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HomeMy WebLinkAbout09-5744I- 1% Our " File No.: 222137 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire, Esq. Attorney I.D.#38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff CACH, LLC c/o Apothaker & Associates, P.C 520 Fellowship Road C306 Mount Laurel, NJ 08054 Plaintiff, vs. COURTNEY A PARKER 713 MANOR RD CAMP HILL, PA 17011 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 01'- 5 7 `f tl e?-d 7c? 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 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 Our File No.: 222137 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire, Esq. Attorney I.D.#38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff CACH,LLC c/o Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Plaintiff, vs. COURTNEY A PARKER 713 MANOR RD CAMP HILL, PA 17011 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: d 9- 5744 0`6- P J ems" CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is CACH, LL C c/o Apothaker & Associates, P.C., 520 Fellowship Road C306, Mount Laurel, NJ 08054. 2. Defendant(s) is/are COURTNEY A PARKER, an adult individual residing at 713 MANOR RD CAMP HILL, PA 17011. 3. Plaintiff, CACH, LLC, is the Assignee and Successor in Interest of Account #4888934999007056; and said account was issued to Defendant(s) by BANK OF AMERICA, N.A., the Original creditor 4. Defendant received, accepted and used the account to its benefit. 5. This account is in default and Defendant(s) has an unpaid balance of $9,919.92. A true and correct copy of the total due and owing is attached hereto, made a part hereof and marked as Exhibit "A". 6. All credits, if any, to which Defendant(s) is entitled, have been applied to the account and are included in Exhibit "A". 7. Although demand has been made, Defendant(s) has failed to make payment of the amount due as above. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $9,919.92 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & AS CIATES, P.C. Attorney fo Pl 'ntiff A Law Firm Engage in Debt Co ctiol BY: David J. ApothaVer, Esquire Dated: 8/14/2009 Our File No.: 222137 VERIFICATION David J. Apothaker, Esquire hereby states that I am counsel for plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904 relatinkto unworn falsification to authorities. David J. Apothkcer, Esquire Attorney for Plaintiff DATE: 8/14/2009 CACH, LLC COURTNEY A PARKER 713 MANOR RD CAMP HILL, PA 17011 STATEMENT OF ACCOUNT Debtor's Name: COURTNEY A PARKER Account Number: 4888934999007056 Original Creditor: BANK OF AMERICA, N.A. Balance Due: $9,919.92 Our File No.: 222137 EXHIBIT "A" CJ OF The P7 2004 AUG 19 PH ;;: t; 7 CUM'-- ;vT`( -Pd _ z '7,: St F!L.EU OL::--,",c `". Sheriffs Office of Cumberland County R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant OFFiGE ^t T-" 5rERIFF FE i ?4 j?E OF T141? ,,,TAPY 2009A0028'.g 1:03 IV'?y PC •l! ff IT o. Edward L Schorpp Solicitor Cach, LLC I Case Number vs. 2009-5744 Courtney A. Parker SHERIFF'S RETURN OF SERVICE 08/21/2009 08:03 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on August 21, 2009 at 2003 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Courtney A. Parker, by making known unto Jeff Parker, Husband of defendant at 713 Manor Road Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $41.50 August 24, 2009 SO ANSWERS, SO R THOMAS KLINE, SHERIFF Deputy Sheriff CACH, LLC Plaintiff. V. COURTNEY A.PARKER Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 09 - 5744 - Civil Term CIVIL ACTION -LAW Please enter my appearance for the Defendant in the above. Date: Geoffrey M.Biringer 401 E.Louther Street Carlisle,PA 17013 (717)243-9400 Supreme Court ID#18040 RLED° OF THE RR6-f ?'--)NOTNRY 2009 S EP 14 All I I: 30 CU??3?_. .ifs ????•? ?:? i &rs ?!N 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA CACH, LLC, Plaintiff, V. : CIVIL ACTION - LAW COURTNEY A. PARKER, DOCKET NO. 09-5744 Civil Term Defendant. PRELIMINARY OBJECTIONS TO COMPLAINT Defendant moves for the dismissal of Plaintiff's Complaint, and as grounds therefore avers the following: Preliminary Objection Pursuant to Pa R Civ. P No 1078(a)(4) emurrer 1. Plaintiff filed a Complaint-Civil Action demanding damages in the amount of $ 9,919.92, plus costs, and interest. 2. Plaintiff alleges it is owed certain funds by Defendant following an assignment from the original creditor, Bank of America. 3. The Complaint fails to attach any agreement between the Defendant and the Plaintiff or its assignor, or the assignment to the Plaintiff itself, both of which agreements would form the very core of Plaintiff's case. 4. The Complaint fails to provide any documentation or accounting of charges allegedly made by the Defendant, other than a summary "Statement of Account," 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. P, 5. Paragraphs 1 - 4 are incorporated hereinafter by reference hereto. 6. 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. 7. 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. 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. 9. 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. 10. 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. Preliminary Objection Pursuant to Pa. R. Civ. P. No. 1028(a)(2) (Failure to Attach a Writing) 11. Paragraphs 1-10 are incorporated hereinafter in reference hereto. 12. The Complaint fails to attach a signed copy of the purported agreement between the creditor or the assignor and the Defendant, and fails to attach a copy of the the assignment made to the Plaintiff. WHEREFORE, Defendant prays that these Preliminary Objections be sustained and the Defendant's Complaint be dismissed with prejudice. Date: UO (? Respectfully submitted: MidPenn Legal Services Atto eys for Defendant 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 Answer on this 14th day of September 2009, by placing same in the United States mail, first class, postage prepaid, addressed as follows: David J. Apothaker, Esquire 520 Fellowship Road C306 Mount Laurel, NJ 08054 l?, By: ??L . Ge ffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 4FTH5 jn'r 1r. NARY 2009 SEP 14 AM 1 I *- 31 ,, CUM, Our File No.: 222137 APOTHAKER & ASSOCIATES, P.C. BY: Kimberly F. Scian, Esquire Attorney I.D.955140 520 Fellowship Road C306 Mount Laurel, NJ 0804 (800) 672-0215 Attorneys for Plaintiff CACH,LLC c/o Apothaker & Associates, P.C 520 Fellowship Road C306 Mount Laurel, NJ 08054 Plaintiff, vs. COURTNEY A PARKER 713 MANOR RD CAMP HILL, PA 17011 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 09-5744 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 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 Our File No.: 222137 APOTHAKER & ASSOCIATES, P.C. BY: Kimberly F. Scian, Esquire Attorney I.D.#55140 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff CACH, LLC c/o Apothaker & Associates, P.C 520 Fellowship Road C306 Mount Laurel, NJ 08054 Plaintiff, vs. COURTNEY A PARKER 713 MANOR RD CAMP HILL, PA 17011 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 09-5744 AMENDED COMPLAINT FIRST COUNT 1. Plaintiff is CACH, LLC c/o Apothaker & Associates, P.C., 520 Fellowship Road C306, Mount Laurel, NJ 08054. 2. Defendant is COURTNEY A PARKER, an adult individual residing at 713 MANOR RD CAMP HILL, PA 17011. 3. Defendant applied for and received a credit card from BANK OF AMERICA, N.A. account number 4888934999007056. 4. Defendant used the credit card, account number 4888934999007056, and as of September 04, 2009 there was an outstanding balance due and owing in the amount of $9,991.60. 5. Plaintiff purchased this account and presently owns and holds this account. 6. When Plaintiff purchased this account there was an outstanding balance due and owing of $9,991.60. Attached hereto as Exhibit "A" are the Affidavit and Statements. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $9,991.60 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law Firm Engaged in Debt Collection BY: L_ Kimberly F Scian, Esquire Dated: 10/6/2009 Our File No.: 222137 VERIFICATION Kimberly F. Scian, Esquire hereby states that I am counsel for plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unworn falsification to authorities. ?;mberly . Scian, Esquire Attorney or Plaintiff DATE: 10/6/2009 Our File No.: 222137 APOTHAKER & ASSOCIATES, P.C. BY: Kimberly F. Scian, Esquire Attorney I.D.955140 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff CACH, LLC Plaintiff, VS. COURTNEY A PARKER Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 09-5744 CERTIFICATION OF SERVICE I, Kimberly F. Scian, Esquire, attorney for Plaintiff, certify that on 10/6/2009, I mailed a copy of the Amended Complaint by Regular mail to GEOFFREY M BIRINGER, ESQUIRE 401 EAST LOUTHER ST STE 103 CARLISLE, PA 17013 Date: 10/6/2009 Kimberl F. cian, Esquire Attorney f o r laintiff Our File No.: 222137 COLLECT AMERICA, LTD. Litigation and Recovery Department OFFER TO PLACE ACCOUNT FOR LITIGATION ON CONTINGENCY FEE BASIS To: APOTHAKER & ASSOC. Date: 0712012009 PLEASE FAX ATTN: LEGAL DEPT. (303)-713-2515 Collect America® offers to place with your law firm the account described below pursuant to the terms of the Local Counsel Agreement and the Master Forwarding Attorney Agreement between your law firm and Collect America@, and the additional terms herein. This form must be signed and returned to Collect America@ via fax within 24 hours of receipt; or Collect America@ may offer this account to a different firm or attorney. This placement is made for the limited period of 120 days. Local counsel shall be compensated for providing legal services pursuant to your Collection Agreement with Collect America@, including all contingency rates and exceptions contained therein. BASIC BASIC DESCRIPTION OF ACCOUNT Owner of DebtlPlaintiff's Name: CACH, LLC Original Creditor: BANK OF AMERICA. N.A. Collect America Account No: 15146181081002683 Credit Card No: 4888934999007056 Debtor's Name: PARKER, COURTNEY A Type of Debt: CREDIT CARDS WORK STANDARDS Validation Letter To Be Mailed Within Two Business Days: For each account placed, you shall, within 2 business days of your acknowledgement of receipt of placement, mail to the consumer(s) a debt validation letter in compliance with 15 U,S.C_ 16928, and also pursuant to any and all applicable state enactments and requirements. Within 35 days From Placement: If the consumer(s) fail to dispute the debt, and refuses or has not agreed to acceptable settlement terms (subject to approval by Collect America(&) the law firm shall proceed with litigation as against the consumer(s). The law firm hereby agrees to send a fax copy of the Summons and Complaint, including any and all additional motions and pleadings, to Collect America@ at the fax number provided above. Once Judgment has been Awarded: Once judgment has been obtained on the case, your firm shall send a fax copy of the Court's Official Judgment Award, which should include the following information: (1) name and address location of the Court. (2) full name(s) of the parties to the case, (3) docket or case number, (4) date judgment awarded, (5) dollar amount of Principal, (6) dollar amount of Interest, (7) dollar amount of Attorney Fees, (8) dollar amount of Court Costs, (9) and the pre- and post-judgment interest rates. to Collect America@ at the fax number provided above. Monthly Update Reports to Collect America: Your firm hereby agrees to provide Collect America@ with monthly status reports on this account, containing a detailed summary of the work completed by local counsel, specific reasons for any delays, the next scheduled activity date on the account, and any other pertinent information by regular mail. facsimile, email (to your designated legal department representative), or other method agreed to, including third-party data-bases. The above work standards do not supersede any legal requirements imposed upon your law firm by operation of law or regulation, Collect America@ may retrieve or recall any account on which work standards are not current or satisfactory. REPRESENTATIONS, WARRANTIES, FEES and CONFIDENTIALITY Collect AmericaO makes no warranty as to the accuracy or validity of data provided by Client/Forwarder and no warranty is made concerning collectibility. The Collect America@ agreement between it and its client shall be controlling and shall supersede anything herein if necessary. By your acceptance of this account you agree to indemnify Collect America@ from any liability for your wrongful acts. You agree not to violate any State or Federal laws in connection with accepting and collecting these accounts. You agree to immediately notify Collect America? of any suit or threatened suit with respect to any placed accounts. Prior to your acceptance, you are responsible to determine your legal and ethical ability to collect these accounts. By your acceptance you agree that if you are unable to work any account(s) placed hereunder. you will promptly notify Collect America@ and you will promptly return such account(s). The monies collected on this account shall be applied pursuant to the terms of your Local Counsel Agreement. Requests for direct pay verification, costs and for VOD must be faxed to Collect America@ at (267)-295-2840 All information you receive, including, but not limited to, clientiforwarder name, placement amount, fee arrangements, amounts collected and the contingency fee agreement, is deemed confidential pursuant to the attorney-client relationship and is deemed a proprietary trade secret and shall always be held in strict confidence and shall not b .'+"11, t 4 tu},lihed or divulged to anyone outside your office ?t, 11 ,r' This law firm accepts the placement of the described accounts on the terms described above. Date- day of .200 Authorized to be offere - Signature Of Attorney Authorized To Act For Law Firm t JUL 2 ¢ 2000 f? Printed Name Of Attorney __ Michelle Holderness, Esq.. Counsel Collect America. LTD -S AIRWAYS" DIVIDEND MILES FieFareo for: COURTNEY A PARKER Accot.nt hunter: 4356 0233 0037 6021 September 2008 Statement Cteod Lne: $7,000.00 Cash o/ Cleoll A ia,aSie: s Summary of Transactions Billing Cycle and Payment Information Previous Balance $7,957.23 Days in Billing Cycle 30 Payments and Credits - $0.00 Closing Date 09/04/08 Purchases and Adjustments + $39.00 Periodic Rate Finance Charges + $191.98 Payment Due Date 09/29/08 Transaction Fee Finance Charges + $0.00 Current Payment Due $310.00 Past Due Amount + $1,786.00 New Balance Total $8,188.21 Total Minimum Payment Due r `" ' # Promotional Posting Transaction Reference Account Purchases and Adjustments Offer ID Date Date Number Number Amount LATE FEE FOR PAYMENT DUE 08130 08/30 06/30 7957 39.00 OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE Fiamar?ana ColiesponangAnnua Af-A Baance 5ijb/act to Category 7ta-1sac11on 7ypes Gary Fenaoic Rate FercenM96 Fiats 7ype Finance Chaige Balance Transfers 0.079425% V 28.99% S $0.00 Cash Advances 0.079425% V 28.99% S $673.29 Purchases 0.079425% V 28.99% S $7,384.08 Annual Percentage Rate for this Billing Period: 28.990A (Includes Periodic Rate Finance Charges and Transaction Fee Finance Charges that results in an APR which exceeds the Corresponding APR above.) APR Type Definitions: Daily Interest Rate Type: V- Variable Rate (Interest Rate may vary); APR Type: S_ Standard APR (APR normally in effect) 05 0081882100209600000300000004888934011789921 BANK OF AMERICA Check here for a change of mailing address or phone number(s). Please provide all corrections on the reverse side. P.O. BOX 15726 P"e WILMINGTON, DE 19886-5726 +9111+1I1n11111111111"fll'?I??IIIIIII?'1'Illllr11l ACCCUN7 NL/MBEFi: 4356 0233 0037 6021 hE A BALANCE 7C7AL: $8,188.21 FAVME1V7 OUE DATE: 09/29/08 COURTNEY A PARKER 713 MANOR RD CAMP HILL PA 17011-1718-139 Bankof America Foil ,lotmal,or, or, Ycw AccoL m bs,t: www. bankofamerica_co m Call toll-free 1-800-583-1820 TDD hearing-impaired 1-800-222-7365 Ma-Payments to: BANK OF AMERICA P.O. BOX 15726 WILMINGTON, DE 19886-5726 Ma„ Bng Irgi„i,es la: BANK OF AMERICA P.O. BOX 15026 WILMINGTON, DE 19850-5026 Ente, FeY-M Amount Enc,oaea $ Ma„ 1h,s caymen! coz,,cor, a,ong w,ih a check of money oroet Fayat,e to: BANK OF AMERICA 1:S240222S0III: 126?40LIMI192Ins i m o_ ro INFORMATION ABOUT THIS ACCOUNT CUSTOMER STAT Time) and Saturday USE211 Rev. 04/08 OF DISPUTED ITEM - Please call toll free 1.866.266.0212 Monday-Thursday Sam-9pm (Eastern Time), Friday 8am-7pm (Eastern [F-tor„ Ti"w)_ Fnr oromDt service Please have the merchant reference number(s) available for the charge(s) in question. ALTER WORDING ON THIS FORM AND DO NOT MAIL YOUR LETTER OR Your Name: Transaction Date: Posting Date: Amount $: Disputed Amount S: 1. The amount of the charge was increased from S to S or my sales slip was added incorrectly. Enclosed is a copy of a es slip that shows t?cmea amount. 2.1 cemf}? that the charge listed above was not made by the or a person authorized by ace to use my-card, nor were the goods or service represented by the transaction rexRed by me or a person authorized by me. 3.I have nor received the merchandise that was to be shipped tome on _L_ ! (MM/DD(YY). I have asked the merchant to credit my account. 0 4.1 was issued a credit slip that was no shown on my statement. A copy of my credit slip is enclosed. The merchant has up m 30 days to credit your account 5. Merchandise that was shims? to me has arrived dannag and/or defective. I returned it on /_ (MiyUbD/YY) and asked the get to credit my account Attach a lever describing how the merchand se was damaged and/or defective and a copy of the proof of return. 6. Although I did engage in the above transaction, I have contacted the merchant, returned the merchandise on /_ /_ (MMMDNY) and requested a credit. I either did not receive this credit or it was unsa& ctory. Attacha letter explaining why you are disputing this charge with a copy of the proof of return.If you are unable to retum the merchandise, please explain. 7.1 certify that the charge in question was a si(e transaction, but was posted twee to my statement. I did not authorize the second transaction. Sale #1$ Reference # Sale #2 $ Reference # GRACE PERIOD Grace Period" means the period of time during a billing cycle when you will not accrue Periodic Rate Finance Charges on certain transactions or balances. There is no Grace Period for Balance Transfers and Crash Advances. If you pay in frill this statement's New Balance Total by its Payment Due Date and if you paid in full this statement's Previous Balance in this statement's billing cycle, then you will have a Grace Period during the billing cycle that began the day after this statement's Closing Date on the Purchase portions of this statemene s New Balance TotaL During a 0% Promotional Rate Offer: 1) no Periodic Rate Finance Charges accrue on balances with the 0% Promotional Rate; and 2) you must pay the Total Minimum Payment Due by its Payment Due Date (and avoid any other "promotion turnoff event" as defined in your Credit Card Agreement) to maintain the 0% Promotional Rare. "' If a corresponding Annual Percentage Rare in the Finance Charrggee Schedule on the front of this statement contains a "`°" symbol, then with respLcr to those balances: l) the 0% Promotional Rate will expire at the end of the next billing cycle, and 2) you must pay this statement's New Balance'foud by its Payment Due Date to avoid Periodic Rate Finance Charges after the end of the 0% Promotional Rate Offer on those balances existing as of the Closing Date of this statement. CALCULATION OF BALANCES SUBJECT TO RNANCE CHARGE Average Balance Method (including new Balance Transfers and new Cash Advances): We calculate separate Balances Subject to Finance Charge for Balance Transfers, Cash Advances, and for each Promotional Offer Unce consisting of Balance Transfers or Cash Advances. We do this by: (1) calculating a daily balance for each day in this statement's billing cycle; (2) calculating a daily balance for each day prior to this statement's billing cycle that had a "Pre- Cyck balamt" - a Pre-Cycle balance is a Balance Transfer or Cash Advance with a transaction date prior to this statement's billing cycle but with a posting date within this statement's billing cycle; (3) adding all the daily balances t Fheri?n andhis (4) dividing the sum of the daily balances by the number of cIas in this statetent's bcle. To calculate daily balance for each t statement's billing cycle, we take the beginning balance, add an amount equal to the applicable Daily Periodic Rate multiplied by the previous day's daily balance, add new Balance Transfers, new Cash Advances and and Transaction Fees, and subtract applicable payments and credits. If any daily balance is less than zero we treat it as zero. To calculate a daily balance for each day prior to this statement's billing cycle that had a Pre- Cycle balance, we take the beginning balance attributable solely to Pre-Cycle balances (which will be zero on the transaction date of the first Pre-Cycle balance), add an amount equal to the applicable Daily Periodic Rate multiplied by the previous day's daily balance, and add only the tapphcable Pre Cycle balances and their related Transaction Fees. We exclude from this calculation all aarrsactions pasted in previous billing cycles. Average Daily Balance Method (including new Purchases): We caculate separate Balances Subject to Finance Charge for Purchases and for each Promotional Offer balance consisting of Purchases. We do this by: (1) calculating a daily balance for each day in the billing cycle; (2) adding all the daily balances together; and (3) dividing the sum of the daily balances by the number of days in the billing cycle. OR,M WITH YOUR PAYMENT. Choose only one dispute reason. Account Number: Reference Number: Merchant Name: 8. t notified the merchant on _ f I (MM/DDM) to cancel the preauthoriwd order (reservation). Please note cancellation # and if available, enclose a copy of your contract and a copy of your telephone bill showing date and time of cancellation. Reason for cancellation i cancellation #: 0 9. Although I did engage in the above transaction, I have contacted the merchant for credit. The services to be provided on -I !_ (MMIDDA Y) were not received or were unsatisfitaory. Attach a letter describing the services expected, your attempts to resolve with the merchant and a copy of your contra. Q 10.1 certify that I do not recognize the transaction. Merchants often provide telephone numbers next to their name on your billing statement. Please attempt to contact the merchant for information. 11. If your dispute is for a different reason, please contact us at the above telephone number. Signature (required). Date: Best contact telephone #: Home#: Billing ria}rts are only preserved by written inquiry. To preserve your billing rights, please return a copy of r is form and any snppomng information regarding the merchant charge in question to: Attn: Billing Inquiries, P.O. Box 15026, Wilmington, DE 19850-5026, USA. PLEASE KEEP THE ORIGINAL FOR YOUR RECORDS tV'v'D SEND A COPY OF THIS STATEMFNI: To calculate the daily balance for each day in this statement's bilhng cycle, we take the beginning balance, add an amount equal to the applicable Daily Pericxlic Rare multiplied by the previous day's daily balance add new Purchases, new Ace Dint Fees and new Transaction Fees, and subttact applicable payments and creeliu [f stay daily balance is Tess than zero we treat it as zero. )f the Previous Balance shown on this statement was paid in full in this statement's billing cycle, theta on the day after that payment in full date, vve exclude from the beginning balance new Purchases new Account Fees, and new Tratisacnon Fees which posted on or bek>re that payment in full date and we do not add new Purchases new Account Fees or new Transaction Fees vvhich past after that payment in frill date. We include the costs for the ereelit card debt cancellation plan or credit insurance purchased through us in calculating the beginning balance for the first day of the billing cycle after the billing cycle in which such costs are billed. TOTAL PERIODIC RATE FINANCE CHARGE COMPUTATION Periodic Rate Finance Charges accrue and are compounded on a daily basis. To determine the Periodic Rate Finance Charges, we multiply each Balance Subject to Finance Charge by its applicable Daily Periodic Rate and that result by the number of days in the billing cycle. To determine the total Periodic Rate Finance Charge for the billing cycle, we add the Periodic Rate Finance Charges together Each Daily Periodic Rate is calculated by dividing its corresponding Annual Percentage Rate by 365. HOW WE ALLOCATE YOUR PAYMENTS We will allocate your payments in the manner we determine. In most instances, we will allocate your payments to balances (including transactions made after this statement) with lower APRs before balances with higher APRs. This will result in balances with lower APRs (such as new balances with promotional APR offers) being paid before any other existing balances. Payment Due Dates and Keeping Your Account in Good Statcling Your Payment Due Date will not fall on the same day each month. In order to help maintain any promotional rates, to avoid the imposition of Default Rates (if applicable), to avoid late fees, and to avoid overlimit fees, we must receive at least the Total Minimum Payment Due by its Payment Due Date each billing cycle and you in ust maintain your account balance below your Credit Limit each day. Important Information about Payments by Phone When using the optional Pay-by-Phone service, you authorize Lis to initiatean electronic payment from your account at the financial institution you designate. You must authorize the amount and timing of each payment. For your protection, we will ask for security information. A fee may appply. To cancel, callus before the scheduled payment date. Same-day payments cannot be edited or canceled. MISCELLANEOUS For the complete terms and conditions of your account, consult your Credit Card Agreement. F1A Card Services is a tradename of FIA Card Services, N.A. This account is issued and administered by FIA Card Services, N.A. PAYMENTS We credit payments as of the date received, if the payment is 1) received by 5 p.m. (Eastern Time), 2) received at the address shown in the bottom left-hand comer of the front of this statement, 3) paid with a check drawn in U.S. dollars on a U.S. financial institution or a U.S. dollar money order; and 4) sent in the enclosed return envelope with only the bottom portion of this statement accompanying it. Payments received after 5 p.m. on any day including the Payment Due Date, but that otherwise meet the above requirements, will be credited as of the next day. We will reject payments that are not drawn in U.S. dollars and those drawn on a financial institution located outside of the United States. Credit for any other payments may be delayed tip to five days. No payment shall operate as an accord and satisfaction without the prior written approval of one of our Senior Officers. We process most payment checks electronically by using the information found on your check. Each check authorizes us to create a one-time electronic funds transfer (or process it as a check or paper draft). Funds may, be withdrawn from your account as soon as the same day we receive your payment. Checks are not returned to you. For more information or to stop the electronic funds transfers, call us at the number listed on the front. If you have authorized us to pay your credit card bill automatically from your savings or checking account with us, you can stop the payment on any amount you think is wrong. To stop the payment your letter must reach us at least three business days before the automatic payment is scheduled to occuL If your billing address or contact information has changed, or if your address is incorrect as it appears on this bill, please provide all corrections here. Address 1 _ Address 2 _ City _ State _ Area Code & Home Phone Area Code & Work Phone Zip -n w 0 N V-S AIRWAYS" DIVIDEND MILES Ftepateo tot: COURTNEY A PARKER AccoLrt M Mtel: 4356 0233 0037 6021 Summarv of Transactions Previous Balance $6,933.71 Payments and Credits - $302.00 Cash Advances + $604.00 Purchases and Adjustments + $117.00 Periodic Rate Finance Charges + $177.86 Transaction Fee Finance Charges + $0.00 New Balance Total $7,530.57 May 2008 Statement Crew! Line: $7,000.00 Cash or CreadAta,abie: Billing Cycle and Payment Information Days in Billing Cycle 30 Closing Date 05103/08 Payment Due Date 05/28/08 Current Payment Due $289.00 Past Due Amount + $885.00 Total Minimum Payment Due BankofAmedca--ice' For 10ctmahor, or You Acca rt L,s,t: www.bankofamerica.com Call toll-free 1-800-583-1820 TDD hearing-impaired 1-800-222-7365 Ma, Faymaws to: BANK OF AMERICA P.O. BOX 15726 WILMINGTON, DE 19886-5726 Ma, 8ng /rgod,es 10: BANK OF AMERICA P.O. BOX 15026 WILMINGTON, DE 19850-5026 f Promotional Posting Transaction Reference Account Payments and Credits Offer ID Date Date Number Number Amount PAYMENT -THANK YOU 04/09 9355 302.00 CR Cash Advances PAYMENT RETURNED UNPAID 04/09 04/01 7664 302.00 PAYMENT RETURNED UNPAID 04/17 04/09 9355 302.00 Purchases and Adjustments RETURN CHECK FEE 04/09 04109 7664 39.00 LATE FEE FOR PAYMENT DUE 04/28 04/28 04/28 7274 39.00 OVERUMIT FEE (BASED 05/03 04104 D/20 39.00 ON BALANCE 7,220.71) YOUR ACCOUNT IS OVERLIMIT. TO AVOID AN OVERLIMIT FEE ON YOUR NEXT STATEMENT, WE MUST RECEIVE A CONFORMING PAYMENT, THAT BRINGS AND KEEPS YOUR ACCOUNT BALANCE BELOW THE CREDIT LINE, WITHIN 20 DAYS OF THE ABOVE STATEMENT CLOSING DATE, AND NOT GO OVERLIMIT AGAIN. US AIRWAYS VISA CREDIT CARD MILES C358X22 DIVIDEND MILES ACCOUNT 0 MILES EARNED ON PURCHASES 0 US AIRWAYS PURCHASE BONUS 0 ADJUSTED CREDIT CARD MILES 0 TOTAL MILES THIS CYCLE i s ? s s• s s OUR RECORDS SHOW YOUR ACCOUNT IS PAST DUE 05 0075305700117400000850000004888934011789921 Check here for a change of mailing address or phone number(s). BANK OF AMERICA Please provide all corrections on the reverse sloe. P.O. BOX 15726 WILMINGTON, DE 19886-5726 nt Information III ACCCUh7 hGMBEfi: 4356023300376021 hEABALANCE 7C7AL: $7,530.57 FAVMEh7 GUE BA7E. 05/28/08 COURTNEY A PARKER 713 MANOR RD CAMP HILL PA 17011-1718-139 Enlm feymeni A-m Enaasea Ma, th,s payment coopor, a,org mth a check of money otaet payat,e to: BANK OF AMERICA i:S240222S0i: I M?401, L789921,us CD o_ A IMPORTANT INFORMATION ABOUT THIS ACCOUNT _U_S E 21 1 Rev. 04/08 I CUSTOMER STATEMENT OF DISPUTED ITEM- Please call toll free 1.866.266.0212 Monday-Thursday Sam-9pm (Eastern Time), Friday 8am-7pm (Eastern Time) and Saturday 8am-6pm (Eastern Time). For prompt service please have the merchant reference number(s) available for the charge(s) in question. i I Your Name: Transaction Amount $: _ Posting Date: _ Disputed Amount NOT MAIL YOUR LETTER OR FORM WITH YOUR PAYMENT Account Number: Reference Number: Merchant Name: Q 1. The amount of the charge was increased from S to $ or my sales slip was added incorrectly. Enclosed is a copy of a slip that shrnus the correct amount. Q 2.I certi f}'tliar the charge listed above was not made by the or a person authorized by me to use my card, nor were thhe goods or services represented by the transaction received by me or a person authorized by me. Q 3.1 have not received the merchandise that was to be shipped to me on (MM/DD/YY). 1 have asked the merchant to credit my account Q 4. I was issued a credit sli p that was not shown in my statement. A copy of my credit slip is endued. The merchant has up to 30 days to credit your account. Q i. Merchandise that was shipped to tax has arrived dames and/or defective. l returned it on /`/? (NIMIDD/YY) and asked the merchant to credit my account Attach a letter describing how ih merchandise was damaged and/or defective and a copy of the proof of return. Q 6. Although I did engage in the above transaction, I have contacted the merchant, returned the merchandise on (rMM/DD/YY) and requested a credit. I either did not receive this credit or it was unsawactory. Attach wetter explaining why you are disp this charge with a copy of the proof of return. If you are ratable to return the merchandise, please ex tin. IQ 7.1 certify that the charge in question was a sib transaction, but was posted nvicz to my statement. I did not authorize the second transaction. Sale #1$ Reference # Sale #2 $ Reference #- - -- GRACE PERIOD "Grace Period" means the period of time during a billing cycle when you will not accrue Periodic Rate Finance Charges on certain transactions or balances. There is no Grace Period for Balance Transfers and Cash Advances. If ou pay in full this statement's New Balance Total by its Payment Due Date and if you paid in full this statement's Previous Balance in this statement's billing cycle, then you will have a Grace Period daring the billing cycle that began the day after this statement's Closing Date on the Purchase portions of this statement's New Balance Total. During a 0% Promotional Rare Offer: l) no Periodic Rate Finance Charges accrue on balances with the 0% Promotional Rate; and 2) you must pay the Total Minimum Payment Due by its Payment Due Date (and avoid any other "promotion turn-off event" as defined in your Credit Card Agreement) to maintain the 0% Promotional Rate. v * If a corresponding Annual Percentage Rare in the Finance Charge Schedule on the front of this statement contains a symbol, then with respect to those balances: l) the 0% Promotional Rate will expire at the end of the next billing cycle, and 2) you must pay this statement's New Balance Total by its Payment Due Date to avoid Periodic Rate Finance Charges after the end of the 0% Promotional Rate Offer on those balances existing as of the Closing Date of this statement. CALCULATION OF BALANCES SUBJECT TO FINANCE CHARGE Average Balance Method (including new Balance Transfers and new Cash Advances): We caculate separate Balances Subject to Finance Charge for Balance Transfers, Cash Advances, and for each Promotional Offer balance consisting of Balance Transfers or Cash Advances. We do this by: (1) calculating a daily balance for each day in this statement's billing cycle; (2) calculating a daily balance for each day prior to this statement's billing cycle that had a "Pre- Cycle balance" - a Pre-Cycle balance is a Balancer' Transfer or Cash Advance with a transaction date prior to this statement's billing cycle but with a posting date within this statement's billing ye le; (3) addingg alt the daily balances tooggeetther, and (4) dividing the sum of the daily balances by the number of der in this statement's bdlt?ng cycle. To calculate the daily balance for each day in this statement's billin > cycle, we take the beginning balance, add an amount equal to the applicable Daily Perio(ic Rate multiplied by the previous day's daily balance, add new Balance Transfers, new Cash Advances and and Transaction Fees, and subtract applicable payments and credits. If any daily balance is less than zero we treat it as zero. To calculate a daily balance for each day prior to this statement's billing cycle that had a Pre- Cycle balance, we take the beginning balance attributable solely to Pre-Cycle balances (which will be zero on die transaction dare of the first Pre-Cycle balance), add an amount equal to the applicable Daily Periodic Rate multiplied by the previous day's daily balance, and add only the applicable Pre-Cycle balances, and their related Transaction Fees. We exclude from this calculation all transactions pasted in previous billing cycles. Average Daily Balance Method (including new Purchases): We calculate separate Balances Subject to Finance Charge for Purchases and for each Promotional Offer balance consisting of Purchases. We do this by: (1) calculating a daily balance for each day in the billing cycle; (2) adding all the daily balances together; and (3) dividing the sum of the daily balances by the number of days in the billing cycle. one cnspute reason. Q 8.1 notified the merchant on _I / (MM/DD/YY) to cancel the pre-authorized order (reservation). Please note cancellation # and if available, enclose a copy of your contact and a copy of your telephone bill showing date and tune of cancellation. Reason for cancellation / cancellation Q 9. Although l did engage in the above transaction, I have contacted the merchant forcredit. The services to be provided on _ I`/ (MN/DWY) were nix received or were unsati+haory. Attach a letter describing the services expected, you attempts to resolve with the merchant and a copy of your contract. CQ 10.1 certify, drat 1 do not recognize the transaction. Merchants often provide telephone numbers neat to their name in your billing statement. Please attempt to contact the merchant for information. Q 11. If your dispute is for a different reason, please contact us at the above telephone number. Signature (required): Date: Best contact telephone #: Home: Bilking rights are only preserved by written inquiry. To preserve your billing rights, please return a copy of this form and anyy suppomng information regarding the merchant charge in question to: Arm: Billing Inquiries, BO. Box 15QZ6, Wilmington, DE 19850-026, USA. PLEASE KEEP THE ORIGINAL FOR YOUR RECORDS AND SEND A COPY OF THIS STATEMENT. To calculate the daily balance for each day in this statement's billing cycle, we take the beginning balance, acid an amount equal to the applicable Daily Periodic Race multiplied by the previous day's daily balance, add new Purchases new Avcount Fees and thew Transaction Fees, and subtract applicable payments and credits If any daily balance is less than to we treat it as full i this statement's billing zero. If the Previous &alance shown on this statement was paid in n cycle"he on the day afrer that payment in full dace, we exclude from the beginning balance new Purchases new Account Fees and rtiwv Tratmsactivn Fees which posted on or before that payment in full date and we do not add new Purchases, new Account Fees or new Transaction Fees which post after that payment in full date. We include the costs for the credit card debt cancellation plan or credit insurance purchased through us in calculating the beginning balance for the first day of tam billing cycle after the billing cycle in which such costs are billed. TOTAL PERIODIC RATE FINANCE CHARGE COMPUTATION Periodic Rare Finance Charges accrue and are compounded on a daily basis. To determine the Periodic Rate Finance Charges, we multiply each Balance Subject to Finance Charge by its applicable Daily Periodic Rate and that result by the number of days in the billing cycle. To detenine the total Periodic Rare Finance Charge for the billing cycle, we add the Periodic Rate Finance Charges together Each Daily Periodic Rate is calculated qty dividing its corresponding Annual Percentage Rare by 365. HOW WE ALLOCATE YOUR PAYMENTS We will allocate your payments in the manner we determine. In most instances, we will allocate your payments to balances (including transactions [Wade after this statement) with lower APRs before balances with higher APRs. This will result in balances with lower APRs (such as new balances with promotional APR offers) being paid before any other existing balances. Payment Due Data and Keeping YoLw Aaeoatt in Good Stantli g Your Payment Due Date will not fall on the same day each month. In order to help. maintain any promotional rates, to avoid the imposition of Default Rates (if applicable), to avoid late fees, and to avoid overlimit fees, we must receive at least the Total Minimum Payment Due by its Payment Due Date each billing cycle and you must maintain your account balance below your Credit Lunt each day. Important Information about Payments by Phone When using the optional Pay-by-Phone service, you authorize us to initiate an electronic payment from your account at the financial institution you designate. You must authorize the amount and timing of each payment. For your protection, we will ask for security information. A fee may apply. To care el, call us before the scheduled payment date. Same-day payments cannot be edited or canceled. MISCELLANEOUS For the complete terms and conditions of your account' consult your Credit Card Agreement. IM Card Sen•ices is a tradename of RA Card Services, N.A. This account is issued and administered by FIA Card Services, N.A. PAYMENTS We credit payments as of the date received, if the payment is 1) received by 5 p.m. (Eastern Time), 2) received at the address shown in the bottom left-hand corner of the front of this statement, 3) paid with a check drawn in U.S. dollars on a. U.S. financial institution or a U.S. dollar money order and 4) sent in the enclosed return envelope with only the bottom portion of this statement accompanying it. Payments received after 5 p.m. on any day including the Payment Due Date, but that otherwise meet the above requirements, will be credited as of the next day. We will reject payments that are not drawn in U.S. dollars and chose drawn on a financial institution located outside of the United States. Credit for any other payments may be delayed up to five clays. No payment shall operate as an accord and satisfaction without the prior written approval of one of our Senior Officers. We process most payment checks electronically by using the information found on your check. Each check authorizes its to create a one-time electronic funds transfer (or process it as a check or paper draft). Funds may be withdrawn from your account as soon as the same day we receive your payment. Checks are not returned to you. For more information or to stop the electronic funds transfers, call us at the number fisted on the front. If you have authorized us to pay your credit card bill automatically- from your savings or checking account with us, you can stop the payment on any amount you think is wrong. To stop the payment your letter must reach us at least three business days before the automatic payment is scheduled to occur. If your billing address or contact information has changed, or if your address is incorrect as it appears on this bill, please provide all corrections here. Address 1 _ Address 2 _ City _ Stare _ Area Code & Home Phone Area Code & 'c'ork Phone Zip v 0 A U-S Al RWAYS- DIVIDEND MILES Ftepateo Wt: COURTNEY A PARKER I May 2008 Statement GteaAl Lone: AecDi,m Nwrter. 4356 0233 0037 6021 Gash of Gteod A ga able: $7,000.00 Bankof America Ftomoiicna GottssponaingAnnoai AFP 8aance SLib)ec11o Galegaty 7tansacaon Types Gaiy Fetioojc fia:e Fetcenlage Hate Type finance Ghatge Balance Transfers 0.0801100/0 V 29.24% S $0.00 Cash Advances 0.080110% V 29.24% S $559.63 Purchases 0.080110% V 29.24% S $6,840.83 Annual Percentage Rate for this Billing Period: 29.24° (Includes Periodic Rate Finance Charges and Transaction Fee Finance Charges that results in a n APR which exceeds the Corresponding APR above.) APR Type Definitions: Daily Interest Rate Type: V- Variable Rate (Interest Rate may vary); APR Type: S_ Standard APR (APR normally in effect) w CD W o_ A FILE` r)F Y! f 'TR ) 7 200,3 CC T 12 A1? 11?: -, cl '',, d IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA CACH, LLC, Plaintiff, CIVIL ACTION - LAW V. COURTNEY A. PARKER, Defendant. DOCKET NO. 09-5744 Civil Term PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT Defendant moves for the dismissal of Plaintiff's Complaint, and as grounds therefore avers the following: Preliminary Objection Pursuant to Pa. R. Civ. P. No. 1028(a)(4) (Demurrer) 1. Plaintiff filed a Complaint-Civil Action demanding damages in the amount of $ 9,919.92, plus costs, and interest on August 19, 2009. 2. Defendant filed preliminary objections to the complaint on September 14, 2009. 3. Plaintiff filed an Amended Complaint on or about October 6, 2009. 4. Plaintiff alleges it is owed certain funds by Defendant following an assignment from the original creditor, Bank of America. 5. The Amended Complaint attaches a document entitled "Offer To Place Account For Litigation On Contingency Fee Basis," but the said document is not executed. 6. The Amended Complaint provides two monthly billing statements from the original creditor, but no 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 from the inception of an agreement, so that Defendant could bring a Motion for Summary Judgment based upon affirmative defenses such as the Statute of Limitations and/or Counterclaims. 7. The Amended Complaint alleges no agreement between the Plaintiff or the original creditor and the Defendant. Preliminary Obiection Pursuant to Pa. R. Civ. P. No. 1028(a)(3) (Insufficient Specificity in Pleadins) 8. Paragraphs 1- Tare incorporated hereinafter by reference hereto. 9. The Amended Complaint contains alleged claims for money owed, but fails to specifically account for the purported sums outstanding and for the amounts of payments made. 10. The Amended 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. 11. 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. 12. 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. 13. 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. Preliminary Objection Pursuant to Pa. R. Civ. P. No. 1028(a)(2) (Failure to Attach a Writing) 14. Paragraphs 1-13 are incorporated herein by reference hereto. 15. The Complaint fails to attach a signed copy of any purported agreement between the creditor or the assignor and the Defendant, and fails to attach a copy of an executed assignment made to the Plaintiff by the original creditor. WHEREFORE, Defendant prays that these Preliminary Objections be sustained and the Defendant's Amended Complaint be dismissed with prejudice. Preliminary Objection Pursuant to Pa. R.C.P. No.1024 (Improper verification) 16. Paragraphs 1-15 are incorporated herein by reference hereto. 17. Plaintiff fails to state why counsel for Plaintiff makes the verification rather than the party as is required by Pa.R.C..P.No. 1024(c). WHEREFORE, Defendant prays that these Preliminary Objections be sustained and the Defendant's Amended Complaint be dismissed with prejudice. Date: Respectfully submitted: MidPenn Legal Services Att eys for Defejndant /?L • , 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 Defendants' Preliminary Objections to Amended Complaint on this 27th day of October 2009, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Kimberly F. Scian, Esquire 520 Fellowship Road, C306 Mount Laurel, NJ 08054 By Geoffrey M. Biringer Attorney for the Defendants 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 RLED-OrFICE OF THE PROTHCANOTARY 2009OCT 27 PM 4= 05 CUME4? ;.,;_,a 0uNTY PENN YLVANiA 0 /# Our File No.: 222137 ! IL. L. D-C!4 I iv i= THE ``IRv I [1911!0 CACH, LLC Plaintiff vs. COURTNEY A PARKER Defendant c"011 JUL 29 PPS 2: U MIA 01-57yy PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. 1. Matter to be Argued: Defendant's Preliminary Objections 2. Counsel who will argue cases: Benjamin J. Cavallaro Esquire Attorney for Plaintiff GEOFFREY BIRINGER Attorney for Defendant 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 401 EAST LOUTHER ST STE 103 CARLISLE, PA 17013 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 26, 2011 BY: _ 4enjamin valla ro, Esquire ney for Plaintiff Dated: July 25, 2011 INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CACH, LLC, Plaintiff V. COURTNEY A. PARKER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009 - 5744 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HESS, P.J., and OLER, J. ORDER OF COURT a r cn r ?= N r-? .9- A r? 1 r AND NOW, this IP day of September, 2011, upon consideration of Defendant's Preliminary Objections to Plaintiff's Amended Complaint, following oral argument held on August 26, 2011, and for the reasons stated in the accompanying opinion, Defendant's preliminary objections are sustained to the extent that Plaintiffs Amended Complaint is stricken. The court grants Plaintiff leave to file an amended complaint in accordance with the accompanying opinion within 20 days of the date of this order. BY THE COURT, Kimberly F. Scian, Esq. Apothaker & Associates, P.C. 520 Fellowship Road, C306 Mount Laurel, NJ 08054 Attorney for Plaintiff J Geoffrey M. Biringer, Esq. MidPenn Legal Services 401 E. Louther Street Carlisle, PA 17013 J. f, r A vw,(j oW511,/,1 Nancy L. Datres, Esq. MidPenn Legal Services 213-A North Front Street Harrisburg, PA 17101 Attorneys for Defendant CACH, LLC, Plaintiff V. COURTNEY A. PARKER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009 - 5744 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HESS, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., September 13, 2011. In this debt collection action against a credit card debtor, Plaintiff CACH, LLC has sued Defendant for an allegedly delinquent credit card balance in the amount of $9,991.60. For disposition at this time are preliminary objections filed by Defendant to Plaintiff's Amended Complaint. Oral argument was held on August 26, 2011. For the reasons stated in this opinion, Defendant's Preliminary Objections will be sustained. STATEMENT OF FACTS In this case, Plaintiff filed a seven-paragraph complaint on August 19, 2009, which alleged, inter alia, that Plaintiff was the Assignee and Successor in Interest of account number 4888934999007056, which was issued to Defendant by Bank of America, N.A., and that Defendant had an unpaid balance of $9,919.92.1 To its Complaint, Plaintiff attached a document entitled "Statement of Account,"z which displayed the following information: STATEMENT OF ACCOUNT Debtor's Name: COURTNEY A PARKER Account Number: 4888934999007056 Original Creditor: BANK OF AMERICA, N.A. 1 Plaintiffs Complaint, ¶13, 5, filed August 19, 2009. 2 Statement of Account, attached to Plaintiff's Complaint, filed August 19, 2009. Balance Due: $9,919.92 Our File No.: 2221373 On September 14, 2009, Defendant filed Preliminary Objections to Plaintiff's Complaint.4 In response, Plaintiff filed a six-paragraph amended complaint on October 12, 2009, which sought relief in the amount of $9,991.60, and attached thereto a document entitled "COLLECT AMERICA, LTD. Litigation and Recovery Department, Offer to Place Account for Litigation on Contingency Fee Basis,"5 as well as two billing . On statements, the first of which was dated September 2008,6 and the second, May 20087 October 27, 2009, Defendant filed Preliminary Objections to the Amended Complaint in the form of (1) a demurrer based on Plaintiff's failure to attach to its Amended Complaint a copy of the cardholder agreement between Defendant and the original creditor;' (2) a motion for a more specific pleading based on Plaintiff's failure to attach to its Amended Complaint statements supporting its claim for relief;9 (3) a motion to dismiss for failure to conform to rule of court, based on Plaintiff's failure to attach to its Amended Complaint an assignment establishing Plaintiff as a real party in interest;10 and (4) a 3 Statement of Account, attached to Plaintiff's Complaint, filed August 19, 2009. a Defendant's Preliminary Objections to Complaint, filed September 14, 2009. 5 Exhibit A ("Offer to Place Account for Litigation on Contingency Fee Basis"), attached to Plaintiff's Amended Complaint, filed October 12, 2009. 6 The September 2008 Statement contained the following information, which the court considers pertinent to the instant action: (1) Name: Courtney A Parker; (2) Account Number: 4356 0233 0037 6021; (3) New Balance Total: $8,188.21; (4) Total Minimum Payment Due: $2,096.00. Bank of America Statement, dated September 2008, attached to Plaintiff's Amended Complaint, filed October 12, 2009. The May 2008 Statement contained the following information, which the court considers pertinent to the instant action: (1) Name: Courtney A Parker; (2) Account Number: 4356 0233 0037 6021; (3) New Balance Total: $7,530.57; (4) Total Minimum Payment Due: $1,174.00. Bank of America Statement, dated May 2008, attached to Plaintiff's Amended Complaint, filed October 12, 2009. 8 Defendant's Preliminary Objections to Plaintiff's Amended Complaint, ¶¶1-7, filed October 27, 2009; see Defendant's Brief in Support of Preliminary Objections to Plaintiff's Amended Complaint, dated August 1, 2011. 9 Defendant's Preliminary Objections to Plaintiff's Amended Complaint, ¶¶8-13, filed October 27, 2009. 10 Defendant's Preliminary Objections to Plaintiff's Amended Complaint, ¶¶14-15, filed October 27, 2009. 2 motion to strike for improper verification." Both Plaintiff and Defendants filed briefs in compliance with local rules of court, and oral argument was held on August 26, 2011. DISCUSSION Preliminary objections, general rule. Defendant in the case has filed preliminary objections based upon various purported violations of the Pennsylvania Rules of Civil Procedure. Based on these preliminary objections, Defendant has asked the court to dismiss Plaintiffs Amended Complaint with prejudice. With respect to preliminary objections in the form of a demurrer, any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723, 726 (Pa. Cmwlth. 2003). Failure to Attach the Written Agreement Failure to conform to law or rule of court. Defendant's first preliminary objection argues that the alleged debt is based upon a written cardholder agreement, and that Plaintiff failed to attach a copy of the document to the complaint. 12 As required by Pennsylvania Rules of Civil Procedure 1019(h) and 1019(i), when any claim or defense is based upon an agreement, and the agreement is in writing, the agreement between the plaintiff and the defendant must be attached to the pleading. Pa. R.C.P. No. 1019(h); Pa. R.C.P. No. 1019(i). If the writing is not available to the pleader, the pleader may instead provide the reason for the unavailability of the writing and state the substance of the writing in the pleading. See Pa. R.C.P. No 1019(i); Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264 (Pa. Com. Pl. Erie Cnty. 1982) (in collection cases dealing with bank credit cards, Rule 1019(i) is complied with by attaching to the complaint a copy of the issuer/cardholder agreement.). The failure to produce the cardholder agreement may establish a meritorious defense and a basis for preliminary objections pursuant to Rules of Civil Procedure 1019(i) and 1028(a)(2). Atlantic Credit and Finance, Inc. v. Giuliana, 2003 PA Super 259, 829 A.2d 340. In Giuliana, the Superior Court reaffirmed this attachment 11 Defendant's Preliminary Objections to Plaintiffs Amended Complaint, ¶¶16-17, filed October 27, 2009. Iz Defendant's Preliminary Objections to Plaintiff s Amended Complaint, T¶1-7, filed October 27, 2009. 3 requirement when it held that a creditor must "attach the writings which assertedly establish [the creditor's] right to a judgment." Atlantic Credit and Finance, Inc. v. Giuliana, 2003 PA Super 259, ¶13, 829 A.2d 340, 345. The issue has similarly been addressed by another court in Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264 (Pa. Com. Pl. Erie Cnty. 1982). The Marine Bank court reasoned that the cardholder may incur obligations and liabilities for the purchase of goods or services, and that the exact terms of the cardholder agreement represent the criteria relating to a claim that the cardholder has defaulted. Id. at 265. Similarly, in Target Nat. Bank v. Kilbride, 10 Pa. D. & C. 5th 489 (Pa. Com. Pl. Centre Cnty. 2010), the Centre County Court of Common Pleas held that, when the plaintiffs claims are based upon a written agreement, the Plaintiff must attach the agreement to the complaint. Id. In the event that the writing is not available to the plaintiff, the court held, the plaintiff must provide the reasons for the unavailability of the writing and state the substance of the written agreement in its pleading. Id. Application of law. In the case sub judice, the Plaintiff's pleading lacks sufficient indicia of an agreement between Defendant and a creditor. Furthermore, the two isolated statements that Plaintiff attached to its Amended Complaint, both of which displayed Defendant's name but contained an account number other than the one identified by Plaintiff in its complaint, or displayed on the "Offer to Place Account for Litigation on Contingency Fee Basis," failed to adequately support, even for pleading purposes, the proposition that the relief requested was appropriate, and failed to provide any documentation to explain how the amount requested was calculated. 13 Additionally, in the absence of an attached agreement between Defendant and the creditor, the "Total Minimum Payment Due," as indicated on the most recent statement attached to Plaintiff s Amended Complaint, can not be reconciled with the different amount demanded in the 13 Compare Plaintiffs Amended Complaint, filed September 14, 2009 (requesting judgment in the amount of $9,991.60) with Bank of America Statement, dated September 2008, attached to Plaintiff's Amended Complaint, filed October 12, 2009 (displaying "New Balance Total" in the amount of $8,188.21). 4 Amended Complaint's ad damnum clause. 14 As stated in its Amended Complaint, Plaintiff's claim is based upon an alleged agreement between Defendant and an original creditor, Bank of America. 15 However, Plaintiff has failed to attach the writing that gave rise to its claim, and, alternatively, has failed to address the absence of a written agreement and set forth the substance of the said agreement, which is otherwise required by Rule 1019(i). Accordingly, Defendant's preliminary objection for failure to conform to rule of court will be sustained. Failure To Adequately Plead Plaintiff's Status As a Real Party in Interest Real party in interest. Defendant's second preliminary objection contends that Plaintiff has not sufficiently pled that it is a real party in interest. Defendant argues that Plaintiff violated Rule of Civil Procedure 1019(i) because it failed to attach necessary documents to its Amended Complaint to sufficiently plead that Defendant's account was assigned to Plaintiff.16 "[Rule 1019] requires that, in a credit card case based upon an assignment, the relevant assignments showing the chain of ownership for the account from the originator to current holder must be attached to the complaint." Remit Corp. v. Miller, 5 Pa. D. & C. 5th 43 (Pa. Com. Pl. Centre Cnty. 2008). In Giuliana, supra, the Superior Court established the necessary documentation that must be attached to a complaint in debt collection cases involving the assignment of a defendant's account to another financial institution. The Superior Court stated that the failure to attach the documents necessary to establish the assignee's right to the judgment, including the documents evidencing the assignment, was fatal to the claims set forth by the assignee. Giuliana, 2003 PA Super 259 at ¶13, 829 A.2d at 345. Where a plaintiff is not the defendant's original creditor, the complaint, as a general rule, must include a writing evidencing the assignment of the defendant's account from the original creditor to plaintiff. See Atlantic Credit and Finance, Inc. v. Giuliana, 14 Bank of America Statement, dated September 2008, attached to Plaintiff's Amended Complaint, filed October 12, 2009 (displaying "Total Minimum Payment Due" in the amount of $2,096.00). 15 Plaintiff's Amended Complaint, filed October 12, 2009. 16 Defendant's Preliminary Objections to Plaintiff's Amended Complaint, filed October 27, 2009. 5 2003 PA Super 259, ¶13, 829 A.2d 340, 345; Remit Corp. v. Miller, 5 Pa. D. & C. 5th 43 (Pa. Com. Pl. Centre Cnty. 2008); Arrow Financial Servs. v. Witmer, 59 Cumb. L. J. 154 (Pa. Com. Pl. Cumb. Cnty 2010) (Ebert, J.); LVNV Funding, LLC v. Joy A. Murlatt, No. 2010-3040 Civ. T. (Pa. Com. Pl. Cumb. Cnty. 2011) (slip. op.) (Masland, J.). Without the attachment of such a document, or an explanation as to the reason for the document's absence along with the substance of the agreement, a plaintiff fails to sufficiently plead its status as a real party in interest to a judgment on the debt. See Atlantic Credit and Finance, Inc. v. Giuliana, 2003 PA Super 259, ¶¶12-13, 829 A.2d 340, 345; Remit Corp. v. Miller, 5 Pa. D. & C. 5th 43 (Pa. Com. Pl. Centre Cnty. 2008). Application of law. In the matter sub judice, Plaintiffs Amended Complaint contains a single document purporting to establish an assignment. An examination of the document, however, reveals that it is nothing of the sort. By the court's reading, the document appears to be nothing more than a contingency fee arrangement between Plaintiff and Apothaker & Associates for a Bank of America account, numbered 4888934999007056.17 The only signature appearing on the document is that of Michelle Holderness, Esquire, who may possibly be employed by Collect America, LTD rather than the original creditor. 18 Additionally, despite Plaintiff's contention to the contrary, as stated in its argument court brief, a document "titled `Affidavit of Claim and Certification of Debt[,]' [purporting to evidence] the sale, transfer and assignment of [Defendant's] account from the original creditor to Plaintiff,"19 is not part of the record.20 Nor has the court been able 17 This account number is the same number that Plaintiff referred to in its Amended Complaint, but different from the number reflected on the attached statements. Compare Plaintiff's Amended Complaint, ¶¶3, 4, filed October 12, 2009 with "Offer to Place Account for Litigation on Contingency Fee Basis," attached to Plaintiffs Amended Complaint, filed October 12, 2009 with Bank of American Statements, dated September 2008 and May 2008, attached to Plaintiff's Amended Complaint, filed October 12, 2009. 18 "Offer to Place Account for Litigation on Contingency Fee Basis," attached to Plaintiffs Amended Complaint, filed October 12, 2009. 19 Plaintiffs Brief in Response to Defendant's Preliminary Objections to Plaintiffs Amended Complaint, dated January 7, 2010, at *2. 6 to locate in the record the "clearly state[d] identifying information for the account, including the three (3) account numbers which all reference [Defendant's] account," or the location of the "open date of the account and the outstanding balance on the account as of the date of sale."21 Plaintiff has failed to attach adequate indicia of assignment of the purported credit card account, or to explain the absence thereof, and has therefore failed to sufficiently plead its status as a real party in interest to this litigation. For the foregoing reasons, Defendant's second preliminary objection will be sustained. Lack of Specificity in Pleading Defendant argues that Plaintiff's Amended Complaint is insufficiently specific because it does not meet the requirements of Rule 1019 (averments of special damages be specifically stated).22 Plaintiff maintains it has pled facts with sufficient specificity to allow Defendant to answer the complaint. Sufficiency of pleadings. In determining sufficiency of the pleadings in a complaint, the court will consider "whether the plaintiff's complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." Rambo v. Green, 2006 PA Super 231, ¶11, 906 A.2d 1232, 1236. Rule 1019(a) states that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Rule 1019(f) states that "[a]verments of time, place and items of special damage shall be specifically stated." 20 See Erie Indemnity Co. v. Coal Operators Casualty Co, 441 Pa. 261, 265, 272 A.2d 463, 466-67 (1971); Cumulus Broadcasting v. Bond, et al, 52 Cumb. 108 (Pa. Ct. Com. Pl. Cumb. Cnty. 2003) (Oler, J.) (Pursuant to local rules, briefs are not part of the record and a court may not consider facts not part of the record). 21 Plaintiff's Brief in Response to Defendant's Preliminary Objections to Plaintiff's Amended Complaint, dated January 7, 2010, at *2-3. Additionally, although Defendant's brief argues that the "client affidavit states that the original contract in this matter has been destroyed or is no longer accessible to affiant" and that the client affidavit "is to be treated as the original document for all purposes," the "client affidavit" is not found in the record. See Plaintiff's Brief in Response to Defendant's Preliminary Objections to Plaintiff's Amended Complaint, dated January 7, 2010, at *3. 22 Defendant's Preliminary Objections to Plaintiff's Amended Complaint, ¶18-13, filed October 27, 2009 7 Defendant argues that, in World Wide Asset Purchasing, LLC v. Stern, 153 Pitts. L.J. 111 (Pa. Ct. Com. Pl. Allegh. Cnty. 2004), the Honorable Stanton Wettick provided a list of items that must be included in a complaint for an action to collect on consumer credit card debt as follows: Amounts of the charges that are part of the claim, the dates of the charges, credit for payments if any, dates and amounts of interest charges, and dates and amounts of other charges. The complaint should contain sufficient documentation and allegations to permit a defendant to calculate the total amount of damages that are allegedly due by reading the documents attached to the complaint and the allegations within the complaint. Worldwide Asset Purchasing, 153 Pitts. Leg. J. 111, at *4 (Pa. Ct. Com. Pl. Allegh. Cnty. 2004) (Wettick, J.). Additionally, in Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264 (Pa. Com. Pl. Erie Cnty. 1982), the Erie County Court of Common Pleas addressed the issue of specificity in the context of consumer credit card debt collection cases. The court held that, although Rule 1019(f) requires only items of special damages to be specifically stated, in the context of credit cards, "the plaintiff must particularize general damage as far as is reasonably practicable." Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264, 268- 69 (Pa. Com. Pl. Erie Cnty. 1982); see Remit Corp. v. Miller, 5 Pa. D. & C. 5th 43 (Pa. Com. Pl. Centre Cnty. 2008). Application of law. While this court declines to set forth the precise number of monthly billing statements that must be included in a complaint in a credit card debt collection case to satisfy the pleading requirements of Rule 1019, it is clear that the two isolated and uninformative billing statements attached to the present pleading 23 cannot be considered sufficient, especially considering that Defendant and Plaintiff, as a third-party debt purchaser, had not entered into an agreement between themselves. Based upon the unique circumstances of this case, Defendant's third preliminary objection will be sustained. 23 Neither the September 2008 nor the May 2008 billing statement displayed a successful transaction made by Defendant. However, the statements do display charges against Defendant's account that had been made by the creditor itself, in the form of two late fees, two returned payments, one returned check fee, and one over-limit fee. See Bank of America Statements, dated September 2008 and May 2008, attached to Plaintiff's Amended Complaint, October 12, 2009. 8 Improper Verification Improper verification. Defendant's fourth preliminary objection contends that Plaintiff failed to verify properly the Amended Complaint, in accordance with Pennsylvania Rule of Civil Procedure 1024(c), which provides as follows: The verification shall be made by one or more of the parties filing the pleadings unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person's information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party. Pa. R.C.P. No. 1024(c). Application of law. Plaintiff's Amended Complaint was not verified by a party filing the pleading, but instead was verified by Plaintiffs counsel. The Amended Complaint lacked any averment that either of the two exceptions provided for in Rule 1024(c) applied in this case. Furthermore, no reason was supplied in the Amended Complaint as to why the verification was not made by a party. The verification does state that counsel for Plaintiff was "authorized to take [the] Verification, and that the statements made in the [Amended Complaint were] true and correct to the best of [her] knowledge, information, and belief. ,24 However, there is nothing in the record to indicate that there is any connection between CACH, LLC and the law firm of Apothaker and Associates, P.C.,25 which would explain the circumstances under which Kimberly F. Scian, Esquire, was authorized to execute a verification on Plaintiffs behalf. Accordingly, as the Amended Complaint fails to aver circumstances that would implicate a Rule 1024(c) exception, the verification supplied by Plaintiff's counsel must be considered inadequate, and relief will be afforded to Defendant on this preliminary objection. For the reasons set forth in this opinion, the following order will be entered: 24 Plaintiff's Amended Complaint, Verification, filed October 12, 2009. 25 In its signature block, Apothaker and Associates identifies itself as a "Law Firm Engaged in Debt Collection." 9 ORDER OF COURT AND NOW, this 13`x' day of September, 2011, upon consideration of Defendant's Preliminary Objections to Plaintiffs Amended Complaint, following oral argument held on August 26, 2011, and for the reasons stated in the accompanying opinion, Defendant's preliminary objections are sustained to the extent that Plaintiffs Amended Complaint is stricken. The court grants Plaintiff leave to file an amended complaint in accordance with the accompanying opinion within 20 days of the date of this order. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Kimberly F. Scian, Esq. Apothaker & Associates, P.C. 520 Fellowship Road, C306 Mount Laurel, NJ 08054 Attorney for Plaintiff Geoffrey M. Biringer, Esq. MidPenn Legal Services 401 E. Louther Street Carlisle, PA 17013 Nancy L. Datres, Esq. MidPenn Legal Services 213-A North Front Street Harrisburg, PA 17101 Attorneys for Defendant 10