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HomeMy WebLinkAbout10-0226Ty?p?r [?j?{' pROT)'j r Ti f 1010 JAN -6 PH 3: 48 ??rrft?,?,S ,'`J t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK Plaintiff No: 1Q- oZo?lo ?1Vt VS. COMPLAINT IN CIVIL ACTION DONALD J PORRECA Defendant FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: James C. Warmbrodt,42524 WELTMAN, WEINBERG & REIS CO., L.P.A. 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 (412) 434-7955 FAX: 412-338-7130 07956779 C A Pit KMJ 4 R a.00 Pb anti ek.* 4y 06368/1909aa f5l asss9a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK Plaintiff vs. Civil Action No DONALD J PORRECA Defendant COMPLAINT AND NOTICE TO DEFEND 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 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 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. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 COMPLAINT 1. Plaintiff, DISCOVER BANK is a corporation with offices at 6500 NEW ALBANY ROAD NEW ALBANY , OH 43054 . 2. Defendant is adult individual(s) residing at the address listed below: DONALD J PORRECA 5 LAUREL DR MECHANICSBURG, PA 17055 3. Defendant applied for and received a credit card bearing the account number XXXXXXXXXXXX5773 . 4. Defendant made use of said credit card and has a current balance due of $13520.01 , as of November 07, 2009 . 5. Defendant is in default by failing to make monthly payments when due. As such, the entire balance is immediately due and payable to Plaintiff. 6. Plaintiff is entitled to the addition of interest at the rate of 29.990% per annum on the unpaid balance from November 07, 2009 . A copy of Plaintiff's Statement is attached hereto, marked as Exhibit 111" and made a part hereof. i 7. Plaintiff avers that the Agreement between the parties provides that Defendant will pay Plaintiff's attorneys' fees. 8. Plaintiff avers that such attorneys' fees will amount to $125.00 . 9. Although repeatedly requested to do so by Plaintiff, Defendant has willfully failed and/or refused to pay the balance due to Plaintiff. Wherefore, the Plaintiff prays for Judgment in its favor and against Defendant , DONALD J PORRECA individually , in the amount of $13520.01 with interest at the rate of 29.99096 per annum from November 07, 2009 plus attorneys' fees of $125.00 , and costs. Li ames WELTM 436 S Pitts (412) FAX: 079 6 WEINBERG & REIS CO., L.P.A. th Avenue, Suite 1400 gh, PA 15219 4-7955 -338-7130 9 C A Pit KMJ This law firm is a debt collector atte ing to collect this debt for our client and any information obtaine will be used for that purpose. • .G •• ..?...,....o muuuwnr i urmvnr vue r??n.vwu r?mrruer onwny nr .ir . v I5?. VER $13,520.01 $13,520.01 Enter Amount Enclosed Below CARD Payment Due Date $ -7 -?Vo *-) 7 t November 17, 2009 Please make check payable to Discover Card. Minimum pa ment due includes a past due amount of $2,754.00. 22 SDSN6A01 0003798 DONALD PORRECA Will your payment get to us on time? Pay 5 LAUREL DR your bill online and your payment can be MECHANICSBURG PA 17055-5536 made to your account on the some day. Visit Discover.com/payments today. PO BOX 6103 11 1111111111111118111111111 Address, e-mail or telephone change? Print change in space CAROL STREAM IL 60197-6103 above, or go to Discover.com. Print your e-mail address to I1?I11I'111111I?I1I11I111I1II11111 IIII11?11II1II11111I'11'11I? receive important Account information and special offers. 000001986458932782895135200 100000001352001 Discover More Card Account Summary Closing Date: October 22, 2009 page 1 of 1 Account number ending in 5773 Previous Balance $13,520.01 Payment Due Date November 17, 2009 Payments And Credits 0.00 Minimum Payment Due $13,520.01 Purchases + 0 00 Credit Limit $11,000.00 Cash Advances . + 0 00 Credit Available $0.00 Balance Transfers . + 0 00 Cash Credit Limit $0.00 Finance Charges . + 0.00 Cash Credit Available $0.00 New Balance $13,520.01 Cashback Bonus® Opening Cashback Bonus Balance $ 0.00 New Cashback Bonus This Period + 0.00 Cashback Bonus Balance $ 0,00 Cashback$onw*Anniversary--------------------- -------- -.----- .----.---- .- ------------------ ------ Date: April 22 How Can We He) You? 1- Visit Discover.com to pay your bill for no cost, view r I? latest Account information, earn and redeem rewardsocu d more It's your choice - 3 ways to help 2. Call 1-800-DISCOVER (347.2683) for fast, easy self service Please have your Discover Card available. options or to speak with a Customer Service Account Manager For TDD (assistance for hearing impaired) see reverse side 3. Write us at Discover Card, PO Box 30943, Soft Lake City, UT 8,4130 Transactions $0 Fraud Liability Guarantee Use your Discover Card with confidence. Information For You Your Account is overlimit. While we are permitted under the Cardmember Agreement to charge you an Overlimit Fee, we have chosen not to do so at this time. We reserve the right to do so if, as of the close of a billing period, your outstanding Account balance exceeds your Account credit limit. See the Overlimit Fee section of the Cardmember Agreement for details. ?. EX IBT Finance Charge Summary Nominal Transaction Average Daily ANNUAL ANNUAL Periodic Fee Daily Periodic PERCENTAGE PERCENTAGE FINANCE FINANCE Balances Rates RATES RATES CHARGES CHARGES current billing period: 22 days Purchases $0 0.08216% 29.99% F 29.99% $0 $0 Cash Advances $0 0.08216% 29.99% F 29.99% $0 $0 The rates that apply to your Account are either fixed (F) or they may vary (V) as noted above. Important Information. If there is more than one page to this billing statement, see the back of each page for additional Important Information. See your Cardmember Agreement Your Cardmember Agreement contains all the terms of your Account Cn Lost or stolen cards. Report Immediately! Call 1-800-347-2689. W BIIIInt Rllhts Summary. In Case of Errors or Questions About Your Bill: If you think vos?r b+1 is wron , or If you need more Information about a n trans TCUoh on your DIII, write to us on a separate sheet of a rat Discover Card PO Box 3421 Sal Lake Ci??vv UT 84130-0421 as soon as sable. We must hear from you no later than 60 days afleQI pee sent you the firsf bill on which the error or problem appeared. Vou can telephone o r?ssbut doin so will not preserve your rights. in your letter, give us the following Information: o> • TYTor name and Account numobeef. • Desucrdibea the errortand explaih, if about you can, why you believe there is an error. If you need more Information, describe the item you are unsure ° You do not have topaY an amount In Guestion while we are Invest)gatin , but you are still obli ated to pay the parts of your bill that are not in question . While we ImJesti ate your question, we cannot report you a3 degnquerft or take any ac?lon to collect the amount you question. Special Rule for Credit Card Purchases: If au have a problem with the quality of Roods or services that You purchased with a credit card, and You have tried snood faith to correct the k with the merchant, ?Y5ou maY not as to pa the remainln amount due on the oods or services. vourhmailin IiSabdressU(o(li weyowneox o?peetau theenterchanta omitrnmailed0you theeadverisemeni fofatdhelgSro?osenri esea or purchases arelecored regardless bT the amorlnt or location 8f purchase) r ants. send only yWA ment and h4 12, rtion of this statement in the epppvelog p ded. Of not send cash. By sendin your chock as described above, you auus to use inTOtlon on ur check to make an eectroI I Tund trans fer from your account at fhb Tfnanclal institution indicat8d on your check or to rocess the as a check transact on. If payment is processed as an electronic fund transfer, the transfer will be for the amount of the check. When se Inntformation from your check io make an electronic fund transfer funds may be withdrawn from your account as soon as the same day we receive your payment, and you will not receive your check back firom your financial institution The processingg of vaur payment ma be delayed if you send cash correspondence or other items with your pa ant If you send the amant to anVV other addres3 or Tf yoU use an env loge oth er than the one provided. Payvments received on or after 1 PM at ?u processing facility I?0 vday throw h Frida or on a weekend or bank nolida will be posted to ur Account as of the next business day. If u have misplaced voUr envel8ae send ur pavYment to Discover Bank, PO Box 6703 Carol, Stream, IL 60197-6103. Please allow 7-10 days idr delivery. If your payment is return ed unpai , we rdserve the right to resubmit it as an electronic debit You can pay ur minimum ayyment or a ggreater amount over the tele hone, and u can set utr automatic ppaa ments. Call us at 1-600-347-2683. You will need tf?is statement M your bank account Information. You must ensure th?t sufficient ?Tr ds are avair le in our bank account, and all transactions must corn 1 with U. law. You will be asked to provide the first 5 digits of your account statement zip cone enterin those numbers as your electronic si nature, you will be a?treeln to this authorsZation to allow s rid your Dank to edu t each ymantu authorize from m rotirfy account and Initite debit crit enies to rrt an n?of such Yu ut ell us the amount of each ment or you cuPent Due or a New lance on h eenou can cancl a anthpa we must recIn ance of the scheduled payment Vou a us by ,on. at 1-BOD-347y2683 or by mall at the address listed In the revious paragraph. Ii your payments vary in amount we will tell on each monthly statement when your payment will be made and how much y?II be. Your automatic payrhent amount may be less than ndirated on the monthly statement based do credits or payments applied during the billing cycle. Credit Reporting . We ma re It Information about your account to credit bureaus. Late payments, missed pa ments, or other defaults on your acoountfg1 ene bd f aase thatIuf rer creisiinacoc ae osbncomly Ieto?'rt lease status usda?iKe forilonwilsth addres? Disnr Ctharcdr?PO rBdx 15n376g1nlilcmington =y61 inc ude ur name, a irate dress, home telep hone num?er and Account num DmE 9850aer. Grace Period an Purchases (at least 25 days) We begin to Impose Periodic Finance Charges on all transactions from the Transaction Date for the transaction as shown on ur b1111ng statement, unless a transaction is posted to your Account after the close of the billing period In which It occurs, In which case we ?Impose Periodic Finance Char es on that transaction from the first da of the billin rind In Which it is sled to ur Account We continuom to Yo to impose Periodic Finance Charges until the date you pay your entire New Balance, try ?nakinA pavmints or receiving credits. However, If wuu paid the New Balance on your previous billin statement oy tnePavment Due Date shown on that bilrrlo Statement and you nay the New Balance loy the Payment Due Date on u current bill in statement will n im ose Periodic Finance Char es on new purchases, that ls, purchases first appearing on the current bilng statement call this t e °grace perioa^ There Is no grace periodgon balance transfers or cash advances. r9 Minimums e0 vnce oh rwise be will chaede you a minimum FINANCE CHARGE of $.50 for any billing period in which Periodic Finance Charges of Annual Fee, if yyoour Account has an annual fee, it will be billed at the beinning of each anniversary yyeearyour Account is open. The amount of the fee ars Dn the statement when the fee is billed. The annual fee I not refu dable unless Vou notify us th t you wish to close your Account within 3arlys of the mailing or delivery date of the statement on which the fee Is willed. You win receive this re?urid even If you use your Card during that period. Periodic Finance Char s. We sort Your transactions into roues of ppurchases, cash advances and balance transfers and then further sort the transactions within eaclS 9rowD by their Annual Percents a fate. For ekam le purchases sublec3 to a Rro?noUonal rate and purchases subs"ect to a st andard rote would be sepparate groups We refer to the a groups as transaction cafe ones. At the end of each billing nod, we compu% balances FinaneelChiarges for each iransactlon ca egorythe billing Period for each transaction Cgategory. We use the following equation to compute Periodic (Average Daily Balance) times (days in billing period) times (Daily Periodic Rate), amounts.) Then we add up the Periodic Finance Charges for each e Average Daily Balance is shown as zero if, because of the grace ating the balance upon which we imaose Periodic Finance iddirig up all the dally balances in a billing period for a Nod. We corn ute the deal balance for each transaction cat pry actions with a Tronsactior? Date of that day? is shown on you the billing,period in which it occurs, In Which case the ne TIM as or the Dmin ppeeriod, we co6dider the ./ da oT r previous illin peri. theyexc p on of Cash AdvabCe Traodnsaction Fee ce Transfer Transaction Fee Finance Char es which we move the unpaid balance of the balance saction category. However, if the special rate has For TOD (Telecommunications Device for the Deaf) assistance, please call 1-800-347-7449. VERIFICATION The undersigned does hereby verify subject to the penalties of 18 PA.C.S. §4904 relating to unsworn falsifications to authorities, that he is James Ball (Name) Team Lead of DFS Services LLC , plaintiff herein, that (Title) (Company) he is duly authorized to make this Verification, and that the facts set forth in the foregoing Complaint in Civil Action are true and correct to the best of his knowledge, information and belief. WWR# 7956779 Donald J. Porreca '6011002820365773 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson i ILEA-;?;t (v+ Sheriff Jody S Smith Chief Deputy 2010 JAN 4 PH 2-- 21 Edward L Schorpp ._.l,a?T Solicitor Discover Bank vs. Donald J. Porreca Case Number 2010-226 SHERIFF'S RETURN OF SERVICE 01/12/2010 07:38 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on January 12, 2010 at 1938 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Donald J. Porreca, by making known unto Judith Ramey, Adult in charge at 5 Laurel Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.00 January 14, 2010 FRNY ERRS, `ANDERSON, SHERIFF 1 ` Deputy Sheriff DISCOVER BANK Plaintiff v. DONALD J PORRECA Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-0226- CIVIL TERM L, .~ Q _l ~ r~. ~ !7 NOTICE TO PLEAD To: Discover Bank c/o James C. Warmbrodt, Esquire Weltman, Weinberg & Reis, Co., L.P.A. 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 1J 1, ~r~: :,, =.',_. ~., :~' CTi CA7 N N -,. -.~ You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: ~? I ~~~ ~~~ Respectf y Sub 'tted, IVl~chael J. Pykosh, Esquire I . D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 I -r t ~"S C1L~ z.. -~ _, <> rn Attorney for Defendant, Donald J. Porreca Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - {717) 975-2309 mnvkosh.'cidcdlaw.net Attorney for Defendant DISCOVER BANK : IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. No: 10-0226- CIVIL TERM DONALD J PORRECA Defendant DEFENDANT'S, PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Donald J. Porreca, by and through his attorneys, DETHLEFS-PYKOSH LAW GROUP, by Michael J. Pykosh, Esquire, and hereby files Preliminary Objections to the Plaintiff's Complaint, and avers as follows: 1. On or about January 6, 2010, a Civil Complaint was filed at Docket Number 10- 0226 Civil Term. 2. Defendant now files the instant Preliminary Objections to Plaintiff's Complaint pursuant to Pa. R.C.P. 1028. PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(2) 3. Paragraphs 1 through 2 are incorporated herein by reference as though fully set forth below. 4. Pa. R.C.P. 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 5. Plaintiff's Complaint fails to conform to Pennsylvania Rules of Civil Procedure and Cumberland County Local Rules. 6. Plaintiff has failed to attach a copy of the writing, more specifically the Loan/Credit Agreement, or the material part thereof, or, in the alternative, state, with the reason that the writing or copy thereof is not accessible to the Plaintiff and the substance of the writing in violation of Pa. R.C.P. 1019(1). See Remit Corporation v Miller 5 Pa. D&C 5th 43 7. Plaintiff's Complaint is in violation of Pa. R.C.P. 1019 (a) and (f) in that Plaintiff's Complaint fails to provide the specifics of the alleged credit card purchases or charges and application of interest and late charges. Remit Corporation v Miller 5 Pa. D&C 5th 43. See also Capital One Bank v Clevenstine, 7 Pa. D&C. 5th 153. WHEREFORE, for all the reasons set forth above, Defendant, Donald J. Porreca, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and dismiss Plaintiff's Complaint for failing to conform to law or rule of court pursuant to Pa. R.C.P. 1028(a)(2). PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(3) 8. Paragraphs 1 through 7 are incorporated herein by reference as though fully set forth below. 9. Pa. R.C.P. 1028 (a)(3) allows a party to object to a pleading if there is insufficient specificity in a pleading. 10. Plaintiff has not set forth sufficient facts regarding Defendant's Agreement relative to either the total amount due and that Defendant has agreed to pay the amount to Plaintiff. See Capital One Bank (USA). NA v Patricia L. Clevenstein No. 2008-4139 (Centre County 2009). WHEREFORE, for all the reasons set forth above, Defendant, Donald J. Porreca, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and strike Plaintiff's Complaint for failure to comply with Pa. R.C.P. 1028(a)(3). Date: ,~' t~ ' ! U Respa ec~ully Submitted, Micflael J. Pykosh, Esquire I . D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 VERIFICATION I, Donald J. Porreca, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to ai ithnritir?c Date: Donald J. Porreca DISCOVER BANK Plaintiff v. DONALD J PORRECA Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-0226- CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Donald J. Porreca's, Preliminary Objections to Plaintiff's Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Discover Bank c/o James C. Warmbrodt, Esquire Weltman, Weinberg & Reis, Co., L.P.A. 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 Respe y Submitted, Date: ~ '' ~ q _ 1 ~ ichael J. Pykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant DISCOVER BANK Plaintiff v. DONALD J PORRECA Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-0226- CIVIL TERM ORDER AND NOW, this day of 2010, it is hereby ORDERED and DECREED that Defendant, Donald J. Porreca's, Preliminary Objections to Plaintiff's Complaint are hereby GRANTED, and further that it is hereby ORDERED that Plaintiff's Complaint be Dismissed with Prejudice. BY THE COURT: J.