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HomeMy WebLinkAbout10-0311 2071837 ?s THIS IS AN ARBITRATION MATTER. DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 JOEL M. FLINK, ESQUIRE Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 ASSESSMENT OF C- O V rr C= ?-, D Z x r1l Z t' -am z C 41 = 7-4 w ? FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA 1825 E. BUCKEYE RD. PHOENIX, AZ 85034 vs. RICHARD M KUMLER 1024 E LISBURN RD MECHANICSBURG PA 17055-5929 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 10 - 311 alvil- X-m I L YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 4 Qa.oo p o Ally 0-& 1ODo25o P-T* as& +31 COMPLAINT IN CIVIL-ACTION 1. Plaintiff is a debt buyer and successor in interest to the original creditor as set forth in the caption of this Complaint. 2. At all times relevant hereto, the defendant(s) was the holder of a credit card, which at the request of the defendant(s) was issued to the defendant(s) by the original creditor under the terms of which the original creditor agreed to extend to defendant(s)the use of original creditor's credit facilities. 3. Defendant (s) accepted and used the aforesaid credit card so issued and by so doing agreed to perform the terms and conditions prescribed by the original creditor for the use of said credit card. 4. The defendant (s) received and accepted goods and merchand- ise and/or accepted services or cash advances through the use of the credit card issued by the original creditor. A true and correct copy of the Statement of Account or Affidavit of Account, if available, is attached hereto as Exhibit "A". 5. All the credits to which the defendant (s) is entitled have been applied and there remains a balance due as of December 7, 2009 in the amount of $10,213.74. 6. Plaintiff has made demand upon the defendant(s)for payment of the balance due but the defendant(s)has failed and refused and still refuses to pay the same or any part thereof. 7. Defendant's last payment on account was made on 2/2/09. WHEREFORE, plaintiff claims of the defendant(s) the sum of $10,213.74 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEI ERG, ESQUIRE JOEL M. FLI , ESQUIRE Attorney for Plaintiff P01A.DB 4 s . 2071837 09436119 FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA RICHARD M KUMLER 4888937990932412 VERIFICATION I hereby state that I am the agent for the plaintiff herein, and that the facts set forth in the attached Affidavit which is incorporated by reference in the foregoing Complaint in Civil Action are true and correct to the best of my knowledge, information and belief and is based upon information which plaintiff has furnished to counsel. The language in the Complaint is that of counsel and not of plaintiff. To the extent that the contents of the Complaint are that of counsel, plaintiff has relied upon counsel in making this verification. This verification is made subject to 18 Pa.C.S. §4904 which provides for certain penalties for making false statements. NAME ? r Pt, sa r EXHIBIT "A" s 2054 RICHARD M KUMLER 4888937990932412 2071837 09436119 FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA AFFIDAVIT I, Darlene Leard being duly served sworn according to law, depose and say that: 1. I am the agent for the Plaintiff herein and I have custody and control of the files relating to this account; 2. I have personal knowledge of the facts and circumstances in connection with this case; 3. Plaintiff's files are maintained in the usual and ordinary course of business; 4. This action is based on a claim for breach of contract and that damages are sought as a direct result of said breach; 5. There is now due and owing from defendant to plaintiff, the amount of $8,633.28 plus interest of $1,580.46 at the rate of 0% less credits in the amount of $.00 totaling $10,213.74 as of November 5, 2009. 6. If called upon, affiant can testify at trial as to the facts pertaining to this matter. The above facts are true a d correct to the best of my knowledge, information and belief. AFFIANT Sworn to and Sub-.ribed to (or ff rmad) before me this L-? day of 0 2009 by narIan ne Lea Proved to me on the basis of satisfactory evidence to be the pe so (s) w o eared before me. c Signature ?,?pnnrrrrrq,,trs faO c SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Edward L Schorpp Solicitor w?t,,?,n of ?uirrG?r?Tfr? r r? Fi 71; ,_ . rt,?y G, , FIA Card Services vs. Case Number Richard M. Kumler 2010-311 SHERIFF'S RETURN OF SERVICE 01/21/2010 03:01 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on January 21, 2010 at 1501 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Richard M. Kumler, by making known unto Shirley Kumler, Wife of defendant at 1024 E. Lisburn Road, 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 22, 2010 SO ANSWERS, O Y R ANDERSON, SHERIFF By -'? D eputy eriff C; Cou,^,<; &'Ai She, if. I elonse4t. Irr. ?r FlLDE?y-t?FACEr-? Ap? ?1? OF THE P f ,7 1' " ' 1T ?' T Richard M. Kumler 1024 E. Lisburn Road Mechanicsburg, PA 17055 Defendant in Pro Per IN THE COURT OF COMMON PL.FAS State of Pennsylvania, Cumberland County FIA CARD SERVICES, N.A. F / K / A BANK OF AMERICA 2010 FEB -8 AM 11:04 1 PE JNS "(D44,N f",% DOCKET NO.: 10 - 311 CIVIL TERM Plaintiff, Vs. Richard M. Kumler (Defendant), Motion to Compel Arbitration Richard M. Kumler ("Defendant'), hereby answers the complaint of Freedom Debt Center ("Plaintiff") for its self alone as follows and moves this court to bar, stay or dismiss Plaintiffs claim based on the following: 1. Plaintiff filed a complaint against the defendant for a credit card balance due. 2. Defendant moves this court to compel binding arbitration based on the Credit Card Agreement provided by the Plaintiff. a. The parties are bound by Credit Card Agreement to settle disputes by binding arbitration, not by litigation, upon the election of either party (See Credit Card Agreement, attached hereto as Exhibit A.). This Motion constitutes notice of election by the undersigned to have this dispute resolved by binding arbitration, as provided for in the Credit Card Agreement. 3. Plaintiff has never sought to take the defendant to arbitration. 4. The Federal Arbitration Act ("FAA"), 9 USC, Section 1-2, provides: a. "A written provision in any maritime transaction or a contract evidencing a translation, involving commerce to settle by arbitration a controversy thereafter arising out of such a contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." S. Defendant requests that pending the court's ruling on this Motion this action be stayed. 6. "FAA", 9 USC, Section 1-3 provides: a. "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." WHEREFORE, Defendant requests that: 1. This honorable court stay the Plaintiffs complaint and any and all action related to this case. 2. This honorable court compels the Plaintiff to seek binding arbitration per the terms and conditions of the Credit Card Agreement. February 8, 2010 Signature Printed Name Defendant in Pro Per r ~ FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, Plaintiff vs. RICHARD M. KUMLER, Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION -LAW NO. 10-0311 CIVIL IN RE: DEFENDANT' S MOTION TO COMPEL ARBITRATION RULE TO SHOW CAUSE AND NOW, this 2 3 ~ day of February, 2010, upon consideration of the foregoing petition, it is hereby ordered and decreed as follows: 1. A rule is issued upon the plaintiff to show cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the petition within twenty (20) days of service; 3. the petition shall be decided under Pa. R.C.P. No. 206.7; 4. argument shall be scheduled if requested in any answer; and 5. notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT, eo ~ Es ~ ~L P ~7~.~~ 2. l~.,Y-,. L~ ~~~, s f rv ~~ N O rTi G~ ~..~ t1 _.~ ~~ -~ • ~7 r_. -t"1 fTi .:~ ~_ -:~, Qf CL /4? David D. Buell' Q Renee X Simpson Prothonotary q 1' Deputy Prothonotary rkS. Sohonage, ESQ : e r Irene E. Morrow Solicitor /750 2nd Deputy Prothonotary Office of the Prothonotary Cum6er(anclCounty, BennsyCvania !U - 03/I CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER, 2013, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • Ect (717)240-6573