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HomeMy WebLinkAbout10-08382062699 THIS IS NOT AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. T s 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 FIA CARD SERVICES, BANK OF AMERICA 1825 E. BUCKEYE RD. PHOENIX, AZ 85034 N.A. F/K/A Vs. ARLENE S PAOLETTA 1771 S MEADOW DRIVE CAMP HILL PA 17001 n ^? -T. I rh _ S' COURT OF COMMON PLEAS. CUMBERLAND COUNTY c. DOCKET NO. 10 - $3$ 0i1V'leXM NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 Q Gc,'? i o l oq ?1 ?,-(?` a37 091o 1 COMPLAINT IN CIVIL-ACTION 1. 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 plaintiff under the terms of which the plaintiff agreed to extend to defendant(s)tae use of plaintiff's credit facilities. 2. 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 plaintiff for the use of said credit card. 3. 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 Plaintiff. A true and correct copy of the Statement of Account or Affidavit of Account, if available, is attached hereto as Exhibit "A". 4. All the credits to which the defendant(s)is entitled have been applied and there remains a balance due as of 12/10/09 in the amount of $76,595.26. 5. 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. 6. Defendant's last payment on account was made on 10/31/2008. WHEREFORE, plaintiff claims of the defendant(s) the sum of $76,595.26 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I. INBERG, ESQUIRE JOEL M. FLINK, ESQUIRE Attorney for Plaintiff 2062699 09097539 FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA ARLMM 8 PAOLETTA 5490990997584642 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. 54904 which provides for certain penalties for making false statements. PlotV_ ` O EXHIBIT "A" 3054 ARLWZ 8 PAOLBTTA 5490990997584642 2062699 09097539 FIA CARD SERVICES, N.A. F/K/A SANK OF AMERICA I, law, depose and may that: AFFIDAVIT being duly served sworn according to 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 duo and owing from defendant to plaintiff, the amount of $66,416.45 plus interest of $10,178.81 at the rate of 0% less credits in the amount of $.00 totaling $76,595.26 as of June 19, 2009. 6. If called upon, affiant can testify at trial as to the facts pertaining to this matter. The above facts are true and correct to the bast of my knowledge, information and belief. AFFIANT Sworn to and Subac ibed to (or affirmed) before the / day o , 2009 by Proved to on the basis of satisfactory evidence to be the per n a) whoa oared before me. Signature 70tat .%^- gw w ...... ??.•::„ Cam P100.1 ° SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy HIV rt ?Vjlli rrY 3 `F1LED-4DFFE :F Tf c FtrT-n UNARY 2010 FEB 12 AM 11: 07 Edward L Schorpp Solicitor UNTY FIA Card Services vs. Case Number Arlene S. Paoletta 2010-838 SHERIFF'S RETURN OF SERVICE 02/04/2010 04:00 PM - Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on February 4, 2010 at 1600 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Arlene S. Paoletta, by making known unto herself personally, at 1771 S. Meadow Drive, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $41.50 SO AN ERS, February 08, 2010 NY R ANDERSON, SHERIFF ii &k? Dep ty Sheriff K Ci Ccu .t;S'AgA She'llf Te ^so`t 6 ; ~* IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT JURY TRIAL DEMANDED N r-~ :: -,~ NOTICE TO PLEAD °~ t, : ~= ~ ~.. -:~~ r=-`~ ~ ~f TO: Attorneys Frederic I. Weinberg & Joel M. Flink ; ' -' C/O Gordon & Weinberg, P.C. --~ ~~ '"~' r~., .~i c~ -< 1001 E. Hector Street, Suite 220, Conshohocken, Pa. 19428 On behalf of the above-captioned Plaintiff: You are hereby notified to file a written response to the enclosed, Defendants Preliminary Objections to Plaintiff s Complaint within twenty (20) days from service hereof or a judgment may be entered. against you. ' Date: Februa 23 2010 - ~-c.~`Z~l~~GLc.,. ~ By: Arlene S. Paoletta IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 PRELIMINARY OBJECTIONS TO PLAINTIFF' S COMPLAINT JURY TRIAL DEMANDED ORDER AND NOW, this _ day of 2010, upon consideration of the Defendant's, Arlene S. Paoletta's, Preliminary Objections to Plaintiff, FIA Card Services N.A. Complaint, , it is hereby ORDERED. AJUDGED and DECREED that said Preliminary Objections are GRANTED. It is further ORDERED that Plaintiff, shall have twenty (20) days from the date of this ORDER to correct each of the defects as it appertains to lack of jurisdiction, lack of capacity to sue, for the failure of the Complaint to conform to rule of court and for insufficient specificity in a pleading. Failure of the Plaintiff to comply with this ORDER timely will result in PlaintifQs Complaint being DISMISSED with PREJUDICE. BY THE COURT: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 PRELIMINARY OBJECTIONS TO PLAINTIFF' S COMPLAINT JURY TRIAL DEMANDED DEFENDANT' S PRELIMINARY OBJECTIONS TO PLAINTIFF' S COMPLAINT AND NOW, comes Arlene S. Paoletta, Defendant in the above-captioned matter, (hereinafter "Paoletta") who files these Preliminary Objections to the Complaint of Plaintiff, FIA Card Services, N.A, f/k/a Bank of America, (hereinafter "Plaintiff') pursuant to Pennsylvania Rules of Civil Procedure (PA.R.Civ.P.) 1028 et. seq., for their failure to establish they are the real party in interest; for, Plaintiff's lack of standing to bring the instant action;, for this Court lack of jurisdiction to hear this matter as presented; for, Plaintiff s failure to conform to rule of court or law; for, insufficiency of Plaintiff s pleading and/or failure to plead with specificity, and in support thereof, states as follows: BACKGROUND 1. On or about February 2, 2010, Plaintiff filed a Complaint against Paoletta in the Court of Common pleas of Cumberland County. 2. On or about February 5, 2010, Paoletta was served with a copy of said Complaint. Plaintiff is not the Real Party in Interest. and lacks standing to brink this Action against Paoletta. and this Conrt lacks inrisdiction to hear this Matter 3. Plaintiff, FIA Card Services, N.A. is not the real party in interest, and lacks standing to bring this action against Paloetta, and accordingly, this court lacks jurisdiction to hear this matter as presented. 4. Plaintiff fails to attach any evidence whatsoever, save for aself-serving "affidavit" by an unknown "agent", that is improperly, albeit, defectively notarized. 5. Plaintiff fails to attach any agreement that purports to be between Plaintiff and Paoletta as to engender this court with jurisdiction. 6. "J.urisdiction. once challenged. is to be proven. not by the court. but by the par , attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered". Schroech v. Pa. State Police. 26 Cmwlth. Ct. 41, 362 A2d 486 (1976) See McNutt v. GMAC. 298 US 178 (emphasis added) 7. Wherefore, Paoletta requests that that Plaintiffs Complaint be dismissed, pursuant to Pa.R.Civ.P.1028(a)(1) for Plaintiffs failure to prove they have standing as a real party in interest, and for this court's lack of jurisdiction over the subject matter and/or the person, or in the alternative, for any other reason this Court deems just and proper. Plaintiff. FIA Card Services. N.A. lacks ca aci , to sue under Pa.R.Civ. P. 1028fa1f51 8. Paoeltta hereby incorporates paragraphs one (1) through seven (7) as if they are set forth at length herein. ~ J 9. Pa.R.Civ.P.1028(a) provides that: "[p]reliminary objections maybe filed by an party to a pleading and are limited to the following grounds:...lack of capacity to sue." Pa.R.Civ.P.1028(a)(5) 10. Plaintiff, FIA Card Services, N.A., is not registered to do business in the Commonwealth as required by 15 Pa.C.S.A.. §4141(a). 11. 15 Pa.C.S.A.§4141(a) provides in pertinent part that, "A nonqualified foreign business corporation doing business in this Commonwealth shall not be permitted to maintain any action or proceeding in any court of this Commonwealth until the corporation has obtained a certificate of authority." (emphasis added) 12. A "nonqualified foreign business corporation" is a foreign business corporation that has not obtained a certificate of authority under the foreign business corporation provisions of Pennsylvania's Business Corporation Law of 1988. See, 15 Pa.C.S.A. §§1101,1103,4101-4162 (emphasis added) 13. Pursuant to Title 15 Pa. C.S. § 4124 entitled "Application for Certificate of Authority, §4124(a) 4 reads in pertinent part," Subject to section 109 (relating to name of commercial registered office provider in lieu of registered address), the address, including street and number, if any, of its proposed registered office in this Commonwealth: ' 14. Additionally, Plaintiff has failed to file a fictitious name as required by 54 Pa.C.S.A.. §331. 15. Pursuant to 54 Pa.C.S. §331, entitled,Contracts entered into by entity using unregistered fictitious name, provides in pertinent part, that (a) General rule - No entity which has failed to register a fictitious name as required by this chapter shall be permitted to maintain any action in any tribunal of this Commonwealth until such entity shall have complied with the provisions of this chapter. Nor shall any action be maintained in any tribunal of this Commonwealth by any successor or assignee of such entity on any right, claim or demand arising out of a transaction with respect to which such entity used such fictitious name until such entity, or an entity which has acquired all or substantially all of its assets, shall have complied with the provisions of this chapter... (Emphasis added.) 16. PlaintifYs caption to the Complaint states that [Plaintiff] FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA [is located at] 1825 E. BUCKEYE RD. PHOENIX, AZ 85034. 17. Nowhere within Plaintiff s Complaint, does it aver that Plaintiff is registered to do business, and/or can lawfully engage in business within the Commonwealth of Pennsylvania. 18. Upon subsequent research of the Pennsylvania Department of State database, Paoletta can find no evidence whatsoever that Plaintiff is registered with the Department of State to be allowed to conduct business within the Commonwealth. 19. Assuming, arguendo, that Plaintiff asserts that their business activity is statutorily-exempt (a position defendant does not adopt) the Pennsylvania Supreme Court has strongly suggested that a corporation's regular practice of engaging in one of the statutory-excluded activities in the Commonwealth would require registration. See American Housing Trust v. Jones. 696 A.2d 1181 (Pa. 1997) 20. The Pennsylvania Supreme Court went on to state, "[I]n order for the trial court to properly rule on [defendant's] preliminary objections to [the plaintiff s] complaint, there must be of record, all the facts necessary for the trial court to determine whether [the plaintiff] is statutorily excluded from the requirement to obtain a certificate of authority. This necessarily entails facts going to both the nature and the extent of [the plaintiff's] activities in this Commonwealth" ~ at 1185 21. FIA CARD SERVICES N.A., is a foreign corporation and has NOT produced a Certificate of Authority to do business in Pennsylvania, has no known registered place of business within Pennsylvania and has not registered its name as a fictitious name as required by 54 Pa. C.S § 331 22. It is clear that Plaintiff FIA CARD SERVICES N.A., is in violation of 15 Pa.C.S. §4141 and, 54 Pa. C.S. §331 and therefore lacks the capacity to bring this action under Pa. Rules of Civil Procedure 102851. 23. Wherefore, Defendant requests that Plaintiff's complaint be dismissed, pursuant to PA.R.Civ.P.1028(a)(5), for lack of capacity to sue, and, for any other reason this court deems just and proper. Plaintiff s Comulaint should be dismissed for failure to conform to rule of law or court because of Plaintiff s failure to attach any annlication or agreement that binds Paoletta and for insufficient sRecificity in a ~leadin~ and for legal insufficiency of a le~adin~. uursuant to PA.R.Civ.P 1028[a)„(21f3)and ~l. 24. Paoletta hereby incorporates paragraphs one (1) through twenty-three (23) as if they are set forth at length herein. 25. Pa.R.Civ.P.1028(a)(2) provides in pertinent part that, "[p]reliminary objections maybe filed by any party to any pleading and are limited to the following grounds:...failure of a pleading to conform to...rule of court." 26. The governance of content of pleadings maybe found under Pa.R.Civ.P 1019, entitled Contents of Pleadings. General and Specific Averments 27. Pa.R.Civ.P 1019(a) states, "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." (emphasis added) 28. Pa R.Civ.P 1019(c) states, "In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of such performance or occurrence shall be made specifically and with particularitg." (emphasis added) 29. Pa.R.Civ.P. 1019(f) states, "Averments of time. place and items of special damage shall be specifically stated." (emphasis added) 30. Pursuant to Pa.R.Civ.P. 1019(h) states, "When a claim or defense is based upon an agreement, the pleading shall state specifically i'~the agreement is oral or written." (emphasis added) Note: "If [an] agreement is in writing, it must be attached to the pleading." See subdivision (i) of this rule (emphasis added) 31. Pa.R.Civ.P. 1019(1) goes on to state in pertinent part, "[w]hen any claim...is based upon a writing, the pleader shall attach a couv of the writing..." (emphasis added) 32. A mandatory interpretation is usually conferred upon the use of words such as "shall", and, "must", whereas, a discretionary interpretation is afforded words such as "may". "...verbs used should carry with them their ordinary meanings" Salvadia v. Ashbrook. 923 A.2d 436, 441 (Pa. Super. Ct. 2007) 33. Plaintiff s Complaint is wholly deficient, and/or fatally defective, as it fails to identify, the denial of performance as alleged to have occurred with any specificity and/or particularity as required by Pa.R.Civ.P. 1019(c). 34. Plaintiff s Complaint is wholly deficient and/or fatally defective as it fails to state specifically, averments of time, place and items as otherwise alleged, pursuant to 1019(f). 35. Plaintiff s Complaint is wholly deficient as it fails to specifically state whether the alleged agreement is oral or written, as required by Pa.R.Civ.P 1019(h). 36. Plaintiff's Complaint is wholly deficient and/or fatally defective as it fails to attach the alleged requisite "agreement", "application" as required by Pa.R.Civ.P 1019(1). 37. Plaintiff s Complaint is wholly deficient and/or fatally defective as it fails to attach any material evidence whatsoever sufficient to support the bogus contentions that, Paoletta is, in any way, obligated for anything, to Plaintiff, as otherwise required under Pa.R.CivP. 1019(a) as further delineated in paragraphs thirty-three (33) through thirty-six (36) inclusive. 38. Without Plaintiff attaching proof of the allegations as set forth in their complaint, the pleading fails to establish any credible admissible evidence that would survive a challenge, including but not limited to PA. R.E. §§ 901, 902(11),1002,1003, 803.6, Title 42 Pa. C.S. §6108 and the hearsay rules. 39. Pursuant to Pa. R.C.P. 1019, under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint. Miketic v. Baron, 450 Pa Super 91,104, 675 A.2d 324, 330 (Pa Super 19961 (citing antiago v Pennsylvania Nat Mut Cas I Co 418 Pa Su eP r 178,183, 613 A 2d 1235,1238 (19921; Pa. R. C P 1019 40. The complaint must not only apprise Paoletta of an asserted claim, but it must also synopsize the essential facts to support the claim. (citing Pa. R. C. P. 1019(al and Krajsa v Keypunch, Inc , 424 Pa Super 230, 234, 622 A 2d 355, 357 (1993,1. 41. Furthermore, the complaint must apprise the defendant of nature and extent of plaintiff's claim so that defendant has notice of what plaintiff intends to prove at trial and may prepare to meet such proof with his own evidence. iss v. Equibank, 460 A.2d 271 313 Pa Surer 446 (Pa Surer 19g~) 42. "The purpose of Rule 1019(1) is to "require the pleader to disclose the material facts sufficient to enable the adverse party to prepare his case." Landau v. YVestern Pennsvlvania National Bank, 282 A 2d 335, 339 (Pa 1971 43. Accordingly, PlaintifFs Complaint fails to properly set forth a cause of action for breach of contract, whereby, Paoletta is unable to properly defend against the action and respectfully requests that this Honorable Court should sustain Paoletta's Preliminary Objections to the Plaintiff's Complaint. 44. Wherefore, Paoletta requests that this Court sustain her Preliminary Objections and dismiss Plaintiff's Complaint pursuant to PA.R.Civ.P. 1028(a)(2)(3) and (4) and/or for any other reason this Court deems just and proper. Defective Verification/Affidavit/Notarization 45. Paoletta hereby incorporates paragraphs one (1) through forty-four (44) as if they are set forth at length herein. 46. Pa. R.C.P 1024(c) states in pertinent part, "The verification shall be made by one or more of the parties filing the pleading 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 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 per'"• 47. Both Plaintiff s verification and Affidavit contain defective notarizations, that Paoletta believes are both facial obvious and substantively fatal. 48. Said Notary fails to properly identify the name of the individual for whom acknowledgement is made on either the affidavit or the verification; it cannot be ascertained from either document the identity of the alleged "Agent". 49. Said Notary fails to provide the requisite "rubber stamp" that contains, inter alia, the words "Notary Seal", and, The notary's name which is otherwise illegible on the document(s), and the words, "Notary Public", as well as the county and state for which the alleged notarization occurred, or further, as required therein, the date upon which said (unknown) notary's commission expires. 50. Moreover, aside from properly identifying the party who's alleged signature was notarized, there is a woeful failure to, in the context of the acknowledgment to identify the make as an agent who is authorized to make the alleged affidavit. 51. The rubber stamp seal, is essential to the document, as it serves as the seal of office, serving to authenticate, confirm, and/or attest, and that alleged notary indeed has the authority needed to perform the official act; and, this "seal" must be legible. 52. Whilst the documents does contain a purported copy of an embossment, such embossments are only incidental to the essential rubber stamp seal, (which must be legible) and in this case, even the embossment itself, is illegible. 53. Notwithstanding the obvious and glaring defects of the aforementioned, the information contained in both the Affidavit and the Verification are riddled with serious defects as to vitiate any validity attributed thereto. 54. These numerous defects are more fully set forth in a separate document, as an addendum to the aforesaid, entitled "Defects to Plaintiff s Verification/Affidavit/Notarization", which is incorporated herein, pursuant to Pa.R.Civ.P 1019(g) as if they are set forth at length herein, and are further attached hereto and marked as Addendum A. 55. Paoletta requests that her Preliminary Objections to Plaintiff s Complaint be sustained, for the innumerable defects contained within Plaintiff s Verification and Affidavit, as well as the defect(s) in their notarization, or for any other reason this Court deems just and proper. WHEREFORE, Paoletta respectfully requests that her Preliminary Objections be sustained and/or Plaintiff s complaint be dismissed for all the foregoing reasons contained herein; or, in the alternative, that Plaintiff s be compelled to correct each and every defect to their Complaint within twenty (20) days from entry of this Court's Order, and, if after twenty (20) days, should Plaintiff fail to comply with this Court's Order, Plaintiffs Complaint be dismissed forthwith, with prejudice. Respectfully Submitted, Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff . v CASE NO.: 10-$38 Arlene S. Paoletta BRIEF IN SUPPORT OF PRELIMINARYOBJECTIONS Defendant TO PLAINTIFF'S COMPLAINT JURY TRIAL DEMANDED BRIEF IN SUPPORT OF DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Arlene S. Paoletta, Defendant in the above-captioned matter, (hereinafter "Paoletta") who files this Brief in Support of her Preliminary Objections to the Complaint of Plaintiff, FIA Card Services, N.A, f/k/a Bank of America, (hereinafter "Plaintii~') pursuant to Pennsylvania Rules of Civii Procedure (PA.R.Civ.P.) 1028 et. seq., for their failure to establish they are the real parry in interest; for, Plaintiff's lack of standing to bring the instant action;, for this Court lack of jurisdiction to hear this matter as presented; for, Plaintiff s failure to conform to rule of court or law; for, insufficiency of Plaintiff's pleading and/or failure to plead with specificity, and in support thereof, states as follows: BACKGROUND On or about February 2, 2010, Plaintiff filed a Complaint against Paoletta in the Court of Common pleas of Cumberland County. On or about February 5, 2010, Paoletta was served with a copy of said Complaint. PRELIMINARY OBJECTIONS In ruling on preliminary objections, this Court must accept as true all well- pleaded facts and all inferences reasonable deductible therefrom. Dorfman v. Pennsylvania Social Services nion Loca 668 of the Service Em.~lo.,yeeg Internationalists Union 752 A 2d 933 (Pa Cmwlth 2000~,However, this Court should not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Turner v. Pennsylvania Board of Probation and Parole 749 A 2d 1018 (Pa Cmwlth 20001 Plaintiff is not the Real Party in Interest. and lacks standin¢ to bring this Action against Paoletta. and this Conrt lacks ~arisdiction to hear this Matter Plaintiff, FIA Card Services, N.A. is not the real party in interest, and lacks standing to bring this action against Paloetta, and accordingly, this court lacks jurisdiction to hear this matter as presented. Plaintiff fails to attach any evidence whatsoever, save for aself- serving "affidavit" by an unknown "agent", that is improperly, albeit, defectively notarized. Plaintiff fails to attach any agreement that purports to be between Plaintiff and Paoletta as to engender this court with jurisdiction. Paoletta, challenges the very standing of the alleged Plaintiff and that as a party in interest of any interest involving Paoletta, and finds it appalling on the face of it that Plaintiff brings an action against her absent any proof whatsoever involving Paoletta.. Plaintiff fails to even minimally comport to PA.R.Civ.P 2002, as to a real part in interest. It is well established that, a [plaintiff) must prove standing by showing (1) an injury in fact; (2) a nexus between the injury and defendant's conduct; and (3) a likelihood that a favorable outcome will redress the injury. See Ln~an y. Defendants of Wlldllfe, 504 U.S. 555, 560-61 (1992) "Jurisdiction. once challenged. is to be proven. not by the court. but by the party attem~ ing to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered". ~chroech v. Pa. State Police, 26 Cmwlth. Ct. 41, 362 A2d 486 (1976) See McNutt v. MA 298 US 178 (emphasis added) The United States Supreme Court held in Rescue Army v. Municipal Court of Los Angeles. 171 P2d 8; 331 US 549, 91 L.ed 1667, 67 S.Ct 1409, that " A court has no jurisdiction to determine its own jurisdiction, for the basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance." Moreover, "[t]here is no discretion to ignore the lack of jurisdiction." jovc, a v. US. 474 F2d 215; and, "[t]he law provides that once State and Federal jurisdiction have been challenged, it must be proven." Main v. Thiboutot.100 S.Ct. 2502. Finally, "[j]urisdiction can be challenged at any time, even on final determination." Basso v. Utah Power & Li t Co., 495 2d 906 at 910. Wherefore, Paoletta requests that that Plaintiffs Complaint be dismissed, pursuant to Pa.R.Civ.P.1028(a)(1) for Plaintiffs failure to prove they have standing as a real party in interest, and for this court's lack of jurisdiction over the subject matter and/or the person, or in the alternative, for any other reason this Court deems just and proper. plaintiff. FIA Card Services, N.A. lacks capaci to sue under Pa.R.Civ. P. ~028fa1f51 Pa.R.Civ.P. 1028(a) provides that: "[p]reliminary objections maybe filed by an party to a pleading and are limited to the following grounds:...lack of capacity to sue." Pa.R.Civ.P.1028(a)(5) Plaintiff, FIA Card Services, N.A., is not registered to do business in the Commonwealth as required by 15 Pa.C.S.A.. §4141(a). 15 Pa.C.S.A.§4141(a) provides in pertinent part that, "A nonqualified foreign business corporation doing business in this Commonwealth shall not be permitted to maintain any action or proceeding in any court of this Commonwealth until the corporation has obtained a certificate of authority." (emphasis added) A "nonqualified foreign business corporation" is a foreign business corporation that has not obtained a Certificate f authority under the foreign business corporation provisions of Pennsylvania's Business Corporation Law of 1988. See, 15 Pa.C.S.A. §§1101,1103,4101-4162 (emphasis added) Pursuant to Title 15 Pa. C.S. § 4124 entitled "Application for Certificate of Authority, §4124(a) 4 reads in pertinent part," Subject to section 109 (relating to name of commercial registered of, f ice provider in lieu of registered address), the address, including street and number, if any, of its proposed registered office in this Commonwealth." Additionally, Plaintiff has failed to file a fictitious name as required by 54 Pa.C.S.A.. §331. Pursuant to 54 Pa.C.S. §331, entitled,Contracts entered into by entity using unregistered fictitious name, provides in pertinent part, that (a) General rule - No entity which has failed to register a fictitious name as required by this chapter shall be permitted to maintain any action in any tribunal of this Commonwealth until such entity shall have complied with the provisions of this chapter. Nor shall any action be maintained in any tribunal of this Commonwealth by any successor or assignee of such entity on any right, claim or demand arising out of a transaction with respect to which such entity used such fictitious name until such entity, or an entity which has acquired all or substantially all of its assets, shall have complied with the provisions of this chapter... (Emphasis added.) Plaintiffs caption to the Complaint states that [Plaintiff) FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA [is located at] 1825 E. BUCKEYE RD. PHOENIX, AZ 85034. Nowhere within Plaintiff s Complaint, does it aver that Plaintiff is registered to do business, and/or can lawfully engage in business within the Commonwealth of Pennsylvania. Upon subsequent research of the Pennsylvania Department of State database, Paoletta can find no evidence whatsoever that Plaintiff is registered with the Department of State to be allowed to conduct business within the Commonwealth. Assuming, arguendo, that Plaintiff asserts that their business activity is statutorily-exempt (a position defendant does not adopt) the Pennsylvania Supreme Court has strongly suggested that a corporation's regular practice of engaging in one of the statutory-excluded activities in the Commonwealth would require registration. See American Housing Trust v. Jones. 696 A.2d 1181 (Pa.1997) The Pennsylvania Supreme Court went on to state, "[I]n order for the trial court to properly rule on [defendant's] preliminary objections to [the plaintiff's] complaint, there must be of record, all the facts necessary for the trial court to determine whether [the plaintiff) is statutorily excluded from the requirement to obtain a certificate of authority. This necessarily entails facts going to both the nature and the extent of [the plaintiff s] activities in this Commonwealth" ~¢ at 1185 FIA CARD SERVICES N.A., is a foreign corporation and has NOT produced a Certificate of Authority to do business in Pennsylvania, has no known registered place of business within Pennsylvania and has not registered its name as a fictitious name as required by 54 Pa. C.S § 331 It is clear that Plaintiff FIA CARD SERVICES N.A., is in violation of 15 Pa.C.S. §4141 and, 54 Pa. C.S. §331 and therefore lacks the capacity to bring this action under Pa. Rules of Civil Procedure 1028a(~,~, Wherefore, Defendant requests that Plaintiffs complaint be dismissed, pursuant to PA.R.Civ.P.1028(a)(5), for lack of capacity to sue, and, for any other reason this court deems just and proper. Plaintiffs Complaint should be dismissed for failure to conform to rule of law or court because of Plaintiffs failure to attach any application or agreement ghat binds Paoletta and for insufficient specifici in a pleading and for legg_1 insufficiency of a lep ading uursuant to PA R Civ P 1028fa1(21(~land ~~ Pa.R.Civ.P.1028(a)(2) provides in pertinent part that, "[p]reliminary objections maybe filed by any party to any pleading and are limited to the following grounds:...failure of a pleading to conform to...rule of court." Pennsylvania is afact-pleading jurisdiction. Pa.R.C.P. 1019(a) states that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." The purpose of Rule 1019(a) is to "require the pleader to disclose the 'material facts' sufficient to enable the adverse party to prepare his case." Landau v. Western Pennsylvania National Bank, 282 A.2d 335, 339 (Pa 19712 A complaint "must not only give the defendant notice of what the plaintiffs' claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim." Alpha Tau Omega Fraternity v University of Pennsylvania, 464 A 211349,1352 (Pa Super 19832 The governance of content of pleadings may be found under Pa.R.Civ.P 1019, entitled Contents of Pleadings. General and Specific Averments Pa.R.Civ.P 1019(a) states, "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." (emphasis added) Pa R.Civ.P 1019(c) states, "In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of such performance or occurrence shall be made pecifically and with partic»ia*~+~." (emphasis added) Pa.R.Civ.P.1019(f) states, "Averments of time place and items of special damage shall be specifically stated." (emphasis added) Pursuant to Pa.R.Civ.P.1019(h) states, "When a claim or defense is based upon an agreement, the 1 ading shall state specifically is the agreement is oral or written." (emphasis added) Note: "If [an] agreement is in writing, it must be attached to the pleading." See subdivision (i) of this rule (emphasis added) Pa.R.Civ.P.1019(i) goes on to state in pertinent part, "[w]hen any claim...is based upon a writing, the pleader shall attach a cgs of the writing..." (emphasis added) A mandatory interpretation is usually conferred upon the use of words such as "shall", and, "must", whereas, a discretionary interpretation is afforded words such as "may". "...verbs used should carry with them their ordinary meanings" S Iv i v. Ashbrook. 923 A.2d 436, 441 (Pa. Super. Ct. 2007) Plaintiff's Complaint is wholly deficient, and/or fatally defective, as it fails to identify, the denial of performance as alleged to have occurred with any specificity and/or particularity as required by Pa.R.Civ.P. 1019(c). Plaintifi? s Complaint is wholly deficient and/or fatally defective as it fails to state specifically, averments of time, place and items as otherwise alleged, pursuant to 1019(f). Pa. R.C.P. 1019(f) provides that: Averments of time, place, person and/or thing (happening) and items of special damage shall be specifically stated. Worldwide As et Purchasing LLC v stern, 153 PL T 111, (Wettick 2004,E Judge Wettick ruled in the above referenced case, "I said that whenever a claim involves one period of time in which the initial terms and conditions of the credit card agreement apply and other periods of time in which amended terms and conditions apply, the plaintiff must attach to the complaint both the original and amended terms and conditions with the dates on which they are applicable. The plaintiff has not attached any contract and/or agreement. Plaintiff's Complaint is wholly deficient as it fails to specifically state whether the alleged agreement is oral or written, as required by Pa.R.Civ.P 1019(h). Plaintiff's Complaint is wholly deficient and/or fatally defective as it fails to attach the alleged requisite "agreement", "application" as required by Pa.R.Civ.P 1019(1). Pa. R. Civ. P. 1019(1) provides that when a claim is based upon writing the pleader shall attach a copy of the writing, or the material part thereof, to its pleading. The Rule also provides that if the writing is not accessible to the pleader, it is sufficient to so state, together with the reason why is not accessible; however, the pleader us also set forth the substance of the document in writing. Ordinarily, a complaint should be stricken for failure to attach an essential document. Adamo v. Cirri, 656 A.2d 576 (Pa Cmwlth 19951 Plaintiff s Complaint is wholly deficient and/or fatally defective as it fails to attach any material evidence whatsoever sufficient to support the bogus contentions that, Paoletta is, in any way, obligated for anything, to Plaintiff, as otherwise required under Pa.R.CivP. 1019(a) as further delineated in paragraphs thirty-three (33) through thirty-six (36) inclusive. Without Plaintiff attaching proof of the allegations as set forth in their complaint, the pleading fails to establish any credible admissible evidence that would survive a challenge, including but not limited to PA. R.E. §§ 901, 902(11),1002,1003, 803.6, Title 42 Pa. C.S. §6108 and the hearsay rules. Pursuant to Pa. R. C. P. 1019, under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint. Miketic v. Baron, 450 Pa Super 9191,104675 A.2d 324 330 (Pa Suner 19961(citing ant' go v Pennsylvau-ia Nat Mut Cas Ins Co , 418 Pa Suner.178.183.613 A.2d 1235,1238 (19921; Pa R C P 1019 The complaint must not only apprise Paoletta of an asserted claim, but it must also synopsize the essential facts to support the claim. (citing Pa. R. C. P.1019(al and Kraisa v. Kevpuncb. Inc , 424 Pa Super 230, 234, 622 A 2d 355, 357 (1993~,Z Furthermore, the complaint must apprise the defendant of nature and extent of plaintiff's claim so that defendant has notice of what plaintiff intends to prove at trial and may prepare to meet such proof with his own evidence. Weiss v. Equiba_n , 460 A 2d 271, 313 Pa Super 446 (Pa uper 19832 "The purpose of Rule 1019(1) is to "require the pleader to disclose the material facts sufficient to enable the adverse party to prepare his case." Landau y. Western Pennsvlvania National Bank, 282 A 2d 335, 339 (Pa 1971 Because the Plaintiff bases its complaint on an (alleged) agreement that is purported, presumably, in writing, failure to attach the written agreement must be considered fatal to the complaint, and, a proper basis for Defendant filing preliminary objections thereto. See Atlantic Credit and Fin nce, Inc v Guiliana, 829 A.2d 340, 344-345 (Pa. Super. Ct. 2003) "Where the plaintiff relies upon a contract in which he or she has privity but to which he or she is not a direct party, the complaint Is required to show how the privity of contract arose." 4 Standard Pennsylvania Practice 2d &22.10 at 124 Accordingly, Plaintiffs Complaint fails to properly set forth a cause of action for breach of contract, whereby, Paoletta is unable to properly defend against the action and respectfully requests that this Honorable Court should sustain Paoletta's Preliminary Objections to the Plaintiffs Complaint. Wherefore, Paoletta. requests that this Court sustain her Preliminary Objections and dismiss Plaintiff's Complaint pursuant to PA.R.Civ.P. 1028(a)(2)(3) and (4) and/or for any other reason this Court deems just and proper. Defective Verification/Affidavit/Notarization Pa. R.C.P 1024(c) states in pertinent part, "The verification shall be made by one or more of the parties filing the pleading 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 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 PAY"• Both Plaintiff's verification and Affidavit contain defective notarizations, that Paoletta believes are both facial obvious and substantively fatal. Said Notary fails to properly identify the name of the individual for whom acknowledgement is made on either the affidavit or the verification; it cannot be ascertained from either document the identity of the alleged "Agent". Said Notary fails to provide the requisite "rubber stamp" that contains, inter alia, the words "Notary Seal", and, The notary's name which is otherwise illegible on the document(s), and the words, "Notary Public", as well as the county and state for which the alleged notarization occurred, or further, as required therein, the date upon which said (unknown) notary's commission expires. Moreover, aside from properly identifying the party who's alleged signature was notarized, there is a woeful failure to, in the context of the acknowledgment to identify the make as an agent who is authorized to make the alleged affidavit. The rubber stamp seal, is essential to the document, as it serves as the seal of office, serving to authenticate, confirm, and/or attest, and that alleged notary indeed has the authority needed to perform the official act; and, this "seal" must be legible. Whilst the documents does contain a purported copy of an embossment, such embossments are only incidental to the essential rubber stamp seal, (which must be legible) and in this case, even the embossment itself, is illegible. Notwithstanding the obvious and glaring defects of the aforementioned, the information contained in both the Affidavit and the Verification are riddled with serious defects as to vitiate any validity attributed thereto. These numerous defects are more fully set forth in a separate document, as an addendum to the aforesaid, entitled "Defects to Plaintiff s Verification/Affidavit/Notarization", which is incorporated herein, pursuant to Pa.R.Civ.P 1019(g) as if they are set forth at length herein, and are further attached hereto and marked as Addendum A. Paoletta requests that her Preliminary Objections to Plaintiff's Complaint be sustained, for the innumerable defects contained within Plaintiff's Verification and Affidavit, as well as the defect(s) in their notarization, or for any other reason this Court deems just and proper. WHEREFORE, Paoletta respectfully requests that her Preliminary Objections be sustained and/or Plaintiff's complaint be dismissed for all the foregoing reasons contained herein; or, in the alternative, that Plaintiff's be compelled to correct each and every defect to their Complaint within twenty (20) days from entry of this Court's Order, and, if after twenty (24) days, should Plaintiff fail to comply with this Court's Order, Plaintiff s Complaint be dismissed forthwith, with prejudice. Respectfully Submitted, f Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 IN THE COURT OF COMMON PLEASE, COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA FIA Card services N. . ~ ~ I l~ ~ K of ~n~ ~,e..~c' A aintiff, ) Vs. ) Arlene S. Paoletta ) Defendant, ) Case no. 10-8389 Civil Term DEMAND FOR TRIAL BY JURY ADDENDUM A DEFENDANT'S ADDENDUM TO PLAINTIFF'S DEFECTS TO PLAINTIFF'S VERIFICATION. AFFIDAVIT AND NOTORIZATION COMES NOW, Defendant Arlene S. Paoletta (hereinafter known as Paoletta) and files her ADDENDUM TO PLAINTIFF'S DEFECTS TO PLAINTIFF'S VERIFICATION, AFFIDAVIT AND NORORIZATION and states based upon a review of their lack of evidence Plaintiff has submitted in support of its claim reveals several patterns of material inefficiencies as well as evidentiary and pleading inadequacies that this Court should recognize and dismiss the Plaintiff's Complaint based upon a dearth of admissible evidence of either the existence of a contract, statement of accounts, an executed credit card agreement andlor executed application or conclusively substantiate that Plaintiff had suffered any fmancial detriment or suffered any damage from any alleged of a breach. Instead, plaintiff does not even submit any ezhibits but any actually states in Paragraph Three (3) of Plaintiffs Complaint by stating, "a true and correct copy of the Statement of account or Affidavit of Account, if available, is attached hereto as Ezhibit "A" and in Paragraph Two (2) the Plaintiff states in un-supported allegations that Paoletta has accepted and used the aforesaid credit card without first proving the date, method and system that Paoletta ever received and offer, ever accepted and Plaintiff must prove that Plaintiff gave actual consideration. In support of its complaint, Plaintiff has attached an affidavit of Darlene Unreadable, (hereinafter Affiant) an alleged "Agent(s)" of Plaintiff (without declaring her employment and authority in which to ezecute the aforementioned Affidavit who has no first hand knowledge of anything that may have transpired between the Parties prior to the alleged default. In particular, the Affiant is incapable of testifying from first hand knowledge regarding the establishment of a valid enforceable contractual agreement, application, statement of accounts describing with specificity what, where, whom purchased merchandise, and/or who received any cash advances or any identified indebtedness between the Parties. In addition, the Affiant has no first hand knowledge of the circumstances under which Plaintiff loaned anything of value to Defendant. As such, the Affiant is totally incompetent to testify or substantiate the substance of Plaintiff's claims herein. A review of the affidavit submitted by Plaintiff in support of its Complaint is extremely revealing. First of all, the affidavit as presented is insufficient to support a Complaint and is insufficient under including and not limited to Pa. Rules of Civil Procedure §§1019(a),(c) lack specifically and particularity, (fj must aver time, place and items of specific damage must be plead with specificity, (h) fails to state written or verbal and(i) Fails to attach a copy of the executed contract, 1024 improper verification, 1028(1), (2), (3), (4) and (5), PA. RC.P.1033. A close inspection reveals that the affidavit and the Plaintiffs Complaint are conclusory in every respect. Plaintiff relies exclusively on an affidavit executed by one of its (questionable) "Agent(s)" and alludes to various documents which she does not specifically identify or even attach these documents as required. I3y the filing of this deficient affidavit clearly depicts the lack of Affiant's personal, first hand knowledge for she does not attest to the genuineness or authenticity of any documents thus denying that Plaintiff has not made out its prima facie case. The circumstances under which Plaintiff and Defendant executed a valid and enforceable contract has not been supported by affiant that would justify recovery herein. The Plaintiff must tender evidence, by proof in admissible form, to establish the cause of action sufficiently to warrant the court as a matter of law in accepting this Complaint and failure to make such showing must allow this honorable Court to grant Paoletta's Preliminary Objections for the insufficiencies in Plaintiff's Complaint. A conclusory assertion of facts, without any evidentiary basis, is insufficient and when affiant alludes to documents relied upon, the documents must be attached. Another insufficiency in their pleading is they are trying to deceive this Court and Paoletta. The Plaintiff has not submitted any business records to establish that it meets the evidentiary requirements for business records. In order to substantiate business records a corporate officer must swear to the authenticity and genuineness of the documents. It is very apparent that the Plaintiff's Complaint is not supported with any authenticated and genuine evidence. The Affiant only identifies herself as an agent for the Plaintiff but does not identify her corporate capacity and fails to state what authority allows her to execute this affidavit. The Affiant fails to properly describe which Plaintiff she is an agent for. She has not identified if she is an agent for Bank of America or FIA Card Services, two privately independent corporations. In order for the Plaintiff to prevail on a breach of contract claim, as referenced in the Plaintiff s Affidavit, the Plaintiff must prove the existence of a valid contract (non-existent} between the parties. The Plaintiff s Complaint fails miserably in showing that the Parties formed a binding contract when the following elements are not present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. The Plaintiff in order to support their allegations, must also prove the terms of the their alleged agreements including and not limited to: 1) identifying the specific cardholder agreement(s) that Paoletta signed the agreement and that Paoletta applied to the class of accounts that included the defendant's account, 2) assembling the entire set of agreements that applied to the defendant's account during the time period that it was open from the inception, 3) identifying the additional documents specifying the interest rate, fees and terms applicable to the account, 4) proving that the alleged agreements were actually offered to the defendant, accepted by the defendant and 5~ proving that the defendant received the sIIeged credit card wig an identifying account number. Pennsylvania Rules of Civil Procedure demands under 1021 that the Plaintiff must produce its accounting records and/or ledger accounts substantiating any indebtedness by the Defendant In fact, the affidavit is a "Canned" document; wherein the Affiant reveals she does not have any personal knowledge of any facts related to the disputed matters prior to their going to collection for she fails to specifically identify and/or attach any documents reviewed by her in order for her to sign this Affidavit under Title 18 Pa. C.S. §4904 for making false statements. Ezample, the affiant never identifies the date of the creation of the aforementioned and/or any credit card 16 digit number account number proving the total insufficiency, lack of conformity, lack of capacity to sue and legal insufficiency. The Affiant even admits that their legal counsel has actually prepared the verification based upon information supplied by Plaintiff and has not entered any evidence at all to support their complaint. Whether the witness is competent to testify with respect to the sophistication and record retention capabilities of the record keeping, billing and information systems that Plaintiff utilizes in the regular course of its business is not apparent from the affidavit, as Affiant neither indicates that she is the Custodian of Records under Pa. Rules of Evidence §803(6) and Title 42 §4108 or has sufficient qualifications to testify for Plaintiff. In addition, she has never stated her position and declared who gave her the authority and the Affiant cannot testify as to the facts, circumstances or terms of the contract that is the basis for Plaintiff s claims. As such, the matters attested to in Affiant's affidavit are irrelevant to the core issues in Plaintiff's complaint and Paoletta plans to conduct full and complete discovery and even depositions. Based upon the record herein, it is clear that there is absolutely no evidence of a contract between the Parties. In fact, there is no evidence that defendant: (1) ever opened an account with plaintiff; (2) ever used and/or had a 16 digit number on any credit card; or (3) ever failed to pay anything that was dne and owing to plaintiff. As such, when viewing the facts in the light most favorable to defendant, this honorable Court is left with no alternative but to dismiss plaintiff s Complaint as a matter of law and with prejudice. The Supreme Court Rule 191(a) provides specific requirements for affidavits filed in such proceedings: "Affidavits in support of Plaintiff s Complaint, "shall be made on the personal knowledge of the Affiants; shall set forth with particularity the facts upon which the claim or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the Affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the Affiant, if sworn as a witness, can not testify competently thereto." Paoletta, by answering Plaintiff's Complaint, proves beyond a reasonable doubt that Plaintiff clearly lacks sufficient admissible factual evidence to even allow this honorable Court to consider this defective Complaint. Further, the affidavit which plaintiff submitted is conclusony, and fails to attach sworn and/or certified copies of the papers on which they rely, in direct violation of Supreme Court Rule 191(a) set forth above. ~ ~, Arlene S. Paoletta IN THE COURT OF COMMON PLEASE, COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA FIA Card services, N.A. F/K/A, BANK OF AMERICA ) Plaintiff, ) Case no. 10-8389 Civil Term Vs. ) PRELIMINARY OBJECTIONS AND BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS AND ADDENDUM A Arlene S. Paoletta ) DEMAND FOR TRIAL BY JURY Defendant, ) ADDENDUM A CERTIFICATE OF SERVICE NOW COMES Defendant, Arlene S. Paoletta and notifies this honorable Court that the above Documents has been served upon the parties listed below by U.S. Certified Mail and Receipt Number 7004 2890 0004 6575 5334 on/or about February 23, 2010 to the following: Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 Arlene S. Paoletta IN THE COURT OF COMMON PLEASE, COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA FIA Card services, N.A. F/K/A, BANK OF AMERICA ) Plaintiff, ) Case no. 10-8389 Civil Term Vs. ) PRELIMINARY OBJECTIONS AND BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS AND ADDENDUM A Arlene S. Paoletta ) DEMAND FOR TRIAL BY JURY Defendant, ) ADDENDUM A VERIFICATION I, Arlene S. Paoletta defendant in the above-captioned action do hereby verify that the statements made in the foregoing Preliminary Objections and Brief in Support of Preliminary Objections and Addendum A Demand for Trial by Jury are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsifications to authorities. Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 I7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A ~ '~ ~ • BANK OF AMERICA CIVIL TERM P, `; ~` -r! Plaintiff : _ - - r v CASE NO.: 10-838 s ~_ ; ~ ~ ; ~' ~-;' ~~ '_ Arlene S. Paoletta PRAECIPE FOR DEFAUL'T~ ~' Defendant JUDGMENT ~ = ~~~' -~ j 'C r° °L~ • ~..y •~ FAILURE TO PLEAD PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: Tease Enter DEFAULT JUDGMENT against the above-named Plaintiff, FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, for FAILURE TO PLEAD to Defendant's Preliminary Objections. Pursuant to Pa.R.C.P. 237.1(a)(2), I, Arlene Paoletta, Defendant in the above- captioned, do hereby certify that written notice of the intention to file Default Judgment was mailed by both certified Mail, Number 7004 2890 0004 6575 7284 and by First Class U.S. Mail, postage pre-paid on March 18, 2010 to the attorney(s) of record, for and on behalf of the Plaintiff party against whom judgment is to be entered, and to the Plaintiff directly, by U.S. First Class Mail, postage pre-paid, with proof of mailing on March 30, 2010 after Default occurred and at least ten (10) days prior to filing this praecipe. A true and correct copy of the Notice of Defaul_ t, Certified and Proof of Mailing(s) are attached hereto. j 1 n, ,.- Arlene S. Pao etta y`` And Now, this /'~ day of ~r , 2010 Default Judgment is hereby entered in favor of Arlene S. Paoletta, D fendant, and against Plaintiff, FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA for Plaintiffls failure to plead. #SJ ~~J ~.~~. David D. Buell Prothonotary of Cumberland C~9unty ~'~y.06P~ cash ~~%c~ ~a~l~eG~ ~Xh-I~,~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. FIK/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 NOTICE OF DEFAULT FAILURE TO PLEAD TO: Eric I. Weinberg Esq, & Joel M. Flink, Esq. Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 DATE: March 18, 2010 For: FIA Card Services, N.A., f/k/a Bank of America IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10} DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Mid Penn Legal Services Administrative Offices 213-A North Front Street Harrisburg, Pa. 171 O 1-2240 (717)232-OS$1 (804) 932-0356 Fax: (717) 232-7821 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff v CASE NO.: 10-838 Arlene S. Paoletta NOTICE OF DEFAULT Defendant FAILURE TO PLEAD CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 18th day of March 2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Notice of Default for Failure to Plead in the above-captioned matter to the following parties: Eric I. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Card Services, N.A., f/k/a Bank of America) By: .~C/ Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 ,~~,, ~v'~~ Ir V N = ~F a ~ Y:!1~ } ~ ~ ~~ ~ ~ ~ : ~ ~' ~' i y - - v C~,s 4 i fr'- ~ r 4~ ~ { ~ ~ `•i ~c o ~~ N l~L LL ~ LL N y ~ C ` -~ ~ S ~ °%` ~~ ' - N 'o ~. d. r ivy U ¢~ ~tl' ~ ~~ ~~ cE rn ~ { ~ P ~ J ~ 'O ° ;~ '` 2Z N ~ ax _~ m~ ° i °m ;R ~ p ~ ~~ ~_ ~ ~o ~ w ~ o m°= ¢w a ~ r s ~ ~y ~ i~o ~ tL a ;~ y ;cn o ;V hB2~. SZ59 +~O~C1 06Q2 +~CfOz - - o N Q a ~ ~ ~ ~ C r`' 3 m U ~ E .~ $ O 0 0 ~ ~' Q+ O O c~ N (1J Z" ro ~ ~ o ~ O u. f`- r r M E a. O lL N Q. USPS SHIREMANSTOWN BRANCH SHIREMANSTOWN, Pennsylvania 170119997 4134870091 -0098 03/18/2010 (800)275-8777 01:1 0:31 PM - Sales fleceipt - - Product Sale Unit Final Description Qty Price Price 44c #10 1 $0.54 $0.54 Seabiscuit Envelope CONSHOHOCKEN PA 19428 $0.44 Zone-2 First-Class Letter 0.60 oz. Return Rcpt tGreen Card) $2.30 Certified $2.80 Label #: 7004289000046575 7284 Customer Postage -$0.44 Subtotal: $5.10 Issue POI: $5 10 Tot Paid by: $5.64 Cash $20.00 Change Due: -$14.36 Order stamps at USPS.com/sf~op or call 1-800-Starnp.4. Go to l1SPS.com/clicknship t'a prim -shipping labals witl~~ postage. For other information call 1-800-ASK-USPS. :~%~~~'~~%~~~%%%WWWW%~%W%,~WWx%%%%%%%%%%%%% WWWWWWWWWWWWW*WWW%WWW%%%%%%W%%%fi*xW%%%%% Get your mail when and where you want it with a secure Past Office Box, Sign up far a box online at usps.cum/paboxas. ~%WW~~~~'WWW~%%~%WW%%%~%%%%%%%%~%%%%%%%%% W WWWWWfiWWWWWWWW%W'kWWWWWW'k%fiWWfi WWW%%%%'%%% Bill#: 1000203775498 Clerk: O1 All sales final on stamps and postage Refunds for guaranteed services only Thank you for your business fiI~WWWWWWWWWWWWICWWWfiWWWWWW%WWWWW%%'%%%fi%%% fifiWWWWWWWWWWWWWWWWfi'WWfifiWWWW%WWW%W%WWfi W1C% HELP US SERVE YOU BETTER Go to: hops://postalexperier7ce.com/Pas TELL US ABOUT YOUR RELENT POSTAL EXPERIENCE YOUR OPINION COUNTS W:CWWWWWWWWW W'kWWWWWWWWWWWWWWWWW'kW%%%fi%fi WW W*WWWWWW%WWWWWW%W%Wfi WWWfifi Wfi WWXWWW%%WWWWW Customer Copy ~x~-b,1" i-~ 1N THE COURT OF COMMON PLL;AS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff v• CASE NO.: 10-838 Arlene S. Paoletta NOTICE OF DEFAULT Defendant FAILURE TO PLEAD TO: FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA l 825 E. Buckeye Road Phoenix, Arizona 85034 DATE: March 30, 2010 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A NDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Mid Penn Legal Services Administrative Offices 2l 3-A North Front Street Harrisburg, Pa. 17101-2240 (717) 232-0581 (800) 932-0356 Fax: (717) 232-7821 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/KlA BANK OF AMERICA Plaintiff v. CIVIL TERM Arlene S. Paoletta Defendant CASE NO.: 10-838 NOTICE OF DEFAULT FAILURE TO PLEAD CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 30th day of March 2010, that 1 caused to be mailed with proof of mailing, a true and correct copy of a Notice of Default for Failure to Plead in the above-captioned matter to the following parties: FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA 1825 E. Buckeye Road Phoenix, Arizona 85034 ~) 7 BY~ F/ ~ ,t~ ~~~i~..t'.,~L.~ti Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 uNrrF~trdTEs AOSTdL SFRVECF 1000 Z ~ o ,,, j V ~Q ~ ~~ •r- u_ ~ a O J Z `v, ~ W ~ O T , , r Q a ., ~ • z ~ ~ wffi ~~ .. F z~ ~ ~~ .~ Q~ ' U ~ a F ~~ `"~ f U ~Z w Q :J ~ > ¢ r ~~ VI ~ ~? S _ z N o LL ~~ ~~w >mo '`` c } ~ i U IQO ¢ ~~a U.S. POSTAGE DATA CIYGLI'~> Pii !7025 MAR 30>'10 AMOUNT ~I.I5 00068636-22 iJ v ~ V o .~ V ~ J ~ ~ ~ N ~r N N ~~ E (~ ~~ ', t Vf \ ': ^ ~ O ~~ o` USPS, ENOLA ENOLA, Pennsylvania 170259998 4134870025 -0098 03/30/2010 (800)275-8777 04:59:40 PM ~~ -- Sales Receipt -- Product Sale Unit Final Description Oty Price Price Certificate 1 $1.15 $1.15 of Mai 11 rig Total : ~ $1.15 Paid by: Cash $5.00 Change Due: _$3.85 rn Order stamps at USPS.com/shop or call 1-800-Stamp24. Go to USPS.com/clicknship to print shipping labels with postage. ~ For other information call 1-800-ASK-USPS. r~~>r~~~~~x~~*~*~~~*~>r~~~~~~~~~~~*r~>r~~~~~~ "' Get your mail when and where you want it ~ with a secure Post Office Box. Sign up for ,° a box online at usps.com/poboxes. ~ ~r~r~rcz~r~e~*~*~~*rc*x*xrerc*xx~r*rr*~err~c~~creTCrcrc~rre~r a' rcx~e~ere~t~r~tx~erc~r~eycx~rxxx:rrcx~rrc~r~rr~rxzrcxrcxr:rcxx~rrr Bill#: 1000204223258 Clerk: 22 All sales final on stamps and postage Refunds far guaranteed services only Thank you for your business r~r~r~~r~r~~~rxr~~r~r~~r~*r~xx~xr~~rr~~~~*~~~rr~r~~r~r~r:x~>, r~~rrr~rx~~erc~ex:r~r~c~rxxrr~xrc~rr~~rrc~rre~r~ererc:rrcxrcrc~e~rrc:rrc~e HELP US SERVE YOU BETTER Go to: https://postalexperience.com/Pos TELL US ABUUT YOUR RECENT POSTAL EXPERIENCE YOUR CPINIUN COUNTS :rx:e~~rzrerex;e~r~r~rc:e~r~xx~rx~rrcx~ercxxrerr~r~rrcw~rrc~x~e~r :Y 7Y~Y(~yC~~rt*Yf7tXYl7YYlJC1C7YX'~1t Yl 7t~~Y~'7r :Y 7t Yf%Y(7t Ir ~Y(7C Yf 7C Customer Copy =~l~~h,~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K!A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta. Defendant CIVIL TERM CASE NO.: 10-838 PRE~.IMINAR~' OBJECTIONS TO PLAINTIFF"S COMPLAINT JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Attorneys Frederic I. Weinberg & Joel M. Funk C/O Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220, Conshohocken, Pa. 19425 On behalf of the above-captioned Plaintiff: You are hereby notified to file a written response to the enclosed, Defendants Preliminary Objections to Plaintiff s Complaint within twenty {20) days from service hereof or a judgment may 6e entered against you. / r J Date: February 23, 2010 By: ~-~'C,~?~~,L ~.~( ~ ~~~~~ Arlene S. Paoletta ~ a i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA . Plaintiff v. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 PRAECIPE FOR DEFAULT JUDGMENT FAILURE TO PLEAD CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this ~ ~~day of r~,~2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Praecipe for Default Judgment for Failure to Plead in the above-captioned matter to the following parties: Eric I. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Card Services, N.A., f!k/a Bank of America) FIA CARD SERVICES, N.A. flkla BANK OF AMERICA 1825 E. Buckeye Road Phoenix, Arizona 85034 By: ~ ~ ~ ~ti~~~~. Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next~ Argument Court.) ~ ------------------------------------------------------------------------------------------------------- CAPTION OF CASE ------------- ~ ° (entire caption must be stated in full) ~ ~ ~~ ° c~ ~ FIA Card Services, N.A. f/k/a Bank of America rn ~- ~ ~~ r~-- Arlene S. Paoletta ~ ~=~" "~~~~> 838 No 2010 ~,m _. , tt: -~.: 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Joel M. Flink or Christopher Froba (Name and Address) 1001 E. Hector Street, Suite 220, Conshohocken, PA 19428 (b) for defendants: Pro Se (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 6, 2010 June 28, 2010 Attorney for Date: 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 fife 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. Joel M. Flink, Esquire Print your name Plaintiff #z FIA CARD SERVICES, N.A. IN THE COURT OF COMMON PLEAS OF f/k/a BANK OF AMERICA, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. ARLENE S. PAOLETTA, NO.2010-0838 CIVIL TERM Defendant ORDER OF COURT AND NOW, this 6TH day of OCTOBER, 2010, upon consideration of Defendant's Preliminary Objections, Brief in Support thereof, any opposition thereto, after notice and opportunity for hearing IT IS HEREBY ORDERED that the Defendant's Preliminary Objections are OVERRULED. The Defendant is directed to file an Answer within twenty (20) days of service of this order. oel M. Flink, Esquire 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 ~rlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 Court Administrator sld ~y°~tlie Court, ~~ ~~,,, ,~' ,~'~ Edward E. Guido, Ja "'' C .. ., 4.` ~ , 11 ' P ~ .~ ,.. ~` ~ ~ ~~~~ ~ f -^ ~ ~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA n FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta Defendant c -off rr-°° : Z CIVIL TERM .~'<~ <~ CASE NO.: 10-838 y_Q x' Z MOTION TO STRIKE JUDGE' S~ OCTOBER 6, 2010 ORDER OR IN THE ALTERNATIVE DEEM FINAL JURY TRIAL DEMANDED v a c°~ .-~ r~ 3 W cc DEFENDANT' S MOTION TO STRIKE JUDGE GUIDO' S OCTOBER 6, 2010 ORDER OR IN THE ALTERNATIVE, MAKE A DETERMINATION OF FINALITY AND NOW, comes Arlene S. Paoletta, (hereinafter, "Paoletta") previous Defendant in the above-captioned matter, who Motions to Strike Judge Guido's October 6, 2010 Order, that dismissed Defendant's Preliminary Objections, and further, by said Order, directs Defendant to Answer Plaintiff's Complaint, notwithstanding Defendant's proper and lawful entry of Default Judgment against Plaintiff, for Plaintiff's willful failure to respond to either Defendant's properly endorsed, Notice to Plead Preliminary Objections, or Notice of Default, with proof of mailing. Paoletta specifically seeks to Strike the Guido Court's Order for just cause, or in the alternative, make a Determination of Finality of said Order, for the expressed purpose of immediate appeal. In support thereof, previous Defendant, now sorely aggrieved, states as follows: 1. On or about February 2, 2010 Plaintiff filed a Complaint in the Cumberland County Courthouse, and subsequently, caused said Complaint to be served upon Paoletta, on or about February 4, 2010 by a representative of the Cumberland 0 -n m'j v~ c° ~° ©-=t a- T> ~v -c County Sheriff's Department. i 1' 2. On or about February 23, 2010 Paoletta. timely filed Preliminary Objections to Plaintiff s Complaint, with Notice to Plead, coupled to Paoletta's Brief in Support, with additionally attached Addendum as to Specific Defects in Plaintiff s Verifcation, Affidavit and Notarization. 3. On or about March 18, 2010, due directly to Plaintiff's failure to respond to Defendant's properly endorsed Preliminary Objections, Paoletta, sent by both certified mail, number 7004 2890 0004 6575 7284, and by regular, U. S. Mail, postage pre-paid, with, proof of mailing, a Ten Day Notice of Default. Attached is a true and correct copy of Paoletta's f rst Notice of Default, with evidence of certified mailing and proof of mailing(s), marked as Exhibit "A". 4. On or about March 30, 2010, because Plaintiff still had not responded to Paoletta's Preliminary Objections or Notice of Default, Paoletta once more sent by both certified Mail, number 7004 2890 0004 6575 5334, and by regular U. S. Mail, postage pre-paid, with proof of mailing, another Ten Day notice of Default. Attached is a true and correct copy of Paoletta's second Notice of Default, with evidence of certified and proof of mailing(s), marked as Exhibit "B". 5. On or about April 12, 2010, because Plaintiff had yet failed to respond to Pade~tta's properly endorsed with Notice to Plead, Preliminary Objections, and failed to respond to either Notice of Default as sent on March 18`h and March 30Th, 2010 respectively, Paoletta caused to be recorded in the Cumberland County Prothonotary's office, a Default Judgment. Accordingly, on April 12, 2010, the Prothonotary' caused to be served upon the Plaintiff a copy of the recordation of the entry of Default Judgment as entered against the Plaintiff. Attached is a true and correct copy of Judgment entered, marked as Exhibit "C". 6. Subsequently, having obtained a Default Judgment against the Plaintiff, Paoletta on two separate occasions, each more than ten (10) days following the entry of Judgment, caused to be searched the records of the Cumberland County Prothonotary's office, specifically seeking whether Plaintiff had made any attempt to either open or strike the Judgment that was lawfully filed against them; in both instances, Plaintiff failed to file any action. 7. On or about October 6, 2010, (as subsequently received by Paoletta, on or about October 8~' 2010) Paoletta received a copy of a Court order, issued by Judge Guido, dismissing Paoletta's Preliminary Objections, and further, directing Paoletta to now Answer, the very Complaint that Plaintiff already had a judgment entered against them as of April 12, 2010, and/or some one hundred and seventy- seven (177) days. 8. On or about October 12, 2010, Paoletta once more caused to be searched, the records in the instant matter, with the Cumberland County Prothonotary's office. Paoletta obtained a certified copy of the docket appertaining thereto. Attached is a true and correct copy of the certified docket obtained that day, marked as Exhibit «D» 9. Paoletta was astonished to find the allegation that Plaintiff, on or about July 1, 2010 (or approximately eighty (80) days after judgment entered) filed a Praecipe for Argument. ~' 10. Paoletta avers, that at no time, did she ever receive, by any means, a copy of the Praecipe that was allegedly filed by Plaintiff, or notice of heazing. Attached is an Affidavit by Paoletta, attesting to never having been served with either a copy of the purported praecipe for Argument as docketed on or about July 1, 2010, or having received any notice of a hearing as presumably held on October 6, 2010, mazked as Exhibit "E". 11. Upon information and belief, because a Default Judgment was cleazly, already lawfully and properly entered against the Plaintiff, by the Prothonotary, no Praecipe for azgument should have been accepted, as the case was already closed, due directly to Plaintiff's own negligence. 12. Upon information and belief, because a Default Judgment was already lawfully and properly entered into the records of the Cumberland County Prothonotary's office, had the Court even conducted a cursory review of the record, no azgument would have been necessary on October 6, 2010, specifically because a Judgment had already previously been entered against Plaintiff in the matter. 13. Moreover, the record is clear, Plaintiff never responded to anything; instead, knowing that a judgment was already lawfully recorded against Plaintiff for their blatant and repeated failure to address Paoletta's properly endorsed, notice to plead Preliminary Objections, and thereafter, ignored two (2) separate Default Notices, Plaintiff apparently some eighty (80) days after a judgment was entered, knowingly filed a praecipe for argument, in Paoletta's opinion, in violation of Pa.R.C.P. 1023 et, seq. Hence, Paoletta believes Plaintiff's action is sanctionable. 14. Notwithstanding the fact that a Judgment was already lawfully recorded against Plaintiff neazly six (6) months prior, Plaintiff's praecipe for argument as allegedly filed some eighty (80) days following the entry of judgment, was never served upon Paoletta., thus effectively denying her the right to be heard. 15. In addition, Paoletta believes the Guido Court assisted Plaintiff, to the sole harm and detriment of Paoletta, where clearly, upon information and belief, the Court, had it simply reviewed the record, would have readily seen that a Judgment was already entered into the case; and that, Plaintiff following the proper and lawful recordation of the Judgment, which, was served upon them by the Prothonotary's office, Plaintiff had failed to ever attempt to open or strike the judgment. 16. Paoletta now seeks to Strike the Order issued by Judge Guido, on or about October 6, 2010, or, in the alternative, make a determination of finality, upon which an immediate and direct appeal may be filed by either party so aggrieved by the Court's order. WHEREFORE, Paoletta moves upon this Court to now Strike the Guido Court Order, as improperly issued on or about October 6, 2010, or, in the alternative, make a determination of finality, as to ripen, for appeal, the injury caused by the actions of this Court and of Party Plaintiff, or any additional relief that this Court may deem just and proper. Re~ctfully SubJnitte Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff : v. CASE NO.: 10-83$ Arlene S. Paoletta MOTION TO STRIKE JUDGE' S Defendant OCTOBER 6, 2010 ORDER OR IN THE ALTERNATIVE DEEM FINAL JURY TRIAL DEMANDED VERIFICATION I, Arlene S. Paoletta, previous Defendant in the above-captioned matter, do hereby aver this 18~ day of October, 2010, that the statements made in Paoletta's Motion to Strike Judge Guido's October 6, 2010 Order, are true and correct to the best of her knowledge, information and belief. The undersigned acknowledges that this statement is made subject to 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 EXHIBIT # t ~+~ d - A ~~ ~`~ ~~~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F!K/A BANK OF AMERICA CIVIL TERM Plaintiff v. CASE NO.: 10-838 Arlene S. Paoletta NOTICE OF DEFAULT Defendant •~,_ FAILURE TO PLEAD TO: Eric I. Weinberg Esq, & Joel M. Flink, Esq. Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. i 9428 DATE: March 18, 2010 For: FIA Card Services, N.A., f/k/a Bank of America IlVIPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WiTHIl~i TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IlVIPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Mid Penn Legal Services Administrative Offices 213-A North Front Street Harrisburg, Pa. 17101-2240 (717)232-0581 (800) 932-0356 Fax: (717) 232-7821 ,~ i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CNIL TERM Plaintiff v. CASE NO.: 10-838 Arlene S. Paoletta NOTICE OF DEFAULT Defendant ' ~. FAILURE TO PLEAD ~. . CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 18th day of March 2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Notice of Default for Failure to Plead in the above-captioned matter to the following parties: Eric I. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Card Services, N.A., f/k/a Bank of America) By: Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 ~-- ~~ ~ ~ ~ ~ ~P~~ ; l~~ l ~ ~~ ~ _ -~ ~~ f ~ ~ 7~ ~ - ' ~ • • ~ ~ ,~ - . l ~ .. a ~ ~~ ~~ LISPS SHIREMANSTOWN BRANCH SHIREMANSTOWN, Pennsylvania 170119997 4134870091 -0098 03/18%2010 (800)275-8777 01:10:31 PM - Sales Receipt - Product Sale Unit Final Description Qty Price Price 44c #10 1 $0.54 $0.54 Seabiscuit Envelope CONSHOHOCKEN PA 19428 $0.44 Zone-2 First-Class Letter 0.60 oz. Return Rcpt (Green Card) $2.30 Certified $2.80 Label #: 70042890000465757284 Customer Postage -$0.44 Subtotal: $5.10 Issue PVI: $5.10 Total: $5.64 Paid by: Cash $20.00 Change Due: -$14.36 Order stamps at USPS.com/slwp or call i-800-Stamry°~i. Go to USPS.com/clicknship t~ prim shiNping labels with postage. For other information call 1-800-ASK-LISPS. ~~~~~~~~~,~*~~x~*~~x~rr*x*~*axxxxxx~x~cxxxx x~rir*rex~rercxxxrtxxxx~xx*~rrxrrx>tx*rxxst,cxrrxxrrxx Get your mail when and where you want it with a secure Post Office Box. Sign up for a box online at usps.comlpoboxes. 'KYClrY(YCY(yr 7t Yt YIYtX)t1tJT IC 7k 1t Xlt Yr lt'X 1t Yr It 7k 7K 7t Xrt 7k IC%kXXXIC 7k 1t W11f 7C IYX7k ~7Kkrt%1tX7rXrtYIt ltX rrX 7k Y(Ir W]t Yr Y(Yt YC Y(Y(Y!'k XYf 1t YI Bill#: 1000203775498 `~ Clerk: 01 ` All sales final on stamps and postage Refunds for guaranteed services only Thank you for your business x~exx , . ~xx*xxicxxx><•~t~~xxx~exxxxxx:x~xxxxxxrcxrt ~r~r>ex,,.. ~~,~,~x**~~~*~~~~,~x~~~~**~~~x~~x~r~*x HELP US SERVE YUU BETTER Go to: https://postalexperience.com/Pos TELL US ABOUT YOUR RECENT POSTAL Ef(PERIENCE YUUR OPINION C ' INTS ~n ~ . .~ ~ Postage ~ n Certified Pee ~ Retum Reoeipt.Fee (Endorsement Regwred) Q Restricted Delivery Fee Q" (Endorsement Required) ru _ . _...__~_.. Q ~~ t~i Customer Copy EXHIBIT # t,:..c n.t..ir M~.~M 10~ ?414 i~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA F1A CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta CIVIL TERM CASE NO.: 10-838 NOTICE OF DEFAULT FAILURE TO PLEAD TO: FIA CARD SERVICES, N.A 1825 E. Buckeye Road Phoenix, Arizona 85034 DATE: March 30, 2010 f/]c/a BANK OF AMERICA IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Mid Penn Legal Services Administrative Off ces 213-A North Front Street Harrisburg, Pa. 17101-2240 (717) 232-0581 (800)932-0356 Fax: (717) 232-7821 Defendant ,' t , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: I 0-838 NOTICE OF DEFAULT FAILURE TO PLEAD CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 30th day of Mazch 2010, that I caused to be mai]ed with proof of mailing, a true and correct copy of a Notice of Default for Failure to Plead in the above-captioned matter to the following parties: FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA 1825 E. Buckeye Road Phoenix, Arizona 85034 ' ~~ ~ By: ~ Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 ~' ^ Complete items 1.2, and 3. Also complete item 4 if Restricted iJel(very Is desired. ^ Print your name and address on the reverse so that we can return the card to you. ^ Attach this card to the hack of the mailpieoe, or on the front if space permits. 1.~Article ~4ddressed to: J ~ ~~~C/ G- . /~e ~T r- S/. `T@ ~aD ~ Agent ved (PrrrtdedNeme)' C ~2 !~'" D. Is delivery from Item 11 ~ es ffy~y ONo <% u- ~ 9. t3ervice type G~~,~ /,~ ha `k~i~, ~~ ~ cer~ned roi.lt o i3q~teas n~au O Regrsltered ~ Return Receipt for rutera>errdlee %~i ~ ~ ~ ^ irraured MeN v c.o.o. d. ResOitcb9d ~eNveR/1(f]rba Fee) ^ Yes ~ ~eN~r 7004 2890 0004 6575 5334 (llansler from senkti.~. , PS Form 3811, Fetm,ary 2004 Donrsstic Return Receipt taM-tsao ; ,' t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A : BANK OF AMERICA CIVIL TERM Plaintiff v. CASE NO.: 10-838 Arlene S. Paoletta NOTICE OF DEFAULT Defendant FAILURE TO PLEAD TO: FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA 1825 E. Buckeye Road Phoenix, Arizona 85034 DATE: March 30, 2010 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD. TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Mid Penn Legal Services Administrative Offices 213-A North Front Street Harrisburg, Pa. 17101-2240 (717) 232-0581 {800)932-0356 Fax: (717) 232-7821 ~ ~ y ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff v. CASE NO.: 10-838 Arlene S. Paoletta NOTICE OF DEFAULT Defendant : FAILURE TO PLEAD CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 30th day of March 2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Notice of Default for Failure to Plead in the above-captioned matter to the following parties: FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA 1825 E. Buckeye Road Phoenix, Arizona 85034 ~~ ~ By: Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 A viwrFOSraris POSTAL SptV1GF USPS, ENOLA iooo ENOLA, Pennsylvania 170259998 4134870025 -0098 03/30/2010 (800?275-8777 04:59:40 PM ~ o ZZ / Sales Receipt - ~ o Product Sale Unit Final Q o Description Qty Price Price g a Certificate i $1.15 $1.15 O a -~ of Mailing w o Total: $1.15 Q x (~, Paid by: ~ zy Cash $5.00 oC o g Change Due: -$3.85 v a o Ua Order stamps at USPS.com/shop or call W W 1-800-Stamp24. Go to USPS.com/clicknship W ~ z 4 to print shipping labels with postage. ~ o s S For other information call 1-800-ASK-USPS. W or'n ~ Y(1t It 7r*7K}(YCTf 1c IK 71X%XXIt)tX1IX%X7t Yf 7K 1[~C 1Y*7t R7k 7K 7t 7t 1t**7t , N u_Z ~~ O XIt YC SC 7k Y~Yf 7t'R YI7K Yf1:'KYC'KY(TiYlyI1(T{1!'k7C Tf 7{Yt 1t'X Yt~rt Y(7t1C 1r yf 7[7i{ Q W 0 LL ~. mow. Get your mail when and where you want it m ~ " d ~ ~ ^V with a secure Post Office Box. Sign up for ° m ~ a box online at usps.com/poboxes. ~ a o Q 7C JC IC 7(7M 7C lr*lt 7C Sk 7t X7C 7t 7C 7t yl7tYlYl7Kk 7C 7C%lt %7t Y(7C IK 7Y 1lX 7l7K Yl7K Y! 7 ~p. x~~r~xx~rx*x,rrr~r*x~xrc~r~rr~~rrcxx*xzxx~rxxx*x~~r:r~r Bill#: 1000204223258 Clerk: 22 All sales final on stamps and postage Refunds for guaranteed services only Thank you for your business HELP US SERVE YOU BETTER Go to: https://postalexperience.corn/Pos TELL US ABOUT YOUR RECENT POSTAL EXPERIENCE YOUR OPINION COUNTS *x~~~~.x~*x~~~~~x~~~x~~~zT~~x~r~~r~~xx,~*~~ Customer Copy U.SogPOSTAGE Ei17025~~ MAR 36. i6 AMOUNT o~1~I52 ~ 4~ l N n V m ~~ 0 O N rn is M E to I`LL a r~ EXHIBIT # G t ~~~~.r ` ` ~. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A c. BANK OF AMERICA CIVIL TERM ~' ~`' ~; Plaintiff `' ~ ~ ". v. CASE NO.: 10-838 = - - ~~ Arlene S. Paoletta PRAECIPE FOR DEFAULT Defendant NDGMENT - . "~' FAILURE TO PLEAD ~' c. PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: Please Enter DEFAULT JUDGMENT against the above-named Plaintiff, FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, for FAILURE TO PLEAD to Defendant's Preliminary Objections. Pursuant to Pa.R.C.P. 237.1(a)(2), I, Arlene Paoletta, Defendant in the above- captioned, do hereby certify that written notice of the intention to file Default Judgment was mailed by both certified Mail, Number 7004 2890 0004 6575 7284 and by F first Class U.S. Mail, postage pre-paid on March 18, 2010 to the attorney(s) of record, for and on behalf of the Plaintiff party against whom judgment is to be entered, and to the Plaintiff' directly, by U.S. First Class Mail, postage pre-paid, with proof of mailing on March 30, 2010 after Default occurred and at least ten (10) days prior to filing this praecipe. A true and correct copy of the Notice of Default; Certified d P oof of Mailing(s) are attached hereto. ~~ ~d~~-~- ~~ Arlene S. Paoletta And Now, this /o~~day of f ( , 2010 Default Judgment is hereby entered in favor of Arlene S. Paoletta, De endant, and against Plaintiff, FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA for Plaintiff's failure to plead. David D. Buell ~/~~ Prothonotary of Cumberlan County A ~ ~ EXHIBIT # (~ ~o ~k~.T o~l~b•. 1~-, ~o ~o .PYS511 Cumberland County Prothonotary's Office rdyc ,~ ,. Civil Case Print 2010-00838 FIA CARD SERVICES N A {vs) PAOLETTA ARLENE S Reference No. Filed......... 2/02/2010 Case Type...... COMPLAINT d Time..... ..: 9.25 Ju gment......: 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ----------- Higher Crt l.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info FIA CARD SERVICES N A PLAINTIFF WEINBERG FREDERIC I 1825 E BUCKEYE RD PHOENIX AZ 85034 BANK OF AMERICA PLAINTIFF WEINBERG FREDERIC I 1825 E BUCKEYE RD PHOENIX AZ 85034 PAOLETTA ARLENE S DEFENDANT 1771 S MEADOW DRIVE CAMP HILL PA 17001 ******************************************************************************** Judgment Index Amount Date Desc BANKCO DAMERICAES N A 4%12%2010 FAILURE TO PLEAD ******************************************************************************** * Date Entries * ******************************************************************************** FIRST ENTRY - - 2/02/2010 COMPLAINT - CIVIL ACTION - BY FREDERIC I WEINBERG ATTY-FOR PLFF ------------------------------------------------------------------- 2/12/2010 SHERIFF'S RETURN - 2/4/IO - COMPLAINT AND NOTICE UPON DEFT AT 1771 S MEADOW DRIVE CAMP HILL 17011 SHERIFF'S COST $41.50 2/23/2010 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY DEFT ------------------------------------------------------------------- 4/12/2010 PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED AGAINST PLFF FIA CARD SERVICES N A F/K/A BANK OF AMERICA FOR FAILURE TO PLEAD TO DEFT'S PRELIMINARY OBJECTIONS - BY ARLENE S PAOLETTA DEFT 4/12/2010 NOTICE MAILED TO PLAINTIFF ------------------------------------------------------------------- 7/O1/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - PRELIMINARY OBJECTIONS - BY JOEL M FLINK ATTY FOR PLFF 10/06/2010 ORDER OF COURT DATED 10-6-10 IN RE DEFENDANT'S PRELIMINARY OBJECTIONS - ARE **OVERRULED** - DEFENDANT IS DIRECTED TO FILE AN ANSWER WITHIN 20 DAYS OF SERVICE OF THIS ORDER - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 10-7-10 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pmts/Ad~ End Bal ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 JDMT/DEFAULT 14.00 14.00 .00 106.00 106.Q0 .CO ************************************************** * *********** * End. of Case Information ~~~~~CU*RD * b Tist~nony wtareot, ~ tare unto set rrry nand end 1fa s~d srd , Pa. ,PYS511 Cumberland County Prothonotary~s uzzi~c ;u5~ Civil Case Print 4, 1 2010-00838 FIA CARD SERVICES N A (vs) PAOLETTA ARLENE S Reference No... Filed......... 2/02/2010 Case Tyyppe...... COMPLAINT Time..... 9.25 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ~~ L EXHIBIT # E, ~v •~ ,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 MOTION TO STRIKE JUDGE' S OCTOBER 6, 2010 ORDER OR IN THE ALTERNATIVE DEEM FINAL JURY TRIAL DEMANDED AFFIDAVIT OF ARLENE S. PAOLETTA I, Arlene S. Paoletta, am over the age of eighteen, and of sound mind and competent to make this Affidavit, do hereby swear and affirm the statements I make herein are true and correct based on my own personal knowledge. 1. At no~time did I receive, by any means, whatsoever, a copy of a Praecipe for Argument, that was allegedly filed by the Plaintiff on or about July 1, 2010. 2. At no time, did I receive, by any means, any notice whatsoever, that a hearing was scheduled for and may have been held on October 6, 2010. 3. That, my Motion to Strike as attached hereto, is true and correct. IN WITNESS THEREOF, I, Arlene S. Paoletta, hereunto set my hand and seal this 18th day of October, 2010, and hereby certify, under Notary Seal, that all the foregoing statements made above are true and correct, based on my personal knowledge. Date: /(' ZD D Affiant: seal) t ~ n, State of Pennsylvania ) NRAT County of Cumberland) On this ~_day of October, 2010, before me G-' ~ N ~ u ~ ~ ~ 1 a Notary Public, the undersigned, Arlene S. Paoletta, of 1771 S. Meadow Drive, Mechanicsburg, Pa. 17055 personally appeared, who satisfactory proven to be the person whose name is subscribed to the foregoing Affidavit, and acknowledged that she executed the same for the expressed purposes contained therein. In witness whereof, I hereunto set my hand and official seal. ~.~ /~' OMM NWEALTH OF PENNSYLVANIA k N NOTARIAL SEAL GINA UBALDI, Notary Public Notary Pub is Camp Hilt eoro, Cumberland County My Commission Expires February 12, 9014 ~ ~- n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff v. CASE NO.: 10-838 Arlene S. Paoletta MOTION TO STRIKE JUDGE'S Defendant OCTOBER 6, 2010 ORDER OR IN THE ALTERNATIVE DEEM FINAL JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 18th day of October 2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Motion to Strike Judge's October 6, 2010 Orde~or in the alternative, deem final, in the above-captioned matter to the following parties: Eric I. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Cazd Services, N.A., f/k/a Bank of America) Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 ~ wi. FIA CARD SERVICES, N.A. F/K/A : IN THE COURT OF COMMON PLEAS OF BANK OF AMERICA, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. ARLENE S. PAOLETTA, NO.2010-0838 CIVIL TERM Defendant ORDER OF COURT AND NOW, this 22ND day of OCTOBER, 2010, upon review of Defendant's Motion to Strike our order of October 6, 2010, and there appearing to be a question of fact as to whether she received appropriate notice of the argument scheduled on her preliminary objections, the order of October 6, 2010, is VACATED. A hearing on this matter, and if appropriate argument on Defendant's preliminary objections, is scheduled for FRIDAY, NOVEMBER 19, 2010, at 2:00 u.m. in Courtroom # 3 of the Cumberland County Courthouse, Carlisle, Pa. 17013. By. the Courf~ ~. ,r Edward E. Guido, J. FIA CARD SERVICES ordon & Weinberg, P.C. ne S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 R Cam.. ~~~s t 8S r~I l~D-`.~-. S'~l~ "'=~ -a ~ ;-~ ~ ~~ cn r' -~C ?o- < ~ ~~ ~~, D~ -< a c~ c-~ -~ tV '~ w 0 z~ r-n--- ~~ ~~ Ca ~', -4Q ~ "ri ~~ ~~ o~ D IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/KIA BANK OF AMERICA Plaintiff CIVIL TERM CASE NO.: 10-838 V. Arlene S. Paoletta Defendant DEFENDANT'S VERIFIED ANSWER UNDER RESERVATION WITH NEW MATTER JURY TRIAL DEMANDED Arlene S. Paoletta and Michael L. Paoletta, VERIFIED Plaintiffs' COUNTER-COMPLAINT V. FAIR DEBT COLLECTION FIA CARD SERVICES, N.A. F/K/A PRACTICES ACT, TITLE 15 U.S.C BANK OF AMERICA, §1692 et. Seq. GORDON & WEINBERG, P.C., PENNSYLVANIA FAIR CREDIT Joey M. Flink, Frederic I. Weinberg, EXTENTIONS UNIFORMITY ACT Christopher S. Froba, Marc R. Gordon, and §2270.1 et. Seq. John Doe and Jane Doe, One Up. EXPERIAN INFORMATION FAIR CREDIT REPORTING ACT SOLUTIONS, INC. TITLE 15, U.S.C. §1681, et. Seq Defendants JURY TRIAL DEMANDED _ NOTICE TO PLEAD TO: Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 m Conshohocken, Pa. 19428 (Attorneys for F1A'Card Services, N.A., f/k/a Bank of America) YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO PAOLETTA'S NEW MATTER, WITHIN TWENTY (20) DAYS FROM DATE OF SERVICE HEREOF, OR A JUDGMENT MAY BE ENTERED' AGAINST YOU. tf i BY: DATE: November 8, 2010 Arlene S. Paoletta COMMONWEALTH OF PENNSYLVANIA Sworn before use on NOTARIAL SEAL cOMM OF PA ) PAULA K. SMITH, NOTARY PUBLIC SS of {o? 20 )6 SILVER SPRING TIMP, CUMBERLAND COUNTY e'ou TY OF U MB -f ? LC' Ca MY COMMISSION EXPIRES FEBRUARY 3, 2012 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA Arlene S. Paoletta and Michael L. Paoletta, Plaintiffs' V. FIA CARD SERVICES; N.A. F/K/A BANK OF AMERICA, GORDON & WEINBERG, P.C., Joel M. Flink, Frederic I. Weinberg, Christopher S. Froba, Marc R. Gordon, and John Doe and Jane Doe, One Up. CIVIL TERM CASE NO. 10-838 VERIFIED COUNTER-COMPLAINT FAIR DEBT COLLECTION PRACTICES ACT, TITLE 15 U.S.C §1692 et. Seq. PENNSYLVANIA FAIR CREDIT EXTENTIONS UNIFORMITY ACT §2270.1 et. Seq. EXPERIAN INFORMATION FAIR CREDIT REPORTING ACT SOLUTIONS, INC. TITLE 15, U.S.C. §1681, et. Seq Defendants JURY TRIAL DEMANDED 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 HAVE BEEN 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 PLAINTIFFS'. 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 17, 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 A?:.r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff V. Arlene S. Paoletta CIVIL TERM Defendant Arlene S. Paoletta and Michael L. Paoletta, Plaintiffs' V. FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, GORDON & WEINBERG, P.C., Joel M. Flink,, Frederic I. Weinberg, Christopher S. Froba, Marc R. Gordon, and John Doe and Jane Doe, One Up. : CASE NO.: 10-838 DEFENDANT'S VERIFIED ANSWER UNDER RESERVATION WITH NEW MATTER. JURY TRIAL DEMANDED VERIFIED COUNTER-COMPLAINT FAIR DEBT COLLECTION PRACTICES ACT, TITLE 15 U.S.C §1692 et. Seq. PENNSYLVANIA FAIR CREDIT EXTENTIONS UNIFORMITY ACT' §2270.1 et, Seq. EXPERIAN INFORMATION FAIR CREDIT REPORTING ACT SOLUTIONS, INC. TITLE 15, U.S.C. §1681, et. Seq Defendants JURY TRIAL DEMANDED DEFENDANT'S VERIFIED ANSWER TO PLAINTIFF'S COMPLAINT UNDER RESERVATION WITH NEW MATTER-AND, VERIFIED COUNTER-COMPLAINT NOW COMES, by special appearance, Arlene S. Paoletta, (hereinafter "Paoletta") past Defendant in the above-captioned matter, sorely aggrieved by a wholly improper and aberrant, albeit, blatantly outrageous Order, as issued by Judge Guido, on or about October 6, 2010, that wholesale denied Paoletta her properly endorsed, with notice to plead, Preliminary Objections, despite the facially clear and obvious neglect of Plaintiff, FIA CARD SERVICES, N.A., f/k/a BANK OF AMERICA to answer; that, of minimum, 1 pursuant to Pa.R.C.P. 1029(b) were/are deemed Admitted by Plaintiff, and further, Plaintiff, having been subsequently served with two (2) Notices of Default, for Plaintiff failure to respond to Paoletta's properly endorsed Preliminary Objections, yet willfully and wantonly continued 1.0 choose not to respond to Paoletta, that subsequently caused a Default Judgment to be lawfully entered against Plaintiff in the above-captioned matter; to which, following the entry of the Default Judgment on or about April 12, 2010 Plaintiff has never once sought to either open or strike said Judgment as entered against them. Based upon Paoletta's personal knowledge, information, belief, and understanding, as clearly and fully supported by law, and by Rules of Court, Plaintiff, FIA CARD SERVICES, N.A., f/k/a BANK OF AMERICA and `their counsel Gordon and. Weinberg; P.C., do not (nor ever did) have standing to prosecute this case; nor consequently, did the Court have personam jurisdiction to have issued any "order" directing Paoletta to Answer, anything. The Guido Court's Order is a strange one, to say the least. It is premised on an alleged Praecipe for Argument, that was never served upon, nor, did Paoletta have any knowledge of, prior to issuance of the Order. Coupled to the docket, which then consisted of less than a half page of entries; it seems unfathomable that, (as it is believed it is his duty to so do), had Judge Guido simply referred to the docket, and further reviewed what was on file appertaining thereto, there is no logical, reasonable or more importantly, lawful way that Judge Guido could have conceivably rendered the order that he did. In the alternative, had Judge Guido reviewed the record,(as, is/was incumbent upon him to do) it can only then be surmised that the order was issued, knowingly, 2 intentionally, and deliberately in a clear and distinct defiance of well established Rules of Court and. of'law; all of which, in the obvious absence of the Guido Court's prerequisite to operate with cold neutrality, were to the sole harm, injury, deprivation and alienation of Paoletta's rights. Nonetheless, based upon the Guido Court's egregious "order", Paoletta subsequently timely filed on or about October 18, 2010 a Motion to Strike `Judge Guido's October 6, 2010 Order, or, in the alternative, deem said Order a Final Appealable Order. To date, Paoletta has received no response, neither by Court or adverse party. And now, as this unlawful order yet stands, together with Plaintiff's recent Notice of Intention to Enter Default against Paoletta, for her so-called failure to respond, as previously' directed by the Guido Court, to Plaintiff's Complaint, that by all accounts, and/or any reasonable interpretation of the law; simply should not be. Upon information. and belief, Plaintiff has and continues to use the instrumentality of the Court, by and through a certain judge, under the guise of an otherwise fallacious order, that now, causes Paoletta, under duress, coercion and harassment, as further exacerbated by what is tantamount to both an abuse of process, and a wrongful use of civil proceedings by both the Court and Party Plaintiff, Whereby, Paoletta is now literally forced, in order to preserve her rights, Verified, to Answer Plaintiff s Complaint, under great Reservation; and, together, bound Verified with New Matter and Counter- Complaint, Paoletta thus avers as follows: 1. Denied: By way of further response, the allegations contained in ¶ one (1) of Plaintiff's Complaint, together with Plaintiff s Complaint as a whole, is moot; Plaintiff failed to respond to Paoletta's, properly endorsed, with notice to plead, 3 Preliminary Objections, and, subsequently a Default Judgment was entered against them, that now some six (6) months following the entry of Judgment, neither Plaintiff, nor its counsel have ever contested, by either seeking to open or strike the Judgment. If further answer is required, after careful examination of Paoletta's financial records, and the total lack of evidence by Plaintiff, to otherwise support their specious claims, Paoletta hereby specifically denies each and every allegation set forth in ¶ one (1). By way of additional answer, for reasons set forth more fully in both New Matter and Paoletta's Counter- Complaint, there exists neither credit card, nor enforceable agreement between Paoletta and Plaintiff, and/or any alleged predecessor(s) in interest. Strict proof to the contrary is hereby demanded at time of trial. 2. Denied: By way of further response, the allegations contained in ¶ two (2) of Plaintiff's Complaint, together with Plaintiffs Complaint as a whole, is moot; Plaintiff failed to respond to Paoletta's, properly endorsed, with notice to plead, Preliminary Objections, and, subsequently a Default Judgment was entered against them, that now some six (6) months following the entry of Judgment, Plaintiff, nor its counsel have ever contested, by either seeking to open or strike the Judgment. If further answer is required, after careful examination of Paoletta's financial records, and the total lack of evidence by Plaintiff, to otherwise support their specious claims, Paoletta hereby specifically denies each and every allegation set forth in ¶ two (2). By way of additional answer, for reasons set forth more fully in both New Matter and Paoletta's Counter-Complaint, there exists no enforceable agreement nor credit card between Paoletta' and Plaintiff, and/or any 4 alleged predecessor in interest. Strict proof to the contrary is hereby demanded at time of trial. 3. Denied: By way of further response; the allegations contained in ¶ three (3) of Plaintiff's Complaint, together with Plaintiff's Complaint as a whole, is moot; Plaintiff failed to respond to Paoietta's, properly endorsed, with notice to plead, Preliminary Objections, and, subsequently a Default Judgment was entered against them, that now some six (6) months following the entry of Judgment, Plaintiff, nor its counsel have ever contested, by either seeking to open or strike the Judgment. If further answer is required, after careful examination of Paoletta's financial records, and the total lack of evidence by Plaintiff, to otherwise support their specious claims, Paoletta hereby specifically denies each and every allegation set forth in ¶ three (3). By way of additional answer, for reasons set forth more fully in both New Matter and Paoietta's Counter-:Complaint, there exists no enforceable agreement nor credit card between Paoletta and Plaintiff, and/or any alleged predecessor(s) in interest. To the extent that Plaintiff attempts to rely on an "Affidavit", Paoletta hereby incorporates in its entirety, as if each and every paragraph thereof, are fully set forth herein, Paoletta's Addendum to Plaintiff s Defects to Plaintiff's Verification, Affidavit and Notarization. Strict proof to the contrary is hereby demanded at time of trial. 4. Denied: By way of further response, the allegations contained in ¶ four (4) of Plaintiff s Complaint, together with Plaintiff's Complaint as a whole, is moot; Plaintiff failed to respond to Paoletta's, properly endorsed, with notice to plead, Preliminary Objections, and, subsequently a Default Judgment `was entered 5 against them, that now some six (6) months following the entry of Judgment, Plaintiff, nor its counsel have ever contested, by either seeking to open or strike the Judgment. If further answer is required, after careful examination of Paoletta's financial records, and the total lack of evidence by Plaintiff, to otherwise support their specious claims, Paoletta hereby specifically denies each and every allegation set forth in T four (4). By way of additional answer, for reasons set forth more fully in both New Matter and Paoletta's Counter-Complaint, there exists no enforceable agreement nor credit card, or any balance otherwise claimed by Plaintiff as due and owing, between Paoletta and Plaintiff, and/or any alleged predecessor(s) in interest. Strict proof to the contrary is hereby demanded at time of trial. 5. Denied: By way of `further response, the allegations contained in ¶ five (5) of Plaintiff's Complaint, together with Plaintiff's Complaint as a whole, is moot; Plaintiff failed to respond to Paoletta's, properly endorsed, with notice to plead, Preliminary Objections, and, subsequently a Default Judgment was entered against them, that now some six (6) months following the entry of Judgment, Plaintiff, nor its counsel have ever contested, by either seeking to open or strike the Judgment. If further answer is required, after careful examination of Paoletta's financial records, and the total lack of evidence by Plaintiff, to otherwise support their specious claims, Paoletta hereby specifically denies each and every allegation set forth :in ¶ five (5). By way of additional answer, for reasons set forth more fully in both New Matter and Paoletta's Counter-Complaint, there exists no enforceable agreement nor credit card, balance or demand as otherwise claimed 6 by Plaintiff as due and owing, between Paoletta and Plaintiff, and/or any alleged predecessor(s) in interest. Strict proof to the contrary is hereby demanded at time of trial. 6. Denied: By way of further response, the allegations contained in ¶ six (6) of Plaintiff's Complaint, together with Plaintiff's Complaint as a whole, is moot; Plaintiff failed to respond to Paoletta's, properly endorsed, with notice to plead, Preliminary Objections, and, subsequently a Default Judgment was entered against them, that now some six (6) months following the entry of Judgment, Plaintiff, nor its counsel have ever contested, by either seeking to open or strike the Judgment. If fizrther answer is required, after careful examination of Paoletta's financial records, and the total lack of evidence by Plaintiff, to otherwise support their specious claims, Paoletta hereby specifically denies each and every allegation set forth in ¶ six (6). By way of additional answer, for reasons set forth more fully in both New Matter and Paoletta's Counter-Complaint, there exists no enforceable agreement nor credit card, account, or payment as otherwise claimed by Plaintiff to have been made by Paoletta, to Plaintiff, and/or any alleged predecessor(s) in interest Strict proof 'to the contrary is hereby demanded at time of trial. WHEREFORE, Paoletta hereby respectfully requests that Plainitff's Complaint be forthwith DISMISSED, with prejudice; and, that this Court grant any and all other relief that is just and proper. 7 NEW MATTER NOTICE TO PLEAD You are hereby Notified to file a written response to Paoletta's New Matter within twenty (20) days from service hereof, or a Judgment may be entered against you. 7. Paoletta hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length herein. Paoletta further, pursuant to PA.R.C.P. 1019g incorporates her Preliminary Objections as if they too are fully set forth at length herein. 8. Plaintiff failed to serve notice upon Paoletta of a Praecipe for Argument, as otherwise alleged to have occurred on or about July 1, 2010. Paoletta avers at no time, did she receive said notice; and, at no time, prior to this Court's October 6, 2010 Order, did she have any information or knowledge whatsoever; of Plaintiff's alleged notice, or:either the subsequent scheduling or an actual "hearing" having been held. 9. Upon information and belief, Plaintiff, by and through their counsel, willfully and intentionally withheld sending Paoletta Notice of the Praecipe for Argument, for the expressed purpose of utilizing the instrumentality of the Court as to circumvent due process, and to further, by nefarious means, attempt to supplant Paoletta's lawfully obtained Judgment against Plaintiff, with an attempt to gain their own. 10. For reasons more fully set forth in Paoletta's Answers, Plaintiff failed to plead to Paoletta's Preliminary Objections; and subsequently, a Default Judgment was lawfully entered against them: To date; Plaintiff has never addressed, procedurally 8 or otherwise, to have the Judgment removed, but instead, improperly used the instrumentality of the Court to intervene on their behalf, as if the Judgment entered against them never existed. 11. For reasons more fully set forth in Paoletta's Answers, notwithstanding the salient fact that a Default Judgment was long-since lawfully entered against Plaintiff, Plaintiff's failure to answer Paoletta's properly endorsed, with Notice to Plead, Preliminary Objections, must, by Rule 1029, deem all of Paoletta's Preliminary Objections as fully Admitted, by Plaintiff. 12. In consideration of the foregoing, Plaintiff has maliciously engaged in an Abuse of Process and Wrongful Use of Civil Proceedings, whereby Plaintiff intentionally made use of a legal process against Paoletta, primarily to accomplish a purpose for which it was not designed; and further, wrongfully made use of civil proceedings for a wholly improper purpose. 13. Plaintiff, knowing that a judgment had already been entered against them, and therefore, without availing themselves in either an attempt to open or strike said Judgment as entered against them, the case was over; the proceedings had been terminated in favor of Paoletta. 14. Nonetheless, Plaintiff initiated an action by filing a Praecipe for Argument, and then, willfully and intentionally concealed from Paoletta what they had filed. 15. Plaintiff has acted in a grossly negligent manner, without probable cause, and primarily for a purpose other than what a lawful proceeding could be based. 16. Plaintiff has failed to properly join an indispensible party. 9 17. Upon information and belief, having researched Paoletta's credit reports, Plaintiff claims that in addition to Arlene S. Paoletta, that Michael L. Paoletta has also been named, in a derogatory and defaming manner, as being responsible for the same alleged debt; and therefore, Michael L. Paoletta is an indispensible party to Plaintiff's Complaint, that Plaintiff, heretofore has failed to join. 18. The Plaintiff is (and has been) perpetrating a fraud' upon Paoletta, and the institution of the Court. 19. Plaintiff has made false representations, material to the issue at hand, upon both Paoletta and this Court: First, by filing a Complaint against Paoletta; made falsely, with knowledge of its falsity, and having done so recklessly, knowing, that there exists absolutely no enforceable agreement tethering Paoletta to Plaintiff, and/or any alleged predecessor(s) in interest; and further, having woefully failed to address Paoletta's properly endorsed, with notice to plead, Preliminary Objections which caused a lawful judgment to be entered against them, proceeded to falsely represent once more, to the Court only, that an otherwise moot issue was now somehow ripe for argument, with intent to mislead both Paoletta, and more specifically the Court, who, in acting in a justifiable reliance on Plaintiff's misrepresentation, resulted in the issuance of the October 6, 2010 order, thereby causing a direct and distinct injury on Paoletta for having so relied. 20. Plaintiff, FIA Card Services, N.A. is not the real party in interest, and lacks standing to bring this action against Paloetta,`and accordingly, this court lacked and yet continues to lack jurisdiction to hear this matter as presented. 10 21. Plaintiff fails to attach any evidence whatsoever, save for a self-serving "affidavit" by an unknown "agent", that is improperly, albeit, defectively notarized. Paoletta hereby incorporates in its entirety, as if each and every paragraph thereof, are fully set forth herein, Paoletta's Addendum to Plaintiff's Defects to Plainti'ff's Verification, Affidavit and Notarization. 22. Plaintiff' failed and yet continues to fail to attach any enforceable agreement that would otherwise purport to be between Plaintiff and Paoletta as to engender this court with jurisdiction. 23. Plaintiff, FIA Card Services, N.A., is not registered to do business in the Commonwealth as required by 15 Pa.C.S.A.. §4141(a). 24. Additionally, Plaintiff has failed to file a fictitious name as required by 54 Pa.C.S.A.. §331. 25. Nowhere within Plaintiff's Complaint, does it aver that Plaintiff is registered to do business, and/or can lawfully engage in business within the Commonwealth of Pennsylvania. 26. FIA CARD SERVICES N.A., is a foreign corporation and has NOT produced a Certificate of Authority to do business in Pennsylvania, has no known registered place of business within Pennsylvania and has not registered) its name as a fictitious name as required by 54 Pa. C.S § 331. 27. Plaintiff FIA CARD SERVICES N.A., is in violation of 15 Pa.C.S. §4141 and, 54 Pa. C.S. §331 and therefore lacks the capacity to bring this or otherwise maintain any action against Paoletta. 11 28. Pa.R.Civ.P. 1019(i) states in pertinent part, "[w]hen any claim ...is based upon a writing, the pleader shall attach a copy of the writing..." (emphasis added) The use of the word "shall" is -a mandatory interpretation. Plaintiff had and yet has :failed to attach any agreement between Plaintiff and Paoletta. 29. Plaintiff's Complaint is wholly deficient, and/or fatally defective, as it fails to identify, the denial of performance as alleged to have occurred with any specificity and/or particularity as required by Pa.R.Civ.P. 1019(c). 30. Plaintiff s Complaint is wholly deficient and/or fatally defective as it fails to attach any material evidence whatsoever sufficient to support the bogus contentions that, Paoletta is, in any way, obligated for anything, to Plaintiff, as otherwise required under Pa.R.CivP. 10 1 9(a). 31. Without Plaintiff attaching proof of the allegations as set forth in their complaint, the pleading fails to establish any credible admissible evidence that would survive a challenge, including but not limited to PA.. R.E. §§ 901, 902(11), 1002, 1003, 803.6, Title 42 Pa.. C.S. §6108 and the hearsay rules'. 32. Both Plaintiff's verification and Affidavit contain defective notarizations; that Paoletta believes are both facial obvious and substantively fatal. 33. Said Notary fails to properly identify the name of the individual for whom acknowledgement is made on either the affidavit or the verification; it cannot be ascertained from either document the identity of the alleged "Agent". 34. Said Notary fails to provide the requisite "rubber stamp" that contains, inter alia,' the words "Notary Seal", and, The notary's name which is otherwise illegible on the document(s); and the words, "Notary Public", as well as the county and state 12 for which the alleged notarization occurred, or further, as required therein, the date upon which said (unknown) notary's commission expires. 35. Moreover, aside from properly identifying the party who's alleged signature was notarized, there is a woeful failure to, in the context of the acknowledgment to identify the make as an agent who is authorized to make the alleged affidavit. 36. Plaintiff has, at all times material, acted maliciously against Paoletta; and, through its malicious, reckless and negligent course of conduct, has caused severe emotional distress upon Paoletta. WHEREFORE, Paoletta respectfully requests that Plaintiff's Complaint be forthwith DISMISSED, with prejudice; and further requests any and all other relief that is deemed just and proper. Arlene S. Paole a 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 13 AFFIDAVIT I affirm that the facts set forth in my Verified Answers and New Matter are true and correct to the best of my personal knowledge, information and belief. I am competent to appear in person, in a court of law, and to testify, under oath, as to the matters stated herein. Further, the Affiant saith naught. ? r Arlene S. Paoletta ACKNOWLEDGMENT On this --?-Day of November, 2010, before me, the undersigned officer, a Notary Public in and for said County and State, personally appeared Arlene S. Paoletta, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing; Verified Answer with New Matter and acknowledged that she executed the same for the purposes therein contained as a sworn Affidavit of the absolute truth based upon the Arlene S. Paoletta's personal knowledge, beliefs, understanding and information and declares; IN WITNESS WHEREOF; I hereunto set my hand and official seal: Notary Public My Commission expires: -,)- - 3 0 2 Q- COMMONWEALTH OF PENNSYLVANIA OTARY PUBLIC =SPRING L SEAL UMBERLAND COUNTY ES FEBRUARY 3, 2012 14 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA Arlene S. Paoletta and Michael L. Paoletta, Plaintiffs' V. FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, GORDON & WEINBERG, P.C., Joel M. Flink, Frederic I. Weinberg, Christopher S. Froba; Marc R. Gordon, and John Doe and Jane Doe, One Up. CIVIL TERM CASE NO. 10-838 VERIFIED COUNTER-COMPLAINT FAIR DEBT COLLECTION PRACTICES ACT, TITLE 15 U.S.C §1692 et. Seq. PENNSYLVANIA FAIR CREDIT EXTENTIONS UNIFORMITY ACT §2270.1 et. Seq. EXPERIAN INFORMATION FAIR CREDIT REPORTING ACT SOLUTIONS, INC. TITLE 15, U.S.C. §1681, et. Seq Defendants : JURY TRIAL DEMANDED 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; HAVE BEEN 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 PLAINTIFFS'. 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 COUNTER-COMPLAINT WITH NOTICE TO DEFEND 37. Paoletta hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length herein. 38. Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (hereinafter "FDCPA") which prohibits debt collectors from engaging in abusive, deceptive, and unfair practices in the attempt of 'collection of a debt that is due another. See Congressional intent on page 51 through 56) 39. Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (hereinafter "FCRA") which. prohibits Credit Reporting Agencies (hereinafter CRA) from reporting inaccurate, incomplete, false, unverified, outdated and misleading information that could have an adverse effect on consumer. 40. The Plaintiff is Arlene S. Paoletta (hereinafter referred to as Paoletta 1 and/or Plaintiff), an adult individual Consumer under Title 15 U.S.C. § 1692a(3) [§803(3)] and a resident of the Commonwealth of Pennsylvania and residing at 1771 South Meadow Drive Mechanicsburg, Pa. 17055. The Plaintiffs residence is located in Cumberland County, Pennsylvania. 41. The Plaintiff is Arlene S. Paoletta (hereinafter referred to as Paoletta'I and/or Plaintiff) a natural person and "consumer" as defined by 15 U.S.C. §1681a(c) and a resident of the Commonwealth of Pennsylvania and residing at 1771 South Meadow Drive, Mechanicsburg, Pa. 17055. The Plaintiff's residence is located' in Cumberland County, Pennsylvania. 42. The Plaintiff is Michael Paoletta (hereinafter referred to as Paoletta 2 and/or Plaintiff 2), an adult individual Consumer under Title 15 U.S.C. § 1692a(3) 15 [§803(3)] and a resident of the Commonwealth of Pennsylvania and residing at 1771 South Meadow Drive Mechanicsburg, Pa. 17055. The Plaintiff 2 residence is located in Cumberland County, Pennsylvania. 43. The Defendant, Gordon & Weinberg, P.C. (hereinafter referred to as G)AI, and/or Defendant GW and/or GW) (See GW is not exempt from Prosecution on page 32 through 34) and is a Professional Corporation, with a registered office address of 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428. GW has obtained the alleged debt §1692a(5) [§803(5)] after default and is not exempt under §1692a(6)(F)(ii) and (iii) [§803(6)(F)(ii)(iii)]. GW is not a creditor but under the FDCPA, GW are debt collectors pursuant to §1692a(6) [§803(6)]. 44. The Defendant JOHN DOE, JANE DOE and ONE UP are the male and female employees of Defendants GW, whose names are not known, but through discovery when names are ascertained and liability is determined under the FDCPA, their names will be added through a "Motion for Leave to Amend Complaint". 45. GW Defendant Joel M. Flink, Esquire, in their individual and corporate capacity are covered under the FDCPA and properly identified as § 1692a(6) [§'803(6)] debt collectors and are personally vicariously liable in their personal and corporate capacity as an adult individual(s) employed by the Defendant GW at the listed corporate business `address. 46. GW Defendant Marc R. Weinberg, Esquire, in their individual and corporate capacity are covered under the FDCPA and properly identified as § 1692a(6) [§803(6)] debt collectors and are personally vicariously liable in their personal 16 and corporate capacity as an adult individual(s) employed by the Defendant GW at the listed corporate business address. 47. GW Defendant Christopher S. Froba, Esquire, in their individual and corporate capacity are covered under the FDCPA and properly identified as § 1692a(6) [§803(6)] debt collectors and are personally vicariously liable in their personal and corporate capacity as an adult individual(s) employed by the Defendant GW at the listed corporate business address. 48. GW Defendant Marc R. Gordon, Esquire, in their individual and corporate capacity are covered under the FDCPA and properly identified as § 1692a(6) [§803(6)] debt collectorsand are personally vicariously liable in their personal and corporate capacity as an adult individual(s) employed by the Defendant GW at the listed corporate business address. 49. Upon information and belief, Defendant Equifax, Inc.', and Equifax Credit' Information Services, (collectively "Equifax" and/or referred to as "CRA") is a Corporation licensed under the State Laws of Georgia, and having established a business address at P.O. Box 740241, Atlanta GA 30374-0241 and, at all times relevant to this case were authorized to and doing business in Pennsylvania 50. Upon information and belief, Equifax is a "Consumer Reporting' Agency," (CRA) as defined in 15 U.S.C. §1681(f). Upon information and belief, Equifax is regularly engaged in the business of assembling, evaluating, and distributing information concerning consumers for the purpose of furnishing consumer reports, as defined in U.S.C. 15 §1681(d) to third parties for 17 monetary compensation. Defendant Equifax has obstinately refused to correct their damaging and inaccurate credit reporting and refused to undertake a genuine and reasonable reinvestigation into Plaintiff's dispute. 51. Defendant John Doe, Jane Doe and One Up are the male and female employees of Credit Reporting Agencies and any other possible defendant, including the creditor whose names are not known, but through discovery when names are ascertained and liability is determined under the FCRA their names will be added through a "Motion for Leave to Amend Complaint or an Amended Complaint." 52. Upon information and belief, Defendant Equifax Inc. failed to contact or notice Bank of America that Plaintiff had disputed the alleged debt and that Bank of America and/or FIA Card Services failed to properly conduct a lawful investigation and a reinvestigation pursuant to §§ 1682n and 16820. 53. Upon information and belief, Defendant Transunion Inc., (hereinafter referred to as "CRA" and/or Defendant Transunion) is a Corporation licensed under the State Laws of Delaware, and having established a business address at P.O. Box 1000 Chester, Pa. 19011 and, at all times relevant to this case were authorized to and doing business in Pennsylvania. 54. Upon information and belief, Defendant Transunion'is a "Consumer Reporting Agency," as defined in 15 U.S.C. 1681(f), and based upon Plaintiffs information and belief that Defendant Transunion is regularly engaged in the business` of assembling, evaluating, and distributing information concerning consumers for the purpose of furnishing consumer 18 reports, as defined in U. S. C. 15 § 1681(d) to third parties for monetary compensation. Defendant Transunion has obstinately refused to correct their damaging and inaccurate credit reporting and refused to undertake a genuine and reasonable reinvestigation into Plaintiff's dispute. 55. Upon information and belief; Defendant Transunion Inc. failed to contact or notice Bank of America that. Plaintiff had disputed the alleged debt and that Bank of America and/or FIA Card' Services failed to properly conduct a lawful investigation and a reinvestigation pursuant to §§ 1682n [(§616)] and 1682o [§617)]. 56. Upon information and belief, Defendant Experian Information `Solutions, Inc., (hereinafter referred to as "CRA and/or Defendant Experian) is a Corporation licensed under the State Laws of Texas, and having established a business address at 701 Experian Parkway, Allen, TX 75013 and, at all times relevant to this case, were authorized to and doing business in Pennsylvania. 57. Upon information and belief, Defendant Experian Inc. is a "Consumer Reporting Agency," as defined in 15 U.S.C. 1681(0, and based upon Plaintiff's information and belief that Defendant Experian Inc. is regularly engaged in the business of assembling; evaluating, and distributing information concerning consumers for the purpose of furnishing consumer reports, as defined in U.S.C. 15 §1681(d) to third parties for monetary compensation. Defendant Experian has obstinately refused to correct their damaging and inaccurate credit reporting and refused to undertake a genuine and reasonable reinvestigation into Plaintiff s dispute. 19 58. Upon information and belief, Defendant Experian Inc. failed to contact or notice Bank of America that Plaintiff had disputed the alleged debt and that Bank of America and/or FIA Card' Services failed to properly conduct a lawful investigation and a reinvestigation pursuant to U1682n and 1682o. DAMAGES 59. Plaintiffs 1 and 2 claim actual and statutory damages from defendants for the urdawful deprivation and violations of the protections afforded by the FDCPA. 60. Plaintiffs 1 and 2 claim punitive damages from defendants because the actions of the defendants were intentional, egregious and carried out for personal and financial reasons,. 61. Plaintiffs 1 and 2 demand damages for emotional distress and any and all financial rewards that this Court deems appropriate. OPERATIVE FACTS 62. On or about January le, 2010 at or around 4:43 PM, an unidentified employee stating that he was an employee of GW called and inform Plaintiff 2 that if payment was not mailed within the week that litigation would be started: 63. Plaintiff 2 informed Plaintiff 1 of the harassing, abusive phone call and Plaintiff l became emotionally upset and had a hard time sleeping. 64. On or about January 18', 2010 at or around 2:04 PM an employee allegedly of GW called Plaintiff 2 asking for Plaintiff 1 and started very aggressively 20 demanding to speak to Plaintiff 1 and then rumbled abusive statements to Plaintifl2. 65. On or about January 19' and January 20tr', 2010 a female employee of GW left a demanding warning on Plaintiff 1 and 2's answer device, ordering them to call back immediately to 866-351-8087 concerning a_legal matter. This was heard by friends and employees of Plaintiff 2. 66. On or about January 22nd, 2010 at or around 8:32PM another female employee of GW' called and spoke to Plaintiff 2 and demanded payment at once or else a judgment would be entered against Plaintiff 1 and Plaintiff 2. 67. In the entire month of January Defendant GW left probably 20 voice messages on Plaintiff l and Plaintiff's 2 answering device that were degrading, condescending, and downright belittling and demanded an immediate call back or litigation would start within two or three days. 68. On or about January 21'° 2010 at.or around 12:19PM an female employee of GW called from 866-465-8087 representing defendant GW. She left a message on Plaintiffs answer device stating that they have all the necessary evidence to file a law suit and collect on a judgment so you better pay up now. 69. On or `about January 23 or 24 Plaintiff 1 and Plaintiff 2 issues a verbal command to GW to cease and desist all Communication by telling GW not to call any more which was ignored by GW. 21 ' I 70. On or about February 2, 2010, Defendant GW filed a law suit in Cumberland County Court alleging that a debt of $76,595.26 was payable to FIA Card Services, N.A. F/K/A Bank of America, (hereinafter known as Bank). 71. On or about February 4th, 2010, at the order of GW the Sheriff s department served Plaintiff2 at the Plaintiff 1 and Plaintiff 2's residency. 72. On or about February 5th, 2010, Bank of America sends Plaintiff 1 and Plaintifl'2 a letter of acknowledgment that Bank of America will honor the do not call request but warns that if payment of $14,267.00 is not received by February 17th, 2010, that this account will be referred to an outside counsel for legal proceedings. This may result in legal action being taken against you. 73. Plaintiff I and Plaintiff 2 being the least sophisticated and the least susceptible consumer lawfully assumed that GW did not have any authority to institute legal proceeding proving that GW did not have standing. Plaintiff 1 and Plaintiff2 demand production of their contract to determine their legal standing to litigate. 74. Plaintiff 1 and Plaintiff 2 mail Preliminary Objections to the Bank just to notify them that their legal firm did not file any answer to Plaintiff 1 and Plaintiff 2's Preliminary Objections as required by Pennsylvania Law. 75. Plaintiff 1 and Plaintiff 2 (hereinafter known sometimes as Plaintiffs) based upon their understanding, beliefs, knowledge and information GW filed a frivolous complaint in an attempt to confuse the Plaintiff's and collect money that they had no right to try to collect. 22 76. Plaintiffs also served Bank of America on/or about March 30', 2010 that their Counsel has failed to answer the Complaint filed in Cumberland County Court which was also served upon GW on/or about March 18, 2010 and neither party filed any answers to Plaintiff's Preliminary Objection to the date of this filing of Plaintiffs' FDCPA suit dated on or about November 8, 2010, some nine (9) months late. 77. On or about March 18, 2010 Plaintiffs Caused to be mailed through a proof of mailing a "Notice of Default" that also was ignored by GW. 78. On or about March 16th and March .30"', 2010 Plaintiff 1 caused to be mailed to GW and FIA Card Services, N.A. A/K/A Bank of America a true and copy of a Praecipe for Default Judgment for Failure to Plead to Plaintiff's Preliminary Objections. 79. On or about April 12, 2010, Paoletta received Default Judgment sign by the Assistant Prothonotary against GW and Bank proving that GW and Bank have violated § 1692 et seq. and should be liable for financial damages 80. Plaintiffs gave more than sufficient time to GW and to Bank concerning the possible Default and Defendants purposely did not address this issue to date. 81.On or about June 28, 2010, GW deceptively files through Joel M. Flink, Esquire a Praecipe for listing case for Argument and listed October 6, 2010 as the Argument Court date. 82. Plaintiff 1 and Plaintiff 2 swears that the Notice filed on/or about June 28, 2010 was never served and/or received by Plaintiffs either by mail and/or any type of a process server. 23 83. Plaintiff 2 and Plaintiff 1 never received any notice of said hearing. 84. GW filed their Praecipe For Listing for argument long after the Default Judgment was entered by Judge Guido granting an improper Argument long after the fact and violated Pa. Rules of Court. 85. When Plaintiff 1 and/or 2 never went to Court on/or about October 6t", 2010., the Judge denied the Paoletta Preliminary Objections and ordered Paoletta to file an answer within twenty days. 86. Plaintiff 2 believes that there was exparte communication between the judge and GW in an attempt to financially impair Paoletta and to unjustly enrich the law firm of GW. 87. With the "Notice to Plead" GW and the Bank were required by law to file and answer or else a default judgment would be entered. 88. If the Plaintiffs would have been served the Notice filed on/or about June 28t'', 2010 Plaintiff 1 and/or Plaintiff2 would have appeared. This action by the debt collector is exactly why Congress wrote the Fair Debt Collection Practice Act and for Judge Guido to deny Plaintiffs objection is a great travesty upon justice in these United States. 89. Judge Guido grants GW's Praecipe on/or about October 6', 2010, some 180 days past due. If Paoletta and/or any other alleged debtor would not have responded, by law Judge Guido would not have ever issued an improper "Order "AND Now, this 6' day of October, 2010, upon consideration of Defendant's Preliminary Objection, Brief in Support thereof, any opposition thereto, after notice and opportunity for hearing IT IS HEREBY ORDERED 24 THAT THE Defendant's Preliminary objections are OVERRULED. The Defendant is directed to file an Answer within twenty (20) days of service of this order, signed by Edward E. Guido, J. 90. GW knows and should know that they are not complying within Pennsylvania Rules of Procedure and are committing violations of Pennsylvania and as well as Federal Law and several addition law suits are being considered.. 91. On or about February 23, 2010, Plaintiff 1 files Preliminary Objections with a "Notice to Plead" to Complaint filed by GW on/or about February 2, 2010. 92. On or about February 23, 2010, Plaintiff 2 mails through U. S. Certified Mail a copy of Preliminary Objections to GW at their business address. FAIR DEBT COLLECTIONS PRACTICES ACT VIOLATIONS COUNTI 93. Plaintiff incorporates by reference paragraphs 38, 40, 42, 43, 44, 45, 46, 47, 48 and paragraphs 59 through 92 as referenced as though they were stated herein. 94. Defendants GW have violated the FDCPA by utilizing unfair and unconscionable practices by violating 15 U.S.C. §1692(f) (§808 of the FDCPA) for trying to collect on a debt that is not expressly authorized by the agreement creating the debt or in compliance with state law. 95. Defendants GW have violated 15 U.S.C. §1692e(2)(A) [§807(2)(A)] §1692e(10) [§ 807(10)] §1692e(5) [§ 807(5)] and §1692e(4) [§807(4)] by threatening Plaintiff Paoletta 1's husband through repeated telephone 25 communications that implied that Defendant GW had legal papers and was ready to file a law suit against Plaintiff. 96. Defendants GW have violated §1692d(1) [§806(1)] by engaging in any conduct, including repeated phone calls to relatives in which the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of any debt. 97. Defendants GW have violated 15 U.S.C. § 1692e(2)(A) [§807(2)(A)] by not proving the character, amount, or legal status of the debt. 98. Defendants GW have violated§1692f(1) [§808f(1)] where the Defendants could not substantiate the actual amount of the debt. 99. Defendants GW have violated §1692d(l) [§806(1)] by attempting to unjustly prosecute Plaintiff Paoletta 1 by abusive, harassing and oppressive tactics with hopes of applying pressure upon Plaintiff Paoletta 1 to satisfy the alleged payment by making illegal telephone communications by GW. 100. Defendants GW have violated §1692d(1) [§806(1)] by attempting to use force of authority upon husband to bear illegal pressure upon Plaintiff Paoletta 1 to satisfy the debt so that the harassing telephone calls would stop 101. Defendants GW have violated §1692d(1) [§806(1)] by using improper communications wrongfully in an attempt to hurt or injure by maltreatment and to degrade Plaintiff's character in an attempt to force' Plaintiff to pay money on a disputed unsubstantiated debt. 102. Plaintiff Paoletta 1 states without a doubt that the actions of Defendant(s) GVAT, by ignoring repeated demands to stop harassing, abusive 26 and oppressive telephone communications was an attempt: by GW to cause embarrassment, belittling, and insulting behavior and intimidation of Plaintiff' Paoletta 1, in hopes of forcing payment on an alleged debt that Defendants could not substantiate, has violated §1692e(2)(A) [§807(2)(A)]; §1692e(4) [§807(4)]; §1692d(1) [§806(1)]; §1692e(10) [§807(10) and §1692f(1) [§808(1)]. 103. GW has violated §1692d(1) [§806(1)] by harassing, abusive telephone techniques that only implanted trepidation, fear, apprehension and intimidated Plaintiffs husband, friends and others, who are the least sophisticated consumer in an attempt to exert payment from Plaintiff. 104. GW has violated §1692d(1) [§806(1)] by contacting Plaintiff directly with the intent to harass, abuse, oppress Plaintiff I and Plaintiff 2 and failed to stop all forms of communication as requested. 105. GW has violated §1692d(1) [§806(1)] and §1692e(10) [§807(10)1 for the unauthorized practice of law by using "This call is from the Law Offices of GW and I have some urgent files on my desk that need Arlene S. Paoletta 's immediate attention 106. Since Title 15 U.S.C. §1692et seq. and especially §1692d(1) [§806(1)] was to protect not only "consumers" as defined by the Act, but also people not allegedly obligated for the debt, such as friends, family members, and relatives. 107. Defendant Flink under orders from a respondent superior and/or apparent authority relationship with GW was ordered` to call Plaintiff' 2 thus violating Title 15 U.S.C. §§,1692d(1) [§806(1)], §1692e(2)(A) [§807(2)(A)], 27 §1692e(3) [§807(3)], §1692e(4) [§807(4)], §1692e(5) [§807(5)], §1692e(8) [§807(8)], §1692e(10) [§807(10)], §1692f(1)-[§808(1)] by demanding money. 108. Defendant Flink under orders from a respondeat superior and/or apparent authority relationship with GW was ordered to call Paoletta 2 thus violating Title 15 U.S.C. §§1692d(l) [§806(1)], §1692e(2)(A) [§807(2)(A)], §1692e(3) [§807(3)], §1692e(4) [§807(4)], §1692e(5) [§807(5)],§1692e(8) [§807(8)], §1692e(10) [§807(10)], §1692f(1) [§808(1)]. 109. GW filed the law suit on/or about February 2, 2010, when Bank warned Plaintiff 1 and Plaintiff 2 that any litigation would start on/or about February 17`x, 2010, proving that GW lacked standing to file this frivolous law suit. 110. Plaintiff hereby states that GW has violated Congressional intent and the entire Title 15 U.S.C. §1692et seq. and specifically §1692d, §1692e, § 1692g, § 1692b, § 1692f and § 1692j as it was the intention of Congress "to eliminate abusive debt collection practices" thus violating Title 42 U.S.C. 19,83. - 111. Defendant Flink under a respondeat superior" relationship' with GW called Plaintiff2 demanding an immediate payment of over $76,000 for a fictitious debt allegedly owed to BANK and if the Debt Collector would have reviewed as required, Flink would have realized GW was in default by never answering Paoletta 1's Preliminary Objections and that Paoletta 1 had a default judgment against GW entered into the Cumberland County Prothonotary Office and executed by the Assistant Prothonotary thus 28 violating Title 15 U.S.C. §1692e(3) [§807(3)]; §1692e(2)(A) [§807(2)(A)]; §807e(4) [§807(4))1; §1692d(1) 806d(1) [§1692e(5) [§807(5)]; §1692e(8) [§807(8)]; §1692e(10) [§807(10)]; §1692e(ll) [§807(11)]; §1692f(1) [§808(1)] and §1692] [§812] 112. GW has violated §1692e(8)[§807(8)] by never informing the credit bureaus that Paoletta 1 had a judgment against the GW law firm and against the Bank. 113. GW has violated §1692e(8) [§807(8)] by never changing the incorrect derogatory information on the reporting agencies to the great detriment of Plaintiff 1 and Plaintiff 2, thus violating Title 42 U.S.C.' 1983. 114. Defendant GW has violated §1692e(10) [§807(10)] by violating Pa. Rules of Civil Procedure 1024c as the verification does not comply with the verification rules established by the Pa. Supreme Court. 115. Defendant(s) GW have violated §1692e(10) by not attaching any Exhibits with the "Affidavit" thus proving their deceptive, misleading and disregard of Plaintiff I and Plaintiff 2 by violating the due process rights in violation of Title 42 U.S.C. 1983: 116. Defendant(s) GW have violated §1692e(10) [§807(10)] Pa. Rules of Civil Procedure by violating Pa. Rules of Civil Procedure §1028(2) for the initial complaint didn't meet the requirements and was insufficient for lack of specificity thus violating Title 42 U.S.C. 1983. 117. Defendant GW has violated Pa. Rules of Civil Procedure 1028(5) by not properly reviewing the files under §1692e(3) [§807(3)] by filing a law suit 29 §1692e(5)[§807(5)] and trying to collect upon an unsubstantiated alleged debt [1692a(6)] §1692e(4) [§807(4)]; without proving the character, amount and legal status §1692e(2)(A) [§807(2)(A); §1692f(1)[§808(1)] and improperly either reporting and by not correcting incorrect information on the files of credit reporting agencies in violation of §1692e(8)[§807(8) based upon absolutely no admissible evidence and lack of capacity to sue thus violating Title 42 U.S.C. 1983. 118. Defendant(s) GW having failed to Comply with the "Notice to Plead" and failing to properly respond to the Default judgment that was properly executed by the Assistant Prothonotary making any ex-parte communication(s) and/or any filings on Defendants behalf moot and immaterial and a violation of Judicial discretion, abuse of process, malicious use of judicial procedure and a complete disregard of Paoletta 1 and Paoletta 2's due process rights thus violating'Title 42 U.S.C. 1983. 119. Defendant(s) GW have violated §1692e(10)[§807(10)] by taking advantage of Paoletta I and Paoletta 2 based upon a grossly negligent act of Judge Guido where Judge Guido had no personam jurisdiction to overrule Preliminary Objections almost eight (8) months after the filing of Preliminary Objections with 'a "Notice to Plead" after this Court executed a default judgment against the Bank and GW on/or about April 12, 2010, thus violating Title 42 U.S.C. §1983. 120. Defendant GW intentionally ignored Pa. Rules of Civil Procedure 1018.1 by failing to answer Paoletta 1's Preliminary Objections when it was 30 very apparent that there was a Notice to Defend," thus violating §1692e(3)[§807(3)] and §1692(10) [§807(10)] by ignoring 1018.1 thus denying the due process rights of the Plaintiffs in an attempt to get an incorrect ruling by a judge because GW decided not to file a proper answer thus violating §1692e(10) [§807(10)]. 121. Based upon the failure of GW and the Bank to properly file a responsive pleading as required by law, allows the Preliminary Objections as set forth to be admitted under Pennsylvania Rules of Civil Procedure 1029(b) and GW has violated §1692e(10) [§807(10)] by filing any paperwork on/or about June 28, 2010 without serving Paoletta thus violated Title 42 U.S.C. §1983. 122. Defendant GW has violated Paoletta's due process rights and has violated their own professional code of conduct when GW intentionally, deliberately, with malicious prosecutorial misconduct failed to notify Paoletta that GW filed any documentations in this case is a violation of §1`692e(10) [§807(10)] and all the violations specifically referenced in paragraph e and f. 123. Plaintiff reserves the right to amend this complaint to raise any and all other violations discovered or committed after the filing of this Counter Complaint for the issues are so intertwined including and not limited to sanctions bordering on criminal use 'of judicial process and gross violations of Paoletta's rights under Title 42 U.S.C. §1983 and have violated Title 15 U.S.C. §1692e(3) [§807(3)]; §1692e(2)(A) [§807(2)(A)]; §807e(4) [§807(4))]; 31 §1692d(1) 806d(1) [§1692e(5) [§807(5)]; §1692e(8) [§807(8)]; §1692e(10) [§807(10)]; §1692e(ll) [§807(11)]; §1692f(1) [§8089(1)]. 124. GW has violated Pennsylvania Rules of Civil Procedure 1033 by filing a law suit that violated including and not limited to all the violation mentioned in the above paragraph e and f and specifically §1692e(5)1§807(5)] by not reviewing the file to examine who was the real party of interest. 125. GW and Bank have fraudulently claimed that they have legal standing to prosecute this action when reviewing the files it is very evident that this alleged fraudulent alleged debt was monetized, put into a trust account and then securitized and now is sitting in a Fidelity Account thus proving deceptive, misleading, false statements and committed §1692e(10) [§807(10)] as well as the violations mentioned in paragraphs 117 and 123 thus denying GW of standing and robbing this Court of personam jurisdiction. 126. Defendant GW has violated Pennsylvania Rules of Professional Conduct 3.1 by bringing an action when GW knows that they have no basis in law and fact for doing so thus violating §1692e(10) and all the violations mentioned in paragraphs 117 and 123 as well as §1692d,e,f,g,j,i and are liable for §1692k(A)(2)- 127. Defendants GW have violated Pennsylvania Rules of Professional Conduct 3.3a (1) and all the violations specifically referenced in paragraphs 117 and 123 by making false statements of material facts or law to a tribunal or failing to correct a false statement of material fact or law previously made to the tribunal by a, lawyer, (2) failure to disclose to the tribunal legal 32 authority concealing the jurisdiction of this court; §1692e(2)(A) [§807(2)(A)] and have violated their Rules of Professional Conduct in the following section. of Title 15 U.S.C. §1692 d, e, f, g, j, i and b. 128. Based upon the Plaintiff's understanding, beliefs, information and knowledge GW violated §1692e(10) [§807(10)] by filing this frivolous without the consent and knowledge of said Bank. 129. Bank notified Paoletta that if payment was not received before February 27, 2010, notified Paoletta if Paoletta did not respond by February 28, 2010 and several dates after the date of GW filing (February 2, 2010) this frivolous Complaint allows Paoletta to assume that GW did not have their permission to initiate this frivolous complaint. 130. Based upon Plaintiff's understanding" beliefs, information and knowledge that Bank violated §1692e(10) [§807(10)] by ordering through a Respondeat Superior, Apparent Authority, Champerty and Maintenance relationship under Bank's orders directing, ordering, managing and controlling GW to violate Rule 3.4 of the Professional Code of Conduct by (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, (b) falsify evidence, and or intentionally use improper and/or misuse of judicial process in an attempt to cause irreparable harm on Paoletta 1 as well as Paoletta 2 by not being fair to the opposing parry': 131. Paoletta claims based upon several letters mailed from Bank (nothing was ever received by Paoletta from GW prior to the filing of the Complaint 33 on/or about February 2, 2010) that GW never had standing and/or permission from Bank to initiate legal action in violation of § 1692e(5) [§807(5)] 132. Relatives instructed GW to stop all the harassing phone calls repeatedly and Defendant GW simply ignored and continued to call relatives at inopportune times thus violating §1692d(1) [§806(1)]. 133. Defendant GW has violated §1692d(1) [§806(l)] and §1692e(10) [§807(10)] by calling and harassing relatives 12 times after husband instructed, ordered and requested to stop all forms of communication immediately. FAIR DE13T COLLECTIONS PRACTICE ACT VIOLATIONS COUNT II 134. Plaintiff incorporates by reference paragraphs 38,40, 42, 43, 44, 45, 46, 47, 48 and paragraphs 59 through 92 as referenced as through they were stated herein. Defendant(s) GW have violated Title 15 U.S.C. §1692e(2)(A) [§807(2)(A)] by attempting to collect on a disputed debt after Plaintiff informed Defendants that debt was disputed. 135. Defendant(s) GW have willfully, intentionally and wantonly conspired together to violate §1692e(3) [§807(3)] by not properly reviewing the complete file before taking collection efforts. 136. Defendant(s) GW have violated §1692e(4) [§807(4)1 by trying to collect on a debt the defendants have no right to collect on when the Defendants cannot prove the actual amount owed pursuant to §1692f (1) [§808(1)]. 34 137. Defendant(s) GW have violated §1692f(1) §808(1) and §1692e(2)(A) [§807(2)(A)] by trying to collect on a disputed debt based upon a cursory statement. which does not provide proper evidence in which to prove the debt and has violated §1692e(3) [§807(3)]. 138. Defendant(s) GW have violated Title 15 U.S.C. §1692e(3) [§807(3)], §1692e(IO) [§807(10)] when Defendant(s) GW implied to relatives that an in-house attorney has reached a considered, professional judgment that the Plaintiff must be delinquent and was taking legal action by filing a law suit when G W has not reviewed the files and has no standing to initiate lawsuit:' 139. Defendant(s) GW have violated Title 15 U.S.C. §1692e(4) [§807(4)] by trying to collect on a debt that they have no legal right to collect on and have not complied with §1692e(2)(A) [§807(2)(A)] by not proving the character, legal status and amount of the alleged debt. 140. Defendant(s) GW have violated Title 15 U.S.C. §1692e(5) [§807(5)] by filing a lawsuit without any admissible evidence as substantiated by lack of exhibits in support of their legal action and also have violated specifically mentioned infractions in paragraphs 117 and 123 141. Defendant(s) GW have violated Title 15 U.S.C. § 1692f(1) [§808(1)] which broadly prohibits unfair or unconscionable collection means. 142. Defendant(S) GW have violated title 15 U.S.C. §1692e(3) [§807(3)] by not thoroughly examining the complete file 143. Defendant(s) GW have violated Title 15 U.S.C. §1692e(3) [§807(3)] and §1692e(10) [§807(10)]' by misrepresenting to Plaintiff in Phone communications 35 that attorney implied and/or conveyed to Plaintiff 1 and Plaintiff 2 that attorney had authority to file the lawsuit in violation of §1692e(5) [§807(5)] and implied that the attorney supervised or actually controlled the procedure. 144. Defendant(s) GW have violated Title 15 U.S.C. §1692e(10) [§807(10)] by falsely implying to the Plaintiff that GW had become professionally involved in the collection of this alleged debt and therefore violated sections of §1692d, e, and f by using false representation or deceptive means to collect, or attempt to collect, a debt. 145. The Defendant(s) GW have violated Title 15 U.S.C. §1692e(3) [§807(3)] by the limited ministerial nature of the Defendants review of the files for the brevity of the review lays bare its cursory nature. 146. The Defendant(s) GW have violated Title 15 U.S.C. §§1692d [§806,] 1692e [§807], and 1692f [808] by oppressive, harassing, abusive persecution by unjust use of force of authority, used false, deceptive or misleading representation and unconscionable means in. the attempt to collect a disputed and unproven debt. 147. The Defendant(s) GW have violated Title 15 U.S.C. §§1692e [§807] and 1692f [§808] by using insufficient cursory information as a basis for implying that a potential lawsuit was imminent. FAIR DEBT COLLECTION PRACTICES ACT VIOLATIONS` COUNT III 36 148. Plaintiff incorporates by reference paragraphs 38, 40, 42, 43, 44, 45, 46, 47, 48 and paragraphs 59 through 92 as referenced as though they were stated herein. 149. On numerous occasions, in connection with the collection of an alleged disputed debt that was in default when obtained by Defendant, GW has used false, deceptive, or misleading representations or means, in violation of § 1692e [§807] of the FDCPA. (a) Falsely representing the character, amount, or legal status of a debt, or any services rendered or compensation which may be lawfully received by a debt collector for collection of a debt, in violation of Sections 807(2)(A) and (B) of the FDCPA, 15 U.S.C. §§ 1692e(2)(A) and (B) (b) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including their failure to communicate that a disputed debt is disputed, in violation of Section 807(8) of the FDCPA, 15 U.S.C. § 1692e (8); and, (c) Defendant(s) GW have violated the FDCPA § i 692e(8) [§807(8)] by improperly reporting credit information that the defendants knew, or should have known, that the credit report dated though out 2010 contained inaccurate, misleading, false and adverse information. 37 (d) Using false representations or deceptive means to collect or attempt to collect a debt or to obtain information concerning a consumer, in violation of Section §807(10) of the FDCPA, 15 U.S.C. § 1692e(10). (e) Defendant(s) GW have violated §1692d(5) [§806(5)] and §1692e(10) [§807(10)] by initiating and continually using threatening and/or deceptive means which the consequence is to belittle, harass, oppress, intimidate, and referring to ruining Plaintiff's credit scores thus raising, her future interest rates on future` loans: (f) Defendant(s) GW have violated U.S.C. §1692e(8) [§807(8)] by not correcting the derogatory credit information on file at the three major credit bureaus concerning Plaintiff 1 and/or Plaintiff 2. (g) Defendant(s) GW have violated §1692d(1) [§806(1)], §1692e(2)(A) [§807(2)(A)] §1692e(3) [§807(3)], §1692e(4) [§807(4)]; §1692e(5) [§807(5)], §1692e(8) [§807(8)], §1692e(10) [§807(10)], §1692f(1) [§808(l)] by never reviewing the files And that GW is trying illegally to collect on a loan that has not been verified or the legal amount is inaccurate. (h) Defendant(s) GW have violated' §1692e(10) [§807(10)] by stating that if the Plaintiff does not `dispute the debt within 30 days then the debt collector (GW) will assume this debt is valid. The failure of Arlene S. Paoletta to ask for validation does not prove the validity of the debt. (i) Defendant(s) GW used false representations or deceptive means to 38 collect or attempt to collect a debt or to obtain information concerning a consumer, in violation of Section §1692e(10) [§807(10)] of the FDCPA.. 150. Defendant(s) GW acts as described above were done with malicious, intentional, willful, reckless, wanton and negligent disregard for Paoletta 1's rights under the law and with the purpose of coercing her into paying the alleged debt. 151. As a result of the foregoing violations of the FDCPA, defendant(s) GW are liable to Paoletta 1 and Plaintiff 2 in the sum of their actual damages, statutory damages and attorney's fees (when and if applicable) and costs. 152. Defendant(s) GW have violated §1692e(8) [§807(8)] in numerous instances, in the course and conduct of their business. Defendant(s) GW have furnished information relating to consumers to a consumer reporting agency when defendants knew or consciously avoided knowing that the information was inaccurate, false, misleading and potentially damaging to Plaintiff Paoletta 1 and Plaintiff 2. 153. Defendant(s) GW have violated §1692e (8) [§807(8)] by never notifying Plaintiff Paoletta 1 and Plaintiff2 that derogatory information was being added to. Plaintiff Paoletta 1 and Plaintiffs 2's credit reports. 154. Defendant(s) GW have violated §1692e(8) [§807(8)] by never` notifying Plaintiff Paoletta 1 and Paoletta 2 about their rights to dispute the derogatory information and have not, clearly and conspicuously, specified to consumers an address for mailing notices disputing said information. 39 WEIEREFORE, Paoletta 1 and Plaintiff 2 respectfully request that judgment be entered against GW for the following: (a) That an order be entered declaring that the Defendants' actions as described above are in violation of the FDCPA; (b) That an order be entered enjoining Defendants from continuing to communicate with plaintiff in violation of the FDCPA; (c) That judgment be entered against Defendants for actual damages pursuant to 15 U.S.C. § 1692k (a) (1); (d) That judgment be entered against Defendants for statutory damages pursuant to 15 U.S.C. § 1692k(a)'(2)(A) (e) That the Court awards costs and reasonable attorney's fees (when and if applicable) pursuant to U.S.C. §1692k(a)(3); (f) That the Court grants such other and further relief as may be just and proper. (g) That the Court awards up to $1,000.00 per violation. FAIR CREDIT REPORTING ACT VIOLATIONS COUNT IV 155. Plaintiff incorporates by reference paragraphs 39, 41, 49 and 50 thru 58 and incorporates as referenced as though they were stated herein. 156. The jurisdiction of this Court is conferred by Title 15 U.S.C. §1681(p) and 28 U.S.C. §1367 and 28 U.S.C. §1331 and is an action for actual, statutory and punitive damages, costs and attorney fees, when applicably brought pursuant to 15 U.S.C. §1681 et seq. (Fair Credit Reporting Act) 40 1 157. The Plaintiff is a natural person and resident of the State of Pennsylvania. Arlene S. Paoletta (hereinafter known as Plaintiff and/or Paoletta 1) is.a "consumer" as defined by Title 15 U.S.C. §1681a(c). 158. Defendant's Equifax, Experian and Transunion are hereinafter known as CRA's and/or CRA. 159. Defendant(s) CRA have violated 15 U.S.C. § 1681 e(b) by failing to establish or to follow reasonable procedures to assure maximum possible accuracy in the preparation of the credit report and credit files it publishes and maintains concerning the Plaintiff. 160. As a result of CRA's conduct, action, and/or inactions the Plaintiffs suffered damages by loss of credit, loss of the ability to purchase and benefit from credit, the mental and emotional pain and anguish and the humiliation and embarrassment of credit denials. 161. Defendants CRA's conduct, action and inaction was willful, rendering it liable for punitive damages in an amount to be determined by the Court pursuant to Title 15 U.S.C. §1681n. In the alternative, it was negligent, entitling the Plaintiff to recover under Title 15 § 1681 o. FAIR CREDIT REPORTING ACT VIOLATIONS COUNT V 41 162. Plaintiff incorporates by reference paragraphs 39, 41, 49, 50 thru 58 and paragraphs 155 through 161 and incorporates as referenced as though they were stated herein. 163. Defendant(s) CRA have violated 15 U. S.C. § 1681 i on multiple occasions by failing to delete inaccurate information in the Plaintiff's file after receiving actual notice of such inaccuracies; by failing to conduct a lawful reinvestigation; by failing to forward all relevant information to Bank of America; by failing to maintain reasonable procedures which to filter and verify disputed information in the Plaintiff's credit file; and by relying upon verification from a source it has reason to know is unreliable. 164. As a result of this conduct, action and inaction of the CRA's, the Plaintiff has suffered damage of credit; loss of the ability to purchase and benefit from credit; and the mental and emotional pain, anguish, humiliation, and embarrassment of credit denials. § 1681 n and § 1681 o. 1.65. Defendant(s) CRA's conduct, action and inaction was willful, rendering it liable for punitive damages in an amount to be determined by the Court pursuant to Title 15 U.S.C. §1681n. In the alternative, it was negligent, entitling the Plaintiff to recover under Title 15 § 1681 o. 166. The Plaintiff is entitled to recover costs and attorney's fees (when and if applicable) in the amount to be determined by the Court pursuant to 15 U.S.C. §1681n and/or 1681o. 167. Defendant(s) , CRA have violated §1681i by not reviewing and reconsidering the Plaintiff's allegations that information furnished by Bank of America is 42 incorrect, inaccurate, misleading and damaging to Plaintiff. 168. Defendant(s) CRA have violated § 1681 i(a)(2) by not forwarding Plaintiff's dispute directly to Bank for their investigation. 169. Defendant(s) CRA have violated § 1682i(a)(1)(A) by not conducting their own reasonable investigation to determine the accuracy or completeness of its reporting. 170. Defendant(s) CRA have violated §1681i(a)(5) by not correcting information that has not been verified. 171. Defendant(s) CRA have violated § 1681 i(a)(1)(A) by not reinvestigating Plaintiff s request for a reinvestigation. 172. Defendant(s) CRA have violated § 1681 e and § 16811 by not adopting reasonable.procedures to ensure that the information they disseminate is, accurate and up- to-date. 173 Plaintiff Paoletta 1 had notified the CRA's requesting a formal investigation which was not properly accomplished thus violating § 16981 i by not examining t:he accounting ledgers of the bank as required by the FTC §611 paragraph two. FAIR CREDIT REPORTING ACT VIOLATIONS COUNT VI 174. Plaintiff incorporates by reference paragraphs 39, 41 and 59 thru 58 and paragraphs 162 through 173 and incorporates as referenced as though they were stated' herein. 43 175. Plaintiff Paoletta I and Plaintiff 2 are individual consumers as defined by § 1681 a(c). 176. The FORA defines a consumer report as § 1681 a(d)(1). 177. The FCRA defines a consumer file has to be kept by CRA § 1681 a(g) 178. The FCRA defines a CRA § 1681 a. 179. CRA's have violated § 1681 i by just parroting what a creditor inaccurately reports and does not ensure maximum possible accuracy once a CRA has been notified through a § 1681 i, investigate and reinvestigate. 180. CRA's have violated §1681i by accepting incorrect information from creditor without reinvestigating the creditor's internal records to assess the true status and the alleged amount of the debt. 181. CRA's have violated §1681i(a) and §1681s by reporting misleading information that has not been verified and/or undeterminable. 182. CRA's have violated §168le(b) by failing to assure the maximum possible accuracy of the information' listed on the Plaintiff's Credit Report. WHEREFORE, Paoletta 1 and Paoletta 2 respectfully request that judgment be entered against Experian and any credit reporting agency and other individual and/or corporation that maybe discovered through discovery and Plaintiff asks for the following: (a) That an order be entered declaring that the Defendants' actions as described above: are in violation of the FCRA; 44 (b) That an order be entered enjoining Defendants from continuing to communicate with plaintiff in violation of the FORA; (c) That judgment be entered against Defendants for actual damages pursuant to 15 U.S.C. § 1681 et seq.; (d) That judgment be entered against Defendants for statutory damages pursuant to 15 U.S.C. § 1681; (e) Plaintiff demands compensatory and punitive damages against defendants, jointly and severally; {f) That the Court grants such other and further relief as maybe just and proper; (g) That the Court award up to $1,000.00 per violation; (h) And such other relief the Court deems just, equitable a pop Arlene S. Paoletta Mitthael . Paoletta PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT; § 2270.1 et. Seq. Count VII 183. Plaintiff repeats, re-alleges and incorporates by reference paragraphs 38 thru 182 above. 184. The Defendants have violated the State Act. Defendants' violations of the State Act include, but are not limited to, the following: a. The Defendant's violated 73,P.S. §2270.4(4) by threatening legal action and without any signed contract. 45 b. The Defendants violated 73 P.S. §2270.4(5)(ii) by falsely representing, by the subsequent mailing to Plaintiff of correspondence, that the alleged debt was not in dispute by demanding payment on an unverified debt. c. 'The Defendants violated 73 P.S. §2270.4(5)(viii) by knowingly reporting false and inaccurate information to the credit bureaus about Plaintiff including the failure to communicate that the debt was disputed. d. Defendants' acts as described above were done intentionally with the purpose of coercing and harassing Plaintiff into paying the alleged debt in violation of 73 P.S.. §2270.4(5)(vii). e. As a result of the above violations of the state Act, the Defendants are liable to the Plaintiff for declaratory judgment that Defendants conduct violated the state Act, and Plaintiff's actual damages, statutory damages and costs. f As a direct and proximate result of the above ` violations made by Defendants, the Defendants are liable to the Plaintiff for injunctive and declaratory relief and for actual damages, statutory damages, punitive damages, costs and fees. WHEREFORE, Plaintiff respectfully requests that judgment be entered against GORDON & Weinberg, P.C. and Bank and all other mentioned and not mentioned for the following: (a) That an order be entered declaring that the Defendants' actions as described above are in violation of theFCEUA; (b) That an order be entered enjoining Defendants from continuing to communicate with plaintiff in violation of the FCEUA; 46 (c) That judgment be entered against Defendants for actual damages pursuant to FCEUA §2270 et Seq. (d) That judgment be entered against Defendants for statutory damages pursuant to FCEUA §2270 WR SEQ. (e) That the Court awards costs and reasonable attorney°s fees (when and if applicable) pursuant to FCEUA; (f) That the Court grants such other and further relief as may be just and proper. (g) That the Court awards up to $1,000.00 per violation. (h) That Plaintiff be allowed to amend the current Complaint and name additional Defendants after discovery and/or disposition are complete. Respectfully submitte and l Rog& Arlene S. Paoletta Michael Paoletta Date ?l COMM OF P? SS COUNTY OF CUMB Sworn befitit a me OR 201 o COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL PAULA K SMITH, NOTARY PUBLIC SPRING TWR, CUMBERLAND COUNTY o?ir :MI41' 'SION EXPIRES FEBRUARY 3, 2012 47 AFFIDAVIT We, Arlene S. Paoletta and Michael L. Paoletta, hereby affirm that the facts set forth in our Verified Counter-Complaint are true and correct to the best of our personal knowledge, information and belief. We are both competent to appear in person, in a court of law, and to testify, under oath, as to the matters stated herein. Further, the Affiant saith naught. Arlene . Paoletta ACKNOWLEDGMENT On this ? Day of November, 2010, before me, :the undersigned officer, a Notary Public in and for said County and State, personally appeared Arlene S. Paoletta, and Michael L. Paoletta, known to me (or satisfactorily proven) to be the person whose names are subscribed to the foregoing Counter-Complaint and acknowledged that both executed the same for the purposes therein contained as a sworn Affidavit of the absolute truth based upon both Arlene S. Paoletta's and Michael L. Paoletta's personal knowledge, beliefs, understanding and information and declares; IN WITNESS WHEREOF, I hereunto set my hand and official seal: Notary Public My Commission expires: ?[- - Z - 0 1 '-?- COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL PAUtAK SMITH, NOTARY PUBLIC SILVER SPRING TNP., CUMBERLAND COUNTY 4g MY COMMISSION EXPIRES FEBRUARY 3, 2012 ; CONGRESSIONAL INTENT FOR ENACTING THE FDCPA Congressional intent for enacting the FDCPA is to protect consumers from deceptive, abusive and egregious acts of debt collectors addressed within the Act AND those which are `not' so specifically addressed when dealing with least susceptible and least sophisticated consumers' (see Senate Report No. 382) by, as one means, enlarging monetary penalties against debt collectors2 by applying Section 5(m (1)(A) of the FTC Act, 15 U.S.C. § 45(m)(1)(A), as modified by Section 4 of the Federal Civil Penalties Inflationary Adjustment Act of 1990, 28 U.S.C. § 2461, as amended, and Section 1.98(c) of the FTC Rules of Practice, 16 C.F.R. § 1.98(c) which would allow for up to $11,000.00 for "each violation" of the act applied equally to private plaintiffs as with governmental agencies when pursuing violations of the Act. Congress'' express purpose of improving consumer redress and eliminating abusive debt coflection practices (15 U.S.C. § 1692(b) and (e)) was upheld by the Federal Judge in Kaschak v. Raritan Valley Collection Agency, Clearinghouse NO. 44,762 (D.N.J. 1989)[not'for publication] where statutory damages applies to "each" i Congress included this general proscription in recognition of its inability to foresee every conceivable future abusive debt collection method that may be used by debt collectors. According to the Senate report: ".....this bill prohibits in general terms any harassing, unfair, or deceptive collection, practice. This bill enables the courts, where appropriate, to proscribe other improper conduct which is not specifically addressed." Senate Report No. 95-382, at Page 4. 2 "In assessing damages, the court must take into account the nature of the violation, the degree of willfulness, and the debt collector's persistence. Senate Report No. 95-382, at Page 5. See also 15 U.S.C. § 1692k(b)(1). 49 violation of the act rather than to each suie. See also Creighton v. Emporia Credit Service, Inc., 981 F. Supp. 411 (E.D. Va. 1997), Schimmel v. Slaughter, 975 F. Supp. 1357, (M.D. Ga. 1997)- jalthough a single violation of the FDCPA established liability, the number and extent of violations were relevant to damages, and the court considered each allegation of "separate" violations] Congress intended to outlaw abusive collection practices and went to great lengths to define abusive collection tactics with precision (S.R. No. 382) and intended fur private suits to be a major enforcement device ad. at 5) by empowering the Courts to `enhance' statutory damages when violations are viewed as aggravated or egregious'. 3 The first award for "multiple" FDCPA violations by a Court was for: statutory damages of $4,000.00 committed by a single collector collecting a single debt (erroneously believed by the collector to be "two" debts from a single consumer was the case of Florence v. National Systems, Clearinghouse No. 36,545 (N.D. Ga. 1983); see also Walczynski, v. VenQra?f. Weiss & Assoc.,. Inc. C.A. No. 88-4136, Clearinghouse No. 45,939 (D.N.J. 1990) the court awarded $4,000.00 statutory damages plus costs; Bell v. NemecoInc. Clearinghouse No. 44,329 (D.N.M. 1989) the court awarded $5,000.00 statutory damages and $4,700.00 attorneys fees at $125.00 p/hr plus costs Commerce Serv. Corp., Clearinghouse No. 44,699 (E.D. Pa. 1.989)(consent order) for multiple violations of FDCPA and Pa UDAP statute agreed to not violate the laws and pay $3,000.00 damages and $2,500.00 attorneys fees; Ewing v. Messerli; Clearinghouse No. 44,331 (D.S.D. 1988) the court awarded consumer $5,000.00 statutory damages for "five" (5) `intentional' and `separate' violations in three communications, $2,340.00 actual damages (for pain and suffering, mental anguish, loss of income and medical expenses)' for one spouse and. $611.00 to the other (loss of income and consortium, pain and suffering, transportation expenses), and $3,948.85 attorneys fees for a total $11,899.85 liability); Fishman v. North Shone Agency, Inc., Clearinghouse No. 43,881,` 22 Clearinghouse Rev. 782 (N.Y. Sup. Ct. 1988) multiple violations of FDCPA, state and local debt collection laws alleged and settled for $10,000.00 "compensatory" damages. 4 See Watson v. Peterson Enterprises, 57 F. Supp. 2d 1102 (E.D'. Wash. 1999) entitled to full: statutory damges; and Mede v. Sid Bailey, Inc., 192 B.R. ` 611 (S.D.N.Y. 1996) providing maximum statutory damages, actual damages, and $60,000.00 punitive damages being awarded; Rogers v. Capitol Credit Corp., Clearinghouses No. 41,259, 47 Wash. Fin. Rep. (BNA) 377 (M.D.N.C. 1986) providing consumers $8407:80 actual damages, $1,000.00 statutory and $74,000.00 punitive damages; Miele v. Sid Bailey, Inc., 192 B.R. 611 (S.D.N.Y. 1996) $1153.43 actual damages and $60,000.00 punitive under State law claims; the Court cases listing monetary 50 Congressional intent was to increase statutory damages where the activity is a frequent or persistent part of the collector's policy regarding all consumers 5. Strict interpretation of the $1,000.00 statutory limit in Title 15 U.S.C. § 1692k was not the intent of Congress. Congressional records clearly prove that over time the FDCPA should be changed and updated to protect the consumers from anything not considered by Congress in 1977 and 1986. If the statutory limit of $1,000 per case would be the only deterrent from preventing debt collectors from violating the FDCPA, it would be not much of a deterrent but would be nothing more than a cost of doing business by the debt collectors. Who wouldn't spend $1,000 in violations to return $10,000, $20,000 or even $50,0007 This Court must grant up to $1,000 per violation to comply with Congressional intent. The FDCPA was to protect the citizens and make the financial penalties a cast prohibitive for debt collectors who violate the FDCPA. The abusive debt collection practices of GW is typical of their egregious, intentionally and willful violations in complete disregard of others. GW conducts their debt collection practices in respondeat superior and an apparent authority type of relationship between GW" and its employees. GW's actions are exactly why the FDCPA was written and now it is up to this court to follow Congressional intent. The legislative history of the Act never refers to the statutorily provided awards as `punitive damages' (see S. Rep. No. 382 at 5, 8) but in light of the Act, Congress could NOT have meant to fashion a mere $1,000.00 maximum punitive damage awards, including actual, statutory and "large" punitive damages to Plaintiffs, reads like a. catalogue of ships. 5 See Withers v. Eveland, 988 F. Supp. 942 (E D. Va. 1997); Shelden v. J-K Collections, Inc., Clearinghouse No. 45,722 (D.N.M. 1990). 51 I award when the state punitive damage awards are almost always awarded in multiples of thousands of dollars' and the amounts sought in collection actions are usually many times higher than a mere $1,000. The FDCPA does not prohibit the collection of valid debts by lawyer debt collectors (see Heinz v. Jenkins 514 U.S. 291, 115 S Ct 1489, 131 L Ed. 2d 395 (1995)); it provides a remedy for consumers like the Plaintiff who have been subjected to abusive, deceptive and unfair debt collection practices alleged herein.. See Pollice v. National Tax Funding, 225 F.3d 379, 400 (3rd Cir. 2000) & Crossley v. Lieberman, 868 F.2d 56 (3rd Cir. 1989). The FDCPA itself is an incomplete itemization of every unfair practice awaiting completion by the Courts via an opinion regarding a "new collection" practice by debt collectors like those alleged herein, i.e., Defendants use of an "indirect debt collector" sitting on the bench to assist by allowing deceptive debt collection practices against Plaintiff by misuse of civil processes and perjury. The legal litmus' test 'against the conduct that will be measured as either oppressive or harassing is from statutes specific prohibitions and from the viewpoint of the least 6 See Summit Loans Inc., v. Pecola, 265 Md. 43, 288 A.2d 114 (1972) $1,500.00 compensatory and $475,000.00 punitive damages awarded; Reeves v. Melton, 519 P.2d 57 (Okla. Ct. App. 1973) $1,500:00 actual and $5,000.00 punitive awarded; Lloyd v. Meyyer,586 S.W. 2d 222,(Tx. Civ. App. 1979) $15,000.00 actual and $11,000.00 punitive awarded. 7 The word "count" in 15 U.S.C. § 1692k(a)(2)(A) authorizing "such additional damages as the court may allow" should be interpreted to permit trial by both judge and jury, finding that such an interpretation avoided the serious constitutional issues that would be raised, under the Seventh Amendment, if the Act was construed to prohibit trial by jury. The rights under the FDCPA most resemble tort actions for collection abuses which was the traditional form of relief offered_ in the courts of law. The 15 U.S.C. § 1692k(a)(2) reference for allowance of damages by the court must be construed to embody the right by trial by a jury. Sibley v. Fulton DeKalb Collection Service, 677 F.2d 836 (11' Cir. 1982); Whatley v. Universal Collection Bureau, Inc., Clearinghouses No. 31,818(N.D.'Ga. 1982) See also, Keane v. National Bureau of Collections, Clearinghouses No. 35,923 (D.Md. 1983) 52 sophisticated and least susceptible consumer. See Graziano v. Harrrison, 950 F.2d 107,111(3 rd Cir. 1991) and Adams v. Law Offices of Stuckert & Yates, 926 F. Supp. 521, 527 (E.D. Pa. 1996). GW is not exempt from Federal Prosecution! Plaintiff requests this Court to further investigate the business operations and illicit collection tactics of GW for knowingly causing interferences with Plaintiffs ability to engage in commerce under the commerce clause of the United States Constitution due to GW's reach into the several states as evidenced by court filings in many states of this Union. See Hobbs Act, 18 U.S.C. §1951 "Interference with commerce with threats or violence." Through violations by GW of the FDCPA (15 U.S.C. 1692 et seq.) and the FCRA (15 U.S.C. §1681) as outlined within this Complaint, GW is engaged in conspiratorial "robbery" and "extortion," pursuant to 18 U.S.C. §1951(a)(1) & (2) respectively, to deprive Plaintiffs of their property under the color of law by violating the FDCPA and causing subsequent violations of FCRA that harmed Plaintiff in numerous ways. Such violations cause financial, harm and injurious emotional distress that affects Plaintiff's ability to engage in such commerce, of which GW, being trained professionally in law, knows, or should have known to be criminally culpable for their actions in these regards. Plaintiff also requests of this Court to further' investigate GW for Civil (and/or Criminal) RICO statute violations (see 18 U.S.C. §1961- 1968) incurred by GW's violations of the FDCPA and the FCRA, for once again, 53 GW, being trained professionally in law, knows, or should have known, to be criminally culpable for their actions in this regard. The "enterprise" called GW, (see 18 U.S.C. §1961(4) for definition of "enterprise") has engaged in activities with regards to this Plaintiff which are nothing less than "racketeering activity" as defined by 18 U.S.C. §1961(1) since their actions as outlined in this Complaint provide for a "pattern of racketeering activity" as defined by 18 U.S.C. §1961(5). For, as but one example of this activity, GW's repeated failure to provide for the validation of the alleged debt, (that such enterprise is attempting to collect upon with "threats of the use of legal action and the enterprise has no authority to initiate a lawsuit in the State of Pennsylvania) as a lawful transaction contained within the business of lending money, which now can be classified as an "unlawful debt" (at a usurious rate) absent lawful proof of the "character," "amount," and "legal status" of the alleged debt pursuant to 15 U.S.C. §1692e(2)(A). See 18 U.S.C. §1961(6) for definition of "unlawful' debt. GW illegally makes literally tens of millions of dollars by violating Federal Law each year and the Federal Government allows this activity. Plaintiff hereby asks this Court to investigate the operations of this debt collector and. remove their law license and prevent them from further violation of other people's protection under the FDCPA. The United States Constitution (14' equal protection clause) does not afford GW protection from prosecution for violating federal law but makes it clear that they should be investigated for intentionally, willfully, maliciously and knowingly violating Federal Law for unjust enrichment and for racketeering by it Federal Prosecutor. 54 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff CIVIL TERM CASE NO.: 10-538 V. Arlene S.. Paoletta Defendant Arlene S. Paoletta and Michael L. Paoletta, Plaintiffs' V. FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, GORDON & WEINBERG, P.C., Joel M.Flink, Frederic 1. Weinberg, Christopher S. Froba Marc R. Gordon, and John Doe and Jane Doe, One Up. DEFENDANT'S VERIFIED ANSWER UNDER RESERVATION WITH NEW MATTER JURY TRIAL DEMANDED VERIFIED COUNTER-COMPLAINT FAIR DEBT COLLECTION PRACTICES ACT, TITLE 15 U.S.C §1692 et. Seq. PENNSYLVANIA FAIR CREDIT EXTENTIONS UNIFORMITY ACT §2270.1 et. Seq. EXPERIAN INFORMATION FAIR CREDIT REPORTING ACT SOLUTIONS, INC. : TITLE 15, U.S.C. §1681, et. Seq Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Arlene S. Paoletta hereby certify that on November 8, 2010, that I caused to be served a true and correct copy of a Verified Answer with New Matter and Counter Complaint by both U.S. Certified Mail and by Prepaid First Class' U.S. Mail, and/or by proof of mailing to the following addresses indicated below: CERTIFIED MAIL AND PREPAID FIRST CLASS U.S. MAIL GORDON & WEINBERG, P.C. FIA CARD SERVICES f/k/a 1001 E., HECTOR STREET, STE 220 BANK OF AMERICA CONSHOHOCKEN, PA 19428 1825 Buckeye Rd. #7006 0100 0004 52359079 Phoenix, Arizona 85034 EXPERION INFORMATION SOLUTIONS #70081140 0000 8398 7033 P.O. BOX 9701 ALLEN, TX. 75013 #7006 0100 0004 5235 9086 CERTIFICATE OF SERVICE CONTINUED (Verified Answer with New Matter and Counter-Complaint) FIRST CLASS U:S. MAIL WITH PROOF OF MAILING Marc R. Gordon, Esq. GORDON & WEINBERG, P.C. 1001 E. HECTOR STREET, STE 220 CONSHOHOCKEN, PA 19428 Frederic I. Weinberg, Esq. GORDON & WEINBERG, P.C. 1001 E. HECTOR STREET,`STE 220 CONSHOHOCKEN, PA 19428 Joel M. Flink, Esq. GORDON & WEINBERG, P.C. 1001 E. HECTOR STREET, STE 220 CONSHOHOCKEN, PA 19428 Christopher S. Forba, Esq. GORDON & WEINBERG, P.C. 1001 E. HECTOR STREET,'STE 220 CONSHOHOCKEN, PA 19428 COMM OF PA ss COUNT OF CUMF BY: LI Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 Sworn before me on of -P ©rJ i20 0 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL PAULA K SMITH, NOTARY PUBLIC SILVER SPRING TWP., CUMBERLAND COUNTY MY COMMISSION EXPIRES FEBRUARY 3, 2012 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A -nU BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838 Arlene S. Paoletta PETITION FOR RULE ` Defendant TO SHOW CAUSE PURSUANT TO Pa.R.C.P.206.6 JURY TRIAL DEMANDED PETITION FOR RULE TO SHOW CAUSE PURSUANT TO Pa.R.C.P. 206.6 AND NOW, comes Arlene S. Paoletta, Defendant in the above-captioned matter, (hereinafter, "Paoletta") who, Pursuant to Pa.R.C.P. 206.6, Petitions this Court for Rule to Show Cause, why Paoletta should not be granted the relief requested, for Plaintiff's repeated, deliberate, and ongoing woeful negligence to answer Paoletta's previously filed, and properly endorsed, with Notice to Plead, Preliminary Objections. Paoletta seeks to have her Preliminary Objections deemed admitted in their entirety; and further, in consideration of the duly recorded Default Judgment as entered against Plaintiff on or about April 12, 2010, Petitions by Rule to Show Cause, that Plaintiff's Complaint be Dismissed, forthwith, with prejudice. In furtherance of this Petition, Paoletta hereby incorporates, pursuant to Pa.R.C.P. 1019(g), her Motion to Deem Admitted, Paoletta's Preliminary Objections, as concurrently filed with this Petition, as if it were set forth, at length, herein. Respectfully Submitted, Arlene S. Paoletta IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838 Arlene S. Paoletta PETITION FOR RULE Defendant TO SHOW CAUSE PURSUANT TO Pa.R.C.P.206.6 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 15'h day of November 2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Petition for Rule to Show Cause, Pursuant to Pa.R.C.P. 206.6 as follows: Eric I. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Card Services, N.A., f/k/a Bank of America) By Hand Delivery to: Cumberland County Court Administrator One Courthouse Square, Room 400 Carlisle, Pa. 17013 /1 /' -- , fLzi?? Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 (" 't t b ` IN THE COURT OF COMMON PLEAS OF CUMBI?" D C(-eVNTY ,. PENNSYLVANIA 'l `` i 3 FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838 Arlene S. Paoletta MOTION TO DEEM ADMITTED Defendant DEFENDANT'S PRELIMINARY OBJECTIONS PURSUANT TO Pa.R.C.P 1029(b) JURY TRIAL DEMANDED MOTION TO DEEM ADMITTED DEFENDANT'S PRELIMINARY OBJECTIONS PURSUANT TO Pa.R.C.P 1029(b) NOW COMES, Arlene S. Paoletta, Defendant (hereinafter, "Paoletta") in the above-captioned matter, who moves upon this Court, to Deem Admitted, all of Paoletta's previously filed, with Notice to Plead, Preliminary Objections; for Plaintiff's willful and continued failure to respond thereto. In support thereof, Paoletta now states as follows: 1. On or about February 2, 2010 Plaintiff, FIA Card Services, f/k/a Bank of America (hereinafter, "Plaintiff') filed, and subsequently caused to be served a Complaint, against Paoletta. 2. On or about February 23, 2010, Paoletta filed a properly endorsed, with Notice to Plead, Preliminary Objections, together with a brief in support. 3. Following Plaintiff's willful failure to timely respond to Paoletta's Preliminary Objections, on or about March 18, 2010 Paoletta caused to be served by certified mail, #7004 2890 0004 6575 7284 and by U.S. mail, postage pre-paid, with proof of mailing, a Notice of Default upon Plaintiff. Attached hereto and marked as exhibit "A", is a true and correct copy of proof of Paoletta's Notice of Default 4. On or about March 30, 2010, because Plaintiff had yet to plead to Paoletta's Preliminary Objections, Paoletta once more caused to be served, a second Notice of Default. By U.S. Mail postage pre-paid, with proof of mailing upon Plaintiff. Attached and marked as exhibit "B" is a true and correct copy of proof of Paoletta's Second Notice of Default upon Plaintiff. 5. On or about April 12, 2010, because of Plaintiff's continued failure to respond to Paoletta's Preliminary Objections, coupled to two separate Notices of Default served upon Plaintiff for their failure to plead, Paoletta caused to be entered, a Default Judgment against Plaintiff, as recorded in the Cumberland County Prothonotary's office. 6. With respect to the above, upon information and belief, as supported by Pa.R.C.P. 236, following the entry of Default Judgment, the Cumberland County Prothonotary's office caused to be served upon Plaintiff, a true and correct certified copy of the Default Judgment as entered against Plaintiff. 7. On two (2) separate occasions, more than ten (10) days following the proper entry of Default Judgment against Plaintiff, Paoletta went to the Courthouse to review the Docket, to determine if Plaintiff either motioned to open and/or strike the judgment as entered against them; in both instances, Plaintiff failed to address the judgment. 8. Subsequently and unbeknownst to Paoletta at the time, on or about July 1, 2010, Plaintiffs counsel filed a praecipe for argument, to be scheduled for October 6, 2010. Paoletta was unaware of Plaintiff s filing because Plaintiff, upon belief of Paoletta, deliberately failed to serve their Praecipe on Paoletta. 9. On or about October 6, 2010, with Paoletta still having no knowledge that a Praecipe had been entered for Argument, the Guido court issued an Order, dismissing Paoletta's Preliminary Objections, and, further directing Paoletta to Answer Plaintiff s Complaint, despite the clear and facially obvious fact that Plaintiff had never responded to Paoletta's Preliminary Objections, and that a Default Judgment had already been duly and properly recorded, and served upon Plaintiff some six (6) months earlier. 10. On or about October 18, 2010 Paoletta filed a Motion to Vacate the Order issued by the Guido Court. 11. On or about October 25, 2010 the Guido Court vacated the Order as entered on or about October 6, 2010, specifically, and/or limited to, upon information and belief, the fact that Plaintiff s Praecipe for Argument as filed on or about July 1, 2010, had never been served upon Paoletta. The Order of October 25th, vacating the previous Order of October 6th, was also never served upon Paoletta. Said Order also notes a hearing to be held on November 19, 2010, which Paoletta believes, is specifically for the purpose of addressing Paoletta's Preliminary Objections that Plaintiff (to date) had never answered and the Prothonotary had already recorded a Default Judgment against them. 12. Subsequently, on or about November 8, 2010, because Paoletta, having never been served with the Court's October 25th Order, Paoletta filed a Answer to Plaintiff s Complaint, Under Reservation, with New Matter and Counter Complaint. 13. Paoletta only learned of the Court's October 25`x' Order to vacate the October 6t" Order after having filed her Answer under Reservation, with New Matter, and Counter Complaint, and accordingly, Paoletta did not serve her November 8th filing and, has recently filed a Praecipe to Withdraw the filing with the Prothonotary's office with a reservation of rights to re-file, pending resolution of this, and other matters, now and/or to yet be imminently brought before the court. 14. Because of the nature of this case, and with a hearing set for November 19th, that Paoletta believes simply should not be, Paoletta on or about November 81h, 2010 filed a Motion for Enlargement as appertaining to the pending hearing; to date, Paoletta has received no response thereto. MOTION TO DEEM ADMITTED 15. Paoletta hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length herein. 16. Plaintiff was in the first instance, timely served with a properly endorsed, with notice to plead, Preliminary Objections, which Plaintiff failed to respond to. 17. Following Plaintiff's failure to timely respond to Paoletta's Preliminary Objections, Plaintiff was served with two (2) separate Notices of Default for failing to timely respond to Paoletta's Preliminary Objections; nonetheless, despite these notices, Plaintiff continued to NOT respond to Paoletta's Preliminary Objections. 18. On April 12, 2010 a Default Judgment was duly and properly recorded in the Cumberland County Prothonotary's office, indicative of Plaintiff's woeful neglect to respond to Paoletta's Preliminary Objections; and, despite said notice being served upon Plaintiff, still refused to address either Paoletta's Preliminary Objections, or the duly recorded Default Judgment as entered and served on Plaintiff by the Prothonotary's office. 19. Pa.R.C.P. 1029 et. seq, reads in pertinent part that: "(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A General denial or a demand for proof, except as provided by subdivisions (c) and (e) of this rule, shall have the effect of an admission." 20. Pursuant to Pa.R.C.P. 1029(b) because Plaintiff, repeatedly, deliberately failed to respond to Paoletta's Preliminary Objections, said Preliminary Objections must be deemed as Admitted. WHEREFORE, Paoletta for good cause shown, moves upon this Court to forthwith Deem Admitted, Paoletta's Preliminary Objections as properly served upon Plaintiff, with notice to plead, and as coupled to the two (2) separate Notices of Default as evidenced herein by exhibits, having been properly served upon Plaintiff, together with the entry of Default Judgment, as duly and properly recorded by the Cumberland County Prothonotary's Office, and subsequently served thereupon Plaintiff by said Prothonotary. Paoletta moves that all her Preliminary Objections be Deemed Admitted, and in consideration thereof that Plaintiff's Complaint be Dismissed, with prejudice; and, further, Paoletta seeks any and all other relief that this Court may deem otherwise just and proper. Respectfully Submitt d, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838 Arlene S. Paoletta MOTION TO DEEM ADMITTED Defendant DEFENDANT'S PRELIMINARY OBJECTIONS PURSUANT TO Pa.R.C.P 1029(b) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 15`h day of November 2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Motion to Deem Admitted, Defendant's Preliminary Objections as follows: Eric I. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Card Services, N.A., f/k/a Bank of America) By Hand Delivery to: Cumberland County Court Administrator One Courthouse Square, Room 400 Carlisle, Pa. 17013 Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 t IN ,rHE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA F1A CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene ?. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 PRAECIPE FOR DEFAUL 1. JUDGMENT FAILURE TO PLEAD PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: Please Enter DEFAULT JUDGMENT against the above-named Plaintiff, FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, for FAILURE TO PLEAD to 1)e1endant's Preliminarv Objections. Pursuant to Pa.R.C.P. 2371(a)(2), 1, Arlene Paoletta, Defendant in the aboye- captioned. do hereby certify that written notice of the intention to file Default Judomem was mailed by both certified Mail, Number 7004 2890 0004 6575 7284 and by First Class, t.S. Mail, postage pre-paid on March 18, 2010 to the attorney(s) of record, for and on behalf of the Plaintiff party against whom judgment is to be entered, and to the Plaintiff directly, by U.S. First Class Mail, postage pre-paid, with proof of mailing on March 30- 2010 after Default occurred and at least ten (10) days prior to filing this praecipe. A true and correct copy of the Notice of Default, Certified and Proof of Mailing(s) are attached hereto. Arlene S. Paoletta 4 And Now, this /a day of ?o-; ( , 2010 Default Judgment is hereby entered in favor of Arlene S. Paoletta, Defondant, and against Plaintiff, FIA CARD SERVICES. N.A. tYk/a BANK OF AMERICA for Plaintiffs failure to plead. l`?/? C? ,? ?k`, /51 David D. Buell ?t Prothonotary of Cumberlan CountN ?? \ ? 1? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff V- CASE NO.: 10-838 Nrlene S. Paoletta NOTICE OF DEFAULT Defendant FAILURE TO PLEAD TO: Eric I. Weinberg Esq, & For: FIA Card Services, N.A., f/k/a Joel M. Flink. Esq. Bank of America Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 DATE: March 18, 2010 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Mid Penn Legal Services Administrative Offices 213-A North Front Street Harrisburg, Pa. 17101-2240 (717) 232-0581 (800) 932-0356 Fax: (717) 232-7821 I N T HE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/KIA BANK OF AMERICA Plaintiff v. Arlene'. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 NOTICE OF DEFAULT FAILURE TO PLEAD CERTIFICATE OF SERVICE 1. Arlene S. Paoletta, do hereby certify this 18th day of March 2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Notice of Default for Failure to Plead in the above-captioned matter to the following parties: Eric 1. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 Attorneys for FIA Card Services, N.A., Vk/a Bank of America) Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 ff 5 r C 5Z59 11000 0692 tt00L v a N ? E 'R w o E U 'N L 1• w 0 -00) N Q N M Z` y U U E a L ?Qa - (D - ? 3 r w ) o EEc?ca o U'Q NQ `o ¦ ¦ ¦ o 4 m - ? L. U t. d L to P y ? a `o u ?cc E m px 3 U_ W tt La 000l a ;i C3 _U y N 2 d: .5 y n[3,00 V 7 C i ?J \r" co ru r- L r- ?I ?I C3 O a Q YT co N O O rA- 0 Q O ON! 0 E U r 7 c' Q U N 0 0 0 O N Ca 2 a w T c? E O LL co a. USPS SHIREMANSTOWN BRANCH SHIREMANSTOWN, Pennsylvania 170119997 4134870091 -0098 03/18/2010 (800)275-8777 01. 10:31 PM ~- Sales Receipt - -- - Product Sale Uri) t ring ' Description Qty Price Prrc r 44c #10 - 1 $0 54 $0. 54 Seabiscult Envelope CONSHOHOCKEN PA 19428 $0 44 Zone-2 First-Class Letter 0.60. oz. Return Rcpt (Green Card $2 -30 Certified $2. 8C Label ;Y: 700428900004657 57284 Customer Postage -$0. 44 Subtotal: $5. 10 Issue PVI: $5. 10 Tot $5 64~ Paid by: Cash $20.00 Change Due: -$14 36 Order stamps at USPS.comis110p or caii 1-800-Stamp 1. Go to USPS.com/clicKnship to prini shipping labels with postage For other information calf 1-800-ASK-USPS WXXXXXkXkk%%XXYA%'Xk %XkXX%%KX%%%X%%X'X AX%% AXkXXXXXX'K%XX%XX%XX A'X%%AX%k%X%/.XAn XX XX %Y Get your rnai I when arru where you wart 1 t with a secure Post Office Box . S 1 yr u(, f or a box online at usps.com/poboxes. A'WkWXXX%XX%XX%%:Y%X%XXXXW%'%%%'%XYYAXX %R%%% 'X'XXXWWW%'XXXXXXXkX%%%'XXXX X'R%%"RX%%%'KX R'K%%X Bi11N: 1000203775498 Clerk: 01 All sales final on stamps anti postage Refunds for guaranteed servicas only Thank you for your business M1X%%XXX%IC%%XXXXX%X%%X%%X'RX%%%%'A AY A'A AKA''X% AY'W%XXXX XW%%XX XX.XX YX%XXX%%%'A XXXX%XXY%%'K 'R HELP US SERVE YOU BETTER Go to: hops://postalexperlence.com/Po5 TELL US ABOUT YOUR RECENT POSTAL EXPERIENCE YOUR OPINION COUNTS A'WXXXX%XXXXXkXXXXXXXXXitXk XXXW%X'X%XX%%XRA 'AXXXXXXX%k%XXXXX kX kkX'RXXXY,%%XXXA'%XX k'Rk Y% Customer Copy 1 b 1? X IN 1'I 11: (,OI !R'I'O C0MMON PI,FAS OFCUMBERLAND COUNTY I1 NNSYI.VANIA HA (_' )v'I) SI_IZV)Ch1'S. N.A_ 1=/K/A 13AN' O1: AMERICA CIVIL FE'RM Plaintiff CASE NO.: 10-838 ?rlcne S. Paoletta NOTICE OF DEFAULT Defendwil FAILURE TO PLEAD 10: VIA CARD SERVICES, N.A. f/k/a 13ANK OF AMERICA 1825 E. Buckeye Road Phoenix. Arizona 85034 DA I I_.. March 30, 20) 0 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE .ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN FEN (I0) DAYS FROM THE DATE OF THIS NOTICE. A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE'YOU11) PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE. THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HEI-11 Mid Perin Legal Services Administrative Offices 213-A North Front Street Harrisburg, Pa. 17101-2240 (717) 232-0581 (800) 932-0356 Fax: (717) 232-7821 IN H IF COURT O COMMON 1'LkAS 01 CUMBI RLAND COUN I I PENNSYLVANIA 1;1A CARD SERVICES, N.A. F/KiA BANK O AMERICA Plaintiff \rlene S. Paoletta Deiendant CIVIL 'I'I-RM CASE N0. 10-838 NOTICE OF DE'FAULl FAILURE TO PLEAD CERTIFICATE OF SERVICE 1..arlc ne S. Paoletta, do hereby certify this 30th day of March 2010, that 1 caused to he niaiied prool'of mailing, a true and correct copy of a Notice of Default for l-ailure to Plead in the above-captioned matter to the following parties: FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA 18-5 E. Buckeye Road Phoenix. Arizona 85034 By f / r ?ti Arlene S. P361etta 1771 S. Meadow Drive Mechanicsburg, Pa_ 17055 a -rroswfS POSTAL SFFVICC 000 i zI Z ?? ? ? LL S 1 z W r,. < i 1-11 Z ley ?? ? ?1? LL 1--• 2 v } ' Y, ?". CSI . ) Uu t, C -. ujOZ _? U.S. POSTAGE ppic EPNOL' I.rn 17025 MAR 30.'iG AMOUNT 15 USPS, ENOLA 00068636-22 ENOLA, Pennsylvania 170259998 1 ' 4134870025 -0098 03/30/2010 (800)275-8777 04:59:40 PM y tr \I -- Sales Receipt f? Product Sale Umt Fma Description Oty Price Price 1 Certificate 1 $1.15 $1.15 of Mailing Total. $i 15 v? I J C' Paid by. Cash $5.00 Change Due: -$3.85 51 if m Order stamps at USPS com/shop or call E \,j 1-800-Stamp24 Go to USPS.com/cllckrisn,p to print shipping label; with postage. 2 For other information call 1-800-ASK-USPS. c ? ,-{..i4. `? ? xxxxxx%Xx xxxxxxxxx xxx'xxxxxxx%X xxxxxx%xzx L l xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxaxx III Get your mail when and where you want o` E with a secure Post Office Box. Sign up of 0 ° a box online at usps.com/poboxes. ? xxxxxxxxx xxxxxxxzxxxxxxxxxxxxxxxxxxxxXx'X tl xxxxxxxxXxxxxxx xx%xxxxxxx Xx xx xxx%x xxX xxx Bill#: 1000204223258 Clerk: 22 All sales final on stamps and postage Refunds for guaranteed services oniv Thank you for your business xx%%x%xxXXXxXxXxx%xxXxx%a'xx xxx%x%Xx Xx XXX xxxxxxxxxx%xxxxXxxxxxxxzxxxxxxxxxx xxxxxx HELP US SERVE YOU BETTER Go to: https://postaiexperience com;Pus TELL US ABOUT YOUR RECEN1 POSTAL EXPERIENCE YOUR OPINION COUNTS xXxx%xxXZxXXxxxxxkxxxxxxxxxxxXxxxxxxxxxx xxxxxxxxXxxxxxxxXxxxxX%Xxxxxxxxxxxxx%xxx Customer Copy lowoo cww? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A : BANK OF AMERICA Plaintiff V, Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Attorneys Frederic I. Weinberg & Joel M. Flink C/O Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220, Conshohocken, Pa. 19428 On behalf of the above-captioned Plaintiff: You are hereby notified to file a written response to the enclosed, Defendants Preliminary Objections to Plaintiffs Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Date: February 23, 2010 By: C,?-' f /%?.lC (L Arlene S. Paoletta 914, 41 I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff CASE NO.: 10-838 v r.a a Fri Arlene S. Paoletta rv `' Defendant JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR CONTINUANCE OF NOVEMBER 19, 2010 HEARING NOW COMES, Arlene S. Paoletta, and moves this Court for a continuance and rescheduling of the hearing scheduled for November 19, 2010, and in support thereof avers as follows: 1. On November 8, 2010, Defendant learned for the first time that this Court, by Order dated October 25, 2010, had vacated its October 12, 2010 Order, and scheduled a hearing in this matter for November 19, 2010. 2. Apparently, there is some problem in the Cumberland county Court system whereby Defendant is not receiving important notices, Orders, and other matters in connection with her case as one of the issues that lead to the October 12, 2010 Order was the fact that Defendant did not receive a copy of the listing of her preliminary objections for argument, and now she still has not received a copy of the Court's October 25, 2010 scheduling Order. Her address has remained the same at all times throughout this litigation. r 3. The Defendant is not schooled in the law, and has been proceeding in this matter largely with the assistance of her husband, who is a named Counterclaim Plaintiff in the Answer with New Matter and Counterclaims that she has filed on November 8, 2010, and Defendant and is very reticent about appearing before this Court as advocate in her own cause. 4. Defendant, due to the short notice due, in part, to the fact that she has not received the October 25, 2010 Order, does not feel that she can be adequately prepared to prepare herself to appear before the Court on November 19, 2010 as scheduled, and has not, as of this date, been able to secure counsel to represent her at that proceeding, and requests that this Court grant a continuance of the November 19, 2010 hearing, for at least two weeks, so that she can make the necessary efforts to secure counsel to represent her in this matter. 5. Defendant is employed and the week of the November 15 through November 22, 2010, she will be on call that entire week and it would be a hardship to arrange substitute coverage for November 19, 2010. WHEREFORE, Defendant respectfully requests that this Court enter an appropriate Order granting her the requested relief, and rescheduling the November 19, 2010 hearing for a later date. Arlene S. aoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 . //A-/?)-/0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff v. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR CONTINUANCE OF NOVEMBER 19, 2010 HEARING Certificate of Service I, Arlene S. Paoletta caused to be mailed the above referenced document, entitled Defendant's Motion for Continuance of November 19, 2010 to be mailed by U.S.Prepaid First Class Mail to the following address listed below on November 10? . 2010. Gordon & Weinberg, P.C. 1001 East Hector Street, Suite 220 Conshohocken, Pa. 19428 r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838 Arlene S. Paoletta PRAECIPE TO WITHDRAW Defendant DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTER COMPLAINT JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND DEFENDANT'S COUNTER COMPLAINT TO THE PROTHONOTARY: Kindly Withdraw Defendant, Arlene S. Paoletta's Answer to Plaintiff s Complaint, with New Matter together with Defendant's Counter-Complaint, as filed on or about November 8, 2010. Following Defendant's filing, a review of the docket revealed that the October 6, 2010 Order that Defendant had taken issue with had been Vacated, without notice being provided to Defendant. Due to the Vacating of the offending Order, Defendant did not serve Plaintiff with her Answers. Defendant reserves the right to re-file her Answers with New Matter and Counter-Complaint, pending resolution of other matters now before the Court. Respectfully Submitted, Arlene . Paoletta r t ? °? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F&A BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838, Arlene S. Paoletta PRAECIPE TO WITHDRAW Defendant DEFENDANT'S ANSWER'WITH NEW MATTER AND COUNTER COMPLAINT JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 15?' day of November'2010,'that 1-caused to be mailed with proof of mailing, a true and correct copy of a Praecipe to Withdraw Defendant's Answers with New Matter and Counter-Complaint as follows: Eric I. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Card Services, N.A., f/k/a Bank of America) By Hand Delivery to: Cumberland County Court Administrator One Courthouse Square, Room 400 Carlisle, Pa. 17013 Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 -?- h ??? ?- ? v,¢.. T d ? o •-, ? 72 NOV 5 2010 3 ?Pe 49 l? C / hnSyC AI . h,DeD U O cn : Q C) JZ Ul (/I ZZ 2: mw` ?-. ?? ZCL 1T A,,eely Ptll TA O?t Tke P-P 7?1 MQ TD ? To ,P ?D n Tj a /6/Z: a AW V. vv 401• ,20 Y TV-* cea%Vt-c A& ?L -i,, A. -pgaL.O$ e,+ r r7%&t C;:rc-6 Dvk ? ?ujc.? Na Agig,'mc :s xcA sd " S ? o? ?0 FIA CARD SERVICES, N.A. IN THE COURT OF COMMON PLEAS OF F/K/A BANK OF AMERICA, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. ARLENE S. PAOLETTA, Defendant NO. 2010-0838 CIVIL TERM ORDER OF COURT AND NOW, this 19th day of November, 2010, after hearing, we are satisfied that the Defendant never received appropriate notice of the argument scheduled on her preliminary objection. Consequently, the answer, new matter and counterclaim filed in response to our Order of October 6, 2010 is stricken. Argument on Defendant's preliminary objections shall be held at 9:30 a.m. on January 14, 2011. The parties are directed to comply with the local rules of court with regard to the briefing schedule. The Court Administrator is directed to place this on the list. By the Co Kt , Edward E. Guido, J. Joel M. Flink, Esquire Gordon & Weinberg, P.C. 1001 East Hector Street Suite 220 Conshohocken, PA 19428 k"Arlene S. Paoletta 1771 South Meadow Drive Mechanicsburg, PA 17055`f Court Administrator - n = © 'n -ox r o -+ =M !ter.:. -r :zm - N rri ?° { C3 C :)-n zC:) oC 1 '-? c.n D x! co srs top-es FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, Plaintiff V. ARLENE S. PAOLETTA, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-0838 CIVIL TERM ORDER OF COURT AND NOW, this 19th day of November, 2010, Defendant's request for a Rule to Show Cause why the preliminary objections should not be deemed to be admitted and Defendant's Motion to have the preliminary objections deemed to be admitted are both DENIED. By the Court, Pte'" Edward E. Guido, J. Joel M. Flink, Esquire Gordon & Weinberg, P.C. 1001 East Hector Street Suite 220 Conshohocken, PA 19428 Arlene S. Paoletta 1771 South Meadow Drive Mechanicsburg, PA 17055 ?., -i C' t?1 srs m o-n ?L DC) w °m --? x CO y FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA, Plaintiff V. ARLENE S. PAOLETTA, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-0838 CIVIL TERM ORDER OF COURT AND NOW, this 19th day of November, 2010, upon motion of the Plaintiff, and over the objection of the Defendant, the default judgment entered in favor of the Defendant and against the Plaintiff for failure to file a responsive pleading to the preliminary objections is stricken. F Edward E. Guido, J. c ? Joel M. Flink, Esquire -a= o S Gordon & Weinberg, P.C. ern rn? - 1001 East Hector Street :Z:70 ",r Suite 220 .?> N C5© Conshohocken, PA 19428 o V o-n Arlene S. Paoletta 1771 South Meadow Drive -'j Mechanicsburg, PA 17055 CO X srs &P',,-.s W of ba./1a Ry „ems ; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA N c FIA CARD SERVICES, N.A. F/K/A rr, BANK OF AMERICA CIVIL TERM (nr- Plaintiff r z N V. CASE NO.: 10-838 Vic:) ?. _ Arlene S. Paoletta MOTION FOR C y Defendant RECONSIDERATION : JURY TRIAL DEMANDED MOTION FOR RECONSIDERATION OF THIS COURT'S NOVEMBER 19, 2010 ORDERS NOW COMES, Arlene S. Paoletta, (hereinafter "Paoletta") with Motion for Reconsideration of this Court's November 19, 2010 Order(s), as issued by Judge Edward Guido, that improperly struck Paoletta's lawfully recorded Default Judgment as entered against Plaintiff, FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA on April 12, 2010; that arbitrarily denied Paoletta's Motion to Deem Admitted Paoletta's Preliminary Objections, with Rule to Show Cause as to why they should not be deemed admitted, for Plaintiff's failure to answer or otherwise respond thereto; and further, for this Court's Order, which having stricken Paoletta's lawfully recorded Default Judgment, and having denied Paoletta's Motion to Deem Admitted Preliminary Objections with Rule To Show Cause, pursuant to Pa.R.C.P. 206.6, without just or probable cause, now seeks by Order, to literally drag Paoletta back into Court, in defiance of law and/or rule of court, to ostensibly have Paoletta's Preliminary Objections heard on January 14, 2011. Paoletta moves to have these Orders' Reconsidered, and/or Vacated, or in the alternative, in consideration of the gravity which these Orders' deem the denial of this Motion ripe, as a Final Appealable Order. In support of this Motion, Paoletta now states as follows: OPERATIVE FACTS 1. On or about February 2, 2010, Plaintiff filed a Complaint, and subsequently, this Complaint was served by the Cumberland County Sheriff's Department upon Paoletta. 2. On or about February 23, 2010, Paoletta filed and caused to be served upon Plaintiff, a properly endorsed, with Notice to Plead, Preliminary Objections. 3. On or about March 18, 2010, because Plaintiff had failed to timely address Paoletta's Preliminary Objections, a Notice of Default was served upon Plaintiff. 4. On or about March 30, 2010, because Plaintiff had still failed to respond to Paoletta's Preliminary Objections, despite having been subsequently served with a Notice of Default, Paoletta nonetheless caused to be served a second Notice of Default as to fully apprise Plaintiff of the pending consequences, and to afford Plaintiff yet one more opportunity in which to respond. 5. On or about April 12, 2010, because Plaintiff yet failed to respond, Paoletta filed a Default Judgment against Plaintiff in the office of the Cumberland County court's Prothonotary's office, which, pursuant to Rule 236, was duly recorded and subsequently served by the Prothonotary's office on Plaintiff. 6. Plaintiff subsequently filed on or about July 1, 2010 a Praecipe for Argument on the Preliminary Objections, seeking an October 6, 2010 hearing, that Plaintiff knew, they never responded to as required. 7. Plaintiff further abused process, having filed their Praecipe, fully knowing that a Default Judgment had already been lawfully recorded against them some eighty- two (82) days prior. 8. Plaintiff, knowing they had never responded to Paoletta's Preliminary Objections, and knowing that a lawfully recorded Default Judgment had been entered and served against them, long before they sought Argument, Plaintiff, upon information and belief, filed for an Argument date three (3) months later, for the expressed purpose of obtaining a particular judge. 9. On or about October 6, 2010, a hearing was purportedly held, that Paoletta never had any knowledge of, whereby Paoletta's Preliminary Objections were fully denied, and further, Paoletta was, by Order, directed to file an answer to Plaintiff's Complaint. 10. On or about October 18, 2010, having received the court's October 6, 2010 Order, having previously known nothing about, Paoletta filed a Motion to Strike said Order, or in the alternative, make a Determination of Finality. 11. On or about October 26, 2010, unknown to Paoletta at the time, this court Vacated its October 6, 2010 Order, specifically for reasons relating to Plaintiff's failure to serve Paoletta with Notice of their Praecipe for Argument. 12. On or about November 8, 2010 Paoletta filed for an Enlargement of Time appertaining to the November 19, 2010 hearing. Though accepted and stamped by the Prothonotary's office, and at no time advised otherwise by the Prothonotary's office, Paoletta later learned to her astonishment and disbelief, that this motion was never forwarded to the Court Administrator, as it was presumably missing two self-addressed, stamped envelopes for purposes of mailing the order. 13. On or about November 15, 2010, Paoletta filed a Motion to Deem [her] Preliminary Objections Admitted, together with, a Rule to Show Cause, pursuant to Pa.R.c.P. 206.6, as to why Paoletta should not be granted the relief requested. 14. Unaware of this court's October 26, 2010 Order, as it was never served, Paoletta also filed Answers to Plaintiff's Complaint, with New Matter, and a Counter Complaint; Paoletta subsequently filed a Praecipe to Withdraw the aforesaid filings. 15. On or about November 17, 2010 Paoletta received a call from the Court, indicating the Motion for Enlargement was denied. 16. On November 19, 2010 a hearing was held, whereupon, the Court, openly acknowledged Plaintiff s abysmal failure to respond to Paoletta's Preliminary Objections; and, stated to the Plaintiff, in effect that, "They [Paoletta] filed a notice to plead and you [Plaintiff] failed to answer.... being that you did not file an answer, this case is over and you [Plaintiff] have lost." 17. Thereafter, without good cause, the Judge took a complete turn about, and stated to the effect that, " I [judge] am going to strike the Default Judgment" to which Paoletta strenuously objected, stating that, "I object, he [Plaintiff] has never filed a responsive pleading", to which, with coaxing by the Judge, the Judge said to the Plaintiff, "do you want to make an oral motion?" and, having been improperly coached and motivated by the Court said to the effect, "Yes, that is what I [Plaintiff] am doing now." And accordingly, having been coached by the Court, and without anything offered in support of this oral motion, the Court immediately granted Plaintiff's request. 18. Paoletta then addressed the court, stating to the effect, "What is the use of filing a notice to plead if they do not have to respond?", to which the Judge, now visibly upset and clearly irritated, replied sharply that, "I am not here to give you legal advice.. hire an attorney!" 19. Subsequently, three (3) separate orders emanated out of the November 19, 2010 hearing, all of which Paoletta, as set forth below, now takes issue with. MOTION FOR RECONSIDERATION 20. Paoletta hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length, herein. 21. Paoletta further incorporates, pursuant to Pa.R.C.P. 1019g, each and every pleading heretofore, that are of record, as if all are fully set forth at length, herein. 22. The only issue before the Court on November 19, 2010 was whether Paoletta was ever served with Notice of the October 6, 2010 hearing, during which this Court denied Paoletta's Preliminary Objections. 23. Nonetheless, the Guido Court arbitrarily decided, without just cause and to the exclusive benefit of the Plaintiff, and to the sole detriment of Paoletta, to strike the Default Judgment that was both lawfully and properly recorded and served upon the Plaintiff by the Prothonotary's office seven (7) months earlier, without the Plaintiff having ever filed any motion to either open or strike said judgment or a scintilla of evidence whatsoever presented in Court to support it. 24. The Guido court went further, and equally denied Paoletta's Motions to Deem Admitted and the Rule to Show Cause that accompanied it, neither of which were properly before the court, that again, is/was to and for the exclusive benefit of the Plaintiff and to the sole detriment, injury and harm of Paoletta. 25. Paoletta believes, and thus avers that she is being denied equal access to the Courts, in violation of her constitutional rights, as specifically enumerated under the First Amendment. 26. Paoletta believes, and thus avers that she is being denied Due Process by the Court, procedurally, and substantively in violation of her Constitutional rights as enumerated under the Fifth and Fourteenth Amendments. 27. Paoletta believes and thus avers that, Plaintiff is/has engaged in using the instrumentality of the Court, to deprive Paoletta of both her rights and her property, as furthered by the assistance of the Court, where no evidence whatsoever exists that in any way, provides the Plaintiff with standing, or the court with Jurisdiction. 28. Paoletta believes and thus avers that, based on the actions perpetrated by Plaintiff and now perpetuated by this Court, in support of the Plaintiff, the January 14, 2011 hearing on Paoletta's Preliminary Objections is a mere formality borne of a foregone conclusion: The Guido Court, which clearly intends to hear this matter, harbors no intention whatsoever of sustaining any of Paoletta's Preliminary Objections, but rather, fully intends to deny all of Paoletta's Preliminary Objections, as to further aid and abet Plaintiff in their unfounded and/or wholly unsupported claim(s) to deprive Paoletta of both her rights and her property. 29. This Court acknowledged from the outset of the November 19, 2010 hearing that Plaintiff had failed to respond to Paoletta's Preliminary Objections and that they [Plaintiff] had lost; yet, Paoletta, while fully agreeing with this conclusion, has come to believe this was all a show, and from the onset, it is believed that the Guido court had no intention of ever dismissing the Complaint, but rather, assisting Plaintiff in furtherance of their claim. 30. Paoletta believes and thus avers that Plaintiff, by and through the direct assistance of this Court, is literally dragging Paoletta, both improperly and unjustly, back into Court, by the Court, where, the Court itself knows, and/or clearly should know that Plaintiff's specious and fallacious Complaint is bereft of any evidence to support one iota of the claims as otherwise set forth therein. 31. The numerous flaws of Plaintiff's Complaint include, but are not limited to: a. No evidence of either an executed contract or agreement binding Paoletta to anything. b. No evidence of an executed application. c. No accounting ledgers or even a statement of account. d. No account number. e. No evidence of an alleged assignment. f. A facially defective affidavit that contains no evidence of any first hand knowledge, nor indication of who the alleged affiant purports to be. 32. The above is of record, and is clearly undisputed. 33. In furtherance of the above, inclusive of Exhibit "A" in support thereof, and attached hereto, sister courts have clearly found in several cases throughout the Commonwealth, the Plaintiff must prove, inter alia, the following, that: a. Paoletta applied for the alleged credit card. b. Paoletta signed both the alleged application and credit card agreement. c. Paoletta used the alleged credit card. d. Paoletta made payments thereupon. e. Plaintiff must also prove, when she is alleged to have used the card; where she is alleged to have used the card; and, what was alleged to have been purchased. f. In addition, plaintiff must also prove, that there was an offer, acceptance, and consideration; and, Plaintiff must prove that they sent Paoletta statement(s) of account, and that Paoletta received them. 34. Insomuch as the above is germane as representative of the requisites for sustaining a cause of action, and conversely, the dearth of substance supportive of Plaintiffs Complaint, the salient issue now present is the entirety of the record itself; the breadth of which is fully supportive of Paoletta, by the record, all of which remains undisputed: a. Plaintiff failed to answer or, ever to date, respond to Paoletta's Preliminary Objections; b. Paoletta after providing two (2) separate notices of Default, which afforded additional time by which to reply, Plaintiff still failed to respond; c. Paoletta thereafter properly and lawfully recorded a Default Judgment against Plaintiff, which was subsequently served by the Prothonotary's office, to which, Plaintiff still failed to respond, opting instead to surreptitiously file a Praecipe for Argument, knowing that a Default Judgment had already been entered against them; d. at no time from then to now, had or has Plaintiff filed either a Motion to Open, or a Motion to Strike the Default Judgment that was entered against them; 35. As the record shows, these facts as contained in the record, are crystal clear and unequivocal, and to date, remain whether in whole or in part, undisputed. 36. This Court should, in re-consideration of the aforementioned, Vacate the Order issued on November 19, 2010, that improperly struck from the record, Paoletta's Default Judgment, and pursuant to law and/or Rule of Court, the Default Judgment must, as a matter of law, be allowed to stand. 37. This court should, in re-consideration of the aforementioned, Vacate the Order issued on November 19, 2010, that summarily denied, both Paoletta's Motion to Deem Admitted, and the Rule to Show Cause that accompanied it, and that, all of Paoletta's Preliminary Objections should forthwith be deemed admitted. 38. That in re-consideration of the aforementioned, that the Order directing a hearing to be held on January 14, 2011, should be deemed moot. WHEREFORE, Paoletta respectively requests that this Court immediately Vacate the November 19, 2010 Order striking Paoletta's lawfully recorded and unchallenged Default Judgment; immediately Vacate the Court's November 19, 2010 Order that improperly denied both Paoletta's Motion to Deem Admitted, and the Rule to Show Cause filed concurrently therewith; and, to render the hearing as now scheduled by this Court for January 14, 2011 to hear Preliminary Objections, as moot; or, in the alternative, should this Court fail for whatever reason to Vacate these Orders, that this Court, in denying Paoletta the prayer for relief as requested herein, render said denial thereof, as a Final Appealable Order. Respectfully Submitted, ,i Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff V. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 MOTION FOR RECONSIDERATION JURY TRIAL DEMANDED VERIFICATION I, Arlene S. Paoletta, previous Defendant in the above-captioned matter, do hereby aver this 2nd day of December 2010, that the statements made in Paoletta's Motion for Reconsideration, are true and correct to the best of her knowledge, information and belief. The undersigned acknowledges that this statement is made subject to 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. cc /_ i?4 Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff V. Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 MOTION FOR RECONSIDERATION JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 2nd day of December 2010, that I caused to be mailed with proof of mailing, a true and correct copy of a Motion for Reconsideration as follows: Eric I. Weinberg Esq, & Joel M. Flink, Esq Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Card Services, N.A., f/k/a Bank of America) By Hand Delivery to: Cumberland County Court Administrator One Courthouse Square, Room 400 Carlisle, Pa. 17013 / / // / i / / . _J Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 r.. Atlantic Credit & Finance Inc. v. Wylie Practice - Plead - Sufficiency - Preliminary Objections. Plaintiff failed to attach documents to a breach of contract Co r t: ] aint sufficient to allege the cause of action. After the Court directed tie plain- tiff to amend its Complaint to include the necessary documentatic,ti, they plaintiff failed to comply. Plaintiff was granted twenty (20) days to am,.! ria its Amended Complaint to fully comply with Pennsylvania plead l' 111 requirements, or suffer dismissal of the action with prejudice. Preliminary Objections. C.P., Dau. Co., No. 2009 CV 5043. (Aija,ctions sustained. Kimberly F. Seian, for Plaintiff Gregory T. Artim, for Defendant TURGEON, J., March 15, 2010. - By order dated November 20 2009, this court sustained Defendant's preliminary objections to Plaintiff" i Complaint in which it sought to recover consumer credit card debt, inter- est and counsel fees, among other items. This court sustained Defendan.t's preliminary objections finding that the Complaint wholly deficient due to its failure to attach any documents evidencing the exis- tence of a contract upon which the debt arose, the amount of interest charged and the coiii,ractual basis for claimed attorney fees. This court specifically directed the plaintiff to amend its Complaint to sufficiently allege its breach of a written contract action, including the following: (a) attaching the credit card contract or agreement, relevant terms and conditions of the purported agreement and any other relevant documents that would verify the existence of an alleged credit card contract; 164 DAUPHIN COUNTY REPORTS 1124 Dauph. Atlantic Credit & Finance Inc. v. Wylie (b) sufficiently alleging the relevant dates during which the contract and any applicable terms and conditions applied to Defendant's contract; (c) setting forth the date(s) of Defendant's alleged default and what notice, if any, was given to Defendant concerning Defendant's alleged default prior to the commencement of suit; (d) including a current Statement of Account, item- izing principal balance, interest and/or any other alleged charges, including copies of monthly state- ments issued to Defendant throughout the entirety of the alleged agreement. Plaintiff has filed an Amended Complaint in which it has failed to comply with any one of the requirements this court set forth above, or even to explain why it has failed to so comply. Plaintiff has instead attached three random credit card statements to the Amended Complaint. Defendant has thus filed preliminary objections raising the same objections as it had to the first complaint, which this court again sustains. Accordingly, this court enters the following: ORDER AND NOW, this 15th day of March, 2010, Defendant's preliminary objections to Plaintiff's Amended Complaint are hereby sustained. Plaintiff EX. is granted twenty (20) days to amend its Amended Complaint to JL49...' comply Pennsylvania pleading requirements,) including the follow ng: 1. Notwithstanding plaintiff's citations to case law of foreign jurisd ictici this court adheres to the following and their application of Pennsylvani, pleading requirements: Atlantic Credit and Finance, Inc. v. Giulian a, 8:2 A2d 340 (Pa. Super. 2003) (where a claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the materiel pai thereof pursuant to Pa. R.C.P. 1019(1)); Worldwide Asset Purchasing, LA Stern, 153 Pitts. LJ. 111 (Allegheny County, May 13, 2005) (holding th ,i com- plaint to recover credit card debt must contain "sufficient documentation and allegations to permit a defendant to calculate the tot, amount of damages that are allegedly due by reading the documents atmi I.-Jed to the complaint and the allegations within the complaint" and that the complaint should include "the amounts of the charges that are part of th( claim, the dates of the charges, credits for payments if any, dates and amounts of interest charges, and dates and amounts of other charges"); Remit Corp. v. Miller, 5 Pa. D. & C. 5th 43 (C.P. Centre Co. 2008) (hold ; that "[a] defendant is entitled to know the dates on which individual. transactions were made, the amounts therefore and the items purchased i by able to answer intelligently and determine what items he can (continued163 (2010)] DAUPHIN COUNTY REPORTS 165 Atlantic Cred'.it & Finance Inc. v. Wylie (a) attaching the credit card contract or agreement, relevant terms and conditions of the purported agreement and any other relevant documents hat would verify the existence of an alleged credit card contract; (b) sufficiently alleging the relevant dates during which the contract: and r iriif applicable terms and conditions applied to Defendant's contract; (c) setting forth the date(s) of Defendant's alleged default and what noti(. i , , if any, was given to Defendant concerning Defendant's alleged default pric r to the commencement of suit; (d) including a current Statement of Account, item- izing principal balan,:.; interest and/or any other alleged charges, including copies of monthly sL l ?- ments issued to Defendant throughout the entirety of the alleged agreem,; i it. The Plaintiff is advised that its failure to abide by this Order, or explain i inability to so comply, will result in a dismissal of this action, with prejudice. 0 1. (continued) admit and what he must contest" and that in order to state ,i, claim to collect credit card debt, the plaintiff must attach the written cone r°,iet (Cardholder Agreement) entered between plaintiff's predecessor and the defendant, other documents such as the original credit application and/or periodic mailings detailing changes to the terms of the contract, or alternatively, a statement averring its lack of access to any or all of the relevant writings); Capital One Bank v. Clevenstine, 7 Pa. D. & C. 5th V` (Centre C.P. 2009) (following Remit and holding that the attachment of billing state- ments is sufficient to comply with Pennsylvania pleading requirements if the statements "illustrate how it has arrived at the amount that it claims is due"); Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264 (C.P. Erie 1982) (a defendant in a consumer credit action "is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and deter- mine what items he can admit and what he must contest"). See also, Chase Bank USA v. Rader, 8 Pa. D. & C. 5th 297 (C.P. Lancaster 2009) (court denied consumer creditor's summary judgment motion where debtor generally denied complaint allegations and where creditor's only documentation in support of judgment included an account summary showing a balance due and an undated unsigned card member agreement). IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838 Arlene S. Paoletta MOTION FOR Defendant RECONSIDERATION JURY TRIAL DEMANDED ORDER AND NOW, this i?day of 2010, upon consideration of Defendant, Arlene S. Paoletta's, Motion for Reconsideration, or in the alternative, deem as a final appealable order, it is hereby ORDERED, AJUDGED and DECREED, that Defendant, Arlene S. Paoletta's, Motion for Reconsideration is hereby b 61-1 /IF W, IIES ?. L ao 6-44a tiJaJw C) C1 -n Mrn rrt r- - Nr- c? + a rn 0 z <C' -v 5-1 =o 0c"", c p r? ?? 3> c-n w ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838 Arlene S. Paoletta r `7) Defendant NOTICE OF APPEAL r f ? ° ORDER OF TRANSCRIP' ? rn ? .1, te cm- r - :: c _ NOTICE OF APPEAL AND ORDER OF TRANSCRIPT?-- .. ; r` -, C:) TO THE PROTHONOTARY: PURSUANT to Pa. R.A.P. 341(c) (4) NOTICE is hereby given that, Arlene S. Paoletta, Defendant, hereby appeals to the Superior Court of Pennsylvania from the Lower Court's December 2, 2010, Order in the above-captioned matter. A copy of the December 2, 2010, Order and the certified docket page are attached hereto. A Notice of Appeal having been filed in this matter, the Office Court Reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922. Respectfully Submitted, zl';? ?_ AL_15L Arlene S. Paoletta 1771 S. Meadow Dr. Mechanicsburg, Pa. 17055 (717) 790-9556 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff V. ; Arlene S. Paoletta Defendant CIVIL TERM CASE NO.: 10-838 NOTICE OF APPEAL ORDER OF TRANSCRIPT CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 22nd day of December 2010 that I caused to be mailed with proof of mailing, a true and correct copy of Defendant's Notice of Appeal and Order of Transcript as follows: Eric I. Weinberg, Esq. & Joel M. Flink, Esq. Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 (Attorneys for FIA Card Services, N.A., f/k/a Bank of America) By Hand Delivery to: Cumberland County Court Administrator One Courthouse Square, Room 400 Carlisle, Pa. 17013 - 1?- J)?? Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 Lila t V. CASE NO.: 10-838 Arlene S. Paoletta MOTION FOR Defendant RECONSIDERATION JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff ORDER AND NOW, this o, day of , 2010, upon consideration of Defendant, Arlene S. Paoletta's, Motion for Reconsideration, or in the alternative, deem as a final appealable order, it is hereby ORDERED, AJUDGED and DECREED, that Defendant, Arlene S. Paoletta's, Motion for Reconsideration is hereby J. PYS511 Cumberland County Prothonotary's Office Page 1 . Civil Case Print 2010-00838 FIA CARD SERVICES N A (vs) PAOLETTA ARLENE S Reference No..: Filed........: 2/02/2010 Case Type ..... : COMPLAINT d Time........ : 9:25 Ju gm ent...... 00 Execution Date 0/00/0000 Jud ge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: ------------ C C t Disposed Date. i 0/00/0000 ase ommen s - ------------ H gher Crt 1.: Higher Crt 2.: ***************************** *************************************************** General Index Attorney Info FIA CARD SERVICES N A PLAINTIFF WEINBERG FREDERIC I 1825 E BUCKEYE RD PHOENIX AZ 85034 BANK OF AMERICA PLAINTIFF WEINBERG FREDERIC I 1825 E BUCKEYE RD PHOENIX AZ 85034 PAOLETTA ARLENE S DEFENDANT 1771 S MEADOW DRIVE CAMP HILL PA 17001 ******************************************************************************** Judgment Index Amount Date Desc FIA CARD SERVICES N A 4/12/2010 FAILURE TO PLEAD 0 FAILURE FIAKCARDASERVICES N A 11%22%2010 STRICKENTO PLEAD BANK OF AMERICA 11/22/2010 STRICKEN ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - 2/02/2010 COMPLAINT - CIVIL ACTION - BY FREDERIC I WEINBERG ATTY FOR PLFF ------------------------------------------------------------------- 2/12/2010 SHERIFF'S RETURN - 2/4/10 - COMPLAINT AND NOTICE UPON DEFT AT 1771 S MEADOW DRIVE CAMP HILL 17011 SHERIFF'S COST $41.50 ----------------------------------------------------------- 2/23/2010 DEFENDANT'S-PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT- - -BY-DEFT ---- ------- ---------------------------------------------------------- 4/12/2010 PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED AGAINST PLFF FIA CARD SERVICES N A F/K/A BANK OF AMERICA FOR FAILURE TO PLEAD TO DEFT'S PRELIMINARY OBJECTIONS - BY ARLENE S PAOLETTA DEFT ------------------------------------------------------------------- 4/12/2010 NOTICE MAILED TO PLAINTIFF 7/01/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - PRELIMINARY OBJECTIONS - BY JOEL M FLINK ATTY FOR PLFF ------------------------------------------------------------------- 10/06/2010 ORDER OF COURT DATED 10-6-10 IN RE DEFENDANT'S PRELIMINARY OBJECTIONS - ARE **OVERRULED** - DEFENDANT IS DIRECTED TO FILE AN ANSWER WITHIN 20 DAYS OF SERVICE OF THIS ORDER - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 10-7-10 ------------------------------------------------------------------- 10/18/2010 DEFENDANT'S MOTION TO STRIKE JUDGE GUIDO'S OCTOBER 6 2010 ORDER OR IN THE ALTERNATIVE MAKE A DETERMINATION OF FINALITY - BY ARLENE S PAOLETTA DEF ------------------------------------------------------------------- 10/25/2010 ORDER OF COURT DATED 10-22-10 IN RE MOTION TO STRIKE - ORDER OF OCTOBER 6 2010 IS **VACATED** - HERING IS SCHEDULED FOR NOVEMBER 19 2010 AT 2 PM IN CR 3 - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 10-25-10 ------------------------------------------------------------------- 11/08/2010 DEFENDANT'S VERIFIED ANSWER TO PLFFS COMPLAINT UNDER RESERVATION WITH NEW MATTER AND VERIFIED COUNTER COMPLAINT - BY DEFT ------------------------------------------------------------------- 11/15/2010 MOTION TO DEEM ADMITTED DEFENDANT'S PRELIMINARY OBJECTIONS PURSUANT TO PA R C P 1029(B) BY ARLENE S PAOLETTA ------------------------------------------------------------------- ''bYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2010-00838 FIA CARD SERVICES N A (vs) PAOLETTA ARLENE S Reference No... Filed......... 2/02/2010 Case Type ..... . COMPLAINT Time. ... 9.25 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: 11/15/2010 PETITION FOR RULE TO SHOW CAUSE PURSUANT TO PA R C P 206.6 BY ARLENE S PAOLETTA ------------------------------------------------------------------- 11/12/2010 DEFENDANT'S MOTION FOR CONTINUANCE OF 11/19/10 HEARING - BY DEFT ------------------------------------------------------------------- 11/15/2010 PRAECIPE TO WITHDRAW DEFTS ANSWER TO PLFFS COMPLAINTJ WITH NEW MATTER AND DEFTS COUNTER COMPLAINT - BY DEFT ------------------------------------------------------------------- 11/16/2010 ORDER - 11/16110 IN RE: DEFTS MOTION FOR CONTINUANCE OF 119/10 HEARING - MOT ON IS DENIED AND THE HEARING IS SCHEDULED FOR 11/19/10 AT 2:00 PM - BY EDWARD E GUIDO J - COPIES MAILED 11/16/10 ------------------------------------------------------------------- 11/22/2010 COURT ORDER OF SHALL BE HELDON 1/14/11 0 AT ARGUMENT 30 AM - O BY D EDWARD E M OBJECTIONS GU DO JJ- COPIES MAILED 11/22/10 ------------------------------------------------------------------- 11/22/2010 ORDER OF COURT - 11/19110 - DEFTS REQUEST FOR A RULE TO SHOW CAUSE WHY PRELIMINARY OBJECTIONS SHOULD NOT BE DEEMED TO BE ADMITTED AND DEFTS MOTION TO HAVE THE PRLIMINARY OBJECTIONS DEEMED TO BE ADMITTED ARE BOTH DENIED - BY EDWARD E GUIDO J - COPIES MAILED 11/22/10 ------------------------------------------------------------------- 11/22/2010 ORDER OF COURT - 11/19/10 - UPON MOTION OF PLFF AND OVER THE OBJECTION OF THE DEFT THE DEFAULT JUDGMENT ENTERED IN FAVOR OF THE DEFT AND AGIANST THE PLFF FOR FAILURE TO FILE A RESPONSIVE PLEADING TO THE PRELIMINARY OBJECTIONS IS STRICKEN - BY EDWARD E GUIDO J - COPIES MAILED 11/22/10 ------------------------------------------------------------------- 12/02/2010 MOTION FOR RECONSIDERATION OF THIS COURT'S NOVEMBER 19, 2010 ORDERS - BY ARLENE S PAOLETTA DEFT PRO SE - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Be *Bal*** mts/Adl End Bal ******************************** ****P ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 JDMT/DEFAULT 14.00 14.00 .00 ------------------------ ------------ 106.00 106.00 .00 * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD b Tastlgwny whsrsof.1 hers undo sot my hand and 1 ? t?F'aI s ? e at Carliaa, Rai, a?a '°"°tary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/KJA BANK OF AMERICA Plaintiff V. Arlene S. Paoletta Defendant CIVIL TERM -' CASE NO.: 10-838 ' F r- 7-1 CONCISE STATEMENT rte- ? `-' o MATTERS COMPLAINED„' -" JURY TRIAL DEMANDED CONCISE STATEMENT OF MATTERS COMPLAINED AND NOW, comes Arlene S. Paoletta, aggrieved Defendant in the above- captioned matter, who, in accordance with Pa.R.A.P. 1925, and local Rule C.C.R.P. 1925, files this Concise Statement of Matters Complained, stating as follows: 1. Did the Lower Court abuse its discretion, and further act with extreme bias and prejudice, when the Court advised Plaintiff's Counsel to make a verbal motion in open court to Strike the Default Judgment lawfully entered against Plaintiff, without presenting, or being required to present, a scintilla of evidence to support Plaintiff's Motion? 2. Did the Lower Court lack Jurisdiction where a lawfully recorded Default Judgment as entered against Plaintiff existed on the record for over six (6) months, and at no time did Plaintiff, prior to the matter complained, once try to either open or strike said judgment? 3. Did the Lower Court abuse its discretion and further act with bias and prejudice by striking Defendant's Default Judgment, thus dragging Defendant back into Court? 4. Did the lower Court abuse its discretion and further act with bias and prejudice against Defendant, where said Court denied Defendant's request, by Rule to Show Cause, under Pa.R.C.P. 206.6, as to why Defendant's properly endorsed with Notice to Plead Preliminary Objections should not be deemed admitted? Respectfully Submitted, 11- J? Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA CIVIL TERM Plaintiff V. CASE NO.: 10-838 Arlene S. Paoletta CONCISE STATEMENT Defendant MATTERS COMPLAINED JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Arlene S. Paoletta, do hereby certify this 3?d day of January, 2011, that I caused to be served, a true and correct copy of my Concise Statement of Matters Complained upon the Court, and upon the following party, by first class U.S. mail, postage pre-paid: By Hand Delivery: Judge Edward Guido One Courthouse Square Carlisle, Pa. 17013 By First Class Mail: Joel M. Flink, Esquire Gordon & Weinberg, P.C. 1001 East Hector Street, Suite 220 Conshohocken, Pa. 19428 By: 4i? Arlene S. Paoletta 1771 S. Meadow Drive Mechanicsburg, Pa. 17055 (717) 790-9556 Karen Reid Bramhlett, Esq. bulperior Court of Vennop1bania Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary December 27, 2010 RE: FIA Card Services, N.A. f/k/a Bank of America, N.A. (USA) V. Arlene S. Paoletta Appellant 2098 MDA 2010 Trial Court Docket No: 10-838 Dear Arlene S. Paoletta Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-243S (717) 772-1294 www. superior. court. state. pa. us Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully yours, Milan K. Mrkobrad, Esq. Deputy Prothonotary /vsl Enclosure cc: Buell, David D., Prothonotary Court Reporter The Honorable Edward E. Guido, Judge Frederic Ivan Weinberg, Esq. M M ?.j C. r1 7 11:49 A.M. Appeal Docket Sheet Docket Number: 2098 MDA 2010 Page 1 of 2 December 27, 2010 Superior Court of Pennsylvania Secure CAPTION FIA Card Services, N.A. f/k/a Bank of America, N.A. (USA) V. Arlene S. Paoletta Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: December 23, 201C Journal Number: Case Category: Civil CONSOLIDATED CASES CASE INFORMATION Awaiting Original Record Case Type(s): Civil Action Law RELATED CASES SCHgDULED EVENT Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received COUNSEL INFORMATION Appellant Paoletta, Arlene S. Pro Se: Yes Appoint Counsel Status: Not Represented IFP Status: No Pro Se: Paoletta, Arlene S. Address: 1771 S. Meadow Drive Mechanicsburg, PA 17055 Phone No: (717) 790-9556 Fax No: Receive Mail: Yes Receive Entail: No Next Event Due Date: January 10, 2011 Next Event Due Date: February 22, 2011 Appellee FIA Card Services, N.A. f/k/a Bank of America, N.A. (USA) Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Weinberg, Frederic Ivan Bar No: 041360 Law Firm: Gordon & Weinberg, P.C. Address: 1001 E Hector St Ste 220 Conshohocken, PA 19428 Phone No: (484) 351-0500 Fax No: (484) 351-0501 Receive Mail: Yes Receive EMail: No 11:49 A.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 2098 MDA 2010 Page 2 of 2 Secure December 27, 2010 FEE INFORMATION Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 12/22/2010 Notice of Appeal 73.50 12/23/2010 2010-SPR-M-001068 73.50 AGENCYITRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: December 2, 2010 Judicial District: 09 Documents Received: December 23, 2010 Notice of Appeal Filed: December 22, 2010 Order Type: Order OTN(s): Lower Ct Docket No(s):10-838 Lower Ct Judge(s): Guido, Edward E. Judge ORIGINAL RECORD CONTENT Original Record Item Filed Date Content Description Date of Remand of Record: BRIEFING SCHEDULE None None DOCKET ENTRY Filed Date Docket Entry / Representing Participant Type Filed By December 23, 2010 Notice of Appeal Docketed Appellant Paoletta, Arlene S. Comment: Awaiting proof of service of appeal upon t/c judge & crt reporter December 27, 2010 Docketing Statement Exited (Civil) Middle District Filing Office FIA CARD SERVICES, N.A F/K/A BANK OF AMERICA, Plaintiff v. ARLENE PAOLETTA, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-0838 CIVIL TERM TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J. 01 Cumberland County Courthouse, Carlisle, Pennsylvan:ba on Friday, November 19, 2010, in Courtroom No. 3 APPEARANCES: JOEL M. FLINK, Esquire For the Plaintiff ARLENE S. PAOLETTA Defendant, Pro se C CJ"` .G ORIGINAL INDEX TO WITNESS FOR THE COURT EXAMINATION CROSS Arlene S. Paoletta 1 THE COURT: Good afternoon. You are Mr. -- 2 MR. FLINK: Flink, Your Honor. 3 THE COURT: And Ms. Paoletta. 4 MS. PAOLETTA: Paoletta. 5 THE COURT: Okay. We have several things 6 before me today. Having reviewed the docket, this appears 7 to be all screwed up. 8 First off, do you have proof that 9 Ms. Paoletta received notice of the argument court date and 10 the requirement that she file a brief? 11 MR. FLINK: Your Honor, I believe that Order 12 was sent out by the Court. I don't know that we served that 13 first Order. 14 THE COURT: What are you talking about? My 15 Order today -- 16 MR. FLINK: There was a certificate of 17 service that I filed with the original motion, Your Honor, 18 that indicated that the notice of the hearing was sent to 19 the Defendant, I believe. 20 THE COURT: You believe? 21 MR. FLINK: Your Honor, I'm not sure. I just 22 arrived. I apologize. Your Honor, I have no objection to 23 the Defendant putting on whatever issues the Defendant wants 24 to put on. If the Court wants to hear it, that's fine. 25 THE COURT: Do you know what's going on in 3 1 to strike is all about. 2 MR. FLINK: I know, Your Honor. 3 THE COURT: Now, Ms. Paoletta, there is no 4 provision under our Rules of Court to get a default judgment 5 for failing to answer preliminary objections. 6 MS. PAOLETTA: Even with the notice to plea, 7 Your Honor? 8 THE COURT: Even with the notice to plea. 9 There's no requirement that an answer be filed or a reply be 10 filed to preliminary objections. The Court is to dispose of 11 those preliminary objections. Under our local rules, the 12 way that disposition is done is that it's listed by one 13 party or the other, briefs are filed, argument is held, and 14 then the Court will dispose of that. 15 MS. PAOLETTA: Your Honor, what about Rule 16 1026 and 1042 that says they have to be responded to; and if 17 they don't respond to Rule 1029, it says they're deemed 18 admitted. 19 THE COURT: No. You can trust me on this or 20 not. I'm striking the judgment. 21 "And now, this 19th day of November, 2010, 22 upon motion of the Plaintiff, and over the objection of the 23 Defendant, the default judgment entered in favor of the 24 Defendant and against the Plaintiff for failure to file a 25 responsive pleading to the preliminary objections is 5 1 stricken." 2 Then do a separate order: 3 "And now, this 19th day of November, 2010, 4 Defendant's request for a Rule to Show Cause why the 5 preliminary objections should not be deemed to be admitted 6 and Defendant's motion to have the preliminary objections 7 deemed to be admitted are both denied." 8 MS. PAOLETTA: Your Honor, I thought today we 9 were supposed to talk about how I'm not getting the 10 information. 11 THE COURT: We're going to talk about that 12 now. Can you find for me and present to her as an exhibit 13 the notice that the preliminary objections were listed for 14 argument, or are you prepared to concede that my Order of 15 October 6th stays stricken and we can list the preliminary 16 objections for the next argument court? 17 MR. FLINK: Your Honor, if we're going to 18 dispose of the preliminary objections, I would ask that it 19 be done today. I'm prepared to discuss the preliminary 20 objections if the Defendant is prepared to put on their case 21 with respect to those preliminary objections. While I 22 believe the Defendant was served, I don't have a certificate 23 of service to that effect. I believe that the last time I 24 was here -- and I don't know if I have that with me today, 25 Your Honor -- 6 1 THE COURT: Did you receive -- 2 MS. PAOLETTA: I didn't receive anything from 3 him other than the initial complaint. The initial 4 complaint, the only reason I got that was because -- 5 THE COURT: I'm going to ask you to come up 6 here and testify under oath, okay? 7 MS. PAOLETTA: Okay. About? 8 THE COURT: About the issue of what you've 9 received and what you haven't received. 10 MR. FLINK: It was just sent out by first 11 class mail, Your Honor, so there's a presumption it was 12 received. 13 THE COURT: Well, I'll take her testimony. 14 ARLENE S. PAOLETTA 15 having been duly sworn, testified as follows: 16 EXAMINATION 17 BY THE COURT: 18 Q Ma'am, could you state your name and your 19 address? 20 A Arlene S. Paoletta, 1771 South Meadow Drive, 21 Mechanicsburg, Pennsylvania, 17055. 22 Q How long have you lived there? 23 A For 12 years. 24 Q You have alleged that you were never given 25 notice of the argument scheduled on your preliminary 7 1 objections for this October, is that correct? 2 A That is correct. 3 MR. FLINK: If I may, Your Honor? 4 THE COURT: I'll give you a chance. 5 BY THE COURT: 6 Q What exactly have you received in this case? 7 A What I have received is the first complaint. 8 Q How was that received? 9 A I received that from the Sheriff. My address 10 on there is an error, so I don't believe I would have 11 received it had the Sheriff not hand-delivered it to me. I 12 didn't -- 13 Q What is the address listed in the complaint? 14 A It's Arlene S. Paoletta, 1771 South Meadow 15 Drive, Camp Hill, Pennsylvania, 17001. I don't live in Camp 16 Hill. 17 Q Your mailing address is Mechanicsburg? 18 A Mechanicsburg, Pennsylvania. 19 THE COURT: Good enough. You may question 20 her. 21 CROSS-EXAMINATION 22 BY MR. FLINK: 23 Q Ms. Paoletta, does mail addressed to the zip 24 code 17001 go to your address? 25 THE COURT: It would not. That's a Camp Hill 8 1 address. 2 THE WITNESS: 17055 is where I live. 3 MR. FLINK: Well, Your Honor, the letter that 4 was sent to Ms. Paoletta had the same address on it that was 5 on the complaint. 6 THE COURT: Which was wrong. 7 MR. FLINK: Which this is the first I'm 8 learning that it's wrong. 9 THE COURT: It's the first time you're 10 learning a lot of things, Mr. Flink. If you are going to 11 practice here, you've got to check our dockets, and I would 12 advise both parties to follow the rules. 13 MR. FLINK: Yes, Your Honor. Your Honor, all 14 I can say to the Court is that we have no record of mail 15 being returned to us, so there's a presumption it was 16 received. 17 THE COURT: I'm satisfied that presumption 18 has been overcome. You may step down. We'll enter the 19 following Order: 20 "And now, this 19th day of November, 2010, 21 after hearing, we are satisfied that the Defendant never 22 received appropriate notice of the argument scheduled on her 23 preliminary objection. Consequently, the answer, new matter 24 and counterclaim filed in response to our Order of October 25 6, 2010, is striken." 9 L , 1 MS. PAOLETTA: Your Honor, that was 2 withdrawn. 3 THE COURT: I'm not sure that that's the 4 appropriate procedure. I'm going to strike it right now. 5 Ms. Paoletta, I'm not sure who is giving you 6 the legal advice, and I'm certainly not in a position to do 7 that, but I would suggest that because of the sums involved 8 here that you may wish to seek legal counsel, particularly 9 as it relates to your counterclaim if you do pursue that. 10 You can't add new defendants in a counterclaim. If you're 11 going to add new defendants, you're going to have to bring a 12 separate action or petition to join them as additional 13 defendants or whatever. 14 Mr. Flink, you've corrected your file to make 15 sure that all future pleadings are served upon her at 1771 16 South Meadow Drive, Mechanicsburg, 17055? 17 MR. FLINK: I have made a note of that, Your 18 Honor. When I get back to the office, I will make sure that 19 that gets corrected. 20 Your Honor, I would also like to point out 21 that when you're mentioning an answer in counterclaim, I 22 don't see that, Your Honor, in my papers, and I don't recall 23 that having come into my office, so I don't know when that 24 was filed. 25 THE COURT: It looks like it was filed on 10 1 November 8th. 2 MR. FLINK: I don't have a copy of it yet, 3 Your Honor. 4 THE COURT: You are at 1001 East Hector 5 Street, Suite 220, Conshohocken, 19428? 6 MR. FLINK: That's correct. 7 THE COURT: Okay. 8 MR. FLINK: As of this morning, I have not 9 seen that document. 10 MS. PAOLETTA: Your Honor, if he didn't get 11 that, we'll make sure that he receives another copy. 12 THE COURT: I'm sorry? 13 MS. PAOLETTA: I said, if he didn't receive 14 that, we'll make sure that he gets a copy. 15 THE COURT: Okay. Add to the last Order: 16 "Argument on Defendant's preliminary 17 objections shall be held on January 14, 2011. The parties 18 are directed to comply with the local rules of court with 19 regard to the briefing schedule." 20 Now, Mr. Flink, I know you filed a brief 21 before. You'll have to file a brief again. 22 MR. FLINK: Your Honor, may I ask why we're 23 putting off the preliminary objections? Your last Order did 24 say that preliminary objections would take place today. 25 THE COURT: Well, we're not going to have 11 4 1 that, because she has not been given the opportunity to file 2 a brief. Without ever having had -- do you have a brief? 3 Have you served a brief on the -- Ms. Paoletta, do you have 4 a brief? 5 MS. PAOLETTA: No, not at this point. 6 THE COURT: All right. So, January 14th is 7 the date at 9:30 a.m. 8 Ms. Paoletta, I will advise you to please 9 check our local rules with regard to filing the brief, and 10 make sure that is done. Otherwise, under the rules, you may 11 be precluded from arguing. Oh, add to that Order: 12 "The Court Administrator is directed to place 13 this on the list." 14 MS. PAOLETTA: The local rules would be with 15 the Prothonotary, Your Honor? 16 THE COURT: Yes. 17 (Court was adjourned.) 18 19 20 21 22 23 24 25 12 °r CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Susan Rice Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. 1/7 1t Date (? W Edward E. Guido, J. 13 FIA Card Services, N.A., f/k/a Bank of America, N.A. (USA) V. Arlene S. Paoletta IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 10-838) No. 2098 MDA 2010 Filed: February 17, 2011 RDER Appellant, defendant below, has filed a notice of appeal from the December 2, 2010 order denying the motion of plaintiff below for reconsideration of the November 19, 2010 order striking a default judgment entered against it for failure to respond to preliminary objections. An appeal does not lie from an order denying reconsideration but must be filed timely from the underlying appealable order. Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super. 2000); Valentine v. Wroten, 580 A.2d 757 (Pa. Super. 1990), appeal denied, 593 A.2d 422 (Pa. 1991). An order that opens or strikes a judgment is interlocutory and is no longer immediately appealable. See Pa.R.A.P. 311(a)(1) and Note thereto; Hage/ v. United Lawnmower Sales & Service, Inc., 653 A.2d 17 (Pa. Super. 1995); Joseph Palermo Development Corp. v. Bowers, 564 A.2d 996 (Pa. Super. 1989). Accordingly, the above-captioned appeal is hereby QUASHED. cn ?- WIN I 2 ?? - M ° - N J? c? z M z Lt.= cow C) TRUE COPY FROM RWORD AttM MAR 2 8 2 Llqpw3? Prothonotary Superior Court of PA - Miiiie DI superior Court of flennopCbania Karen Reid BrambletC, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary March 28, 2011 Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: FIA Card Services, et al v. Paoletta, A. No. 2098 MDA 2010 Trial Court Docket No: 10-838 Dear David D. Buell: Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. Pa. us Enclosed please find a certified copy of an order dated February 17, 2011 entered in the above-captioned matter. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /alv Enclosure 4'J ^7 0 .r rri GO 1,11 :;0 0 %0 Cl c© >C-) o o- 7-1 C) -? cn 4.0 0 L 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 FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA VS. ARLENE S PAOLETTA COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 10-838 AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA . ss COUNTY OF PHILADELPHIA r'Y7 ? m =7D cn ? U? r-) c? _-j rv Lit r{ r ? r-q 7u - I c:a JOEL F. FLINK, ESQUIRE, being duly sworn according to law, deposes and says that on June 2,2011, he mailed a copy of the Amended Complaint, in the above-captioned matter to the defendant's counsel, ARLENE S PAOLETTA by regular mail. Attached hereto, made part hereof, and marked Exhibit "A" is a true and correct copy of the letter enclosing the Amended Complaint. I further state that the facts set forth herein are true and correct to the best of my knowledge, information and belief. GORDON & WEINBERG, P.C. BY: FREDE C WEINBERG, ESQUIRE JOEL 6/. FLINK, ESQUIRE Attorney for Plaintiff Sworn to and subscribed before e this day of JCt, ? 2011. Notary Public COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL ANNETTE GIANFELICE, Notary Public Conshohocken Boro., Montgome County i? June 2, 2011 Prothonotary of Cumberland County One Courthouse Square Carlisle, PA 17013 RE: FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA vs. ARLENE S PAOLETTA Our File No. 2062699 Dear Sir/Madam: Enclosed for filing please find an original and two copies of the Amended Complaint with regard to the above matter. Kindly file same with the Court and return a time-stamped copy in the enclosed self-addressed stamped envelope provided herein for your convenience. Thank you for your attention to this matter. Very truly yours, GORDON & WEINBERG, P.C. /s/ Frederic I. Weinberg FREDERIC I. WEINBERG, ESQUIRE FIW/FW cc: ARLENE S PAOLETTA ARLENE S PAOLETTA 1771 S MEADOW DRIVE MECHANICSBURG PA 17055 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A/ : BANK OF AMERICA Plaintiff, CASE NO.: 10-838 V. PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT ARLENE S. PAOLETTA JURY TRIAL DEMANDED PURSUANT PA R.C.P. 1007.1. Defendant. NOTICE TO PLEAD TO: GORDON & WEINBERG, P.C. 1001 E. HECTOR STREET, SUITE 220 CONSHOHOCKEN, PA. 194288 Cr' °_'7't AND TO: FIA CARD SERVICES, N.A. F/K/A/ BANK OF AMERICA ?s r 1825 E. BUCKEYE ROAD, PHOENIX, AZ 85034 ON BEHALF OF THE ABOVE-CAPTIONED DEFENDANT(S): YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED, DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT, WITHIN TWENTY (20) DAYS FROM DATE OF SERVICE HEREOF, OR A JUDGMENT MAY BE D AGAINST YOU. BY: June 22, 2011 Arlene S. Paoletta 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A/ : BANK OF AMERICA Plaintiff, V. ARLENE S. PAOLETTA Defendant CASE NO.: 10-838 PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED Pa. R.C.P. 1007.1 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT COMES NOW, Defendant, ARLENE S. PAOLETTA, (hereinafter known as DEFENDANT and/or PAOLETTA) in the above-captioned action, who files these Preliminary Objections to Plaintiffs Amended Complaint (hereinafter known as PLAINTIFF and/or FIA and/or BANK), and in support thereof, states as follows: 1. PLAINTIFF FAILED TO PROVIDE PROOF OF STANDING 1. This Complaint should be dismissed, as the PLAINTIFF does not have standing and is not the real party of interest, and this Court does not have Personam jurisdiction over the Subject Matter of the Case. 3 2. BANK is not the real party] pursuant to PA. R.C.P. 1033 for FIA Card Services could not be the original creditor and the Claim that Bank of America is defined and/or referenced as Formerly Known As F/K/A the party who allegedly was the alleged original lender and/or the real party in interest pursuant to Title 13 PA. C.S. §3-302(a) for BANK is not the holder of the instrumene, (negotiable instrument) and lack of standing denies the bank standing in order to prosecute this case; a. BANK did not take the note for value, §3-302(2)(i); b. BANK did not take the note in good faith §3-302(2)(ii); C. BANK took the alleged note with an unauthorized signature, and the alleged note in question has been altered §3-302(2)(iv);3 d. BANK must prove to what extent their performance4 gives a certain percentage of security interest according to §3-302(2)(d)S. 3. BANK cannot substantiate that PAOLETTA ever executed any alleged Contract in 2006 with Bank of America and/or FIA Card Services and/or 1 PA. Rule of Civil Procedure 1033 z Title 7 §303 makes it very clear that BANK must prove that they have purchased evidence of debt, and the only way that can be accomplished is by the production of the accounting ledgers specifically relating to Paoletta's accounting ledgers, and this will be denied by this Court in a "Protective Order" thus denying Paoletta her due process rights. 3 Title 13 PA. C.S. §3-407-Alterations void the Notes and make them unpayable. 4 PA. Rule of Civil Procedure 1021, production of BANK's accounting ledgers to support the actual security interest of BANK, if any. The ledger account will show whether the BANK actual gave consideration by crediting BANK's net worth account, or did they deposit the fraudulently obtained notes and credit the BANK's liability/demand deposit account s § 3-302(2)(d) if under section 3303(a)(1) (relating to value and consideration), the promise of performance that is the consideration for an instrument has been partially preformed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance. 4 any other alleged creditor not yet named6 in this complaint. PAOLETTA further states that she has never negotiated any note with FIA Card Services and Bank of America (hereinafter known as (BANK'). 4. Bank's Amended Complaint must be dismissed for their Amended Complaint fails to conform to law or rule of Court as it denies Paoletta the knowledge and understanding and or identifying the original alleged lender making it impossible for Paoletta to properly defend her case by not advising Paoletta, who is the real plaintiff8 pursuant to PA. R.C.P. 1028a(2)(3)(4) and (5). 5. In Worldwide Asset Purchasing, LLC v. Stem, (2004) Judge Wettick ruled, that the issuer of the credit card and suit brought by Worldwide Asset Purchasing was required to attach to the Complaint the written assignment or assignments that traced ownership of the account from Bank of America to Worldwide Asset Purchasing. In this case, MBNA never traced the assignment and/or assignments and violated Rule 1019 that a Plaintiff shall (1) set forth the material facts upon which a cause of action is based and (2) attach the writings when a claim is based on a writing. The alleged Plaintiff 6 Based upon the credit report, which Gordon and Weinberg, P.C. has pulled inquiries, which is in violation of the FCRA, shows several different account numbers suggesting fraudulent creation and/or re-aging of old alleged accounts. In the three reports it shows MBNA Bank as the alleged lender and not Bank of America. 7 Title 13 PA. C.S. §3-308(a) Proof of Signature--In an action with respect to an instrument, the authenticity of, and the authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. e The original lender and/or party in interest must substantiate that they have been financially damaged and must advise the Defendant who exactly is the real party. 5 has failed to attach all of the assignments and whenever a claim involves one period of time in which the initial terms and conditions apply, the plaintiff must attach to the complaint both the original terms and condition? with the dates10 on which they are applicable. Gordon and Weinberg, P.C., has never stated if the Complaint is based upon a breach of contract or statement of accounts or account stated, which denies Paoletta a clear understanding of the complaint. PA. Rules of C.P. 1028a(2)(3)(4) proves that FIA Card Services and/or Bank of America lacks the capacity to sue under PA. R.C.P. 1028a(5) and this court cannot make that determination without complete discovery. 6. The alleged Statement of Accounts specifically shows the alleged creditor as MBNA Bank and Plaintiff's Counsel has yet to tie a proper chain of title and/or assignment from MBNA Bank to FIA Card Holder Services to Bank of America which does not apprise Paoletta of who is the alleged real party in interest thus violating 1028a(2) (3) (4) and (5). This complaint is not in compliance with nor does it conform to law or the rules of court, has 9 The attached card holder agreement only pertains to 2006 and is from Bank of America not from MBNA Bank or FIA Card Holder Services and lacks card holder agreements and terms and conditions of this alleged contract from 1993 to present and they must attached all the changes relating to any specific time, which they do not do. io Having one alleged card holder agreement, unsigned, does not prove that this card holder agreement was ever seen by Paoletta. Paoletta states that this card holder agreement was never mailed to her and does not apply to her. This unsigned alleged agreement could apply to anyone in the state. Mr. Flink claims that he could not get the proper Affidavit but yet he found this card holder agreement and additional alleged statements of account The statements are from MBNA, the statements have missing statements of account in the stated period in paragraph three (3) of Complaint and does not account for charges of $80,000 thus proving the insufficiency of the pleading. 6 insufficient specificity, legal insufficiency in a pleading and lacks the legal capacity to sue. 7. Since the complaint seeks a specific amount of money that is allegedly due, the complaint fails to comply with PA. R.C.P. 1028(a) (2) (3) (4) and (5) The Complaint must include documentations or supporting allegations to show or permit Paoletta to calculate the total amount of damages that are allegedly due and owing by reading the documents attached to the complaint. 8. FIA Card Services" fails to comply with Pa. R.C.P. 1028a(5) and fails to specifically identify the true holder and/or holder in due course (Plaintiff) and this Court is barred from making that determination and must hold an evidentiary hearing to determine the true owner of said note or the real Plaintiff and/or the financially damaged party. 9. BANK has the burden of proof that PAOLETTA had executed (Title 13 Pa. C.S. §3-401 and §3-308) concerning the alleged note (which was created unilaterally as a negotiable instrument specifically referenced in BANK's Complaint in paragraphs 3 and 4.12 11 Weinberg and Gordon have failed to list any address of the alleged Plaintiff, FIA Card Services thus denying Paoletta her right to discover and/or depose. Weinberg and Gordon must provide the contact information of the alleged client that Mr. Flink claims assisted Flink in the creation of the Affidavit 12 Title 13 PA. C.S. §3-309(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument If that proof is made, section 3- 308 (relating to proof of signature and status as holder in due course) applies to the case as if the person seeking enforcement had produced the instrument The Court may not enter judgment in favor of the person 7 10. PLAINTIFF 13 (whoever that may be) obtained and/or created fraudulent documents14 (Title 13 PA. C.S. §3-308) and then monetized, created a trust, and securitized them 15, placing the fraudulent note into the stream of commerce that unjustly enriched the PLAINTIFF. 11. The real Plaintiff, yet to be properly identified, is procedurally and substantively unconscionable 16 for the Plaintiff has violated Title 15 U.S.C. § 1692 et seq. 12. After receiving the CUSIP number it becomes undisputable evidence that BANK has committed, and continues to perpetrate, fraud upon this honorable Court, for the CUSIP clearly substantiates that the holder and/or holder in due course of the fraudulent promissory note is a certain Fidelity Account and proves the conspiratorial nature of BANK's action in this matter. seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument 13 Paoletta states that she is being denied her right to know the true identity of the real party of interest and/or the insufficiency of the Amended Complaint makes it impossible for her to properly defend and/or discover or depose the real party in interest Paoletta does not know if FIA is the true Plaintiff or did they purchase the alleged debt or was it assigned to them and even fails to produce any certificate of sale or assignment thus not being able to prove chain of title and having the holder and/or holder in due course status as required in order to collect 14 Title 13 PA. C.S. §1-203--Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement 15 When the fraudulently created note was securitized it became an asset backed security thus destroying any real holder and/or holder in due course status. 16 Title 13 PA. C.S. §2-302(a) Unconscionable contract or clause(s)--If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may: (1) refuse to enforce the contract; (2) enforce the remainder of the contract without the unconscionable clauses; or (3) so limit application of any unconscionable clause as to avoid any unconscionable results. 8 a. In paragraph Three (3) of PLAINTIFF's Complaint, BANK intentionally, deceptively, deceitfully, fallaciously, and with conspiracy in their heart, states, Bank to collect amounts due under the card holder agreement from 1993 to 2010 based upon one period of time that they try to relate and binds Paoletta to an account is an alleged card holder agreement date 2006, in which it does not apply to Paoletta herself. This statement is fallacious, for BANK does not have standing to prosecute this case because the listed owner of the fraudulent Notes is Fidelity Environment & Alternative Energy, thus proving the actions of the BANK, BANK's Agent and the BANK's Law Firm are suspicious and should be reported to the PA. State Attorney General's Office for investigation. 13. This Complaint is insufficient if the Complaint is based upon an account stated based upon Sections 512 and 513 of the Pennsylvania Law Encyclopedia (Second). The relevant portions of the discussion are set forth below: §512 states in part, "an account stated has been defined as an account in writing, examined and expressly or impliedly accepted by both parties thereto, and distinguished from a simple claim or a mere summary of accounts. The Plaintiff must prove there is an account in writing, examined and accepted by both parties, in which Paoletta never agreed to any 9 statement of accounts showing any indebtedness to MBNA Bank, FIA Card Services or Bank of America. 14. Under §513, to produce an account stated, the account must be rendered, and the other party must accept, agree to the correctness of the amount. In short, there must be a meeting of the minds, and there can be no account stated where the account rendered meets with general objection. Something more than mere acquiescence by failing to take exception to a series of statements of account received in the mail is required to create an account stated. 13 P.L.E. 2d Contracts §513 at 11-12 (2001.17 15. With the PLAINTIFF lacking standing to prosecute this case, this Court lacks subject matter jurisdiction as well as personam jurisdiction, and PLAINTIFF's Complaint must be stricken pursuant to Pa. R.C.P. 1028a(1)(2)(3)(4) and (5). 16. PAOLETTA raises under PA. R.C.P. §1028(a)(5) PLAINTIFF's lack of capacity to sue in this situation. These preliminary objections to the Amended Complaint states that this court must not view and determine the controvertible facts but, rather, must resolve the dispute by receiving evidence thereon through interrogatories, deposition, or an evidentiary 17 Paoletta has never received any statements of account reflecting this debt The Complaint never stated that the account has been a running account, only vaguely alludes to the alleged debt on any account stated theory, and has never specifically stated that Paoletta used the credit card and has never assented to the account as required to support an action on account stated. 10 hearing to determine compliance with notices. Deyarmin v. Consolidated Rail Corp., 2007 PA. Super. 218, 931 A. 2d 1 (2007); Wentzel-Applewood Joint Venture, v. Market street Association, LP, 2005 PA. Super. 239, 878 A.2d 889 (2005); Mellon Bank, N.A. v. Fabinyi, 437 PA. Super. 559, 650 A.2d 895 (1994). WHEREFORE, PAOLETTA hereby states that this case should be dismissed for lack of standing and that this Court lacks personam jurisdiction and requests any and all relief that this Court deems just and proper. II. PLAINTIFF DOES NOT HAVE STANDING 17. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every one is fully set forth at length, herein. 18. Standing is a threshold issue that must be determined not by the Court, but by the party asserting it. 19. PLAINTIFF does not have standing, nor are they the real party in interest, as DEFENDANT contends; PLAINTIFF is not in possession of the executed application, the executed card holder agreement 18 and the original note. 20. PLAINTIFF was required, by law and/or by statute, prior to filing their complaint, to make Presentment of the Original Note; to identify themselves as having the authority to make the Presentment pursuant to Title 13 Pa. C.S. 16 Weinberg and Gordon has produced a unsigned Bank of America alleged contract which has a date of 2006 when Weinberg and Gordon states that this alleged account goes back way further than 2006. 11 §3-501; and that, upon Presentment, the Promissory Note is/was properly endorsed to the benefit of the party seeking to enforce it. PLAINTIFF has willfully failed to do any of this. 21. DEFENDANT avers that this PLAINTIFF does not have in their possession, custody or control any admissible evidence so therefore this Amended Complaint is deficient and not in compliance with PA. R.C.P. 1028a(2)(3)(4) and (5) for the Amended Complaint does not fully advise Paoletta of the real issues at hand including the real alleged creditor or the real party in interest. 22. The Plaintiff in this case has failed to identify in their insufficient Complaint, the card holder agreement that specifically applied to the class of accounts that included the Defendant's alleged account from MBNA Platinum Plus to a straight MBNA and than back to MBNA Platinum Plus to Bank of America, never mentioning any assignment or purchase of FIA Card Services, which is a private stock holding company that is different than MBNA Bank. 23. The Plaintiff has failed to assemble the entire set of agreements that applied to the alleged Defendant's account during the time period that it was supposedly opened, 1993 to 2010. Their production of a 2006 card holder agreement falls short of proving any debt or indebtedness of Paoletta. The 12 card holder agreement does not define with specificity any fee terms applicable to the account and failed to prove that the alleged agreement was actually offered and accepted by the defendant. 19 24. Assignment of any negotiable instrument must be based upon a true and valid and legal chain of title and/or proper assignment. 25. Paoletta must be adequately protected from another party (the real legal holders of the Notes) pursuant to, including, and not limited to Title 13 PA. C.S. §3309(b). Furthermore, according to Title 13 PA. C.S. §3308, Paoletta hereby categorically states that the authenticity of any signatures does not exist and Plaintiff lacks sufficient evidence to prosecute this case. 26. Plaintiff has not produced any signatures of Paoletta pursuant to Title 13 PA. C.S. §§3-401 and 3-308. 27. PLAINTIFF's Counsel knows and/or should know that any application and/or alleged card holder agreement from Bank of America dated 2006 does not correspond to any of the allegations of the Plaintiffs Attorneys. The allegations are abuse of process and are in violation of PA. R.C.P. § 1028a(1), a(2), a(3), and 1028a(5).20 19 In the original Compliant Plaintiffs Counsel did not even have any statements of account or any alleged card holder agreement but failed to produce an "Affidavit" from an executive of any Bank and the verification of Flink is a dishonor upon this Court 20 They must prove and produce the original account agreement for the account, any amendment to the agreement for the account, any notice of a change in any term of the account, any alleged credit card in direct relationship to the specific agreement, (2006) does not relate to 1993 and the other alleged years, and other 13 28. Plaintiff's Complaint is lacking in compliance with Pa. R.C.P. §1028a(1), a(2), a(3), a(4) and 1028a(5) for the Amended Complaint is deficient, insufficient specificity, lacks jurisdiction over the subject matter, failure to conform to the rule of law, legal insufficiency of a pleading and lacks capacity to sue, for the Amended Complaint does not specifically identify any alleged account number2l, does not name with specificity any real party in interest and does not fully advise Paoletta of the charges against her. 29. Plaintiff's Complaint also fails to support any breach of agreement. The Complaint fails to support the basic elements of contracts. The Plaintiff must prove that Paoletta applied for the card, used the card, became indebted for the use of said card and has been unable to do that. This theory will be supported in Paoletta's brief in support of these Preliminary Objections. Plaintiff must also prove that Paoletta used the card, when was the card used, what was purchased and must prove that Paoletta agreed, accepted the card and that Plaintiff actually mailed the card, application, card holder agreements, statements of account, which they have failed to do making this Complaint deficient and insufficient for a continuation of this Complaint. Paoletta's Brief will explain in great detail additional reasons why this activities on said account An account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. 210n Paoletta's credit report it shows two different alleged account numbers, with possibly fraud, re-aged the alleged account and Flink did not ever mention any specific account number as referenced in the other law suits filed in other counties showing a pattern of abuse by Gordon and Weinberg opening themselves up for law suits, both class action and/or even mass actions including and not limited to FDCPA, FCRA and RICO. 14 Complaint does not comply with either the account stated and/or the breach of contract thus denying Paoletta her rights to properly defend such action and this complaint must be dismissed through the sustaining of these Preliminary objections. 30. DEFENDANT hereby states PLAINTIFF is incapable of producing any genuine and/or original ledger accounts, original statements of account,22 names and contact information of custodian of the records for FIA Card Services, Bank of America or any other alleged creditor named and yet not named in this action. 31. Plaintiff's Counsel is not in compliance with, including but not limited to, Title 13 PA. C.S. §§3302, 2(i),(ii),(iii), 1203, obligation of good faith, and 2302, unconscionable contract or clause. This Court must also rule that these alleged altered and/or fraudulently created documents23, if they do actually exist, should not be enforced per Title 13 PA. C.S. §2302 (1) and (3). (DEFENDANT declares that they do not even exist, and strict proof must be 22 Clearly depicting all and every alleged transaction from the inceptions of this alleged account, who used the alleged card, when was this card used, what was purchased by this card, and locations of each and every transaction. 23 Statement of accounts were created by Weinberg and Gordon and/or the Plaintiffs Counsel must produce their clients name and address for discovery and depositions and produce their accounting ledgers pursuant to Pa. R.C.P. 1021 and for an examination by Paoletta three expert witnesses, one a thirty year former Bank Vice-President with a master's degree from the University of Virginia in banking, and a operations controller of a world wide corporation, who passed the CPA Boards and the third expert witness is a researcher and writer and lecturer on the practices of commercial banking in the United States. 15 presented pursuant to PA. Rules of Evidence 901, 902, 1002, 1003, 803.6 and Title 42 PA. C.S. §6108.) 32. DEFENDANT further states that PLAINTIFF must prove Title 13 PA. C.S. §3303(a)(1)(2)(3)(4)(5) and (b). 33. DEFENDANT hereby states based upon her understanding, belief, knowledge, information, and certification that the PLAINTIFF is committing fraud upon this Court, for the PLAINTIFF is not the real party of interest pursuant to PA. R.C.P. §1033 for the alleged note 24 have been monetized,25 securitized, and possibly placed into a trust account and through a professional Forensic and Securitization Audit, PAOLETTA will be able to present and/or expose a conspiracy to divest PAOLETTA of her assets. III. BANK MUST PROVE STANDING 34. PAOLETTA, based upon her understanding, belief, personal knowledge, and verified information that BANK and/or Gordon & Weinberg, P.C. in order to prove standing as holder in due course to be incompliance with PA. R.C.P. 1028a, 1024c, 1019, 1002 and 1021 and as lender and/or creditor must prove the following: 24 If it really does exist is now an asset backed security. 25 Title 13 PA C.S. §3-407-Alterations 16 a. BANK must have possession of the original executed card holder agreement and executed application; b. BANK must prove that they did not a the note in question and take it off of the Bank's balance sheet; c. Bank must prove that they have a perfected "Chain of Title" or proper assignment; d. BANK must produce the real party in interest, and open their accounting ledgers for an inspection by Paoletta's expert witnesses and must prove that Bank did not fraudulently misrepresent and/or alter the alleged documents pursuant to Title 13 PA. C.S. §3407-alterations; e. Bank must prove who used the alleged card, when was the alleged card used, what was the purpose of each and every transaction, and a description of all the merchandise and/or use of the alleged credit card; f. BANK must prove that BANK didn't sell the loan to an issuer--typically a government sponsored enterprise (GSE)-- or place into an asset backed security or collect upon an insurance claim; g. BANK must prove that the trust didn't issue securities, known as asset backed securities (ABS), against this pool; h. PAOLETTA states that BANK also monetized PAOLETTA's alleged negotiable instrument and deposited it into the BANK's asset and 17 demand deposit liability based upon her personal knowledge, belief, verified information and understanding account as will be supported by expert witnesses including authors, books, charts, graphs, former banking experts, and a certified public accountant. 35. PLAINTIFF must produce the genuine documents and/or file a Lost Note Instrument according to Title 13 PA. C.S. §§3-309 and 3-501. 36. DEFENDANT hereby emphatically states that according to Title 13 PA. C.S. §§3-308 and 3-401 that the DEFENDANT is not financially liable unless the DEFENDANT signed the Instrument(s) and further reiterates that DEFENDANT'S signature has yet to be produced. 37. PLAINTIFF must file according to Title 13 PA. C.S. §8405(a)(2) a sufficient indemnity bond, and this Court and/or County Officials are responsible to protect PAOLETTA and/or the alleged estate from double liability when PAOLETTA is not liable at all. 38. PA. R.C.P. §2002(a) requires that all actions be prosecuted by and in the name of the real party in interest. The Pennsylvania Superior Court has explained the rationale for requiring the assignee to affirmatively plead his interest in the matter: "When suit is brought against the Defendant by a stranger to his contract, he is entitled to proof that the plaintiff is the owner of the claim against him. This protection must be afforded the Defendant. Otherwise, the Defendant might find himself subjected to the same liability to the original 18 owner of the cause of action, in the event that there was no actual assignment." Id. at 94. In this case, PLAINTIFF failed to attach any written assignment 48. 49. setting forth the facts of the assignment, the date of the assignment, or the parties to any assignment. Moreover, PLAINTIFF failed to affirmatively plead the fact of the assignment, the date of the assignment, and the parties to the assignment. PLAINTIFF cannot provide a proper chain of command so therefore the chain has been broken. Pursuant to PA. R.C.P. § 1021, PLAINTIFF must produce their accounting ledgers to prove consideration was given. DEFENDANT PAOLETTA objects to PLAINTIFF's Complaint Pursuant to PA. R.C.P. §1019(f), which states, "Averments of time, place and items of special damage shall be specifically stated." PLAINTIFF in its Complaint fails to set forth any specific averment of time, place, date, liability for payments, nonpayment of and/or refusal to make payments must be brought forward. By reason of PA R.C.P. §1019, under the Pennsylvania system of fact pleading, the pleader must define the issues. Every act of performance essential to that end must be set forth in the Complaint. Miketic v. Baron, 450 PA. Super. 91, 104, 675 A.2d 324 (PA. Super. 1996) (citing Santiago v. PA. Nat. Mut. Ins. Co. 418 PA. Super. 178, 183 613 A.2d 1235, 1238 (1992); PA. R.C.P. 1019). The complaint must not only apprise the 19 DEFENDANT of an asserted claim, but it must also synopsize the essential facts to support the claim. Miketic v. Baron, 450 PA. Super. 91, 104-105, 675 A.2d 324, 331 (PA. Super., 1996) (citing PA. R.C.P. 1019(a) and Krajsa v. Keypunch, Inc., 424 PA. Super. 230, 234, 622 A.2d 355, 357 (1993)). 50. Furthermore, the complaint fails to apprise the DEFENDANT of the nature and extent of PLAINTIFF's claim so that DEFENDANT has notice of what PLAINTIFF intends to prove at trial and may not adequately prepare to meet such proof with her own evidence. Weiss v. Equibank, 460 A.2d 271, 313 PA. Super. 446 (PA. Super. 1983). 52. Accordingly, just as in Marine Bank v. Orlando, 25 PA. D. & C. 3d 264 (1982), Plaintiff's Complaint fails to properly set forth a cause of action for the Amended Complaint and does not define with specificity the allegations against her by purposely obscuring who is the real party of interest. 53. Wherefore, Paoletta moves this Court to dismiss this Amended Complaint for failure to present the original executed note prior to filing their Complaint and/or for Plaintiff's failure to establish Standing pursuant to Pa. R.C.P. 1028a. IV. PLAINTIFF FAILS TO ATTACH DOCUMENTS 54. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every are fully set forth at length, herein. 20 56. DEFENDANT is unable to properly and fully defend herself absent the required attachment of these documents, upon which PLAINTIFF relies. Wherefore, PLAINTIFF's complaint should be dismissed for failure to attach the required documents upon which PLAINTIFF relies, or for any and all other relief that this Court deems just and proper. V. PLAINTIFF FAILS TO PLEAD WITH SPECIFICITY 57. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every are fully set forth at length, herein. 58. PLAINTIFF, in their summary of costs, fails to plead with specificity or provide documents in support of their contention in compliance of Pa. R.C.P. 1019(f). Averments of time, place and items of special damage shall be specifically stated which this Amended Complaint fails to do thus denying Paoletta her right to properly defend this action. 59. PLAINTIFF's Complaint is based upon "scandalous and impertinent "26 allegations and are thus subject to being stricken. Allegations are unproven, immaterial, and inappropriate to support this action. Common Cause/ Penn. V. Com., 710 A.2d 367. 26 PA. R.C.P. 1028a(2). 21 60. Bank's Amended Complaint has violated PA. R.C.P. 1029(h), "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written. 61. Bank's Amended Complaint has violated Pa. R.C.P. 1019(1) which states that if the claim is based upon a writing, the pleader shall attach a copy of the writing. This was not done. The alleged contract is of a completely different bank and the date does not even match up to the Plaintiff's Counsel's allegation in paragraph Three (3) of the Amended Complaint stating, "True and correct copies of statements from March 2001 through March 2009 are attached hereto as part of Exhibit "A". 62. The explanation and/or averments contained in paragraph Three (3) of the Amended Complaint is deceptive, false, misleading and outright damaging to Paoletta's case for an examination of the statements are not all present from March 2001 through March 2009, which is false misrepresentation. 63. In paragraph One (1) of Plaintiffs Complaint, the Plaintiff's Counsel is operating under a conclusion of law and is fabricating misinformation as the Amended Complaint claims that the alleged account was started on or about October 16, 1993 and yet fails to produce statements of account that comply with statements of account, no zero balance, lacks itemization which denies Paoletta the right to fully understand all of the alleged charges. 22 64. In paragraph Two (2) Counsel would like to have this Court believe that the alleged card holder agreement dated in 2006 is a reflection of the terms and conditions of the contract beginning as far back as 1993, which is preposterous and does not allow compliance with the accounted stated theory.27 65. Wherefore, DEFENDANT moves to dismiss PLAINTIFF's complaint for failure to plead with specificity, or for any and all other relief that this Court deems just and proper. VI. IMPROPER VERIFICATION 66. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every are fully set forth at length herein. 67. Moreover, PLAINTIFF's attorney could not possibly have firsthand personal knowledge of the allegations set forth in their Complaint, nor do they make a distinction as to what they have firsthand knowledge of as opposed to what is specifically based on information and belief. 68. This Court must according to 1028(c) (2) determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider depositions [Pa. R.C.P. 1028a(5)] and if this Court ignores this section, Defendant has the right to have the Court's decision ruled a final (appeal) Order. 27 The Plaintiff if they were in possession of true documentations should have produced all the card holder agreements from the beginning time to the alleged ending time. Paoletta is looldng into spoliation charges against the yet to be identified true plaintiff in this case. 23 69. DEFENDANT objects to PLAINTIFF's attorney signing the verification. PA. R.C.P § 1024(a) and (c) state that when an attorney for the PLAINTIFF signs the verification, it is defective. See Monroe Contract Corp. v. Harrison Square, Inc. 266 PA. Super. 549 405 A 2d. 954 (1979) and Warren v. Williams, 370 PA. 380, 88 A. 2d 406 (1952); Rupel v. Bluestein, 280 PA. Super. 65 421 A2d. 406 (1980); Signora v. Kaplan, 33 D &C. 4th (1996); `3 Standard PA. Practice 2d, Ch. §16:35; `3Standard PA. Practice 2d, Chapter 16 §1639; and `4 Standard PA. Practice 2d, Chapter 21 §21:29. An attorney's statements and papers are not facts before the court. The attorney cannot be counsel and give testimony in the same matter. See Trinsey v. Pagliaro, 229, 229 F. Supp. 647, 649 (D. PA. (1964); also see United States v. Lovasco (06/09/77) 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed. 2d 7521) Gonzales v. Buist (04/01/12) 224 U.S. 126, 56L Ed. 6939 32 S.Ct. 463 and Holt v. United States, 218, U.S. 245, 54 L.Ed. 1021, 31 S.Ct.2. And PA. R.C.P. 1024 (c) states in pertinent part, "The verification shall be made by one or more of the parties filing the pleading 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 the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set 24 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-" 70. With respect to the aforementioned, PLAINTIFF's action should be dismissed for failure to adhere to PA. R.C.P §1024 (c), PA. R.C.P. §1002, and PA. R.C.P. § 1028(a) (2) for woeful lack of proper verification. 71. Joel M. Flink, Esquire, claims in number 4 of his improper verification, "the exigency of filing this pleading today is such that there is a likelihood of inadequate time to serve said party's own verification without accrual of prejudice," This is a clear indication of Flink's untruthfulness for they filed the original complaint lacking any statement of accounts and any card holder agreement and yet they were able to have sufficient time and energy to locate alleged statements of account and a different bank's card holder agreements to file with the Amended Complaint but claims that they did not have sufficient time to enlist a proper verification. This is preposterous and intentionally misleading this court proving their deceiving nature.28 28 Paoletta' plans on deposing employees from FIA Card Services, Bank of America and any other alleged creditor who was ever involved in this misrepresentation of this alleged debt Flink will be discovered and should be made to answer discovery for he has signed illegally the verification thus denying Paoletta her right to cross-examine him in a deceptive sanctionable nature as stated by the Pennsylvania Supreme Court In the Fundamentals of Civil Practice, written by the Penn. Bar Institute, dated 2009, it states, "A final warning in the verification area comes from the disciplinary opinion. The Pa. Supreme Court Disciplinary Board has noted that an attorney's personal notarization of documents not signed in the attorney's presence violates bar disciplinary rules as well as the criminal code." In Re Anonymous No. 23 D.B. 77, 6 Pa. D&C3d 499 (1978). And Pa. R.C.P. 1002, Authority of Attorney, "Any action other than ve tication reauired or authorized by this chanter to be done by a parW may be done by the paM?c attorneys" 25 72. Wherefore, Plaintiff's Complaint should be dismissed for failure to provide a proper verification or for any and all other relief that this Court deems just and proper. 73. Paoletta plans on calling Mr. Flink to the stand to testify based upon what personal knowledge does Flink possess to allow him to sign affidavits29 74. PA. R.P.C. 3.7 clearly establishes that an attorney cannot prosecute and give expert testimony in this case. The Attorney stated that the Plaintiff is outside the area and lacked sufficient time to receive the Plaintiffs signature upon the verification. This is total misrepresentation, and if this Court permits this illegality, this Court is biased and this Judge should step down from hearing this case. Paoletta now becomes quite concerned that the presiding Judge will grant protective orders, Limine motions and limit discovery and will allow the attorney to prosecute this case absent the affiant. Paoletta hereby states that a representative from the Bank will be called upon to testify in Court, and through depositions Paoletta will seek the real party of interest. 75. Plaintiff s Counsel has failed to perform proper service for the Certification of Service page does not contain Paoletta's address and cannot prove that Paoletta was actually mailed the Amended Complaint thus operating in 29 Paoletta has gathered enough verifications filed my Mr. Flink in the surrounding counties to prove an intentional violation of the verification process and a complaint will be sent to the disciplinary board, the PA. Supreme Court and the Judicial Committees in the Pennsylvania Senate and House of Representatives and the Pa. Attorney General. 26 another deceptive, false and misleading manner thus denying Paoletta her due process rights to properly defend against this bogus Complaint. 76. Plaintiffs Counsel has violated Pa. R.C.P. 1018 (Caption) for failure to conform with Pa. R.C.P. 1018 which states, "Every pleading shall contain a caption setting forth the name of the Court, the number of the action and the name of pleading. The Caption of a compliant shall set forth the form of the action and the names of all the parties, but in other pleadings it is sufficient to state the names of the first party on each side in the Complaint with an appropriate indication of other parties." WHEREFORE, DEFENDANT moves that Plaintiff's Complaint be dismissed for lack of established jurisdiction of this Court; for failure to prove standing; for failure to attach the required documents upon which Bank should rely in filing this Complaint; for failure to plead the Complaint with specificity; and for Plaintiff's failure to properly verify their Complaint. Paoletta places this court on notice that this court's responsibility is for a proper adjudication of all the issues in this case without any granting of any "Motion for Protective Order" and/or any "Motion in Limine" which would violate Paoletta's rights in order to protect the Plaintiff. Paoletta seeks any and all relief that this Court deems just and proper. Res ectfully Su i ed, Arlene ; aoletta 27 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff, CASE NO.: 10-838 V. ARLENE S. PAOLETTA Defendant. : PRELIMINARY OBJECTIONS : JURY TRIAL DEMANDED :PURSUANT TO Pa. R.C.P. 1007.1 VERIFICATION Arlene S. Paoletta, Defendant, hereby notifies this Court that these Preliminary Objections to Plaintiff's Amended Complaint were filed with this Verification attached and stated as being true and correct based upon Paoletta's understanding, information, beliefs and personal knowledge and states under or subject to the penalties of 18 Pa. C.S.A.Section 4904 and mailed by U.S. First Class Pre-paid mail to the Plaintiff and the Plaintiff's Counsel on June 22, 2011, to the following addresses: FIA CARD SERVICES, N.A. F/K/A/ Bank of America 1825 E. Buckeye Road PHOENIX, AZ 85034 Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 29 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff, ; V. ARLENE S. PAOLETTA Defendant. CASE NO.: 10-838 PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED :PURSUANT TO Pa. R.C.P. 1007.1 CERTIFICATE OF SERVICE Arlene S. Paoletta, Defendant, hereby notifies this Court that proper service was completed by U.S. First Class Pre-paid mail to the Plaintiff and the Plaintiff's Counsel on June 22, 2011, to the following addresses: FIA CARD SERVICES, N.A. F/K/A/ Bank of America 1825 E. Buckeye Road PHOENIX, AZ 85034 Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 28 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A/ : BANK OF AMERICA Plaintiff, V. ARLENE S. PAOLETTA Defendant. JURY TRIAL DEMANMD,.,, PURSUANT PA R.C.P.., eou. L -<> ,r°... NOTICE TO PLEAD j r, TO: GORDON & WEINBERG, P.C. 1001 E. HECTOR STREET, SUITE 220 CONSHOHOCKEN, PA. 19428 AND TO: FIA CARD SERVICES, N.A. F/K/A/ BANK OF AMtRICA 1825 E. BUCKEYE ROAD, PHOENIX, AZ 85034 ON BEHALF OF THE ABOVE-CAPTIONED DEFENDANT(S): YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED, DEFENDANT'S AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT, WITHIN TWENTY (20) DAYS FROM DATE OF SERVICE HEREOF, OR A JUDGMENT MAY BE ENTERED GAINST YOU. BY: June 27, 2011 Arlene S. Paoletta CASE NO.: 10-838 AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A/ : BANK OF AMERICA : Plaintiff, V. ARLENE S. PAOLETTA Defendant CASE NO.: 10-838 AMENDED PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED Pa. R.C.P. 1007.1 DEFENDANT'S AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT COMES NOW, Defendant, ARLENE S. PAOLETTA, (hereinafter known as DEFENDANT and/or PAOLETTA) in the above-captioned action, who files these Amended Preliminary Objections to Plaintiff's Amended Complaint (hereinafter known as PLAINTIFF and/or FIA and/or BANK), and in support thereof, states as follows: 1. PLAINTIFF FAILED TO PROVIDE PROOF OF STANDING 1. This Complaint should be dismissed, as the PLAINTIFF does not have standing and is not the real party of interest, and this Court does not have Personam jurisdiction over the Subject Matter of the Case. 3 2. BANK is not the real party' pursuant to PA. R.C.P. 1033 for FIA Card Services could not be the original creditor and the Claim that Bank of America is defined and/or referenced as Formerly Known As F/K/A the party who allegedly was the alleged original lender and/or the real party in interest pursuant to Title 13 PA. C.S. §3-302(a) for BANK is not the holder of the instrument2, (negotiable instrument) and lack of standing denies the bank standing in order to prosecute this case; a. BANK did not take the note for value, §3-302(2)(1); b. BANK did not take the note in good faith §3-302(2)(ii); C. BANK took the alleged note with an unauthorized signature, and the alleged note in question has been altered §3-302(2)(iv);3 d. BANK must prove to what extent their performance4 gives a certain percentage of security interest according to §3-302(2)(d)5 . 3. BANK cannot substantiate that PAOLETTA ever executed any alleged Contract in 2006 with Bank of America and/or FIA Card Services and/or any other alleged 1 PA. Rule of Civil Procedure 1033 2 Title 7 §303 makes it very clear that BANK must prove that they have purchased evidence of debt, and the only way that can be accomplished is by the production of the accounting ledgers specifically relating to Paoletta's accounting ledgers, and this will be denied by this Court in a "Protective Order" thus denying Paoletta her due process rights. 3 Title 13 PA. C.S. §3-407-Alterations void the Notes and make them unpayable. 4 PA. Rule of Civil Procedure 1021, production of BAN Ks accounting ledgers to support the actual security interest of BANK, if any. The ledger account will show whether the BANK actual gave consideration by crediting BANK's net worth account, or did they deposit the fraudulently obtained notes and credit the BAN Ks liability/demand deposit account 5 § 3-302(2)(d) if under section 3303(a)(1) (relating to value and consideration), the promise of performance that is the consideration for an instrument has been partially preformed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance. 4 creditor not yet named6 in this complaint. PAOLETTA further states that she has never negotiated any note with FIA Card Services and Bank of America (hereinafter known as (BANK 7). 4. Bank's Amended Complaint must be dismissed for their Amended Complaint fails to conform to law or rule of Court as it denies Paoletta the knowledge and understanding and or identifying the original alleged lender making it impossible for Paoletta to properly defend her case by not advising Paoletta, who is the real plaintiff pursuant to PA. R.C.P. 1028a(2)(3)(4) and (5). 5. In Worldwide Asset Purchasing, LLC v. Stem, (2004) Judge Wettick ruled, that the issuer of the credit card and suit brought by Worldwide Asset Purchasing was required to attach to the Complaint the written assignment9 or assignments that traced ownership of the account from Bank of America to Worldwide Asset Purchasing. In this case, MBNA never traced the assignment and/or assignments and violated Rule 1019 that a Plaintiff shall (1) set forth the material facts upon which a cause of action is based and (2) attach the writings when a claim is based on a writing. The alleged Plaintiff has failed to attach all 6 Based upon the credit report, which Gordon and Weinberg, P.C. has pulled inquiries, which is in violation of the FCRA, shows several different account numbers suggesting fraudulent creation and/or re-aging of old alleged accounts. In the three reports it shows MBNA Bank as the alleged lender and not Bank of America. 7 Title 13 PA. C.S. §3-308(a) Proof of Signature--In an action with respect to an instrument, the authenticity of, and the authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. e The original lender and/or party in interest must substantiate that they have been financially damaged and must advise the Defendant who exactly is the real party. 9 No date was ever allegedly given and Plaintiff never even alleges that any assignment ever took place, so how could FIA Card Services, F/K/A Bank of America becomes the Plaintiff. Bank of America was never named FIA Card Services at any time so therefore improper Plaintiff under Pa. R.C.P. §1033. 5 of the assignments and whenever a claim involves one period of time in which the initial terms and conditions apply, the plaintiff must attach to the complaint both the original terms and conditions10 with the dates' 1 on which they are applicable. Gordon and Weinberg, P.C., has never stated if the Complaint is based upon a breach of contract or statement of accounts or account stated, which denies Paoletta a clear understanding of the complaint. PA. Rules of C.P. 1028a(2)(3)(4) proves that FIA Card Services and/or Bank of America lacks the capacity to sue under PA. R.C.P. 1028a(5) and this court cannot make that determination without complete discovery. 6. The alleged Statement of Accounts specifically shows the alleged creditor as MBNA Bank and Plaintiff's Counsel has yet to tie a proper chain of title and/or assignment from MBNA Bank to FIA Card Services to Bank of America which does not apprise Paoletta of who is the alleged real party in interest thus violating 1028a(2) (3) (4) and (5). This complaint is not in compliance with nor does it conform to law or the rules of court, has 10 The attached card holder agreement only pertains to 2006 and is from Bank of America not from MBNA Bank or FIA Card Services and lacks card holder agreements and terms and conditions of this alleged contract from 1993 to present and they must attached all the changes relating to any specific time, which they do not do. li Having one alleged card holder agreement, unsigned, does not prove that this card holder agreement was ever seen by Paoletta. Paoletta states that this card holder agreement was never mailed to her and does not apply to her. This unsigned alleged agreement could apply to anyone in the state. Mr. Flink claims that he could not get the proper Affidavit but yet he found this card holder agreement and additional alleged statements of account The statements are from MBNA, the statements have missing statements of account in the stated period in paragraph three (3) of Complaint and does not account for charges of $80,000 thus proving the insufficiency of the pleading. 6 insufficient specificity, legal insufficiency in a pleading and lacks the legal capacity to sue. 7. Since the complaint seeks a specific amount of money that is allegedly due, the complaint fails to comply with PA. R.C.P. 1028(a) (2) (3) (4) and (5) The Complaint must include documentations or supporting allegations to show or permit Paoletta to calculate the total amount of damages that are allegedly due and owing by reading the documents attached to the complaint. 8. FIA Card Services12 fails to comply with Pa. R.C.P. 1028a(5) and fails to specifically identify the true holder and/or holder in due course (Plaintiff) and this Court is barred from making that determination and must hold an evidentiary hearing to determine the true owner of said note or the real Plaintiff and/or the financially damaged party. 9. BANK has the burden of proof that PAOLETTA had executed (Title 13 Pa. C.S. §3-401 and §3-308) concerning the alleged note (which was created unilaterally as a negotiable instrument specifically referenced in BANK's Complaint in paragraphs 3 and 4.13 12 Weinberg and Gordon have failed to list any address of the alleged Plaintiff, FIA Card Services thus denying Paoletta her right to discover and/or depose. Weinberg and Gordon must provide the contact information of the alleged client that Mr. Flink claims assisted Flink in the creation of the Affidavit 13 Title 13 PA. C.S. §3-309(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument If that proof is made, section 3- 308 (relating to proof of signature and status as holder in due course) applies to the case as if the person seeking enforcement had produced the instrument The Court may not enter judgment in favor of the person 7 10. PLAINTIFF 14 (whoever that may be) obtained and/or created fraudulent documents" (Title 13 PA. C.S. §3-308) and then monetized, created a trust, and securitized them 16, placing the fraudulent note into the stream of commerce that unjustly enriched the PLAINTIFF. 11. The real Plaintiff, yet to be properly identified, is procedurally and substantively unconscionable 17 for the Plaintiff has violated Title 15 U.S.C. § 1692 et seq. 12. After receiving the CUSIP number it becomes undisputable evidence that BANK has committed, and continues to perpetrate, fraud upon this honorable Court, for the CUSIP clearly substantiates that the holder and/or holder in due course of the fraudulent promissory note is a certain Fidelity Account and proves the conspiratorial nature of BANK's action in this matter. a. In paragraph Three (3) of PLAINTIFF's Complaint, BANK intentionally, deceptively, deceitfully, fallaciously, and with seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument 14 Paoletta states that she is being denied her right to know the true identity of the real party of interest and/or the insufficiency of the Amended Complaint makes it impossible for her to properly defend and/or discover or depose the real party in interest Paoletta does not know if FIA is the true Plaintiff or did they purchase the alleged debt or was it assigned to them and even fails to produce any certificate of sale or assignment thus not being able to prove chain of title and having the holder and/or holder in due course status as required in order to collect 15 Title 13 PA. C.S. §1-203--Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement 16 When the fraudulently created note was securitized it became an asset backed security thus destroying any real holder and/or holder in due course status. 17 Title 13 PA. C.S. §2-302(a) Unconscionable contract or clause(s)--If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may: (1) refuse to enforce the contract; (2) enforce the remainder of the contract without the unconscionable clauses; or (3) so limit application of any unconscionable clause as to avoid any unconscionable results. 8 conspiracy in their heart, states, Bank to collect amounts due under the card holder agreement from 1993 to 2010 based upon one period of time that they try to relate and binds Paoletta to an account is an alleged card holder agreement date 2006, in which it does not apply to Paoletta herself. This statement is fallacious, for BANK does not have standing to prosecute this case because the listed owner of the fraudulent Notes is Fidelity Environment & Alternative Energy, thus proving the actions of the BANK, BANK's Agent and the BANK's Law Firm are suspicious and should be reported to the PA. State Attorney General's Office for investigation. 13. This Complaint is insufficient if the Complaint is based upon an account stated based upon Sections 512 and 513 of the Pennsylvania Law Encyclopedia (Second). The relevant portions of the discussion are set forth below: §512 states in part, "an account stated has been defined as an account in writing, examined and expressly or impliedly accepted by both parties thereto, and distinguished from a simple claim or a mere summary of accounts. The Plaintiff must prove there is an account in writing, examined and accepted by both parties, in which Paoletta never agreed to any statement of accounts showing any indebtedness to MBNA Bank, FIA Card Services or Bank of America. 9 14. Under §513, to produce an account stated, the account must be rendered, and the other parry must accept, agree to the correctness of the amount. In short, there must be a meeting of the minds, and there can be no account stated where the account rendered meets with general objection. Something more than mere acquiescence by failing to take exception to a series of statements of account received in the mail is required to create an account stated. 13 P.L.E. 2d Contracts §513 at 11-12 (2001).' g 15. With the PLAINTIFF lacking standing to prosecute this case, this Court lacks subject matter jurisdiction as well as personam jurisdiction, and PLAINTIFF's Complaint must be stricken pursuant to Pa. R.C.P. 1028a(1)(2)(3)(4) and (5). 16. Plaintiff has failed to comply with Pa. R.C.P. 1028a(3) and (4) for failure to prove the interest rate and fees are applicable or permissible to the inceptions of the alleged card holder agreement since 1993 when the alleged card holder agreement originated. 17. The Plaintiff has intentionally violated PA. R.C.P. 1028a(3) and (4) by not providing a complete set of the agreements that relate to this particular alleged credit card account. "I Paoletta has never received any statements of account reflecting this debt The Complaint never stated that the account has been a running account, only vaguely alludes to the alleged debt on any account stated theory, and has never specifically stated that Paoletta used the credit card and has never assented to the account as required to support an action on account stated. 10 18. The Plaintiff has intentionally mislead this Court with false information thus violating Title 15 U.S.C. §1692e(10) [§807(10)] when Plaintiff cannot produce any other executed card holder agreements from the dates of 1993 to 2010 19. The Plaintiff has failed to comply with Pa. R.C.P. 1028a(3) and (4) for failure to identify a particular class or type of credit card was allegedly issued to Paoletta. 20. The Plaintiff has failed to comply with Pa. R.C.P. 1028a(3) and (4) for failure to: (a) identify all the card holder agreements from 1993 to present that applied to the particular class, (b) assemble all the sets of agreements detailing specific dates and times of the alleged length of the agreement from the alleged inception to present, (c) identify all the specific interest rates and other applicable fees for the entire period of the alleged card holder agreement,19 (d) prove that the card holder agreement was actually offered to Paoletta and accepted. 21. Plaintiff has violated Title 15 U.S.C. §1692e(5) [§807(5)] by filing this amended complaint without ever reviewing the files as required under Pa. 19 If the Plaintiff cannot produce this required data to prove the validity of the alleged debt then it can be assumed that the contract and/or other information does not exist. Strict proof is required at trial. 11 R.C.P. 1028a(3) and (4) and has violated Title 15 U.S.C. §1692e(3) [§807(3)] for not reviewing the files. 22. Plaintiff has failed to establish any breach of contract by failing to establish the existence of an executed contract, including defining all the terms and conditions. Plaintiff must prove that an actual breach had occurred. 23. Plaintiff has not defined whether this Complaint is based upon a Breach of Contract or the Account Stated Theory20 so under that deficiency alone these Preliminary Objections must be sustained. 24. Plaintiff has failed to properly support21 the Account Stated Theory thus violating Pa. R.C.P. 1028a(2),(3), (4) and (5) as their Complaint failed to aver the following: (1) the Plaintiff has failed to prove that there ever was the existence of a running account,22 and never averred or identified any specific account number applied to this deficient complaint. Paoletta states that account was never made available and/or that Paoletta never agreed to the exactness of the amount or any amount, and/or never assented or acquiesced to the alleged contract and/or alleged loan. 20 Paoletta will address her objections to the account stated theory more in her Brief in Support and with additional case law. 21 Paoletta never accepted either expressly or impliedly the alleged debt and Paoletta stated that she never had an indebted relationship with Plaintiff and never received any statements of account 22 Gordon & Weinberg, based upon the examination of Paoletta's credit report should have realized that the credit report shows fraudulent activities and a fraudulent address of North Fourth Street, in Harrisburg, Pa., when Paoletta has resided at 1771 South Meadow Dr. Mechanicsburg, Pa. 17055 and was served by Sheriff at the South Meadow address which Gordon & Weinberg intentionally ignored. 12 25. Plaintiff has failed to allege that Paoletta received or that Plaintiff sent statements of account to Paoletta and that Paoletta retained them without making payments23 and prove that Paoletta ever assented to the account and Plaintiff must prove that this alleged debt arose from a pre-existing account. 26. PAOLETTA raises under PA. R.C.P. § 1028(a)(5) PLAINTIFF's lack of capacity to sue in this situation. These preliminary objections to the Amended Complaint states that this court must not view and determine the controvertible facts but, rather, must resolve the dispute by receiving evidence thereon through interrogatories, deposition, or an evidentiary hearing to determine compliance with notices. Deyarmin v. Consolidated Rail Corp., 2007 PA. Super. 218, 931 A. 2d 1 (2007); Wentzel-Applewood Joint Venture, v. Market street Association, LP, 2005 PA. Super. 239, 878 A.2d 889 (2005); Mellon Bank, N.A. v. Fabinyi, 437 PA. Super. 559,650 A.2d 895 (1994). WHEREFORE, PAOLETTA hereby states that this case should be dismissed for lack of standing and that this Court lacks personam jurisdiction and requests any and all relief that this Court deems just and proper. II. PLAINTIFF DOES NOT HAVE STANDING 27. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every one is fully set forth at length, herein. Z3 Plaintiff claims that the last payment was paid on the account on or about October 31, 2008 which is denied by Paoletta as ever mailing any such payment on October 31, 2008. 13 28. Standing is a threshold issue that must be determined not by the Court, but by the party asserting it. 29. PLAINTIFF does not have standing, nor are they the real party in interest, as DEFENDANT contends; PLAINTIFF is not in possession of the executed application, the executed card holder agreement24 and the original note. 30. PLAINTIFF was required, by law and/or by statute, prior to filing their complaint, to make Presentment of the Original Note; to identify themselves as having the authority to make the Presentment pursuant to Title 13 Pa. C.S. §3- 501; and that, upon Presentment, the Promissory Note is/was properly endorsed to the benefit of the party seeking to enforce it. PLAINTIFF has willfully failed to do any of this. 31. DEFENDANT avers that this PLAINTIFF does not have in their possession, custody or control any admissible evidence so therefore this Amended Complaint is deficient and not in compliance with PA. R.C.P. 1028a(2)(3)(4) and (5) for the Amended Complaint does not fully advise Paoletta of the real issues at hand including the real alleged creditor or the real party in interest. 32. The Plaintiff in this case has failed to identify in their insufficient Complaint, the card holder agreement that specifically applied to the class of accounts that included the Defendant's alleged account from MBNA Platinum Plus to a 24 Weinberg and Gordon has produced a unsigned Bank of America alleged contract which has a date of 2006 when Weinberg and Gordon states that this alleged account goes back way further than 2006. 14 straight MBNA and than back to MBNA Platinum Plus to Bank of America, never mentioning any assignment or purchase of FIA Card Services, which is a private stock holding company that is different than MBNA Bank. 33. The Plaintiff has failed to assemble the entire set of agreements that applied to the alleged Defendant's account during the time period that it was supposedly opened, 1993 to 2010. Their production of a 2006 card holder agreement falls short of proving any debt or indebtedness of Paoletta. The card holder agreement does not define with specificity any fee terms applicable to the account and failed to prove that the alleged agreement was actually offered and accepted by the defendant. 25 34. Assignment of any negotiable instrument must be based upon a true and valid and legal chain of title and/or proper assignment. 35. Paoletta must be adequately protected from another party (the real legal holders of the Notes) pursuant to, including, and not limited to Title 13 PA. C.S. §3309(b). Furthermore, according to Title 13 PA. C.S. §3308, Paoletta hereby categorically states that the authenticity of any signatures does not exist and Plaintiff lacks sufficient evidence to prosecute this case. 36. Plaintiff has not produced any signatures of Paoletta pursuant to Title 13 PA. C.S. §§3-401 and 3-308. 2s In the original compliant Plaintifrs Counsel did not even have any statements of account or any alleged card holder agreement but failed to produce an "Affidavit" from an executive of any Bank and the verification of Flink is a dishonor upon this Court 15 37. PLAINTIFF's Counsel knows and/or should know that any application and/or alleged card holder agreement from Bank of America dated 2006 does not correspond to any of the allegations of the Plaintiff's Attorneys. The allegations are abuse of process and are in violation of PA. R.C.P. § 1O28a(1), a(2), a(3), and 1028a(5).26 38. Plaintiffs Complaint is lacking in compliance with Pa. R.C.P. § 1028a(1), a(2), a(3), a(4) and 1028a(5) for the Amended Complaint is deficient, insufficient specificity, lacks jurisdiction over the subject matter, failure to conform to the rule of law, legal insufficiency of a pleading and lacks capacity to sue, for the Amended Complaint does not specifically identify any alleged account number27, does not name with specificity any real party in interest and does not fully advise Paoletta of the charges against her. 39. Plaintiff's Complaint also fails to support any breach of agreement. The Complaint fails to support the basic elements of contracts. The Plaintiff must prove that Paoletta applied for the card, used the card, became indebted for the use of said card and has been unable to do that. This theory will be supported 26 They must prove and produce the original account agreement for the account, any amendment to the agreement for the account, any notice of a change in any term of the account, any alleged credit card in direct relationship to the specific agreement, (2006) does not relate to 1993 and the other alleged years, and other activities on said account An account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. 27 On Paoletta's credit report it shows two different alleged account numbers, with possibly fraud, re-aged the alleged account and Flink did not ever mention any specific account number as referenced in the other law suits filed in other counties showing a pattern of abuse by Gordon and Weinberg opening themselves up for law suits, both class action and/or even mass actions including and not limited to FDCPA, FCRA and RICO. 16 in Paoletta's brief in support of these Preliminary Objections. Plaintiff must also prove that Paoletta used the card, when was the card used, what was purchased and must prove that Paoletta agreed, accepted the card and that Plaintiff actually mailed the card, application, card holder agreements, statements of account, which they have failed to do making this Complaint deficient and insufficient for a continuation of this Complaint. Paoletta's Brief will explain in great detail additional reasons why this Complaint does not comply with either the account stated and/or the breach of contract thus denying Paoletta her rights to properly defend such action and this complaint must be dismissed through the sustaining of these Preliminary objections. 40. Plaintiff's Complaint fails miserably to prove the elements of a basic contract. Plaintiff has failed to allege (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) both parties consent to the terms; (5) execution and delivery of the contract with the intent that it be mutually binding on both parties, (6) that they gave any consideration28. 41. Plaintiff has violated Pa. R.C.P. 1028a(2), (3) and (4) for trying to mislead this court and deny Paoletta's rights to be fully informed of all the charges against her when Flink signed the Affidavit trying to produce business records when the fact of the matter is, it is just another flagrant violation of Pa. R.C.P. 28 Plaintiff must produce the accounting ledgers pursuant to Pa. R.C.P. 1021. If the accounting records cannot be obtained or produced then they do not exist 17 1028(2),(3),(4) and (5). The attorney can't offer any testimony in the same case in which he is prosecuting. The "Affidavit" was not taken from business records 29 and based upon that fact alone should sustain these amended Preliminary Objections.30 42. The Affidavit, executed by Mr. Flink,31 does not comply with Pa. R.C.P. 1028a(1), (2), (3), (4) and (5) for failure to show that the agreement matches the type of account and the account number, fails to address when the agreement was actually offered to Paoletta and in general just lacks sufficient evidence to support this Complaint and it should be dismissed with prejudice. 43. In Pennsylvania, the Affiant must base the affidavit upon personal knowledge and the proper Affiant should have been the manager of the account pertaining to Paoletta pursuant to Pa. R.C.P. 1035.4.32 44. In general Plaintiff has failed to comply with all the mentioned violations of, including and not limited to the Pa. R.C.P., the Fair Debt Collection Practices Act, the Pa. Fair Credit Extension Uniformity Act and the Fair Credit 29 Paoletta seeks the name and address of the person who assisted Flink in the preparation of this illegal Affidavit. 30 Paoletta has 5 illegal Affidavits (out of hundreds just from Adams County to prove the improper signing of their Affidavit is a mode of operation. Paoletta will be supplementing improper Affidavits executed by Gordon & Weinberg and Flink in a respondeat superior relationship from other counties. (thousands state wide) 31 Affidavit based upon Flink's client is hearsay and does not comply with Pa. R.C.P. 1035.4. 32 Mr. Flink has perjured himself under the perjury clause for deceiving this court when Flink had sufficient time to produce out of somebodies files a card holder agreement for only one year and partial list of alleged Statement of accounts, which do not comply with that charge for entire periods and months of alleged statement were not attached. Paoletta has never received any statements of account and the charges on the attached statements do not add up to the Complaint amount thus violating Title 15 U.S.C. §1692e(2)(A) [§807(2)(A)) and Title 15 U.S.C. §1692f(1) [§808(1). 18 Reporting Act33. The Plaintiff's Counsel does not represent the alleged creditor or any assignee and must produce the following documents to support their bogus allegations, (1) the original account agreement for the alleged account, (2) any and all amendments to the agreement for the specific numbered account bearing the signature of Paoletta, (3) any notice of a change in any terms of the account, including and not limited to a change in the rate of interest or amount of any fees applicable to the executed alleged numbered account, (4) any schedule of interest rates or fees applicable to the executed number account, (5) any credit card issued in connection with the account, any and all statements of payments, charges, fees or interest for this particular executed numbered account. 45. Plaintiff has failed to comply with Pa. R.C.P. 1028a(1), (2),(3),(4) and (5) and this court must dismiss this frivolous compliant for Paoletta has never received any alleged contract other than the alleged contract date of 2006.34 46. Plaintiff's compliant violated all the mentioned violations contained in paragraph 43 for failure to offer any evidence of the actual offer of a specific form of agreement to Paoletta and that Paoletta accepted said contract and used 33 Based upon a cursory evaluation of Paoletta's credit report there have been violation committed in that arena. 34 This Plaintiff is willing to submit an affidavit stating that this form contract (attached card holder agreement dated 2006) governs this specific un-numbered account when the Affiant has no apparent first hand personal knowledge of the applicability and acceptance of this alleged contract which is not executed, contains no card holder's name and only applies to 2006. 19 credit card, became indebted to Plaintiff and did not supply all of the statements of account. 47. DEFENDANT hereby states PLAINTIFF is incapable of producing any genuine and/or original ledger accounts, original statements of account,35 names and contact information of custodian of the records for FIA Card Services, Bank of America or any other alleged creditor named and yet not named in this action. 48. Plaintiff s Counsel is not in compliance with, including but not limited to, Title 13 PA. C.S. §§3302, 2(i),(ii),(iii), 1203, obligation of good faith, and 2302, unconscionable contract or clause. This Court must also rule that these alleged altered and/or fraudulently created documents 36, if they do actually exist, should not be enforced per Title 13 PA. C.S. §2302 (1) and (3). (DEFENDANT declares that they do not even exist, and strict proof must be presented pursuant to PA. Rules of Evidence 901, 9025 1002, 1003, 803.6 and Title 42 PA. C.S. §6108.) 49. DEFENDANT further states that PLAINTIFF must prove Title 13 PA. C.S. §3303(a)(1)(2)(3)(4)(5) and (b). 35 Clearly depicting all and every alleged transaction from the inceptions of this alleged account, who used the alleged card, when was this card used, what was purchased by this card, and locations of each and every transaction. 36 Statements of account submitted by Gordon & Weinberg and/or the PlaintifYs Counsel must produce their clients name and address for discovery and depositions and produce their accounting ledgers pursuant to Pa. R.C.P. 1021. 20 50. DEFENDANT hereby states based upon her understanding, belief, knowledge, information, and certification that the PLAINTIFF is committing fraud upon this Court, for the PLAINTIFF is not the real party of interest pursuant to PA. R.C.P. § 1033 for the alleged note 37 have been monetized,, 38 securitized, and possibly placed into a trust account and through a professional Forensic and Securitization Audit, PAOLETTA will be able to present and/or expose a conspiracy to divest PAOLETTA of her assets. III. BANK MUST PROVE STANDING 51. PAOLETTA, based upon her understanding, belief, personal knowledge, and verified information that BANK and/or Gordon & Weinberg, P.C. in order to prove standing as holder in due course to be incompliance with PA. R.C.P. 1028a, 1024c, 1019, 1002 and 1021 and as lender and/or creditor must prove the following: a. BANK must have possession of the original executed card holder agreement and executed application; b. BANK must prove that they did not securitize the note in question and take it off of the Bank's balance sheet; c. Bank must prove that they have a perfected "Chain of Title" or proper assignment; 37 If it really does exist is now an asset backed security. 38 Title 13 PA C.S. §3-407-Alterations 21 d. BANK must produce the real party in interest, and open their accounting ledgers for an inspection by Paoletta's expert witnesses and must prove that Bank did not fraudulently misrepresent and/or alter the alleged documents pursuant to Title 13 PA. C.S. §3407-alterations; e. Bank must prove who used the alleged card, when was the alleged card used, what was the purpose of each and every transaction, and a description of all the merchandise and/or use of the alleged credit card; f. BANK must prove that BANK didn't sell the loan to an issuer--typically a government sponsored enterprise (GSE)-- or place into an asset backed security or collect upon an insurance claim; g. BANK must prove that the trust didn't issue securities, known as asset backed securities (ABS), against this pool; h. PAOLETTA states that BANK also monetized PAOLETTA's alleged negotiable instrument and deposited it into the BANK's asset and demand deposit liability based upon her personal knowledge, belief, verified information and understanding account as will be supported by expert witnesses including authors, books, charts, graphs, former banking experts, and a certified public accountant. 52. PLAINTIFF must produce the genuine documents and/or file a Lost Note Instrument according to Title 13 PA. C.S. §§3-309 and 3-501. 22 53. DEFENDANT hereby emphatically states that according to Title 13 PA. C.S. §§3-308 and 3-401 that the DEFENDANT is not financially liable unless the DEFENDANT signed the Instrument(s) and further reiterates that DEFENDANT'S signature has yet to be produced. 54. PLAINTIFF must file according to Title 13 PA. C.S. §8405(a)(2) a sufficient indemnity bond, and this Court and/or County Officials are responsible to protect PAOLETTA and/or the alleged estate from double liability when PAOLETTA is not liable at all. 55. PA. R.C.P. §2002(a) requires that all actions be prosecuted by and in the name of the real party in interest. The Pennsylvania Superior Court has explained the rationale for requiring the assignee to affirmatively plead his interest in the matter: "When suit is brought against the Defendant by a stranger to his contract, he is entitled to proof that the plaintiff is the owner of the claim against him. This protection must be afforded the Defendant. Otherwise, the Defendant might find himself subjected to the same liability to the original owner of the cause of action, in the event that there was no actual assignment." Id. at 94. In this case, PLAINTIFF failed to attach any written assignment setting forth the facts of the assignment, the date of the assignment, or the parties to any assignment. Moreover, PLAINTIFF failed to affirmatively plead the fact of the assignment, the date of the assignment, and the parties 23 to the assignment. PLAINTIFF cannot provide a proper chain of command so therefore the chain has been broken. 56. Pursuant to PA. R.C.P. § 1021, PLAINTIFF must produce their accounting ledgers to prove consideration was given. 57. DEFENDANT PAOLETTA objects to PLAINTIFF's Complaint Pursuant to PA. R.C.P. §1019(f), which states, "Averments of time, place and items of special damage shall be specifically stated." PLAINTIFF in its Complaint fails to set forth any specific averment of time, place, date, liability for payments, nonpayment of and/or refusal to make payments must be brought forward. By reason of PA R.C.P. §1019, under the Pennsylvania system of fact pleading, the pleader must define the issues. Every act of performance essential to that end must be set forth in the Complaint. Miketic v. Baron, 450 PA. Super. 91, 104, 675 A.2d 324 (PA. Super.1996) (citing Santiago v. PA. Nat. Mut. Ins. Co. 418 PA. Super. 178, 183 613 A.2d 1235, 1238 (1992); PA. R.C.P. 1019). The complaint must not only apprise the DEFENDANT of an asserted claim, but it must also synopsize the essential facts to support the claim. Miketic v. Baron, 450 PA. Super. 91, 104-105, 675 A.2d 324, 331 (PA. Super., 1996) (citing PA. R.C.P. 1019(a) and Krajsa v. Keypunch, Inc., 424 PA. Super. 230, 234, 622 A.2d 355, 357 (1993)). 58. Furthermore, the complaint fails to apprise the DEFENDANT of the nature 24 and extent of PLAINTIFF's claim so that DEFENDANT has notice of what PLAINTIFF intends to prove at trial and may not adequately prepare to meet such proof with her own evidence. Weiss v. Equibank, 460 A.2d 271, 313 PA. Super. 446 (PA. Super. 1983). 59. Accordingly, just as in Marine Bank v. Orlando, 25 PA. D. & C. 3d 264 (1982), Plaintiffs Complaint fails to properly set forth a cause of action for the Amended Complaint and does not define with specificity the allegations against her by purposely obscuring who is the real party of interest. 60. Wherefore, Paoletta moves this Court to dismiss this Amended Complaint for failure to present the original executed note prior to filing their Complaint and/or for Plaintiff's failure to establish Standing pursuant to Pa. R.C.P. 1028a. IV. PLAINTIFF FAILS TO ATTACH DOCUMENTS 61. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every are fully set forth at length, herein. 62. DEFENDANT is unable to properly and fully defend herself absent the required attachment of these documents, upon which PLAINTIFF relies. Wherefore, PLAINTIFF's complaint should be dismissed for failure to attach the required documents upon which PLAINTIFF relies, or for any and all other relief that this Court deems just and proper. 25 V. PLAINTIFF FAILS TO PLEAD WITH SPECIFICITY 63. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every are fully set forth at length, herein. 64. PLAINTIFF, in their summary of costs, fails to plead with specificity or provide documents in support of their contention in compliance of Pa. R.C.P. 1019(f). Averments of time, place and items of special damage shall be specifically stated which this Amended Complaint fails to do thus denying Paoletta her right to properly defend this action. 65. PLAINTIFF's Complaint is based upon "scandalous and impertinent"39 allegations and are thus subject to being stricken. Allegations are unproven, immaterial, and inappropriate to support this action. Common Cause/ Penn. V. Com., 710 A.2d 367. 66. Bank's Amended Complaint has violated PA. R.C.P. 1029(h), "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written. 67. Bank's Amended Complaint has violated Pa. R.C.P. 1019(i) which states that if the claim is based upon a writing, the pleader shall attach a copy of the writing. This was not done. The alleged contract is of a completely different bank and the date does not even match up to the Plaintiff's 39 PA. R.C.P. 1028a(2). 26 Counsel's allegation in paragraph Three (3) of the Amended Complaint stating, "True and correct copies of statements from March 2001 through March 2009 are attached hereto as part of Exhibit "A". 68. The explanation and/or averments contained in paragraph Three (3) of the Amended Complaint is deceptive, false, misleading and outright damaging to Paoletta's case for an examination of the statements are not all present from March 2001 through March 2009, which is false misrepresentation. 69. In paragraph One (1) of Plaintiffs Complaint, the Plaintiff's Counsel is operating under a conclusion of law and is fabricating misinformation as the Amended Complaint claims that the alleged account was started on or about October 16, 1993 and yet fails to produce statements of account that comply with statements of account, no zero balance, lacks itemization which denies Paoletta the right to fully understand all of the alleged charges. 70. In paragraph Two (2) Counsel would like to have this Court believe that the alleged card holder agreement dated in 2006 is a reflection of the terms and conditions of the contract beginning as far back as 1993, which is preposterous and does not allow compliance with the accounted stated theory.40 40 The Plaintiff if they were in possession of true documentations should have produced all the card holder agreements from the beginning time to the alleged ending time. Paoletta is looking into spoliation charges against the yet to be identified true plaintiff in this case. 27 71. Wherefore, DEFENDANT moves to dismiss PLAINTIFF's complaint for failure to plead with specificity, or for any and all other relief that this Court deems just and proper. VI. IMPROPER VERIFICATION 72. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every are fully set forth at length herein. 73. Moreover, PLAINTIFF's attorney could not possibly have firsthand personal knowledge of the allegations set forth in their Complaint, nor do they make a distinction as to what they have firsthand knowledge of as opposed to what is specifically based on information and belief. 74. This Court must according to 1028(c) (2) determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider depositions [Pa. R.C.P. 1028a(5)] and if this Court ignores this section, Defendant has the right to have the Court's decision ruled a final (appeal) Order. 75. DEFENDANT objects to PLAINTIFF's attorney signing the verification. PA. R.C.P § 1024(a) and (c) state that when an attorney for the PLAINTIFF signs the verification, it is defective. See Monroe Contract Corp. v. Harrison Square, Inc. 266 PA. Super. 549 405 A 2d. 954 (1979) and Warren v. Williams, 370 PA. 380, 88 A. 2d 406 (1952); Rupel v. Bluestein, 280 PA. Super. 65 421 A2d. 406 (1980); Signora v. Kaplan, 33 D &C. 4t' (1996); `3 28 Standard PA. Practice 2d, Ch. §16:35; `3Standard PA. Practice 2d, Chapter 16 §1639; and `4 Standard PA. Practice 2d, Chapter 21 §21:29. An attorney's statements and papers are not facts before the court. The attorney cannot be counsel and give testimony in the same matter. See Trinsey v. Pagliaro, 229, 229 F. Supp. 647, 649 (D. PA. (1964); also see United States v. Lovasco (06/09/77) 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed. 2d 752, Gonzales v. Buist (04/01/12) 224 U.S. 126, 56L Ed. 693, 32 S.Ct. 463 and Holt v. United States, 2187 U.S. 2451P 54 L.Ed. 1021, 31 S.Ct.2. And PA. R.C.P. 1024 (c) states in pertinent part, "The verification shall be made by one or more of the parties filing the pleading 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 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- 76. With respect to the aforementioned, PLAINTIFF's action should be dismissed for failure to adhere to PA. R.C.P §1024 (c), PA. R.C.P. §1002, and PA. R.C.P. § 1028(a) (2) for woeful lack of proper verification. 29 77. Joel M. Flink, Esquire, claims in number 4 of his improper verification, "the exigency of filing this pleading today is such that there is a likelihood of inadequate time to serve said party's own verification without accrual of prejudice," This is a clear indication of Flink's untruthfulness for they filed the original complaint lacking any statement of accounts and any card holder agreement and yet they were able to have sufficient time and energy to locate alleged statements of account and a different bank's card holder agreements to file with the Amended Complaint but claims that they did not have sufficient time to enlist a proper verification. This is preposterous and intentionally misleading this court proving their deceiving nature.41 78. Wherefore, Plaintiff's Complaint should be dismissed for failure to provide a proper verification or for any and all other relief that this Court deems just and proper. 79. Paoletta plans on calling Mr. Flink to the stand to testify based upon what personal knowledge does Flink possess to allow him to sign affidavits 42 41 Paoletta' plans on deposing employees from FIA Card Services, Bank of America and any other alleged creditor who was ever involved in this misrepresentation of this alleged debt Flink will be discovered and should be made to answer discovery for he has signed illegally the verification thus denying Paoletta her right to cross-examine him in a deceptive sanctionable nature as stated by the Pennsylvania Supreme Court In the Fundamentals of Civil Practice, written by the Penn. Bar Institute, dated 2009, it states, "A final warning in the verification area comes from the disciplinary opinion. The Pa. Supreme Court Disciplinary Board has noted that an attorney's personal notarization of documents not signed in the attorney's presence violates bar disciplinary rules as well as the criminal code." In Re Anonymous No. 23 D.B. 77,6 Pa. D&C3d 499 (1978). And Pa. R.C.P. 1002, Authority of Attorney, "Any action other than verMcation required or authorized by this chapter to be done by a VaIU may be done byte parVs attorneys." 42 Paoletta has gathered enough verifications filed my Mr. Flink in the surrounding counties to prove an intentional violation of the verification process and a complaint will be sent to the disciplinary board, the PA. 30 80. PA. R.P.C. 3.7 clearly establishes that an attorney cannot prosecute and give expert testimony in this case. The Attorney stated that the Plaintiff is outside the area and lacked sufficient time to receive the Plaintiffs signature upon the verification. This is total misrepresentation, and if this Court permits this illegality, this Court is biased and this Judge should step down from hearing this case. Paoletta now becomes quite concerned that the presiding Judge will grant protective orders, Limine motions and limit discovery and will allow the attorney to prosecute this case absent the affiant. Paoletta hereby states that a representative from the Bank will be called upon to testify in Court, and through depositions Paoletta will seek the real party of interest. 81. Plaintiff's Counsel has failed to perform proper service for the Certification of Service page does not contain Paoletta's address and cannot prove that Paoletta was actually mailed the Amended Complaint thus operating in another deceptive, false and misleading manner thus denying Paoletta her due process rights to properly defend against this bogus Complaint. 82. Plaintiffs Counsel has violated Pa. R.C.P. 1018 (Caption) for failure to conform with Pa. R.C.P. 1018 which states, "Every pleading shall contain a caption setting forth the name of the Court, the number of the action and the name of pleading. The Caption of a compliant shall set forth the form of the Supreme Court and the Judicial Committees in the Pennsylvania Senate and House of Representatives and the Pa. Attorney General. 31 action and the names of all the parties, but in other pleadings it is sufficient to state the names of the first party on each side in the Complaint with an appropriate indication of other parties." 83. Summation of Case. Paoletta states that the Plaintff has failed to establish any sufficient cause of action under either Breach of Contract and the account stated theory for Plaintiff failed to prove or establish the needed material facts based upon the elements of contract law or account stated. Plaintiff has failed to properly allege the existence of any contract binding Paoletta to Plaintiff and also fails to prove and/or even allege that Paoletta assented to the account balance. Paoletta concludes that Plaintiff is trying to prove a breach of contract and has therefore failed to support that theory. WHEREFORE, DEFENDANT moves that Plaintiff's Complaint be dismissed for lack of established jurisdiction of this Court; for failure to prove standing; for failure to attach the required documents upon which Bank should rely in filing this Complaint; for failure to plead the Complaint with specificity; and for Plaintiff's failure to properly verify their Complaint. Paoletta places this court on notice that this court's responsibility is for a proper adjudication of all the issues in this case without any granting of any "Motion for Protective Order" and/or any "Motion in Limine" which would violate Paoletta's rights in order to protect the Plaintiff. Paoletta seeks any and all relief that this Court deems just and proper. 32 Respectfully Submitted, Arlene S. Paoletta 33 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff, CASE NO.: 10-838 V. AMENDED PRELIMINARY OBJECTIONS ARLENE S. PAOLETTA JURY TRIAL DEMANDED PURSUANT TO Pa. R.C.P. 1007.1 Defendant. CERTIFICATE OF SERVICE Arlene S. Paoletta, Defendant, hereby notifies this Court that proper service was completed by U.S. First Class Pre-paid mail to the Plaintiff and the Plaintiff s Counsel on June 27, 2011, to the following addresses: FIA CARD SERVICES, N.A. F/K/A/ Bank of America 1825 E. Buckeye Road PHOENIX, AZ 85034 Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 Alzme-91-t- y1 fr Arlene S. Paoletta 34 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIA CARD SERVICES, N.A. F/K/A BANK OF AMERICA Plaintiff, V. ARLENE S. PAOLETTA Defendant. CASE NO.: 10-838 AMENDED PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED PURSUANT TO Pa. R.C.P. 1007.1 VERIFICATION Arlene S. Paoletta, Defendant, hereby notifies this Court that these Amended Preliminary Objections to Plaintiff's Amended Complaint were filed with this Verification attached and stated as being true and correct based upon Paoletta's understanding, information, beliefs and personal knowledge and states under or subject to the penalties of 18 Pa. C.S.A.Section 4904 and mailed by U.S. First Class Pre-paid mail to the Plaintiff and the Plaintiff's Counsel on June 27, 2011, to the following addresses: FIA CARD SERVICES, N.A. F/K/A/ Bank of America 1825 E. Buckeye Road PHOENIX, AZ 85034 v ??.vrc.c_ x? ? i w Arlene S. Paoletta Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, Pa. 19428 35 2015543 THIS IS AN ARBITRATION MATTER. DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 ATLANTIC CREDIT & FINANCE INC. Assignee to Direct Merchant 3353 Orange Avenue Roanoke, VA 24012 vs. JOHNNY R JOHNSON 56 RINGNECK TRL FAIRFIELD PA 17320-9620 ASSESSMENT OF Nf co z 4 i C rn COURT OF COMMON PLEAS ADAMS COUNTY DOCKET NO. : - ?- 2+4 NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. ADAMS COUNTY COURT ADMINSITRATOR ADAMS COUNTY COURTHOUSE 111-117 BALTIMORE STREET GETTYSBURG, PA 17325 717-337-9846 ? 01 VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff(s) in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. FREDERIC I. WE ERG, ESQUIRE .W A 1w THIS IS AN ARBITRATION KC026073 GORDON & WEINBERG, pDAAMAGES H MATTER. ASSESSMENT OF FARING REQUIRED. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL, M.' SCHOFIELD, JR., ESQUIRE 21 SOUTHIden21STtificSTREETation . 81894 PHILADELPHIA, PA 19103 215/988-9600 NCO PORTFOLIO MANAGEMENT, AS ASSIGNEE OF CHASE 1804 Washington Blvd. Baltimore MD 21230. COURT OF COMMON PLEAS o ADAMS COUNTY -f -ao vs. JULIE M FOWLER 2180 MUMMASBURG RD GETTYSBURG PA 17325-7420 DOCKET No. : ® f - S- M 77 YOU HAVE BEEN SUED IN COURT. N TI E FORTH IN THE FOLLOWING PAGES IF YOU WISH TO DEFEND AGAINST THIS COMPLAINT AND NOTICE ARE , YOU SERVED ST TAKE ACTION WITHIN TW THE CLAIMS SET ' By EN OR BY ATTORNEY AND FILING IN WRITING WITH TERIIJG A WRI ENTY (20) DAYS AFTER TO THE CLAIMS SET FORTH AGAINST y0U THE COURT YOUR DEFPEARAN R PERSONALLY THE CASE MAY PROCEED WITHOUT Y YOU ARE WARNED THAT IF YOU FAILBTOCDO So FUR THER NOTICE YOU THE COURT WITHOUT ENTERED AGAINST YOU By FOR AND A ANY MON JUDGEMENT CLAIMED Y BE EY ANY OTHER CLAIM OR RELIEF REQUESTED BY PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU IN THE COMPLAINT OR FOR YOU SHOULD 'TAKE THIS PAPER TO YOUR LA IF YOU DO RAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR WYER AT ONCE. FIND OUT WHERE YOU CAN G TELEPHONE THE OFFICE SET FORTH O FLOW TO ET LEGAL HELP. ADAMS COUNTY COURT ADMINSITRATOR ADAMS COUNTY COURTHOUSE 111-117 BALTIMORE STREET GETTYSBURG, PA 17325 717-337-9846 VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of.his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. FREDERIC I. WEI B ESQUIRE N THIS IS AN 2017663 TTER. DAMAGES HEARING TREQUIRED. 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 Palisades Acquisition V. LLC as Successor and Interest to Juniper Bank 2101 west Ben White Blvd Austin, TX 78704 vs. Luann S Vanmetre 842 Baltimore Pike Gardners PA 17324-9005 ASSESSMENT OF to ? COURT OF COMMON PLEAS -? ADAMS COUNTY LY U0 'V DOCKET NO. : 6( ` T- M YOU HAVE NO- TICB FORTH BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET IN THE FOLLOWING PAGES, THIS COMPLAINT YOU MUST TAKE ACTION WITHIN OR BY TWENTY AND NOTICE ARE SERVED, BY ENTERING A WRITTEN App EARANCE {20) DAYS AFTER ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU PERSONALLY THE CASE MAY PROCEED THE COURT WITHOUT YOU AND A ARE WARNED THAT IF YOU FAIL TO DO SO WITHOUT FURTHER NOTICE FOR ANY JUDGEMENT MAY BE ENTERED AGAINST YOU BY ANY OTHER CLAIM OR RELIEF Rfi NEB' CLAIMED IN THE COMPLAINT OR FOR PROPERTY OR OTHER RIGHTS IMPORTANT STED BY THE PLAINTIFF. TO YOU. YOU MAY LOSE MONEY OR YOU SHOULD TAKE THIS PAPER TO YOUR WYER CANNOT LAWYER AFFORD c IND OUT WHfi E y0U CAN G T?LEGAL HELpR TELEPHONE ATHE NOFFICE IF SET YOU DO FORTH NOT BELOW HAVE A TO ADAMS COUNTY COURT ADMINSITRATOR ADAMS COUNTY COURTHOUSE 111-117 BALTIMORE STREET GETTYSBURG, PA 17325 717-337-9846 -Y ?.J 1 VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff (s) in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. FREDERIC I. 56i RG, ESQUIRE THIS IS AN ARBITRATION 20ER445 DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 ASSESSMENT OF 'r PALISADES COLLECTION, LLC AS COURT OF COMMON PLEAS SUCCESSOR IN INTEREST TO ADAMS COUNTY 9?.$ PROVIDIAN BANK 2101 WEST BEN WHITE BLVD.' AUSTIN, TX 78704 vs. DOCKET NO. Robert W Haws 625 Bingaman Rd Orrtanna PA 17353-9709 YOU HAVE BEEN SUED IN COURT. NOTOU 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. ADAMS COUNTY COURT ADMINSITRATOR ADAMS COUNTY COURTHOUSE 111-117 BALTIMORE STREET GETTYSBURG, PA 17325 717-337-9846 VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff(s) in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. FREDERIC I. BERG, ESQUIRE I 2018413 THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 ?-- PAUL M. SCHOFIELD, JR., ESQUIRE -.. r Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 A_ 215/988-9600$ PALISADES COLLECTION, LLC AS COURT OF COMMON PLEAS SUCCESSOR IN INTEREST TO ADAMS COUNTY PROVIDIAN BANK 2101 WEST BEN WHITE BLVD. AUSTIN, TX 78704 vs. DOCKET NO. : 05 S _ 1-(''O John J Little 134 Sunrise Dr Abbottstown PA 17301-9606 NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND.FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. ADAMS COUNTY COURT ADMINSIRATOR ADAMS COUNTY COURTHOUSE 111-117 BALTIMORE STREET GETTYSBURG, PA 17325 717-337-9846 ?r VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff(s) in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. FREDERIC I. W INB G, ESQUIRE