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HomeMy WebLinkAbout10-3784 Our File No.: 244251 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff, VS. JAMES HOWLEY 701 LOUISA LN MECHANICSBURG, PA 17050-2499 Defendant. Fi? Fr; I rr Tt i ?' „. 1Q 10 JUN - 7 Ph! 2: 16 LV' COURT OF COMMON PLEAS CUMBERLAND COUNTY 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 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. CUMBERLAND COUNTY BAR ASSOCIATION 34 S. BEDFORD ST. CARLISLE PA 17013 717-249-3166 2 J-1 3 -3 Our File No.: 244251 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff, vs. JAMES HOWLEY 701 LOUISA LN MECHANICSBURG, PA 17050-2499 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is LVNV FUNDING, LLC, 15 SOUTH MAIN STREET STE 500, GREENVILLE, SC 29601. 2. Defendant(s) is/are JAMES HOWLEY, an adult individual residing at 701 LOUISA LN MECHANICSBURG, PA 17050-2499. 3. Plaintiff, LVNV FUNDING, LLC, is the Assignee and Successor in Interest of Account #7021271201704324; and said account was issued to Defendant(s) by HSBCBEST BUY, the Original creditor. 4. Defendant received, accepted and used the account to its benefit. 5. This account is in default and Defendant(s) has an unpaid balance of $1,737.79. A true and correct copy of the total due and owing is attached hereto, made a part hereof and marked as Exhibit "A". 6. All credits, if any, to which Defendant(s) is entitled, have been applied to the account and are included in Exhibit "A". 7. Although demand has been made, Defendant(s) has failed to make payment of the amount due as above. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $1,737.79 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & SOCIATES, P.C. Attorn or Plaintiff A Law Firm En ged iebt Collection BY: David J. A?pothaker, Esquire Dated: 6/1/2010 Our File No.: 244251 VERIFICATION David J. Apothaker Esquire hereby states that I am counsel for plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4 to unworn falsification to authorities. David J. Apothaker, Esquire Attorney for Plaintiff DATE: 6/1/2010 LVNV FUNDING, LLC JAMES HOWLEY 701 LOUISA LN MECHANICSBURG, PA 17050-2499 STATEMENT OF ACCOUNT Debtor's Name: JAMES HOWLEY Account Number: 7021271201704324 Original Creditor: HSBC/BEST BUY Balance Due: $1,737.79 Our File No.: 244251 EXHIBIT "A" 244251 Request for Service R. Thomas Kline Sheriff Cumberland County Office of the Sheriff One Courthouse Square Carlisle, PA 17013 Ph: 717.240.6390 Fx: 717-240-6397 Plaintiffs: Court Number: LVNV FUNDING, LLC Expiration Date: Type of Action: Civil Action Defendant/s: JAMES HOWLEY Serve Upon: JAMES HOWLEY Address for Service: 701 LOUISA LN MECHANICSBURG, PA 17050-2499 Alternate Address for Service: Type of Service: ( ) Personal (X) Adult in Charge O Deputize O Certified Mail O Posting Special Service Instructions: * * If service is to be made by deputized service to another county please specify which county Filing Attorney Information: Name: Apothaker & Associates, P.C. Address: 520 Fellowship Road C306 Mount Laurel, NJ 08054 Telephone: 215-634-8920 LVNV FUNDING, LLC 15 South Main Street, Suite 500 Greenville, SC 29601 Plaintiff v. COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA No: 10-3784- CIVIL TERM JAMES HOWLEY 701 Louisa Lane Mechanicsburg, PA 17050-2499 Defendant NOTICE TO PLEAD ~ o ~_~; To: LVNV Funding, LLC ~, (~'(~'3 r r , ~ `. ~ ~ ~..~_ .~ _._ r~yl ~,-- c/o David J. Apothaker, Esquire _ _ ~~~ ~ , ,~.: ~~~ `'' ~ Apothaker and Associates, P.C. ,. r~' 520 Fellowship Road C306 ~ ~. >_ ~• -' , ' `' Mount Laurel, NJ 08054 ~~ ~~ -`= ~"~; =~ c._: ~c You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: (o ~'~,(~ ~ l b Respectfully Submi , ~~ , nnicnaei uveyKasn, csq~++~~ I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, James Howley Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mpykosh c dpl~aa~+~,com Attorney for Defendant LVNV FUNDING, LLC :COURT OF COMMON PLEAS 15 South Main Street, Suite 500 :CUMBERLAND COUNTY, PENNSYLVANIA Greenville, SC 29601 Plaintiff . v. No: 10-3784- CIVIL TERM JAMES HOWLEY 701 Louisa Lane Mechanicsburg, PA 17050-2499 Defendant DEFENDANT'S, PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, James Howley, by and through her attorneys, DETHLEFS-PYKOSH LAW GROUP, by Michael J. Pykosh, Esquire, and hereby files Preliminary Objections to the Plaintiff's Complaint, and avers as follows: 1. On or about June 7, 2010, a Civil Complaint was filed at Docket Number 10-3784 Civil Term. 2. Defendant now files the instant Preliminary Objections to Plaintiff's Complaint pursuant to Pa. R.C.P. 1028. PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(2) 3. Paragraphs 1 through 2 are incorporated herein by reference as though fully set forth below. 4. Pa. R.C.P. 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 5. Plaintiff s Complaint fails to conform to Pennsylvania Rules of Civil Procedure and Cumberland County Local Rules. 6. Plaintiff has failed to attach a copy of the writing, more specifically the Loan/Credit Agreement, or the material part thereof, or, in the alternative, state, with the reason that the writing or copy thereof is not accessible to the Plaintiff and the substance of the writing in violation of Pa. R.C.P. 1019(1). See Remit Corporation v Miller 5 Pa. D&C 5t" 43 7. Plaintiff's Complaint is in violation of Pa. R.C.P. 1019 (a) and (f) in that Plaintiffs Complaint fails to provide the specifics of the alleged credit card purchases or charges and application of interest and late charges. Remit Corporation v Miller 5 Pa. D&C 5t" 43. See also Capital One Bank v Clevenstine, 7 Pa. D&C. 5t" 153. WHEREFORE, for all the reasons set forth above, Defendant, James Howley, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and dismiss Plaintiff's Complaint for failing to conform to law or rule of court pursuant to Pa. R.C.P. 1028(a)(2). PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(3) 8. Paragraphs 1 through 7 are incorporated herein by reference as though fully set forth below. 9. Pa. R.C.P. 1028 (a)(3) allows a party to object to a pleading if there is insufficient specificity in a pleading. 10. Plaintiff has not set forth sufficient facts regarding Defendant's Agreement relative to either the total amount due and that Defendant has agreed to pay the amount to Plaintiff. See Capital One Bank (USA), NA v Patricia L. Clevenstein No. 2008-4139 (Centre County 2009). WHEREFORE, for all the reasons set forth above, Defendant, James Howley, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and strike Plaintiff's Complaint for failure to comply with Pa. R.C.P. 1028(a)(3). PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(5) 11. Paragraphs 1-10 are incorporated herein by reference as though fully set forth below. 12. Pa. R.C.P. 1028(a)(5) allows a party to object to a pleading if the Plaintiff lacks capacity to sue, nonjoinder of a necessary party, or misjoinder of a cause of action. 13. Plaintiff has failed to establish standing in that Plaintiff has not attached a properly executed assignment to support the allegation that Plaintiff is the successor to the original creditor. See Atlantic Credit and Finance. Inc. v Carmen L. Giuliana and Patricia Wilson a/k/a Patricia A. Maurizo 2003 Super 259; 829 A 2d 340 (PA Super 2003). WHEREFORE, for all the reasons set forth above, Defendant, James Howley, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and dismiss Plaintiff's Complaint for lack of capacity to sue pursuant to Pa. R.C.P. 1028(a)(5). Date: b U Respectfully Subr~tted, Michael J. Pykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 LVNV FUNDING, LLC :COURT OF COMMON PLEAS 15 South Main Street, Suite 500 :CUMBERLAND COUNTY, PENNSYLVANIA Greenville, SC 29601 Plaintiff v. No: 10-3784 CIVIL TERM JAMES HOWLEY 701 Louisa Lane Mechanicsburg, PA 17050-2499 Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, James Howley, Preliminary Objections to Plaintiff s Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: LVNV Funding, LLC - c/o David J. Apothaker, Esquire Apothaker and Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Date: v Respectfully Submitted, ich ael J. Pykosh, Esquire I . D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, James Howley, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. Date: ~/3~'~~ James Howl y • ' Our File No.: 244251 APOTHAKER & ASSOCIATES, P.C. By: Kimberly F. Scian, Esquire Attorney I.D. #55140 520 Fellowship Road C306 Mount Ladrel, NJ 08054 (800)672-0215 Attorneys for Plaintiff LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff, vs. JAMES HOWLEY 701 LOUISA LN MECHANICSBURG, PA 17050-2499 Defendant. i4F:' .. Joy tt~ Pna ~~.~ ;. ,. ,. ~.~~~:__;__. ,r.; _ _. ,, ,v a COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 10-3784 NOTICE Civil Action 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 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. CUMBERLAND COUNTY BAR ASSOCIATION 34 S. BEDFORD ST. CARLISLE PA 17013 717-249-3166 Our File No.: 244251 APOTHAKER & ASSOCIATES, P.C. By: Kimberly F. Scian, Esquire Attorney I.D. #55140 520 Fellowship Road C306 Mount Lautel, NJ 08054 (800} 672-0215 Attorneys for Plaintiff LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff, vs. JAMES HOWLEY 701 LOUISA LN MECHANICSBURG, PA 17050-2499 Defendant. Civil Action AMENDED COMPLAINT FIRST COUNT 1. Plaintiff is LVNV FUNDING, LLC, 15 SOUTH MAIN STREET STE 500, GREENVILLE, SC 29601 2. Defendant is JAMES HOWLEY, an adult individual residing at 701 LOUISA LN MECHANICSBURG, PA 17050-2499. 3. Defendant applied for, received and used a credit account issued by HSBCBEST BUY, account number ending in 4324, pursuant to a written agreement in effect at all times relevant herein. 4. A copy of the credit application and agreement are not accessible to Plaintiff at this time. 5. Attached hereto and incorporated by reference herein is the credit card application and Bill of Sale for defendant's account. 6. Under the terms of the contract, Defendant was given the right to make purchases in return for a promise to timely pay the principal balance accumulated plus interest, fees and penalties where applicable. 7. Defendant failed to make timely payments on the account, although demand was made for said payments, thereby breaching the contract. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 10-3784 8. Defendant opened the account on or about December 30, 2004. 9. Defendant's last payment totaled $36.00 and was recorded on or about March 02, 2007, placing this action within the applicable statute of limitations. The credit card statement attached hereto evidences this payment. 10. The account was charged off on or about October 31, 2007. 11. Plaintiff purchased this account on November 19, 2007 and presently owns and holds this account. The Bill of Sale attached hereto evidences the chain of title for defendant's account. 12. Plaintiffhas suffered monetary damages in the amount of $1,737.79. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $1,737.79 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law Firm Engaged in D$bt Coll~ctie~ Scian, Esquire Dated: July 22, 2010 VERIFICATION ~e-~~ if ccv ~ ~ , or~~"-zS' hereby states that I am R~~k~: ~~~~ ~~e ~~ sr~'~:~rv~ for Plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and belief. 'The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. DATE: ~/2z~.e Our File No.: 244251 APOTHAKER & ASSOCIATES, P.C. By: Kimberly F. Scian, Esquire Attorney I.D. #55140 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800)672-0215 Attorneys for Plaintiff LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff, vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 10-3784 Civil Action JAMES HOWLEY 701 LOUISA LN MECHANICSBURG, PA 17050-2499 Defendant. CERTIFICATION OF SERVICE I, Kimberly F. Scian, Esquire, attorney for Plaintiff, certify that on July 22, 2010, I mailed a copy of Plaintiff s Amended Complaint by Regular mail to: MICHAEL PYKOSH, ESQUIRE 2132 MARKET ST CAMP HILL, PA 17011 APOTHAKER & ASSOCIATES, P.C. Attomey for Plaintiff A Law Firm Engaged in ebt Collection 'mb rl .Scian, Esquire Dated: July 22, 2010 Current Address /,, ; y { Apt, # ( n /~[ r L ^ ~r1 ^ Rent ' S D~ i.,I:II~,r,,-UTt~'.,~ rJOCrl6lo;A,G1 P'~ rfDss~..~ G,/~ Fbme PUhone o ) (f Business Pone J Annual Income' ~k if you have a; { ~ I I ~ ~U ~- a 7`r -! c ) j I ~ ~„ ~ tN,Checking Account ll!!77 5avir~os ACOa,nt Time t residence T me with employer E-Mall Address (optional) er v.~~o >~ e~ address, yw also oaxient b earara remog w orteR ana L eerrbas haA Best .hie. anld ie auLpdrriea. Years ~ Months _,_ Years ~ Months ~e ~ I l,i w 1L~ v, c c~ ~a;N ~ ~) r. i,l~[, ,• ~ ~. Current Address Apt. # City State Zip Home Phone Busaless Phone Almual hlcome' { ) ( } • All a me mtorrration furnished on this appNtsitlon is, to the best of your krtolMedge, complete and acctuate.laou ~ ® report on you and we nta check a of >t-e information provided on this applbatlor, fran whatever source we c ,eo~aesr».se+a aPP~t~, You ~~9 a ~ i~~ totheB b~si us which ~ri& elkrw yyaou, to make ppuurchases under thfS AooOlmt By use this Card; ti l a g lpe; c} making a nnittkrg others b make purchases by you agree to the terms and cartditions of the Cardholder Apreerrx:m and Disclosure 5tatemertt, (which frx~udes ~ orb -~ ~- .you with the credit card. If this is a join) aedit appAcation, you understand that each appicant has the rl~tt b use the • all purctiase,4 made under the Aaxxlnt by ar,y ~pp~{cant Yau grant us a purchase money security Interest in the understand Brat ere may protride inform on reiaBrrg to our transactions and experiences erlth floe ~ orb not You are approved for credit tfou may prohibit Bb sharhg of such IntormaBon by caging as at t-B00- AppliceM's iin~a Date (1liNDQ/YY} Joint AppllpMk Siynahrro ,enroll In our optional Account Shie d program, l~or,r mortlhly aedii card tt~artce ar a patios of yor,r balance may be car~elled in the cue of npbyment, Property Damage a Loss a Loss oilite event. Fa Total D,usability, the maximtam balance that pn be cancelled is 31,000 per moi lipbyment up to S1.OD0 per mor~r jOr snc montlts. For Lass of Ute a Property Damage a Loss, Ute ma~dmum balance that rxn be canceAe~ rvolunta<y k,yrneitt ar~ Total D satx'6tyi, you must be employed fuA-time (but not sey-employed a fa a spouse a any other ind'n It pi, Guam, fBle Vfrgkt ~arir~ ~ a~waldnp 30 hours a mae per we~c at a s~-ogle job on the the eyerrt occurs. Aoca,rrt St please enros me, the prl~priiolder, in Cie apl+orral Atcolalt Shield monthly t+l0, i do not wish b enroll at this time. canoeltation program. I au ttie try b my arcourlt when I bare a tce. l have received and read the Fmou~ Sfileld I understarM that your ration of my rxedh card app~tiorr will not be infh,enC by whether I choose to I, ar~d I am tre~ta canc~}at any time. _ , may txxaln a crenlc twreau ompleting and signing this sing a permitttilg others b itemet, a any other means, lion) which shah be sent b i that you shall be liable to esed on your Account. You irtp Beat Buy, erhefher or Date pN111ID0/Yyry ~jTotal Disabflly, ha~oluntary IOO~fi~r ~We a rcar~~tl~on ~nsu~rantce amend isunavai~lab~le SIGN HERETO DECLINE DATE oo-r i.y, sa. oznao+ ~ e r o ee ~ ~ •• ~ ~ tf you trove apl,lied fa a Best Buy credo card isared by Houseftdd Bank (SB}, NA., Las Vegas, Nevada ('us,' "we; 'our'). we invite you b apply to a Househod Bank Platinum, fold a Standard MasterCard. ~ s below, You cantinn that you (rave rem and agree to as of the terms, m,thoraations, and dlscbsures contained an the pane{ errtiUed "Important Terms of U,e Household Bank Platinum, Gold and Starxiard MasterCards." ^ Please send rna an addlBaral Household Bank MasterCard Issued in Bte name of the Best Buy credit card joint appBcrmt. The Best BuY FIW,sehold Bank credit card ],riot appltl~M MB be considered ~ auBtorized user for ttds MasterCard Account 1 uttdersfand 1 erir be solely responaibte for afl MasterCard drarges sad transacBorra made by Bte arrBtmlxed user and the auBrortzed raer erUl bare ao liability t+s the credB card Isatrer for those charge and ~~~ x ~,~ 1z~4~Dt-] APPLBCATIO ~ ~11^~~ ~ ©~ LEI ~ [df'L~A~p~N ~- - - ERG #169 CRLDITM MIT !r}' I.D. 111 Photo ID (Apptkxsrit) Type: _~ Drivers License I.D. i• Sta ~ Date of issue t b Dale a Qtiier # 7~~` _ _ State Dale of issue ! Exp. Date i I.D. #2 Credit Card (Appiicant) ^ MC ^ AMEX ^ DISCOVER Exp. Date ~ r O~ Alt. I.D. I.D. #t Photo ID (Joint Applicant) Trpe: O Drivers License I.D. # State Date of Issue _ (_Exp. Dete _ / ^ Otl1er # State Date of tswe / Exp. Gate t 'e1COME 11071CE Can ircttda ee aouw:es.SMu used nel dieebea afirwny, dild st+pport a aaieeranue {{come i you do rq! rrloA b Ana d ootstllred as a lass ror repayiq this a6Y~Iran. fx122~81c5T BW-, 9 IbAd) ~~~~ EXHIBIT C (Continued) ASSIGNMENT AND BILL OF SALE HSBC Private .Label Acquisition Corporation (USA), (hereinafter called "Seller") has entered into an Account Purchase and Sale Flow Agreement as of February, 2005 (NAgeeement") for the sale of Accounts Receivables described in Paragraph 1 thereof to Sherman Originator L.L.C. (hereinafter called "Purchaser"), upon the terms and conditions set forth in that Agreement. NOW THEREFORE, for good and valuable consideration, Seller hereby sells, assigns, and transfers to Purchaser, its successors and assigns, all of Seller's rights,. title, and interest in each and every one of the Accounts described in the Agreement and in Exhibit "A" attached hereto. Purchaser and Seller agree that the Purchase Price shall be as stated in Paragraph 3 of the Agreement. IN WITNESS WHEREOF, Seller has signed and delivered this instrument on the 19th day November, 2007. HSBC Private Label Acqui ' ' n Corpo (USA) By: Printed Name: arcel Aita Title: Vice President LVNV FUNDING, LLC 15 South Main Street, Suite 500 Greenville, SC 29601 Plaintiff v. JAMES HOWLEY 701 Louisa Lane Mechanicsburg, PA 17050-2499 Defendant COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA No: 10-3784- CIVIL TERM ~ ~, ' NOTICE TO PLEAD C ? 0 4--~ ~ , __ , ,' c ~ _ -~ - , To: LVNV Funding, LLC _ _ ~ `," ~' c/o David J. Apothaker, Esquire ~ Apothaker and Associates, P.C. ~ 520 Fellowship Road C306 ' ~ r ~ Mount Laurel, NJ 08054 _ = - ;; , -; O c. _ ~ ..:. You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Ily Syt(~nitted, Date: 8"`l!-~ ] ! J~PyAosTi, Esquire I.D. # 588'51 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, James Howley Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mpvkosh~r)dplglaw.com Attorney for Defendant LVNV FUNDING, LLC :COURT OF COMMON PLEAS 15 South Main Street, Suite 500 :CUMBERLAND COUNTY, PENNSYLVANIA Greenville, SC 29601 Plaintiff ~. No: 10-3784- CIVIL TERM JAMES HOWLEY . 701 Louisa Lane . Mechanicsburg, PA 17050-2499 . Defendant DEFENDANT'S, PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, James Howley, by and through her attorneys, DETHLEFS-PYKOSH LAW GROUP, by Michael J. Pykosh, Esquire, and hereby files Preliminary Objections to the Plaintiffs Complaint, and avers as follows: 1. On or about June 7, 2010, a Civil Complaint was filed at Docket Number 10-3784 Civil Term. 2. On July 1, 2010, Defendant now files the instant Preliminary Objections to Plaintiff's Complaint pursuant to Pa. R.C.P. 1028. 3. On or about July 28, 2010, Plaintiff filed an amended Complaint. 4. Defendant now files the instant Preliminary Objections to Plaintiff's Complaint pursuant to Pa. R.C.P. 1028. PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.Q. 1028(a1(2) 5. Paragraphs 1 through 4 are incorporated herein by reference as though fully set forth below. 6. Pa. R.C.P. 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 7. Plaintiffs Complaint fails to conform to Pennsylvania Rules of Civil Procedure and Cumberland County Local Rules. 8. Plaintiff has failed to attach a copy of the writing, more specifically the Loan/Credit Agreement, or the material part thereof, or, in the alternative, state, with the reason that the writing or copy thereof is not accessible to the Plaintiff and the substance of the writing in violation of Pa. R.C.P. 1019(1). See Remit Corporation v Miller 5 Pa. D&C 5th 43 9. Plaintiffs Complaint is in violation of Pa. R.C.P. 1019 (a) and (f) in that Plaintiffs Complaint fails to provide the specifics of the alleged credit card purchases or charges and application of interest and late charges. Remit Corporation v Miller 5 Pa. D8~C 5th 43. See also Capital One Bank v Clevenstine, 7 Pa. D&C. 5th 153. WHEREFORE, for all the reasons set forth above, Defendant, James Howley, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and dismiss Plaintiff's Complaint for failing to conform to law or rule of court pursuant to Pa. R.C.P. 1028(a)(2). PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(3) 10. Paragraphs 1 through 9 are incorporated herein by reference as though fully set forth below. 11. Pa. R.C.P. 1028 (a)(3) allows a party to object ±o a pleading if there is insufficient specificity in a pleading. 12. Plaintiff has not set forth sufficient facts regarding Defendants Agreement relative to either the total amount due and that Defendant has agreed to pay the amount to Plaintiff. See Capital One Bank (USA) NA v Patricia L Clevenstein No. 2008-4139 (Centre County 2009). WHEREFORE, for all the reasons set forth above, Defendant, James Howley, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and strike Plaintiff's Complaint for failure to comply with Pa. R.C.P. 1028(a)(3). PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(5) 13. Paragraphs 1-12 are incorporated herein by reference as though fully set forth below. 14. Pa. R.C.P. 1028(a)(5) allows a party to object to a pleading if the Plaintiff lacks capacity to sue, nonjoinder of a necessary party, or misjoinder of a cause of action. 15. Plaintiff has failed to establish standing in that Plaintiff has not attached a properly executed assignment to support the allegation that Plaintiff is the successor to the original creditor. See Atlantic Credit and Finance, Inc. v Carmen L. Giuliana and Patricia Wilson a/k/a Patricia A. Maurizo 2003 Super 259; 829 A 2d 340 (PA Super 2003). WHEREFORE, for all the reasons set forth above, Defendant, James Howley, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and dismiss Plaintiffs Complaint for lack of capacity to sue pursuant to Pa. R.C.P. 1028(a)(5). Date: Re~cj,~6mitted, Michael J. Pykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 LVNV FUNDING, LLC 15 South Main Street, Suite 500 Greenville, SC 29601 Plaintiff v. JAMES HOWLEY 701 Louisa Lane Mechanicsburg, PA 17050-2499 Defendant COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA No: 10-3784- CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, James Howley, Preliminary Objections to Plaintiff s Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: LVNV Funding, LLC c/o David J. Apothaker, Esquire Apothaker and Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 RespecttuJ,I~I Submitted, Date: ~ 1~~1~ Miclfael J. Pykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, James Howley, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. 1 understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. f. ~ F Date: ~ ~~ C ~ ~ 0 ~` ~m~ ~yJa em s Howley !'ti'r1 lrl?~ Our File No.: 244251 ?Nc ' `'unTARY 0~ APOTHAKER & ASSOCIATES, P.C. ~,~ 3; ~ ~ BY: David J. Apothaker, Esquire ~a SAP ~~ Attorney LD.# 38423 520 Fellowship Road C306 ~~~~„ r,~ t/~~ p'~VNSYLVANIA Mount Laurel, NJ 08054 (800)672-0215 Attorney for Plaintiff LVNV FUNDING, LLC ) COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, ) vs. ) JAMES HOWLEY ) NO. 10-3784 Defendant. ) PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & ASSO ES, P.C. Attorneys for 1 ' iff A Law Firm Engage in ebt Collection By: David Esquire Dated: 8/30/2010 itmni~imi