HomeMy WebLinkAbout10-2556PAUL J. KLEMM, ESQUIRE
NUDELMAN NUDELMAN & ZIERING P.C. Fl?-?'' ? '?'
> > ? ?'F THE PR)T°-"N0T4RY
425 EAGLE ROCK AVENUE
ROSELAND, NJ 07068
973-618-0000 2010 APR 2d 10-* ID # 92125 ATTO83JJVQI2 P%
f _A'IFF
F'=.f'JFNSY1Y' N A
CAPITAL ONE BANK (USA), N.A.
Plaintiff(s)
CUMBERLAND COUNTY
! o - as.s 0,1v i 1 l?filM
V
KATHLEEN J CARBONARO
Defendant(s)
COMPLAINT IN CIVIL ACTION
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 judgment may be entered
against you by the Court without further notice for
any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may
lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW. THIS OFFICE CAN PROVIDE
YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE
Si usted desea defenderse de las demandas que se
presentan mas adelente en las siguientes paginas, debe
tomar acci6n dento de los pr6ximos veinte (20) dias
depuds de la notificaci6n de esta Demanda y Avios
radicando personalmente o por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito
sus defensas de, y objecciones a, las demandas presentadas
aqua en contra suya. Se le advierte de que si usted falla de
tomar acci6n Como se describe anteriormente, el caso
puede proceder sin usted y un fallo por cualquier suma de
dinero reclamada en la demanda o cualquier otra
reclamaci6n o remedio solicitado por el demandante puede
ser dictado en contra suya por la Corte sin mas aviso
adicional. Usted puede perder dinero o propiedad u otros
derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU
ABOGADO INMEDIATAMENTE. SI USTED NO
TIENE UN ABOGADO, LLAME O VAYA A LA
SIGUIENTE OFICINA ESTA OFICINA PUEDE
PROVEERLE INFORMACION A CERCA DE COMO
CONSEGUIR UN ABOGADO.
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.
Cumberland County Bar Association
32 South Bedford St
Carlisle, PA 17013
(800) 990-9108
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS
DE UN ABOGADO, ES POSIBLE QUE ESTA
OFICINA LE PUEDA PROVEER INFORMACION
SOBRE AGENCIAS QUE OFREZCAN SERVICIOS
LEGALES SIN CARGO O BAJO COSTO A PERSONAD
QUE CUALIFICAN.
Cumberland County Bar Association
32 South Bedford St Q-5
Carlisle, PA 17013 a,pp PO AT"
(800) 990-9108 100
?' a/070
ti
PAUL J. KLEMM, ESQUIRE
NUDELMAN, NUDELMAN, & ZIERING, P.C.
425 EAGLE ROCK AVENUE
ROSELAND, NJ 07068
973-618-0000
ID #92125
ATTORNEY FOR PLAINTIFF
CAPITAL ONE BANK (USA), N.A.,
Plaintiff(s)
V.
KATHLEEN J CARBONARO
Defendant(s)
CUMBERLAND COUNTY
COMPLAINT IN CIVIL ACTION
AND NOW, comes Plaintiff, CAPITAL ONE BANK (USA), N.A., by and through its
attorney, Paul J. Klemm and the law offices of Nudelman, Nudelman & Ziering, P.C., and files
the following Complaint in Civil Action and in support thereof aver as follows:
1. Plaintiff, CAPITAL ONE BANK (USA), N.A., is a foreign business corporation
located at 4851 Cox Road, Glen Allen, VA 23060. Pursuant to 15 Pa. C.S.A. § 4122, "a foreign
business corporation shall not be considered to be doing business in this Commonwealth for the
purposes of this subchapter by reason of carrying on in this Commonwealth any one or more of
the following acts ... (8) [s]ecuring or collecting debts or enforcing any rights in property
securing them [or] (9) [t]ransacting any business in interstate or foreign commerce."
NN60263
4b
2. Defendant, KATHLEEN J CARBONARO, is an individual and citizen of the
Commonwealth of Pennsylvania, who is believed to currently reside at, 316 E MEADOW DR,
MECHANICSBURG PA 17055-5185.
3. At the special insistence and request of the Defendant, Defendant was issued a
credit card by CAPITAL ONE BANK (USA), N.A., account number 4305721750963204.
4. The Defendant is responsible for an unpaid balance in the amount of $5,782.95
and interest in the amount of $1,482.18.
5. Plaintiff has made demand to Defendant for $7,265.13, but Defendant has
willfully failed and/or refused to reimburse Plaintiff for the aforesaid sum due.
Wherefore, Plaintiff demands Judgment in its favor and against the Defendant in the
amount of $7,265.13 and interest from the date of breach, with continuing interest thereon at the
legal rate from the date of Judgment plus anticipated court costs. The damages requested are less
than the maximum amount for compulsory arbitration as set by the Court.
Respectfully Submitted:
NUDELMAN, N AN & Z RING, P.C.
Paul J. Klemm, Esquire
425 Eagle Rock Avenue
Roseland, NJ 07068
(973) 618-0000
NN60263
to
VERIFICATION
The undersigned, Paul J. Klemm, Esquire, hereby states that he is the attorney for
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. Counsel has signed this verification
at the request of Plaintiff as a matter of time and convenience. Plaintiff has represented to
counsel that there is a debt due and owing from Defendant to Plaintiff in the amount as set forth
within the foregoing pleading. Plaintiff has provided counsel with all relevant information in
order to allow counsel to sign this verification. Plaintiff agrees to provide a verification signed by
Plaintiff upon request by Defendant. The undersigned understands that the statements herein are
made subject to the penalties of 19 Pa.C.S.A Section 4904 relating to unswom falsification to
authorities.
Date: April 8, 2010
Paul J. Klemm, Esquire
Nudelman, Nudelman & Ziering, P.C.
425 Eagle Rock Avenue
Roseland, NJ 07068
(973) 618-0000
NN60263
Capital One Bank (USA) N.A. Cumberland County
Plaintiff (s) 10-2556 Civil Term.
v.
Kathleen J. Carbonaro n ~ -~
Defendant (s) =L-
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Preliminary Objection to Complaint <~~ ~> n~
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Note to the Court: _
This Preliminary Objection to the Complaint has been prepared by my husband an o
because we are unable to afford an attorney at this time. We did however consult with an
attorney who advised us as to how to proceed at this juncture.
I apologize to the court for any errors in form or content that maybe contained herein due
to my lack of legal training and limited knowledge of applicable law.
1. On January 7, 2010, Capital One Bank (USA). N.A. filed a civil complaint against
Kathleen J. Carbonaro in the Commonwealth of Pennsylvania, Cumberland County, and
Magisterial District Court 09-3-OS located at 507 York Street, Mechanicsburg, PA 17055,
for the same identical claim.
On January 25, 2010 Kathleen J. Carbonaro notified the court of her intent to defend, and
a hearing date of February 25, 2010 was set by Judge Mark Martin.
On February 25, 2010, Plaintiff failed to appear before the court. Defendant did appear at
the appointed time. Plaintiff failed to contact the court, or Kathleen J. Carbonaro to
request a continuation or to offer a reason for their apparent lack of regard for the courts
or the Defendant's valuable time.
On February 25, 2010, Judge Martin dismissed Plaintiff's case. The Plaintiff had the right
to appeal Judge Martin's ruling within thirty (30) days from the entry of judgment but
failed to execute their rights
As of March 25, 2010, Plaintiff had no further right to appeal.
2. On May 3, 2010, Defendant Kathleen J. Carbonaro was served a Complaint in Civil
Action, #10-2556 by the Cumberland County Sheriff's Department that contained a
Verification signed by Paul J. Klemm, Esquire, Nudelman, Nudelman & Ziering P.C, 425
Eagle Rock Avenue, Roseland, NJ 07068.
In the verification, Paul J. Klemm claims to be the attorney for the Plaintiff, and that the
Plaintiff has provided counsel with all relevant information concerning the alleged debt
due and owing from Defendant to Plaintiff in the amount as set forth within the pleading.
Defendant is entitled to a Verification signed by the Plaintiff.
3. Plaintiff failed to provide Defendant, in its claim, a copy of writings upon which the
claim is based.
4. Defendant further objects to Plaintiff's complaint in that the complaint is lacking
specificity. Plaintiff has not provided Defendant with any documentation in the complaint
as to the date or time period when the credit card was used, the total charges accumulated
on the account, the interest applied over the life of the account, the manner of calculation,
credits applied, a copy of the signed contract and subsequent modifications to the original
contract, a proof of authorized transactions by the Defendant, and copies of sales receipts
and or transaction records charged to the account.
Defendant requests that the court dismiss this complaint as improper and not in
compliance with Pennsylvania Law, Rules of Civil Procedures.
Kathleen J. Carbonaro
Defendant
Capital One Bank (USA) N.A
Plaintiff (s)
v.
Kathleen J. Carbonaro
Defendant (s)
Cumberland County
10-2556 Civil Term.
Memorandum of Law
to
Preliminary Objection to Complaint
Pennsylvania Rules of Civil Procedure
1. PA R.C.P. 1019 (I)
1019 (f)
2. PA R.C.P 1023.1 Part 3
3. PA R.C.P 1024
4. PA R.C.P 1028 Part 1
1028 Part 3
1028 Part 6
5. Calvary Portfolio Services v. Jeffrey K. Rowan and Kimberly J. Rowan
100-1664 of 2006 G.D.
PAUL J. KLEMM, ESQUIRE
NUDELMAN, KLEMM & GOLUB, P.C.
425 EAGLE ROCK AVENUE
ROSELAND, NJ 07068
973-618-0000
ID # 92125
ATTORNEY FOR PLAINTIFF
CAPITAL ONE BANK (USA), N.A.
Plaintiff(s)
V
CUMBERLAND COUNTY
KATHLEEN J CARBONARO No. 10-2556 CIVIL T
Defendant(s)
AMENDED COMPLAINT IN CIVIL ACTION
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 judgment may be entered
against you by the Court without further notice for
any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may
lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW. THIS OFFICE CAN PROVIDE
YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
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.
Cumberland County Bar Association
32 South Bedford St
Carlisle, PA 17013
(800) 990-9108
AVISO
_?J
VJZ r....
I
USTED HA SIDO DEMANDADO/A EN CORTE
Si usted desea defenderse de las demandas que se
presentan mds adelente en las siguientes pdginas, debe
tomar acci6n dento de los pr6ximos veinte (20) dias
depues de la notificaci6n de esta Demanda y Avios
radicando personalmente o por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito
sus defensas de, y objecciones a, ]as demandas presentadas
aqui en contra suya. Se le advierte de que si usted falla de
tomar acci6n como se describe anteriormente, el caso
puede proceder sin usted y un fallo por cualquier suma de
dinero reclamada en la demanda o cualquier otra
reclamaci6n o remedio solicitado por el demandante puede
ser dictado en contra suya por la Corte sin mas aviso
adicional. Usted puede perder dinero o propiedad u otros
derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU
ABOGADO INMEDIATAMENTE. SI USTED NO
TIENE UN ABOGADO, LLAME O VAYA A LA
SIGUIENTE OFICINA ESTA OFICINA PUEDE
PROVEERLE INFORMACION A CERCA DE COMO
CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS
DE UN ABOGADO, ES POSIBLE QUE ESTA
OFICINA LE PUEDA PROVEER INFORMACION
SOBRE AGENCIAS QUE OFREZCAN SERVICIOS
LEGALES SIN CARGO O BAJO COSTO A PERSONAD
QUE CUALIFICAN.
Cumberland County Bar Association
32 South Bedford St
Carlisle, PA 17013
(800) 990-9108
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CAPITAL ONE BANK (USA), N.A.
NO. 10-2556 CIVIL T
Plaintiff
V.
KATHLEEN J CARBONARO
Defendant(s)
AMENDED COMPLAINT
IN CIVIL ACTION
Filed on behalf of:
Capital One Bank (USA),
N.A.
Counsel of Record for This
Party:
Robert L. Baroska, III, Esq.
Pa I.D. #306728
Nudelman, Klemm & Golub, P.C.
425 Eagle Rock Ave., Ste 403
Roseland, NJ 07068
(973) 618-0000
IN THE COURT OF COMMON PLEAS OF CLINTON COUNTY,
PENNSYLVANIA
CAPITAL ONE BANK (USA), N.A.
Plaintiff
NO. 10-2556 CIVIL T
V.
KATHLEEN J CARBONARO
Defendant(s)
AMENDED COMPLAINT IN CIVIL ACTION
AND NOW, comes Plaintiff, CAPITAL ONE BANK (USA) N.A., above named, by and
through its attorney, ROBERT L. BAROSKA and the law offices of Nudelman, Klemm &
Golub, P.C., and files the following Amended Complaint in Civil Action, and in support
thereof aver as follows:
Plaintiff, CAPITAL ONE BANK (USA), N.A., is a foreign business corporation
located at 4851 Cox Road, Glen Allen, VA 23060. Pursuant to 15 Pa. C.S.A. § 4122, "a foreign
business corporation shall not be considered to be doing business in this Commonwealth for the
purposes of this subchapter by reason of carrying on in this Commonwealth any one or more of
the following acts ... (8) [s]ecuring or collecting debts or enforcing any rights in property
securing them [or] (9) [t]ransacting any business in interstate or foreign commerce."
2. Plaintiff is informed and believes that Defendant resides at 316 E MEADOW DR,
MECHANICSBURG, PA 17055-5185.
COUNT I - BREACH OF CONTRACT
3. Paragraphs I through 2 are incorporated by reference as if set forth at length
herein.
4. On or about July 18, 2000 Defendant entered into a written agreement with
Plaintiff. The signed application and the Customer Agreement are attached hereto as Exhibit
"A" and incorporated into evidence.
5. Defendant owes the principal sum of $5,782.95 for credit extended by Plaintiff on
account number 4305721750963204, and the reasonable value of goods sold and delivered
and/or services rendered. The credit card statements with adjustments for debits, credits, interest
and/or fee, and the time and place of said transactions are attached hereto as Exhibit "B" and
incorporated into evidence.
6. Plaintiff may have other documentation pertaining to this account in its
possession, but said documentation is stored and was not readily accessible at the time of filing.
7. Pursuant to the terms of the credit card agreement, Defendant also owes interest
and reasonable attorney's fees.
8. Plaintiff avers that Defendant breached the agreement and is in default for failing
to make payments on or about June 25, 2009.
9. Plaintiff has demanded payment but Defendant has failed or otherwise refused to
pay the aforesaid sum due.
WHEREFORE, Plaintiff demands Judgment in its favor, and against Defendant, in the
principal amount of $5,782.95, interest, reasonable attorney's fees and costs with continuing
interest thereon at the legal rate from the date of Judgment. The damages requested are less than
the maximum amount for compulsory arbitration as set by the Court.
COUNT II - ACCOUNT STATED/OPEN BOOK ACCOUNT
10. Paragraphs I through 9 are incorporated by reference as if set forth at length
herein.
11. There was due from Defendant the principal sum of $5,782.95 on a certain book
account, account number 4305721750963204. The credit card statements with adjustments for
debits, credits, interest and/or fee, and the time and place of said transactions are attached hereto
as Exhibit "B" and incorporated into evidence.
12. Plaintiff sues Defendant for goods sold and delivered and/or services rendered by
the Plaintiff to Defendant, upon the promise of Defendant to pay the agreed amount as set forth
in Exhibit "B" and incorporated into evidence.
13. The Plaintiff sues Defendant for the reasonable value of goods sold and delivered,
and/or services rendered by Plaintiff to Defendant upon the promise of the Defendant to pay a
reasonable price for the same amount as set forth in Exhibit "B" and incorporated into evidence.
14. The Defendant, being indebted to Plaintiff in the principal sum of $5,782.95 on an
account stated between them as set forth in Exhibit "B" and incorporated into evidence.
15. Pursuant to the terms of the agreement, Defendant also owes interest and
reasonable attorney's fees.
16. Plaintiff avers that Defendant breached the Agreement and is in default for failing
to make payment on or about June 25, 2009.
17. Plaintiff has demanded payment but Defendant has failed or otherwise refused to
pay the aforesaid sum due.
WHEREFORE, Plaintiff demands Judgment in its favor, and against Defendant, in the
principal amount of $5,782.95, interest, reasonable attorney's fees and costs with continuing
interest thereon at the legal rate from the date of Judgment. The damages requested are less than
the maximum amount for compulsory arbitration as set by the Court.
Respectfully Submitted:
Nudelman, Klemm & Golub, P.C.
Robert L. Baroska, 111, Esquire
425 Eagle Rock Ave., Ste 403
Roseland, NJ 07068
(973) 618-0000
IN THE COURT OF COMMON PLEAS OF CLINTON COUNTY,
PENNSYLVANIA
CAPITAL ONE BANK (USA), N.A
Plaintiff
NO. 10-2556 CIVIL T
V.
KATHLEEN J CARBONARO
Defendant(s)
VERIFICATION
The undersigned does hereby verify subject to the penalties of 18 Pa.C.S. Section 4904
relating to unworn falsification to authorities, that he is an authorized agent of Capital One
Services, LLC., an affiliate of and service provider to Plaintiff herein, and that he is duly
authorized to make this Verification, and that the facts set forth in the Amended Complaint in
Civil Action are true and correct to the best of his knowledge, information and belief.
Dated: April 5, 2012
.4 /J' A /-'ev --
Riebard/.Aap4olitano
PAUL J. KLEMM, ESQUIRE
NUDELMAN, KLEMM & GOLUB, P.C.
425 EAGLE ROCK AVENUE
ROSELAND, NJ 07068
973-618-0000
ID #92125
ATTORNEY FOR PLAINTIFF
CAPITAL ONE BANK (USA), N.A.
Plaintiff(s)
v.
KATHLEEN J CARBONARO
Defendant(s)
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
NO. 10-2556 CIVIL T
CERTIFICATE OF SERVICE
I, Katherine Dieterle, hereby certify that a true and correct copy of the Plaintiff s Notice
to Defend and Amended Complaint was served this date by first class U.S. Mail, postage prepaid,
upon the following:
KATHLEEN J CARBONARO
316 E MEADOW DR ,
MECHANICSBURG PA 17055-5185 `-
c
Date.
Respectfully Submitted:
NUDELMAN, KLEMM & GOLUB, P.C.
16?? azy"r'e
th ne ieterle, Legal Assistant
5 Eagle Rock Avenue
25'
Roseland, NJ 07068
(973) 618-0000
NN60263
Capital One Bank (USA) N.A.
Plaintiff (s)
Cumberland County Court of Common Pleas
No. 10-2556 CIVIL Term
V.
Kathleen J. Carbonaro H.
Defendant (s) :0
v>r N c7
Preliminary Objection To Complaint
This Preliminary Objection to the Complaint has been prepared by my husband and I C,
because we are unable to
afford an attorney at this time.
I apologize to the Court for any errors in form or content that may be contained herin due to my lack of legal
training and limited knowledge of applicable law.
To the Honorable, the Judges of the above court:
1. On May 3, 2010, Defendant Kathleen J. Carbonaro was served a complaint in Civil Action 10-2556 by the
Cumberland County Sheriff's Department naming Capital One Bank (USA) N.A. as Plaintiff and Kathleen J.
Carbonaro as Defendant. Included in the complaint was a Verification signed by Paul J. Klemm, Esquire
Of Nudelman, Nudelman & Ziering P.C., 425 Eagle Rock Avenue, Roseland, N.J. 07068.
On May 20, 2010, Defendant filed a Preliminary Objection to the Complaint (Attached Herein) with the Office of
the Prothonotary and sent a stamped copy to Paul J. Klemm, Esquire of Nudelman, Nudelman & Ziering P.C. at the
address shown above via USPS Registered Mail.
In the Preliminary Objection to the Complaint, Defendant asked the court to dismiss the complaint based upon
Defendant's objection.
2. Defendant did not receive any response byway of notice or "Amended Complaint in Civil Action" from Plantiff
for nearly two (2) years.
3. On or about April 9, 2012, Defendant received a "Amended Complaint in Civil Action" via regular USPS mail
that again named Capital One Bank (USA) N.A. as Plaintiff and Kathleen J. Carbonaro as Defendant.
Included with the Amended Complaint was another Verification, this time signed by a Richard A. Napolitano
who claims to be an authorized agent of Capital One Services, LLC., an affiliate of and service provider to Plaintiff
herein.
4. Included in the Amended Complaint were the following documents.
A. A photo copy of an Invitation from Capital One signed by Defendant Kathleen Carbonaro and Co-Applicant
Signature by Thomas R. Carbonaro, Defendants spouse dated July 2, 2000.
B. A photocopy of an unsigned general Customer Agreement dated 2005.
C. A photocopy of an unsigned "Arbitration Agreement" dated 2005
Civil T 10-2556
D. Twelve photocopies of what appears to be Computer Generated Account Statement dated as follows
(with stated balances)
1. September 2006 Balance 0
2. August 2008 Balance $ 4,993.76
3. September 2008 Balance $ 4,927.62
4. October 2008 Balance $ 5,107.63
5. November 2008 Balance $ 5,292.70
6. December 2008 Balance $ 5,436.82
7. January 2009 Balance $ 5,473.67
8. Febuary 2009 Balance $ 5,655.48
9. March 2009 Balance $ 5,556.06
10. April 2009 Balance $ 5,460.17
11. May 2009 Balance $ 5,531.98
12. June 2009 Balance $ 5,607.18
E. A computer generated form called "Capital One Cycle Facsimile Report" dated 06/02/2009 - 07/01/2009.
Civil T 10-2556
Objection:
1. Plaintiff has waited nearly two (2) years to file an Amended Complaint to the Defendants Preliminary
objection to the original complaint filed with the Cumberland County Court of Common Pleas on May 20, 2010.
2. Plaintiff has failed to respond materially to Defendant's original Preliminary Objection filed May 20, 2010.
A. Defendant is entitled to a Verification signed by the Plaintiff. Plaintiff has provided a Verification addressed to
the County Common Pleas of Clinton County, Pennsylvania signed by an agent, not an officer or employee
of Plaintiff.
B. Plaintiff has failed to provide Defendant, in its claim, a copy of writings upon which the claim is based.
Plaintiff submitted two exhibits, A. and B.
Exhibit A includes 1. A copy of an invitation to apply dated July 2, 2000. It is not a contract signed by both
parties. 2. A copy of a general customer agreement unsigned by either plaintiff or defendant, and dated
2005, five years after the date of the invitation. 3. A copy of an Arbitration Agreement, unsigned by either
Plaintiff or Defendant, dated 2005, five years after the date of the invitation.
Exhibit B includes 1. Twelve copies of alleged account statements showing a beginning date of
September, 2006 (six years after date of invitation) with a zero balance and then a alleged account statement
dated July, 2008, showing a beginning balance of $4,782.85. This account statement is eight years after the
date of the invitation and almost two years after the date of the first statement submitted, that showed a
zero balance. Defendant has no way to verify or calculate the charges claimed by the plaintiff. 2. A copy
of a computerized print out of some type of plaintiffs internal report dated June 2, 2009 - July 1, 2009.
C. Defendant further objects to Plaintiffs complaint in that the complaint is lacking specificity. Plaintiff has not
Provided Defendant with supporting documentation as to the date or time period when the credit card was
originally used, the total charges accumulated on the account prior to July, 2008, the interest applied over the
life of the account, the manner of calculation, credits applied, a copy of the signed contracts and
subsequent modifications to the original contract, a proof of authorized transactions by the Defendant, and
copies of sales receipts and/or transaction records for all changes made to the account.
Conclusion:
In a contract action, the contract is required to be part of the complaint. In this action, although a credit card
Action is based on a contract, the contract, signed by both parties has not been attached. Both the law
Of the Commonwealth of Pennsylvania and the Pennsylvania Rules of Civil Procedure Requires the
contract, signed by all the parties, be attached.
Failure to attach a signed contract is a fatal error and therefore this case must be dismissed.
Also, the failure of the Plaintiff to produce evidence of charges and fees claimed against the Defendant
further invalidates Plaintiffs claim in that Defendant has no opportunity to calculate the accuracy, authenticity
and/or verify any of the charges claimed.
Also, Plaintiff has failed to supply Defendant with an accurate and/or legal Verification notice.
Civil T 10-2556
Plaintiff is obviously attempting to harass and coerce Defendant into paying undocumented charges, interest,
fees, and penalties through repeated phone calls and legal filings that are not based on substantiated evidence
of such obligations. Note, Plaintiff failed to appear at a schedule Magisterial District Court hearing before
Judge Mark Martin and further, failed to notify the court or the defendant of its intention to not appear
as scheduled.
Therefore Defendant respectfully asks the court to Dismiss this Complaint with Prejudice as improper and not
in compliance with the laws of the Commonwealth of Pennsylvania or the Pennsylvania Rules Of Civil
Procedures.
Attachments: Preliminary Objection to Complaint dated May 20, 2010
Memorandum of Law dated April 25, 2012
Kathleen J. Carbonaro
Defendant
April 25, 2012
Civil T 10-2556
Capital One Bank (USA) N.A.
Plaintiff (s)
V.
Kathleen J. Carbonaro
Defendant (s)
Cumberland County Court of Common Pleas
No. 10-2556 Civil Term
Memorandum Of Law
To
Preliminary Objection to Amended Complaint
1. Worldwide Asset Purchasing v. Stern under Rule 1019
2. LVNV Funding, LLC. v. Dougherty - No. C1-08-00372, slip op at
Lancaster Co. Febuary 18, 2009
3. Chase Bank USA, N.A. v. Rader - No. C1-08-01186, slip op at 4
Lancaster Co. March 17, 2009
4. Capitol One Bank v. Clevenstine, 7 D&C, 5th a 155
5. Target National Bank/Target Visa v. Danette I. Greiner No. C1-09-03069
Capital One Bank (USA) N.A. Cumberland County
Plaintiff (s) 10-2556 Civil Term.
V.
Kathleen J. Carbonaro
Defendant (s) "a
Preliminary Objection to Complaint
Note to the Court:
This Preliminary Objection to the Complaint has been prepared by my husband 4_n_d I
because we are unable to afford an attorney at this time. We did however consulkvithlbft
attorney who advised us as to how to proceed at this juncture.
I apologize to the court for any errors in form or content that may be contained herein due
to my lack of legal training and limited knowledge of applicable law.
1. On January 7, 2010, Capital One Bank (USA). N.A. filed a civil complaint against
Kathleen J. Carbonaro in the Commonwealth of Pennsylvania, Cumberland County, and
Magisterial District Court 09-3-05 located at 507 York Street, Mechanicsburg, PA 17055,
for the same identical claim.
On January 25, 2010 Kathleen J. Carbonaro notified the court of her intent to defend, and
a hearing date of February 25, 2010 was set by Judge Mark Martin.
On February 25, 2010, Plaintiff failed to appear before the court. Defendant did appear at
the appointed time. Plaintiff failed to contact the court, or Kathleen J. Carbonaro to
request a continuation or to offer a reason for their apparent lack of regard for the courts
or the Defendant's valuable time.
On February 25, 2010, Judge Martin dismissed Plaintiff's case. The Plaintiff had the right
to appeal Judge Martin's ruling within thirty (30) days from the entry of judgment but
failed to execute their rights
As of March 25, 2010, Plaintiff had no further right to appeal.
2. On May 3, 2010, Defendant Kathleen J. Carbonaro was served a Complaint in Civil
Action, #10-2556 by the Cumberland County Sheriff's Department that contained a
Verification signed by Paul J. Klemm, Esquire, Nudelman, Nudelman & Ziering P.C, 425
Eagle Rock Avenue, Roseland, NJ 07068.
In the verification, Paul J. Klemm claims to be the attorney for the Plaintiff, and that the
Plaintiff has provided counsel with all relevant information concerning the alleged debt
due and owing from Defendant to Plaintiff in the amount as set forth within the pleading.
Defendant is entitled to a Verification signed by the Plaintiff.
3. Plaintiff failed to provide Defendant, in its claim, a copy of writings upon which the
claim is based.
4. Defendant further objects to Plaintiff's complaint in that the complaint is lacking
specificity. Plaintiff has not provided Defendant with any documentation in the complaint
as to the date or time period when the credit card was used, the total charges accumulated
on the account, the interest applied over the life of the account, the manner of calculation,
credits applied, a copy of the signed contract and subsequent modifications to the original
contract, a proof of authorized transactions by the Defendant, and copies of sales receipts
and or transaction records charged to the account.
Defendant requests that the court dismiss this complaint as improper and not in
compliance with Pennsylvania Law, Rules of Civil Procedures.
Kathleen J. Carbonaro
Defendant t
Capital One Bank (USA) N.A
Plaintiff (s)
V.
Kathleen J. Carbonaro
Defendant (s)
Cumberland County
10-2556 Civil Term.
Memorandum of Law
to
Preliminary Objection to Complaint
Pennsylvania Rules of Civil Procedure
1. PA R.C.P. 1019 (1)
1019 (f)
2. PA R.C.P 1023.1 Part 3
3. PA R.C.P 1024
4. PA R.C.P 1028 Part 1
1028 Part 3
1028 Part 6
5. Calvary Portfolio Services v. Jeffrey K. Rowan and Kimberly J. Rowan
100-1664 of 2006 G.D.