-3166
BRANCH BANKING & TRUST CO
Plaintiff
DAVID LUPO
v
Defendant(s)
IN THE COURT OF COMMON PLEAS
Cumberland COUNTY,
PENNSYLVANIA
NO.
CIVIL ACTION - LAW
COMPLAINT
The Plaintiff, BRANCH BANKING & TRUST COMPANY, by its attorneys, KODAK
& IMBLUM, P.C., brings this action of Assumpsit against the Defendant(s) to recover the
sum of TWENTY TWO THOUSAND NINE HUNDRED FIFTY-FOUR DOLLARS AND
SIXTY-EIGHT CENTS ($22,954.68), along with interest thereon at the rate of 9.89% from
March 26, 2009, upon a cause of action of which the following is a statement:
1. The Plaintiff, BRANCH BANKING & TRUST COMPANY, is a corporation organized
and existing under the laws of the State of North Carolina, having its principal office
and place of business at 1410 Coulter Drive, Roanoke, VA 24012.
2. The Defendant(s), DAVID LUPO, is/are adult individual(s) residing at 200 First
Street, Summerdale, Cumberland County, Pennsylvania 17093.
3. On or about November 7, 2006, the Defendant(s) did enter into a Retail Installment
Sale Contract and Security Agreement for the purchase of a 2006 Cadillac SRX.
4. The Defendant(s) defaulted on the obligation to make payments by neglecting and
refusing to honor the remaining contract payments.
F:\USER\ROBIN\CCP&DJ CMPS\CCP COMPLAINTS\BB&T - BRANCH BANKING & TRUST\35657.wpd 2
5. After proper notification the Defendant(s) vehicle was repossessed with an
outstanding balance due and owing. Thereafter, said vehicle was sold at auction.
6. Said sale left a deficiency balance due and owing in the amount of Eighteen
Thousand Three Hundred Sixty-Three Dollars and Seventy-Four Cents
($18,363.74) as set forth Plaintiff's Affidavit of Account attached hereto, marked
Exhibit "A" and made a part hereof.
7. Due to the default of Defendant(s), and pursuant to the terms and conditions of the
Retail Installment Sale Contract executed by Defendant(s), attorney's fees in the
total amount of Four Thousand Five Hundred Ninety Dollars and Ninety-Four Cents
($4,590.94) have been added to said account.
8. Plaintiff frequently demanded payment from Defendant(s) of said amount due and
owing as aforesaid, but Defendant(s) refused and neglected and still refuse and
neglect to pay said amount of any part thereof.
WHEREFORE, Plaintiff brings this suit to recover from Defendant(s) the sum of
TWENTY TWO THOUSAND NINE HUNDRED FIFTY-FOUR DOLLARS AND SIXTY-
EIGHT CENTS ($22,954.68), together with interest as set forth herein.
Respectfully submitted,
KODAK &JMBt:D I, P.C.
Robert D. Kodak, Esquire
407 North Front Street
Post Office Box #11848
Harrisburg, PA 17108-1848
(717) 238-7159
Attorney ID No. 18041
Attorney for Plaintiff
LL_ cT
O
ZED)
AFFIDAVIT 9- INDIRECT SOLD AFFIDAVIT
VIRGINIA:
Branch Banking & Trust Co.
A Corporation,
Plaintiff,
V.
David Lupo
Defendant (s). )
STATE OF VIRGINIA )
CITY/COUNTY OF ROANOKE )
follows: I, Robin Crockett, being an individual over the age of 18 and competent to testiP6 state and depose as
I. That I am an employee of Branch Banking and Trust Company ;
2. Branch Banking and Trust Company is an agent for Branch Banking & Trust Co for the purposes of
collecting this debt;
3. That the following facts are true:
a. that on or about November 7, 2006 signed an Installment Sale
And Security Agreement bearing interest at 9.89%, a copy of which is attached
hereto;
4.. That on or about August 29, 2008 Defendants(s) defaulted on said
Contract;
a that Plaintiff repossessed and sold the collateral securing said contract;
b. that on February 25, 2009_ , Plaintiff sent notice to Defendant(s) showing
the application of the sale proceeds and demanding payment of the
deficiency balance in the amount of $18,363.74
c.. that $0 has been received and applied to the deficiency balance,
Adjusting the balance now due and owing under the contract to $18.,363.74
and;
d. that under the terms of the contract, Defendants(s) is (are) liable for attorney
fees and court costs incurred by Plaintiff in any action to collect the balance due under the
Contract;
5. That the debit herein described is now due and owing from Defendant(s) to Plaintiff,
And
6. _x_The defendant is not now on active military service as defined by the Service Members Civil
Relief Act.
or
-Based upon my review of the credit application, credit report, and/or other demographical data,
the defendant is, upon information and belief, in the military service.
I DO SOLEMNLY SWEAR AND AFFIRM er penalties of pe ' e contents of the foregoing affidavit are
true to the best of my knowledge, informatio d belief
i?2k?? k1A
Recovery Rep se tative for Branch Banking and Trust Company
State of Virginia City of Roanoke
Subscribed and sworn to before me
(G B. (q/,.
'is 30 April 2009. w
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Account#90535142321001
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EXHIBIT ?_
VERIFICATION
I? Teresa Slate Banking officer
(nome) (IRIO)
of Branch Banking & Trust Company, verify that the statements made in the aforegoing
document are true and correct. I understand that false statements herein are made subject
to the penalties of 18 Pa. C. S. §4904, relating to unsworn falsification to authorities.
Branch Banking & Trust Company
BY: AlAda
TITLE: Banking Officer
Date: 6/4/09
35657/90535142321001
Lupo
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Sheriffs Office of Cumberland County
R Thomas Kline ????ttrt?r?rr@,r#4j1 Edward L Schorpp
Sheriff Solicitor
Ronny R Anderson Jody S Smith
Chief Deputy OFF CE ')F 'i 'r Civil Process Sergeant
Branch Banking & Trust Co.
vs.
David Lupo
Case Number
2009-4224
SHERIFF'S RETURN OF SERVICE
06/25/2009 01:50 PM - Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on June
25, 2009 at 1350 hours, she served a true copy of the within Complaint and Notice, upon the within namec
defendant, to wit: David Lupo, by making known unto himself personally, defendant at 200 First Street
Summerdale, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to him
personally the said true and correct copy of the same.
SHERIFF COST: $37.44 SO ANSWERS,
June 26, 2009
R THOMAS KLINE, SHERIFF
c - , "'. ukla r
De y Sherif
n lag o
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,
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07/.13/2009 09:29 5865325001 LUPO K.OCZKUR PAGE 02/06
BRANCH BANKING & TRUST CO
Plaintiff
Vs.
DAVID LUPO
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 094224 Civil Term
CIVIL AC71ON - LAW
AND NOW COMES the defendant, DAVID LUPO, in pro per, and files the
following answer and affirmative defenses to plaintiff's Complaint:
ANSWER
1. After reasonable investigation and inquiry, defendant is without
knowledge or information sufficient to fully attest to the truth, of the averments asserted
in paragraph 1. Accordingly, such averments are deiced.
2. Defendant admits that he is an adult residing at 200 First Street,
Summerdale, Cumberland County, Pennsylvania, 17093.
3. This defendant does not deny that he entered a Retail Installment Sale
Contract and Security Agreement for th@ purchase of a 2006 Cadillac SRX.
4. This defendant denies the allegations contained in this paragraph.
5. This defendant denies that the allegations contained in this paragraph
adequately and completely set out the facts as stated. In fact, defendant states that an
agreement was made with the lender for payments to be made. Plaintiff, after making
said agreement with defendant, did repossess the vehicle and sell the vehicle at auction
at a price much lower than its actual value. Defendant asserts that plaintiff sold the
vehicle at a much lower price than necessary than was reasonable. Further, defendant
07/L3/2009 09:29 5865325001 LUPO KOCZK.UR PAGE 03/06
had a two year complete service agreement which defendant paid $2,000 for which
would add to the vehicle of said vehicle,
6. This defendant denies that the deficiency balance as pled by plaintiff is
reasonable. Defendant avers that the car was sold. at auction at a price much lower than
reasonable and defendant requests discovery into said transaction.
7. This defendant denies that the attorney fees of $4,590.94 are reasonable
under any circumstances in this matter and that said $4,590.94 would be unreasonable
for the little work of filing a complaint and serving said complaint. Said attorney fees
bear no relation to reality.
8. This defendant denies that the allegation sets out the facts as they exist in
this case for the reason that said facts arg untrue.
WHEREFORE, defendant, DAVIT) LUPO, denies liability under any theory to
this party for any sum and respectfully requests this Honorable Court to enter
judgment in his favor.
TUS„Y TlltfAL DEMANDED
7? t ??
DAVID LUPO
Defendant, In Pro Per
200 First Street
Surnmerdale, PA 17093
Dated: July 14, 2009
2
07/1'3/2009 09:29 5865325001 LUPO KOCZKUR PAGE 04/06
AFFIRMATIVE AND SEPARATE DEFENSES
9. Paragraphs I through 8 are hereby restated and incorporated herein as
fully set forth at length. Without conceding that the defendant has the burden of proof
with respect to any defenses and affirmatively stating that plaintiffs have the burden of
proof, defendant serves the following defenses and reserves the right to assert
additional defenses at or before the trial:
FIRST IRFIRMATIVE DEFENSE
10. All or part of plaintiff's complaint fails to state a claim against defendant
upon which relief can be granted and therefore this matter should be dismissed.
SECOND AFFIRMATIVE DEFENSE
11, Defendant did have an agreement with the holder of the title of the
vehicle and said agreement was disregarded by plaintiff.
THIRD OFF R14ATIVE DEFENSE
12. That insufficient consideration passed between the parties and thus any
contract between the parties was void.
FOURTH AEFIRMATIVE DEFENSE
13. Plaintiff had a duty to mitigate damages and failed to do so by failing to
attempt to get a reasonable price for said vehicle once it had been repossessed.
3
07/1'3/2009 09:29 5665325001 LUPO KOCZKKUR PAGE 05/06
FIFTH AFFIRMATIVE DEFENSE
14. That plaintiff further failed to mitigate its damages by failing to maximize the
possible return and sale of the vehicle and in fact sold said vehicle "at any price".
SIXTH ,AFp AT'IVE DEFENSE
15 Defendant reserves the right to rely upon any such defense that may
become apparent or available through discovery.
WHEREFORE, defcn.dant, DAVID LUPO, denies liability under, any theory and
respectfully requests this Honorable Court to enter judgment in its favor.
JURY TRIAL DEMANDED
Dated: July 14, 2009
DAVID LUPO
Defendant, in Pro Per
200 First Street
Summerdale, PA 17093
4
07/13/2009 09:29 5665325001
LUPO KOCZkUR
CERT' PI ATE OF S
ER V_`
PAGE 06/06
I, David Lupo, hereby certify that true and correct
m copies of the foregoing
Answer and Affirmative Defenses to Plaintiff's co
of Jul Pla,,it have been served this 14th da
y, 2009' by U.S• first-class mail, postage pre- aid t O P o counsel of, record listed below.
Mr. Robert D. Kodak
Kodak & Imblum, PC
407 N. Front Street
PO Box 11848
Harrisburg, PA 17108-1848
DAVID LUM, Defers ant, In Pro Per
200 .First Stxrect
Summerdaie, PA 17093
14
A
OF <t,4,
David D. Buell t e Q Renee X Simpson
•Prothonotary ,7 ` ., 15` Deputy cProthonotaay
Pv' a
�irkS. Sohonage, ESQ _,a, Irene E. Morrow
Solicitor 1750 2'1(Deputy Prothonotary
Office of the Prothonotary
Cum6erlancf County, Pennsylvania
69-42z/ CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 291H DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE—THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH
PA R.C.P.230.2.
BY THE COURT,
DAVID D. BUELL
PROTHONOTARY
One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • 'Fax,(717)240-6573