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HomeMy WebLinkAbout10-4259SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~~,~„c~ c1 ~~~unryer,~~~~ ~/ +~ C3FFICE <- -~_c 8!^~RIFF {r. t~ .t /f ~tIJ ~..r~ L• 3 J Jody S Smith Chief Deputy Richard W Stewart Solicitor 20i0.3`;~~ -6 A~ 8~ 38 t`~i ~~v~~`E ~~''1;~~ Capital One Bank (USA) vs. Joseph P. Ferrari Case Number 2010-4259 SHERIFF'S RETURN OF SERVICE 07/01/2010 01:09 PM -Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on July 1, 2010 at 1308 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Joseph P. Ferrari, by making known unto Debra Kirsch, Fiance of defendant at 710 Vista Drive, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $41.94 July 02, 2010 ~ - RYAN BURGETT, UTY SO ANSWERS, . "'~°.° RON ~ R ANDERSON, SHERIFF (ej CounfySuile Sheriff, Teleosoft. Inc. .r FIt ~-l,~~,' ~ ~~ '~ JOSEPH FERRARI ~~~ ~~ ~y ,-i ~~ ~ r.;•-~~v 710 Vista Drive camp Hill, PA 17011-1640 20 ~ 0 ~~~ _ ~ ~ ~ ~ (717) 645-3337 Defendant in Proper Person CC;P~r- ~~1~"d? 1' IN THE COMMON PLEAS COURT OF THE STATE OF~~l'S'+ '~~A~iIA IN AND FOR CUMBERLAND COUNTY CAPITAL ONE BANK, Plaintiff, v Docket Number: 10-4259 JOSEPH FERRARI, Defendant, ANSWER OF DEFENDANT Defendant JOSEPH FERRARI answers the Complaint of CAPITAL ONE BANK as follows: 1. The Defendant admits the allegations of paragraph 1 of the Complaint. 2. The Defendant admits the allegations of paragraph 2 of the Complaint. 3. The Defendant admits the allegations of paragraph 3 of the Complaint. 4. The Defendant admits the allegations of paragraph 4 of the Complaint. 5. Regarding Paragraph 5, the Defendant denies that the entire balance is now due because Defendant does not recall agreeing to such provisions, and if he did it was because such provisions were buried within the contract, and as a lay person the Defendant did not understood such a clause. Pursuant to the principles of contract law, any ambiguity in a contract should be interpreted against the drafter of said contract. Therefore, the Court should not hold the Defendant to owing the entire balance, if such a clause even exists within the contract. Further, the Defendant demands proof that he did in fact agree to the provisions as alleged by the Plaintiff, such as a copy of the alleged contract with his signature. 6. Regarding Paragraph 6, The Defendant is without sufficient information or recollection to admit or deny the allegations of paragraph 6 of the Complaint and therefore denies said allegations. Further, the Defendant demands a complete accounting reflecting all charges and credits to the account. 7. The Defendant denies the allegations of Paragraph 7 of the Complaint in that the Defendant has never refused to pay on any part of his debt. Further answering: 8. The Plaintiff has an affirmative duty to prove that the Defendant agreed to the alleged terms and conditions, and therefore should be required to provide proof that the Defendant intentionally and knowingly assented to the alleged terms and conditions. 9. The Plaintiff has an affirmative duty to prove the amount of the debt. If the Plaintiff cannot prove the amount of the debt, this matter should be dismissed with prejudice. 10. The answering Defendant alleges that the amount claimed by Plaintiff has been inflated to include Page i of 3 improper over-limit chazges, finance charges and late payment fees inappropriately charged by Plaintiff. Defendant submits that these charges are unconscionable and to allow Plaintiffto collect these amounts would be inequitable, and that the extra fees and costs applied by Plaintiff created an impossibility of performance. 11. Defendant denies that Plaintiff is entitled to collect these sums under any contract with Plaintiff. 12. Defendant contends that Plaintiffhas charged excessive interest, late fees and penalties, and that there is no enforceable contract between the parties that would allow Plaintiffto recover the amounts already charged. 13. As a result of the economy, the Defendant's business failed, which put him in a difficult financial situation. His income was reduced by approximately 95%. The situation aggravated when the creditors raised the interest rates, thereby raising the minimum payments. This has left the Defendant unable to keep up with his bills. 14. Defendant desires to avoid banlQUptcy and urgently wants to pay his debt. However, he needs additional time to do so. WHEREFORE, Defendant prays: 1. That Plaintiff take nothing by way of the complaint; 2. That Defendant(s) recover costs, and reasonable attorney fees, if incurred; 3. That Plaintiff be required to specifically prove all allegations in this action, including the existence of an enforceable contract containing the interest rate and fees applied to this account; 4. That the Plaintiff be awarded no attorney's fees or cost of suit; 5. 'T'hat no derogatory information appear on the Defendant's credit record as a result of this law suit; 6. That the Defendant be granted more time to pay any debt that she actually owes; and, 7. That the Court awazd such other and further relief as the nature of this case may require. VERIFICATION The Defendant verifies that the statements made herein aze true and correct based upon his knowledge, information and belief. The statements are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ~- "JOSE FE Vista Drive Camp Hill, PA 17011-1640 (717)645-3337 Defendant in Proper Person Page 2 of 3 .~ CERTIFICATE OF SERVICE The Defendant(s) HEREBY CERTIFY that on thi~ day of ~~~~, 2010, a copy of the foregoing pleading was mailed, first-class, postage pre-paid to: Arthur Lashio, Esq. HAYT, HAYT 8c LANDAU, LLC. 400 Market Street, Suite 600 Philadelphia, PA 19106 Attorneys for Plaintiff C~~ ,~ C.~ JOSEP RRARI This document was prepared by, or with, the assistance of an attorney licensed in PA and NV and employed by Persels & Associates, LLC / Persels & Associates, LLP (CA, MI) / Persels $ Associates, PLLC (NC) - 800-498-6761. Page 3 of 3 ~- ~1t.E.:'~~ i, ~: ZQ10 ~~L 14 ~ ~ 3: L 1 cuc~h~ , `` .,~~1Y ~3r I v~ tir i LY+i~t7~,'~,rE. ~AYT, HAYT & LAN DAU !Y: ART'tiUR LASHIN DENTIFICATION NO. 23425 ATTORNEY FOR PLAINTIFF iIXTH FLOOR WO MARKET STREET ~HILAOELPHIA, PA 19106-2509 215) 92&1400 ~: CUMBERLAND COUNTY COURT OFCOMMONPLEAS •. CI11~TL DIVISION TERM, No. 10-4259 PRAECIPE TO DISCONTINUE WITHOUT~PREJUDICE TO THE PROTHONTARYe Kindly discontinue the above captioned matter without prejudice. HAYT, HAYT & LANDAU ~~ ~; BY : j,%', /. . 5