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Home My WebLink About10-1164 T F!f fu _,,... 201-0 FEB 18 pil t, C?2 rr ??rr? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK Plaintiff vs. DANIEL L MCCLINTOCK Defendant No : m - /k/t/ ?l !/! COMPLAINT IN CIVIL ACTION FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: James C. Warmbrodt,42524 WELTMAN, WEINBERG & REIS CO., L.P.A. 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 (412) 434-7955 FAX: 412-338-7130 08021925 C A Pit KMJ 4) ?elff t11-1105-126 ,41? A)A)'Mjb& 'f P-# -'-3776, y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK Plaintiff VS. Civil Action No DANIEL L MCCLINTOCK Defendant COMPLAINT AND NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you b the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 COMPLAINT 1. Plaintiff, DISCOVER BANK is a corporation with offices at 6500 NEW ALBANY ROAD NEW ALBANY , OH 43054 . 2. Defendant is adult individual(s) residing at the address listed below: DANIEL L MCCLINTOCK 306 S HANOVER ST APT 3 CARLISLE, PA 17013 3. Defendant applied for and received a credit card bearing the account number XXXXXXXXXXXX0853 . 4. Defendant made use of said credit card and has a current balance due of $5252.49 , as of December 10, 2009 . 5. Defendant is in default by failing to make monthly payments when due. As such, the entire balance is immediately due and payable to Plaintiff. 6. Plaintiff is entitled to the addition of interest at the rate of 16.240% per annum on the unpaid balance from December 10, 2009 . A copy of Plaintiff's Statement is attached hereto, marked as Exhibit "1" and made a part hereof. 7. Plaintiff avers that the Agreement between the parties provides that Defendant will pay Plaintiff's attorneys' fees. 8. Plaintiff avers that such attorneys' fees will amount to $125.00 . 9. Although repeatedly requested to do so by Plaintiff, Defendant has willfully failed and/or refused to pay the balance due to Plaintiff. Wherefore, the Plaintiff prays for Judgment in its favor and against Defendant , DANIEL L MCCLINTOCK individually , in the amount of $5252.49 with interest at the rate of 16.240. per annum from December 10, 2009 plus attorneys' fees of $125.00 , and costs. games warmbrodt!42524 WELT WEINBERG & REIS CO., L.P.A. 436 S e th Avenue, Suite 1400 Pitts ur h, PA 15219 (412 4 4-7955 FAX: 41 -338-7130 080 19 C A Pit KMJ This law firm is a debt collector atte p ing to collect this debt for our client and any information obtaine will be used for that purpose. DISCOVER CARD New Balance Minimum Payment Due $5,252.49 $5,252.49 Payment Due Date December 10, 2009 15 SDSN6A01 0003331 DANIEL MCCLINTOCK 306 S HANOVER ST APT 3 CARLISLE PA 17013-3910 Account Number ending in 0853 Enter Amount Enclosed Below $ Boa a$ Please make check payable to Discover Card. Minimum yment due includes a past due amount of X957.00. Will your payment get to us on time? Pay your bill online and your payment can be made to your account on the same day. Visit Discover.com/payments today. PO BOX 6103 1111111111111 till III III It 11 CAROL STREAM IL 60197-6103 Address, e-mail or telephone change? Print change in space ?i??ri??ri above, or go to Discover.com. Print your e-mail address to receive important Account information and special offers 000001986450414335789052524900000000525249 Discover More Card Account Summary Closing Date: November 15, 2009 page 1 of 1 Account number ending in 0853 Previous Balance $5,252.49 Payment Due Date December 10, 2009 Payments And Credits 0.00 Minimum Payment Due $5,252.49 Purchases + 0.00 Credit Limit $4,300.00 Cash Advances + 0.00 Credit Available $0.00 Balance Transfers + 000 Cash Credit Limit $0.00 Finance Charges + 0.00 Cash Credit Available $0.00 New Balance $5,252.49 Cashback Bonus® Opening Cashback Bonus Balance $ 0.00 New Cashback Bonus This Period + 0.00 Cashback Bonus Balance $ 0.00 EcnhbookBomu36Anniversmy ---- -- ---- --- ----- - ----------- -- Date: July 15 How Can We Help You? p 1. Visit Discover.com to pay your bM for no cost, view your l t t A i f d d It's your choice - 3 wa s to hel a es ccount n ormation, earn an re eem rewards and more 2. Call 1-800-DISCOVER )347-2683) for fast easy self-service p y Please have your Discover Card available. , options or to speak with a Customer Service Account Manager For TDD )assistance for hearing impaired) see reverse side :3. Write us at Discover Card, PO Box 30943, Soft Lake City, UT 84130 Transactions $0 Fraud Liability Guarantee Use your Discover Card with confidence. Information For You Your Account is overlimit. While we are permitted under the Cardmember Agreement to charge you on Overlimit Fee, we have chosen not to do so at this time. We reserve the right to do so if, as of the close of a billing period, your outstanding Account balance exceeds your Account credit limit, Seethe Overlimit Fee section of the Cardmember Agreement for details. Finance Charge Summary Average Daily Nominal Transaction ANNUAL ANNUAL Periodic Fee Daily Periodic PERCENTAGE PERCENTAGE FINANCE FINANCE Balances Rates RATESRATES S_ CHARGQS_ current billing period: 15 days Purchases $0 0.04449% 16.24% V 16.24% $0 $0 Cash Advances $0 0.08216% 29.99% V 29.99% $0 $0 The rates that apply to your Account are either fixed (F) or they may vary (V) as noted above. MlportaM NNorrnatbn. If there is more than one page to this billing sta tement see the back of each page for additional important information Ste Vow Cali ireassber Agrselaatlt. Your Cardmemtler Agreement contains all the terms of your Account to 0 Lad K oaten earM. Report immediatey! GII 1400-917-2679. m Z lSrlq RISMs lpnsaclwn Suwsstry. In Case of Errors or Questions About Your Bill if you think your bill is wron0, or 9 you need more information about a o on your bill, write us on a separate sheet of paper at Discover MoresM, PO Box 30421, SaN Lake City, UT 64130.0421, as soon as possible We must heat from ?? no idler than 60 days after we sent you the first bill on which the error or problem appeared You can telephone us, but doing QQ so will not pr your rights In your letter, give us the following information E eYouf name and Account number •The dollar amount of the suspected error 'D?ribe the error and explain, if you can, why you believe there is an errs . If you need more information, describe the item you are unsure N You do not have to pay any amount in question while we are investigating, but you are still obligated to pay the parts of your bill that are not in V question While we investigate your question, we cannot report you as delinquent or take any action to collect the amount you question. Special ole in good Card hlaodrses: 9 you have a problem with the quality of prods or services that you purchased with a credit card, and you have good Correct the problem with the merchant you mg not have to pay the remaining amount due on the rxvds or services You have this protection only when the purchase price was more than S5y0 and the purchase was made in your home slate or wln 100 miles of your marling address. (If we own a operate the merchant or if we nailed you the advertisement for the goods or services, all purchases are covered regardless of the amount or location of purchase) Palinrarb. Send only your payment and the top portion of this statement in the envelope provided DO not send cash 8sendin your check as described above, you authorize us to use information on your check to make an electronic fund transfer from your account at the financial institution indicated on your check of to process the payment as a check transaction 0 payment a processed as an electronic fund transfer, the transfer will be for the amount of the check When we use information from your check to make an electronic fund transfer, funds may be withdrawn from your account as soon as the same day we receive your, payment and you will not receive your check back from your financial institution The processng of your payment may be delayd if you send cash, correspondence or other items with your payment 0 you send the payment to any other address or if you use an envelope other than the one provided Payments received on or after 1 PM Maeday through Friday or on a weekend or bank holiday wnN be posted to your Account as of the next business day If you have misplaced your envelope, send our-p3yhialt to Discover Bank, PO Box 5103, Carol Stream. IL 60197.6103 Please allow 7-10 days for delivery If your payment rs returned unpaid, we reserve the nVt to resubmit it as an electronic debit. You can pa r minimum W nt or a greater amount over the telephone, and you can set up automatic payments GII us at 1-800-347.2683 You will n Nis statement anri your bank account Information You must ensure that sufficient funds are avai ble in your bank account and all transactions must comply with US law You will be asked to provide the first 5 digits of your account statement zip code By entering those numbers as your electronic signature, you will be egreeng to this authorization to allow us and your bank to deduct each payment you authorize from your bank account and to negate debit a credit entries to your bank account as applicable to correct an error in the processn of such payment You must tell us the amount of each payment or you can select an amount such as the Minimum Payment Due or the New Balance on each statement You can cancel a payment however we must receive notice at least three business days in advance of the scheduled payment You may notify us by phone at 1.800.347-2683 or by mail at address listed in the previous paragraph N your payments may vary in amount we will tell you on each monthly statement when your payment will be made and how much it will bbee Your Automatic payment amount may be less than mdreate! on the monthly statement based on credits or payments applied during the billing cycle CraM Roper". We may report information about your account to credit bureaus Late payments, missed pa nls, or other defaults on your account may you meted mid credit report We normally report the status and pa nt hMory of your Account to credit fsepaDng aDencies each that month If report is inaccurate or ncomplete, please write us at me following address Discover Mores Grd, PO Box 15316, Wilmington DE 19850-5316 Please include your name, address, home telephone number and Account number. PEMOOIC FINANCE CRANES. Periodic Finance Charges are imposed on all transactions from the date the transaction is posted to your Account until the date you pay your entire New Balance, by making payments or receiving credits However, we will provide the fabwin "grace riod" if 1rou gab the New net on your previous billing statement Dy the Payment Due Date shown on that statement and you pay As New Balance by the Payment Due Date on this statement we will not impose Perxx]IC Finance Charges on new purchases, that is purchases first appearing on this statement Otherwise, you will receive a billing statement next montn that includes Periodic Finance Charges on loose new purchases There is no grace period on balance transfers or cash advances We sort your transactions into gproups of purchases, cash advances. and balance transfers and then further sort the transactions within each group by their Annual Percentage Rate For example purchases su p t to a promotional rate and purchases subject to a standard rate would be separate groups We refer to these groups as transaction ca Ies Al the and of each billing period, we compute balances and Periodic Finance Charges for each day of the bi0nperiod for each transaction ca ory We use the following eeqquation to compute Periodic Finance Charges for each transaction category Average Balance x number of days in the billing period x Daily Peladlc Rate (See a finance chat summary on your statement for these amounts) Then we add up the Periodic Finance Charges for each transacUOn category to et the total Periodic Finance Charges for your Account The Average Daily Balance is shown as zero if, because of the grace period, no Periodic Finance Charges apply to the balance in a transaction category We use the two-cycle average daily balance (includin new transactions) method of calculating the balance upon which we impose Periodic Finance Charges This means if you did not pay the New Balance shown on the billing statement you received during the previous billing period by the Payment DuevDapteeur aShown ces teat fats statement we will impose Periodic Finance Charges on new purchases that first appeared on that billing statement your previous bluing statement appear on the current billing statement unless we already imposed Periodic Finance Charges on the purchases on We compute the Ave ra Daily Balance for each transaction category by adding up all the daily balances in a billing period for a transaction cakte0goryry and divdw the total the number of days in the billing cycle tNe compute the daily balance for each transaction category on each day byl21 adding the 9alowm to a previous day's daily balance. transactions made that day, fees charged that day and Periodic Finance Charges accrued on the previous day's Bai% balance, and by then subtracting any credits and payments that are applied against the balance of the Dansacbon category on that day In calculating the daily balance for the previous billing period, we consider the "previous day's daily balance" to have been zero on the first day of the billing period If a transaction is posted to you Account after the close of the billing period in which it occurs, we will treat the transaction as having occurred on the first day of the billing period in which it is posted to your Account. All fees charged to your Account are added to the standard purchase transaction category with the exception of Cash Advance Transaction Fee Finance Charges which are added to the applicable cash advance transaction category and Balance Transfer Transaction Fee Finance Charges which are added to line applicable balance transfer transaction category When the special rate expires, we move the unpaid balance of the balance transfer and the Balance Transfer Transaction Fee Finance Charges to Ne standard purchase transaction category However, if the special rate has been terminated under the Default Rate Plan, we leave the unpaid balance of the balance transfer and the Balance Transfer Transaction Fee Finance Charges in the applicable transaction category until the special rate would have expired For TOO (Tekeermrrlkatim Device for the Deaf) assistance, please ear 1400-347-7119. The DiscoverO MoiesM Card is issued by Discover Bank, Member FDIC. VERIFICATION The undersigned does hereby verify subject to the penalties of 18 PA.C.S. §4904 relating to unsworn falsifications to authorities, that he is James Ball (Name) Team Lead of DFS Services LLC , plaintiff herein, that (Title) (Company) he is duly authorized to make this Verification, and that the facts set forth in the foregoing Complaint in Civil Action are true and correct to the best of his knowledge, information and belief. WWR# 8021925 Daniel L. Mcclintock '6011004484580853 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Edward L Schorpp Solicitor ~- et~ ~~tih6Fr ~~1~~,~ ~~~r~ ~~~ ~ .., ~ ~`--s'T'~,~~ ZORO ~~~ 2~a P~°~ ~~ 23 i..~Y' ~„ F ;, ;' Discover Bank Case Number vs. 2010-1164 Daniel L. McClintock SHERIFF'S RETURN OF SERVICE 02/19/2010 04:03 PM -Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on February 19 2010 at 1603 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Daniel L. McClintock, by making known unto himself personally, at 306 S. Hanover Street, Apt. 3, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $33.40 February 22, 2010 SO AN~ERS, ~'` NY R ANDERSON, SHERIFF ~ By J ~v`> Deputy eriff !cj Cou.~'.ySuRr She:rfE Telaosu~t_ 7~nc. ~/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA DISCOVER BANK, Plaintiff, CIVII. ACTION -LAW v. DANIEL L. McCLINTOCK, :DOCKET NO. 10-1164 Civil Term Defendant. PRAECIPE Please enter my appearance for the Defendant in the above. Date• ~ `~ Geoffrey M.Biringer 401 E.Louther Street Carlisle,PA 17013 (717)243-9400 °. ~, ` m p ~ . ~ cr ~'' ~ ~ t ~ ~~ ' n 3 ~+ ~ ,...vc'- N N IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA DISCOVER BANK, ~ ° '~ Plaintiff ~. `~`~ ~ "~ , CIVIL ACTION -LAW ~=, -~- ~,;a~t~ r- v. ~~~ ~ ~ . ` ~ ~~ ~ DANIEL L. McCLINTOCK, :DOCKET NO. 10-1164 Civ il Ted N Defendant. : .;.~ R" ao PRELIMINARY OB. TECTIONS TO COMPLAINT Defendant moves for the dismissal of Plaintiff's Complaint, and as grounds therefore avers the following: Preliminarv Objection Pursuant to Pa. R Civ P No 1028(a)(4) (Demurrer) 1. Plaintiff filed a Complaint demanding damages in the amount of $5252.49, plus costs, and interest. 2. Plaintiff alleges it is owed certain funds by Defendant for use of a credit card. 3. The Complaint fails to attach any agreement between the Defendant and the Plaintiff, and the agreement would form the very core of Plaintiff's case. 4. The Complaint fails to provide any documentation or accounting of charges allegedly made by the Defendant, other than an account summary, which would support Plaintiff's claim of damages, such as a breakdown of charges, payments and interest, so that Defendant could bring a Motion for Summary Judgment based upon affirmative defenses such as the Statute of Limitations and/or counterclaims. Preliminarv Objection Pursuant to Pa R Civ P No 1028(a)(3) (Insufficient Snecil icity in Pleading) 5. Paragraphs 1 - 4 are incorporated hereinafter by reference hereto. 6. The Complaint contains alleged claims for money owed, but fails to specifically account for the purported sums outstanding and for the amounts of payments made. 7. The Complaint fails to be specific as to the allegations of the amount due and owing, and to state specific services or goods purchased by Defendant. 8. Even if an agreement was implied rather than written, Plaintiff has failed to specifically plead the date of default and provide an accounting of the amounts paid pursuant to an implied contract. 9. Plaintiff fails to state specifically how Defendant was enriched by the use of credit and fails to account for any payments made pursuant to a written agreement, a contract implied in law, or a theory of unjust enrichment. 10. Defendant is entitled to know how she has been enriched by the provisions of goods and or services and how payments have been applied to any alleged goods or services provided. Preliminar Obiection Pursuant to Pa R Civ P No 1028(a)(2) (Failure to Attach a Writing) 11. Paragraphs 1 - 10 are incorporated hereinafter in reference hereto. 12. The Complaint fails to attach a signed copy of the purported agreement between the creditor and the Defendant. WHEREFORE, Defendant prays that these Preliminary Objections be sustained and the Defendant's Complaint be dismissed with prejudice. Date: V~' `~/~~~a Respectfully submitted: MidPenn Legal Services Atto eys for Defendant BY: Geoffrey M. Biringer, Esquire 401 E. Louther Street Carlisle, PA 17013 (717) 243-9400 ID#18040 CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing Preliminary Objections To Complaint on this !'""cfaY of March 2010, by placing same in the United States mail, first class, postage prepaid, addressed as follows: James C. Warmbrodt, Esquire Weltman, Weinberg, & Reis 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 By: Geo frey M. Biringer Attorney for the Defendants 401 E. Lowther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 Al 1 %1: 1 9 ??. .., `UNTY ?tN!'v;a i !w? r;?1lrZ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK, Plaintiff vs. DANIEL L. MCCLINTOCK, Defendant No. 10-1164 PRAECIPE TO DISCONTINUE AND END WITHOUT PREJUDICE TO REFILE FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: Lyndsay E. Rowland, Esquire PA I . D. #205520 WELTMAN, WEINBERG & REIS CO., L.P.A. 1400 Koppers Building 436 Seventh Avenue Pittsburgh, PA 15219 (412) 434-7955 WWR#8021925 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK, Plaintiff vs. Civil Action No. 10-1164 DANIEL L. MCCLINTOCK, Defendant PRAECIPE TO DISCONTINUE AND END WITHOUT PREJUDICE TO REFILE TO THE CUMBERLAND COUNTY PROTHONOTARY: Kindly Discontinue and End the above-captioned matter upon the records of the Court without prejudice to refile and mark the costs paid. WELTMpdcf WEINBERG & REIS CO., A. 1 By: Lyndsdy E. owland,'Esquire 1400 Koppe s Building 436 Sevent Avenue Pittsburgh, A 15219 (412) 434-7955 WWR#8021925 SWORN TO AND SUBSCRIBED _'7 before me this day -e- 2010 , 72. L NOTARY PUBLIC COMMONWEALTH OF PENNSYLVANIA Notarial Seal Sheila G, Bevan, Notary Public j Roes Twp., Allegheny County Ji My Commission Expires Nov. 15, 2010 mosm4or• ? !ini#v?vl3n19 X q-x1iVon of Notaries