Loading...
HomeMy WebLinkAbout10-4456 206agi?ry rr, r!' Y THIS IS AN DAMAGES HEARING REQUIRED. TT„.??lAS,SESN?'?Z OF GORDON & WEINBERG, P.C. [[UU bb 33 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 ASSET ACCEPTANCE LLC ASSIGNEE OF WORLD FINANCIAL NETWORK NATIONAL BANK 28405 VAN DYKE AVE Warren MI 48093 Vs. ELIZABETH VANEK 1920 WALNUT BOTTOM RD CARLISLE PA 17015 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 10, 1/4/S;?p e/ l/i 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 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 i'Zz p&# d Al?l 71 plwl &t 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 April 16, 2010 in the amount of $1,363.62. 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. 7. Defendant's last payment on account was made on 12/9/07. WHEREFORE, plaintiff claims of the defendant(s) the sum of $1,363.62 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I. W IN RG, ESQUIRE JOEL M. FLINK SQUIRE Attorney for Plaintiff P01A.DB 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. 1 Name R ?y?yyt?A.S?CI?CRSK dI r DEAN STATE OF MICHIGAN ) ss COUNTY OF MACOMB ) ASSET ACCEPTANCE, LLC Plaintiff, vs ELIZABETH VANEK Defendant, I, LJ+...f t.•f AFFIDAVIT being first duly sworn deposes and states: That I am a representative of ASSET ACCEPTANCE, LLC a Limited Liability company organized and existing under the laws of the State of Delaware and doing business at P.O. BOX 2041, WARREN, MI 48090. That there is justly due and owing on the account, the sum of $1350.89 representing the charged off amount and interest. That the said account originally with /VICTORIAS SECRET / World Financial Network Nati, account number 000000000264316696, has been purchased by ASSET ACCEPTANCE, LLC, who now owns said account and has all rights connected therewith including the right to institute this action. d this 10th day of March, 1 J sset Acceptance Representative Subscribed and sworn to before me, a Notary Public for the State of Michigan, the 10th of March, 2010 as certified bv,mv hand as set fortA YLw Wly below. Public L M WEST Notary Public - Michigan Wayne County My Commission Expires Sep 2, 2012 Acting In the County of 40189400 61064 GORWNOwENeER4 IV???IIIIIINaII ASSET ACCEPTANCE LLC P.O. Box 2036 Warren, MI 48090 ACCOUNT NUMBER CURRENT BALANCE 000000000264316696 $1350.89 STATEMENT DATE DUE DATE MAR 10 2010 DUE ELIZABETH VANEK 1920 WALNUT BOTTOM RD CARLISLERA 17015 ACCOUNT NUMBER DATE OF LAST PAYMENT 000000000264316696 12/09/07 DATE REFERENCE NO ACCOUNT INFORMATION BALANCE DUE MAR 10 2010 40189400 BALANCE DUE $1350.89 ASSET ACCEPTANCE LLC, A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, ASSIGNEE OF AALLC/WORLD FIN NA P.O. Box 2036, Warren, MI 48090 DATE OF DELINQUENCY PURCHASED ON CHARGE OFF AMOUNT* INTEREST RATE 06/05/07 09/10/09 $1132.99 10.00% SERVICE ADDRESS (IF APPLICABLE) INTEREST DUE AS OF MAR 10 2010 $217.90 *For purposes of this Statement only, Charge Off Amount reflects credits for payments received by Asset, if any. ** Not previously sent to consumer. THIS COMMUNICATION IS FROM A DEBT COLLECTOR 40189400 1064 GORDON & WEINBERG SHERIFF' Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor OFFICE OF CUMBERLAND COUNTY ~~~,~tiSr 6~ 1~k#ibpr/,~~~ C~. ~",',~,~~ ;}fie -~=.~d- pFFiGE C ~ r~E sr~SRIRF ;_,~ ~, , CUt~~ - , ~1~diY Asset Acceptance LLC vs. Elizabeth K. Vanek 07/09/2010 06:25 PM -Mark Conklii 2010 at 1825 hours, he defendant, to wit: Elizab Road, Carlisle, Cumberl personally the said true SHERIFF COST: $33.40 July 12, 2010 Case Number 2010-4456 HERIFF'S RETURN OF SERVICE i, Deputy Sheriff, who being duly sworn according to law, states that on July 9, >erved a true copy of the within Complaint and Notice, upon the within named ;th K. Vanek, by making known unto herself personally, at 1920 Walnut Bottom and County, Pennsylvania 17013 its contents and at the sar,~fe tiry~ h~liding to her and correct copy of the same. ~ J ~~ ~ ~~ MARK CONKLIN, DEPUTY SO ANSWERS, « ~d~"" RON R ANDERSON, SHERIFF (c) CountySui[e Sheriff. Teleosoft, Inc. Joseph K. Goldberg, Esquire , ~ i ~~ ~ ~., '-.. : c; ~t 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 [;~ (~ ~ iy •._ i `t3' f~' 't ~ jgoldberg@ssbc-law.com J I)L ~ ~~ ~•.~Jl~ PA ID #46782 I~ t t ; ~.~ j ~` ~,,iS,, t ~r l ~~ F ~ 4 ` e .. ,~:.s. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ASSET ACCEPTANCE, LLC, Plaintiff v. ELIZABETH K. VANEK, Defendant CIVIL TERM (LAW) NO. 10-4456 JURY TRIAL DEMANDED NOTICE TO PLEAD TO: ASSET ACCEPTANCE, LLC c/o Joel M. Flink, Esquire You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may ~e entered against you. ^~1 I ~p~h ~.-6eldberg squire rney for Defen nt Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717)703-3600 j goldberg@ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ASSET ACCEPTANCE, LLC, Plaintiff v. CIVIL TERM (LAW) NO. 10-4456 ELIZABETH K. VANEK, JURY TRIAL DEMANDED Defendant PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW COMES the Defendant, Elizabeth K. Vanek, who files her Preliminary Objections to the Plaintiff's Complaint, as follows: 1. Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of a credit card account issued by a predecessor of the Plaintiff. Comp. ¶¶ 1, 2. 2. The Defendant was served with the Complaint in July, 2010. First Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) -Failure to conform to rule of court (failure to attach written assignment of debt) 3. The Plaintiff is not the original creditor of any of the account, but rather an assignee of at least one predecessor. Comp. ¶ 1. Since the Plaintiff's right to maintain an action as an assignor is predicated upon a written assignment, that writing must be attached to the Complaint, pursuant to Pa. R.C.P. No. 1019(1). 4. By failing to attach a copy of the assignment of the debt to the Plaintiff, the Complaint does not comply with an express rule of court, in violation of Pa. R.C.P. No. 1028(a)(2). Second Preliminary Objection - Pa. R.C.P. No. 1028(a)(2), (3) -Failure to conform to rule of court, as Plaintiff is not the real party in interest 5. Pa. R.C.P. 2002(a) requires that an action be brought by the real party in interest. 6. By failing to attach a copy of the necessary writings by which the Plaintiff would become the assignee of the account -and thus the real party in interest -the Plaintiff has failed to conform with the requirements of the aforesaid rule. 7. Since this matter was not brought by the real party in interest, it must be dismissed. Third Preliminary Objection - Pa. R.C.P. No. 1028(a)(2), (3) -Failure to conform to rule of court, and insufficient specificity 8. The Complaint contains only a bald assertion of the amount the Plaintiff claims is owed by the Defendant. It provides no detail as to the date(s) on which the debts were incurred, the amounts incurred on each date, the dates or amounts of payments and other credits, nor dates of accrual and amounts of interest charges and other fees. 9. Pa. R.C.P. No. 1019 and Pa. R.C.P. 1028(a)(3) require that the above detail be included in a Complaint of this type. 10. By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. 2 Fourth Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) -Failure to conform to rule of court (failure to state whether agreement is oral or written, state its terms, and/or attach written contract upon which the claim is based) 11. The Complaint alleges the existence of a credit card agreement between the Defendant and Plaintiff's predecessor, and refers to "the terms and conditions prescribed by the original creditor for use of said credit card." Comp. ¶ 3. 12. The Complaint does not state whether the agreement containing the terms and conditions is oral or written. 13. Pursuant to Pa. R.C.P. No. 1019(h), where a claim asserted is based upon an agreement, the pleading must state whether the agreement is oral or written. 14. Pursuant to Pa. R.C.P. No. 1019(1), if the agreement is written, it must be attached to the pleading or, if not, the pleader must explain its absence and set forth the substance of the agreement. 15. The Plaintiff has failed to describe the terms of the agreement, nor has it attached a copy of a written agreement or explained its absence. 16. The Plaintiff has also failed to include a copy of the writing signed by the Defendant by which the Defendant agreed to the credit card account contract. Fifth Preliminary Objection - Pa R.C.P. No. 1028(a)(4) -Demurrer -Failure to state a claim upon which relief can be granted (demanding interest and attorney's fees without a legal basis) 17. Plaintiff is demanding interest at 10% and an award of attorney's fees. Comp. at Exhibit A' and Prayer for Relief. 'Defendant is referring to the Statement attached as the last page of her copy of the Complaint. It is not labeled as Exhibit A, but Plaintiff refers in paragraph 4 of its Complaint to Exhibit A as a Statement of Account. 3 18. In the absence of a statutory or contractual provision, a party is not entitled to interest on a claim such as Plaintiffs. 19. No provision of law permits interest at 10%, nor has the Plaintiff pled any contractual right to interest. 20. In the absence of a statutory or contractual provision, a party is not entitled to an award of attorney's fees in a civil case. 21. There is no provision of law providing for an award of attorney's fees in a case such as this, nor has the Plaintiff pled any contractual right to an award of attorney's fees. WHEREFORE, the Defendant demands that her Preliminary Objections be sustained, and the Plaintiff's Complaint be dismissed. bmitte~, ,h K. Goldb ,Esquire Attorney ID No. 782 2080 Linglesto Road, Suite 106 Harrisburg, P 17110 (717)703-36 Attorney for Defendant 4 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the ~ day of ~J , 2009, I served a copy of the foregoing Defendant's Preliminary Objections to Complaint, by first class mail, postage prepaid, upon the following: Frederic I. Weinberg, Esquire Joel M. Flink, Esquire Suite 220 1001 E. Hector Street Conshohocken, PA 19428 Attorneys for Plaintiff cAja~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Asset Acceptance, LLC vs. Elizabeth K. Vanek (List the within matter for tj~ n o ° ------------------ - ~ a -n ~ ~W , ----------- ern c n ~ , ~1 - im '~~ N v ~Q D w ~~ --~ o ~C~ ~O ~ ~ ©~_ ©~ rrt p~ w ~ No. 10-4456 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Obiections to Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Joel M. Flink, Suite 220, 1001 E. Hector St., Conshocken, PA 19428 (Name and Address) (b) for defendants: Joseph K. Goldberg, 2080 Linglestown Road, Harrisburg, PA 17110 (Name and Address) 3. I will notify all parties in writing within two days that this case argument. 4. Argument Court Date: December 15, 2010 JoS`eph K. Print your Defendant September 21, 2010 Attorney for Date: been listed for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new bNefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the, day of ~ , 2010, I served a copy of the foregoing Praecipe for Listing Case for Argument, by first class mail, postage prepaid, upon the following: Frederic I. Weinberg, Esquire Joel M. Flink, Esquire Suite 220 1001 E. Hector Street Conshohocken, PA 19428 Attorneys for Plaintiff Josepf'S K. Golc~rg, Esquire f 9 Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 joldberg@ssbc-law.com PA ID #46782 FILED-OFFICE O THE PROTHONOTARY 2010 DEC 22 PM 1: 55 CUMBERLAND COUNT` PENNSYLVANIA IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ASSET ACCEPTANCE, LLC, : Plaintiff V. ELIZABETH K. VANEK, Defendant CIVIL TERM (LAW) NO. 10-4456 JURY TRIAL DEMANDED STIPULATION The parties, by and through their respective counsel, hereby Stipulate to the entry of the attached Order in the above-referenced matter. Conshohocken, PA 19428 Attorney for Plaintiff ' Attor II' D , squire No. 41200 Suite 20 Joel 1001 M E. Hector Street pub-I . of erg, Esquire A rney ID N 46782 80 Lingle n Road, Suite 106 Harrisburg, A 17110 (717)703-3600 Attorney for Defendant G -o :1 ° z -n =rl ? - Joseph K. Goldberg, Esquire A N ? r4i 2080 Linglestown Road, Suite 106 ? ---i p Harrisburg, PA 17110 (717) 703-3600 T> n 3 Z joldberg@ssbc-law.com Z C) t C)r" PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANI A ASSET ACCEPTANCE, LLC, Plaintiff CIVIL TERM (LAW) V. NO. 10-4456 ELIZABETH K. VANEK, JURY TRIAL DEMANDED Defendant ORDER ?h AND NOW, this ^0 day of December, 2010, upon consideration of the stipulation of the parties, Defendant's Preliminary Objections to Complaint are sustained, and Plaintiff is hereby ORDERED to file an Amended Complaint within thirty (30) days of the date of this Order. If Plaintiff fails to file an Amended Complaint by the deadline set herein, the Court may, upon application by Defendant, dismiss this action with prejudice. BY THE COURT: J. Copies to: Joseph K. Goldberg, Esq., 2080 Linglestown Road, Harrisburg, PA 17110; ?Joel M. Flink, Esq., 1001 E. Hector Street, Suite 220, Conshohocken, PA 19428 t?'7" (a a? I ?O (0 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 FII ED-OFFICE ??}} jg1jgg?? 1A 1'ti F ??71~ 201I'FEB 22 PH 3* 31 PENNSYLVAN A TY ASSET ACCEPTANCE LLC ASSIGNEE OF WORLD FINANCIAL NETWORK NATIONAL BANK VS. ELIZABETH VANEK COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 10-4456 PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above-captioned action, without prejudice. GORDON & WEINBERG, P.C. BY: FREDERIC I. WE ERG, ESQUIRE JOEL M. FLINK, ESQUIRE Attorney for Plaintiff 2006 CERTIFICATION OF SERVICE I, FREDERIC I. WEINBERG, 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. FREDERIC INBERG, ESQUIRE Dated 2-((-)(((