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HomeMy WebLinkAbout10-1204I? 4 NC034330 THIS IS AN ARBITRATION MATTER. DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 JOEL M. FLINK, ESQUIRE Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 AS SES S?ENT,?;',OF GU r cn PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK 210 SYLVAN AVENUE ENGLEWOOD CLIFF 07632 Vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. MARY BAUM 33 GILBERT RD SHIPPENSBURG PA 17257-9472 Q94#k CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 r rr (717) 249-3166 gcn.od ?liqt 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. 1 ? COMPLAINT IN CIVIL-ACTION 1. Plaintiff is a debt buyer and successor in interest to the original creditor as set forth in the caption of this Complaint. 2. At all times relevant hereto, the defendant(s) was the holder of a credit card, which at the request of the defendant(s) was issued to the defendant(s) by the original creditor under the terms of which the original creditor agreed to extend to defendant(s)the use of original creditor's credit facilities. 3. Defendant(s) accepted and used the aforesaid credit card so issued and by so doing agreed to perform the terms and conditions prescribed by the original creditor for the use of said credit card. 4. The defendant (s) received and accepted goods and merchand- ise and/or accepted services or cash advances through the use of the credit card issued by the original creditor. A true and correct copy of the Statement of Account or Affidavit of Account, if available, is attached hereto as Exhibit "A". 5. All the credits to which the defendant (s) is entitled have been applied and there remains a balance due as of January 25, 2010 in the amount of $779.21. 6. Plaintiff has made demand upon the defendant(s)for payment of the balance due but the defendant(s)has failed and refused and still refuses to pay the same or any part thereof. I • 4. 7. Defendant's last payment on account was made on 7/2/2008. WHEREFORE, plaintiff claims of the defendant(s) the sum of $779.21 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: 7? 11 FREDERIC NBERG, ESQUIRE JOEL M. FLI K, ESQUIRE Attorney for Plaintiff P01A.DB ¦ ti NC034330 6008893470158506 PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK VERIFICATION I hereby state that I am the agent for the plaintiff herein, and that the facts set forth in the attached Affidavit which is incorporated by reference in the foregoing Complaint in Civil Action are true and correct to the best of my knowledge, information and belief and is based upon information which plaintiff has furnished to counsel. The language in the Complaint is that of counsel and not of plaintiff. To the extent that the contents of the Complaint are that of counsel, plaintiff has relied upon counsel in making this verification. This verification is made subject to 18 Pa.C.S. §4904 which provides for certain penalties for making false statements. MARIE SMIKLE Name IL EXHIBIT "A" ¦ w I Ak. NC034330 6008893470158506 PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK Plaintiff, MARY BAUM Defendant. I, MARIE SMIKLE 1. I am more than 18 years of age and am competent to make this affidavit. VS. Docket# AFFIDAVIT being of full age, hereby certify as follows: 2. I am employed by plaintiff, PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK as a custodian of records for the records and facts at issue. 3. I am familiar with all of the facts and circumstances in connection with this case and have been authorized to make this certification in the above referenced case. 4. In the ordinary course of business and as a regular business practice, PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK `s employees or representatives with knowledge of the accounts compile business records memorializing account activity and transactions at or near the time they occur. 5. Entries in the files and business records of Plaintiff are made contemporaneously with transactions in order to preserve the accuracy of the transaction. 6. Plaintiff's files and business records are maintained by PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK . 7. I have custody and control of the files and business records relating to this account. 8. There is now due and owing from defendant to plaintiff, the amount of $767.35 plus interest of $5.30 at the rate of 6% less credits in the amount of $.00 totaling $772.65 as of December 4, 2009. 9. The documents attached to this affidavit, if any, are true and accurate copies of business records regarding the Defendant's account. 10. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, in the military service of the United States as defined in the Service members Civil Relief Act as amended nor an infant, incompetent, under mental defect or infirm. 11. Defendant is entitled to no known valid defenses, setoffs or counterclaims, and further states that written demand was made upon the Defendant. I affirm under the penalty of perjur th t abo e is are true and correct. (NAME OF AFFIA T) Sworn to and Subscribed befor me this V_ day of w Notary Public ?Cd14W W pq i? a Jon M 2D12 a- 10 A i V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA PALISADES COLLECTION,LLC, ASSIGNEE OF GE MONEY BANK Plaintiff, V. CIVIL ACTION - LAW MARY BAUM, DOCKET NO. 10-1204 Civil Term Defendant. PRAECIPE Please enter my appearance for the Defendant in the above. Date: 3/4/ov/0 ieoe -Af fr eBiringer 401 E.Louther Street Carlisle,PA 17013 (717)243-9400 c o ? rn a FT1 c Q ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA PALISADES COLLECTION,LLC, ASSIGNEE OF GE MONEY BANK Plaintiff, V. MARY BAUM, Defendant. rr! tr, a. CIVIL ACTION - LAW DOCKET NO. 10-1204 Civil Term N w O oa PRELIMINARY OBJECTIONS TO COMPLAINT Defendant moves for the dismissal of Plaintiff's Complaint, and as grounds therefore avers the following: Preliminary Ohiection Pursuant to Pa. R. Civ. P. No. 1028(a)(4) (Demurrer) 1. Plaintiff filed a Complaint demanding damages in the amount of $779.21, plus costs, and interest and attorney fees. 2. Plaintiff alleges it is owed certain funds by assignment from the original creditor, GE Money Bank, and by Defendant for his use of a credit card. 3. The Complaint fails to attach any assignment or agreement between the Defendant and the Plaintiff, and the assignment and agreement would form the very core of Plaintiff's case. 4. The Complaint fails to allege any agreement with the Defendant on the amounts due or the terms of the agreement, so as to support a theory of an account stated, or to allege how Defendant was unjustly enriched by the extension of credit. 5. The Complaint fails to provide any documentation or accounting of charges allegedly made by the Defendant, which would support Plaintiff's claim of damages, such as a breakdown of charges, payments and interest, so that Defendant could bring a Motion for Summary Judgment based upon affirmative defenses such as the Statute of Limitations and/or counterclaims. Preliminary Objection Pursuant to Pa. R. Civ. P. Nos 1019(h)and(i) and 1028(a)(3) (Insufficient Specificity in Pleading) 6. Paragraphs 1- 5 are incorporated hereinafter by reference hereto. 7. 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. 8. 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. 9. 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. 10. 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. 11. Defendant is entitled to know how he has been enriched by the provisions of goods and or services and how payments have been applied to any alleged goods or services provided. Preliminary Obiection Pursuant to Pa. R. Civ. P. No. 1028(a)(2) (Failure to Attach a Writing) 12. Paragraphs 1 - 11 are incorporated hereinafter in reference hereto. 13. 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: 3 `4114h),010 Respectfully submitted: MidPenn Legal Services 4eorey for Defendant BY: M. iringer, 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 4ay of March 2010, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Frederic I.Weinberg, Esquire 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 By: Geoffrey M. Biringer Attorney for the Defendants 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 SHERIFF'S OFFICE OF CUMBERLAND COUNTY FlLED- I:) `ri(XI. - Ronny R Anderson 1lC THEC wrt"i Sheriff ?????t? at ? u to t?r Jody S Smith 1,1440 10{0 FkR -8 PM 12.54 Chief Deputy Edward L Schorpp g ry Solicitor OFFICE OF Tt`, F,RIFF r, Palisades Collection, LLC Case Number vs. 2010-1204 Mary Baum SHERIFF'S RETURN OF SERVICE 02/23/2010 03:48 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on February 23 2010 at 1548 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Mary Baum, by making known unto herself personally, at 33 Gilbert Road, Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $46.00 SO ANS S, February 25, 2010 RO R ANDERSON, SHERIFF By r A-1 Deputy heri (C) CountySuite Shentt. Te eosoft Inc CITIBANK (SOUTH DAKOTA), N.A. 701 East 60th Street North Sioux Falls, SD 57117 Plaintiff V. Lisa Marie Horner 903 Mud Level Road Shippensburg, PA 17257-9706 Defendant Response ?n ?-he Cam. ?? CbMN6A pleas No. lb- laa? Civ i ? 12.r m C-w 'l ( G-C-A on -- 17 x . CO Zu CO An -c ? 1. Defendant is Lisa Marie Horner, who resides at 903 Mud Level Road, Shippensburg, Cumberland County, Pennsylvania. 2. Plaintiff is Citibank (South Dakota), N.A., with place of business located at 701 East 60th Street North, Sioux Falls, South Dakota. 3. Defendant has enrolled in a debit relief program with First Financial Group with place of business located at 5010 West Carmen Street, Suite 2250, Tampa, Florida. 4. First Financial Group sent authorization letter to Plaintiff on February 27, 2009. No response was given back to First Financial Group from the Plaintiff. Exhibit A. 5. First Financial Group resent authorization letter via fax on March 13, 2009. Again no response was given back to First Financial Group from the Plaintiff. 6. First Financial Group resent authorization letter via fax again along with a phone call to the Plaintiff in regards to defendant. Plaintiff never responded back to First Financial Group about the letter. 7. First Financial Group contacted Plaintiff on February 26, 2010 via phone three times receiving a busy tone each time. 8. First Financial Group contacted Plaintiff on March 2, 2010 at approximately 3:00 pm and received a fax number and again resent the authorization letter to the Plaintiff. 9. Defendant sent ceasing communication letter to Plaintiff. Exhibit B. 10. Defendant joined First Financial Group due to being unable to pay credit card bills. Husband main provider of the household was laid off the majority of 2009. Wherefore, defendant demands judgment against plaintiff, where the plaintiff will make response to First Financial Group to settle account. Lisa Marie Horner t dnt? Date: 7/24/2009 HORNER, LISA 903 MUD LEVEL ROAD SHIPPENSBURG, PA 17257 Home Depot 6035-3201-0342-5276 Please be advised that as of the date listed above I am being represented by 1st Financial Group. I have every intent to resolve the debt, however all communication, payment arrangements, and settlement negotiations will be made through 1st Financial Group. With this being said please acknowledge and honor my request to cease all calls being made to my home and/or work at the following phone numbers: (717) 530-1727 Please update your records by adding 813-321-7322 as your contact number in regards to this debt. Thank you for your cooperation. I look forward to resolving this matter in the very near future. 4 HMNEk, USA Date: LISA HORNER 903 MUD LEVEL ROAD SHIPPENSBURG, PA 17257 Home Depot 6035-3201-0342-5276 Mr./Ms. Collector, I am writing in response to your constant phone calls! According to the Fair Debt Collection Practices Act, [15 USC 1692c] Section 805(c): CEASING COMMUNICATION: You must cease all communication with me after being notified in writing that I no longer wish to communicate with you. Therefore, I demand that you stop calling me at home, at work, on my cell phone or at any other locationl In accordance with the federal FDCPA, now that you have received this "stop calling" letter, you may only contact me to inform me that you: are terminating further collection efforts; invoking specified remedies which are ordinarily invoked by you or your company; or intend to invoke a specified remedy. Be advised that I am well aware of my rights! For instance, I know that any future contact by you or your company violates the FDCPA and that since you already have my location information, calls made by you or your company to any 3rd party concerning me violates section 805(b)2 of the FDCPA. Be advised that I am keeping accurate records of all correspondence from you and your company, including tape recording all phone calls. If you continue calling me I will pursue all available legal actions to stop you from harassing me and my family. ISA HORNER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK, Plaintiff V. MARY BAUM, Defendant/Respondent t7 ,y L;? CIVIL ACTION - LAW -? = --i -? in ' `- y 3 Docket: 10-1204 Civil Term PETITION FOR LEAVE TO WITHDRAW AS COUNSEL FOR DEFENDANT PURSUANT TO Pa. R.C.P. NO. 1012(d) NOW, comes Petitioner, Nancy L. Datres, Esquire, of MidPenn Legal Services, and hereby petitions the Court as follows: 1. Petitioner is Nancy L. Datres, Esquire, counsel for the above-named Defendant, with a business address of 213-A North Front Street, Harrisburg, Pennsylvania 17101. 2. Defendant/Respondent is Mary Baum, an adult individual residing at 33 Gilbert Road, Shippensburg, Pennsylvania 17257. 3. Plaintiff is Palisades Collection, LLC, Assignee of GE Money Bank and with an address of 210 Sylvan Avenue, Englewood Cliffs, New Jersey 07632. Plaintiff is represented by Frederic I. Weinberg, Esquire, of Gordon & Weinberg, P.C. with an address of 1001 E. Hector St., Suite 220, Conshohocken, Pennsylvania 19428. 4. Defendant/Respondent first contacted the Carlisle office of MidPenn Legal Services in February 2010, at which time there were only a few days prior to the deadline to respond to a civil suit filed against Defendant by Plaintiff. 5. Because time was of the essence, a responsive pleading was filed on behalf of the Defendant/Respondent in good faith that Defendant/Respondent would shortly thereafter 1 come to the office of MidPenn Legal Services to sign a retainer agreement and to sign required intake paperwork. 6. Petitioner was assigned this case after Geoffrey M. Biringer, Esquire, of MidPenn Legal Services, the attorney of record for the Defendant/Respondent, went on medical leave. 7. Petitioner has been representing the Defendant/Respondent in this civil consumer credit card matter since November 16, 2010 through the present. 8. In reviewing the case file, Petitioner noted that the Defendant/Respondent had never followed through with going to the Carlisle office in person to sign the required retainer and required intake papers. 9. Petitioner mailed a letter to the Defendant/Respondent on December 10, 2010 that included the retainer and intake forms, explained the retainer and forms, and requested the Defendant to sign the retainer and forms and return them to Petitioner in a postage- paid, self-addressed envelope, which was enclosed with the letter. 10. Petitioner also included Petitioner's telephone number in said letter and requested the Defendant/Respondent to call Petitioner to discuss the status of her case. 11. Having received no response from the Defendant/Respondent by mail or by telephone, the Petitioner called the Defendant on January 19, 2010 at the home telephone number the Defendant provided to MidPenn Legal Services. A male, who identified himself as the Defendant's father, answered the phone and said the Defendant was not home. 12. Said male provided the Petitioner with the Defendant's cell phone number. The Petitioner called the cell phone, but there was no answer. Petitioner left a message on the cell phone voicemail, requesting that the Defendant call Petitioner. 2 13. Also on January 19, 2011, Petitioner mailed a second letter to the Defendant again containing the retainer and the intake forms, and again requesting the Defendant to sign and return the forms in the postage-paid, self-addressed envelope also enclosed. 14. To date, the Defendant/Respondent has failed to sign and return the forms and has failed to contact the Petitioner by mail, by telephone, or by any other means. 15. In short, the Defendant/Respondent has not cooperated with your undersigned counsel. 16. Defendant/Respondent's lack of cooperation prevents your undersigned counsel and MidPenn Legal Services from representing Defendant to the extent required by the rules of professional conduct. 17. To the best of Petitioner's knowledge, no Judge has ruled upon any other issue in this same matter or related matter. 18. Pursuant to Pa. R. C. P. No. 1012, Petitioner may not withdraw as counsel without leave of court unless another attorney is entering their appearance. 19. Petitioner is not aware of any other attorney entering his or her appearance on behalf of Defendant. 20. Petitioner is not aware of any hearings scheduled in this matter and is not aware of any pending pleading deadlines. 21. Petitioner is not seeking concurrence from opposing counsel as Petitioner believes that doing so would create a risk of prejudice to the Defendant/Respondent. 22. The granting of the relief prayed for will not prejudice the Defendant/Respondent. WHEREFORE, Petitioner respectfully requests this Honorable Court to allow her appearance, the appearance of Geoffrey M. Biringer, Esquire, and of MidPenn Legal Services as counsel for the Defendant in this matter to be withdrawn. 3 Respectfully Submitted, MIDPENN LEGAL SERVICES Date: 3 1 \ BY: 0 2W - ancy L tres Supreme Court ID No. 203226 MidPenn Legal Services 213-A North Front Street Harrisburg, PA 17101 Phone: (717) 232-0581 x 2107 Fax: (717) 232-7821 VERIFICATION I, Nancy L. Datres, Esquire, verify that the statements made in the foregoing petition are true and correct, to the best of my knowledge, information and belief. I understand making any false statement would subject me to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: (? I 11 C , Nancy . Datres, Esquire PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK, PLAINTIFF V. MARY BAUM, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVA NIA rn ? < O : NO. 10-1204 CIVIL c. - ORDER OF COURT AND NOW, this 16th day of June, 2011, upon consideration of MidPenn Legal Services' Petition for Leave to Withdraw, such relief is hereby GRANTED. By the Court, I M. L. Ebert, Jr., /'MidPenn Legal Services 213-A North Front Street - , Harrisburg, PA 17101 C?iP.s Mary Baum (? aiDf? 33 Gilbert Road Shippensburg, PA 17257 Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 J. bas i 'LED-QF FICF w'' 4F PROTNq$ 8,60 GORDON & WEINBERG, P.C. 2012 FES 23 P11 2: 24 CU BY: FREDERIC I. WEINBERG, ESQUIRE MBERLANQ COUNTY Identification No.: 41360 PENNSYLVANIA JOEL M. FLINK, ESQUIRE Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 PALISADES COLLECTION, LLC ASSIGNEE OF GE MONEY BANK VS. MARY BAUM COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO 10-1204 PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above-captioned action, without prejudice. GORDON & WEINBERG, P.C. BY: FREDERIC I. INBERG, ESQUIRE JOEL M. FLINK, ESQUIRE Attorney for Plaintiff P006 CERTIFICATION OF SERVICE I, FREDERIC I. NEINBERG, ESQUIRE, hereby certify that I, on the date below, served a copy of the Praecipe to Withdraw Complaint to Pa.R.C.P. 1028(c)(1), via First Class Mail, postage pre-paid, to all other parties or their counsel of record. _-_ ?Z__ FREDE I EINBERG, ESQUIRE Dated