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Home My WebLink About10-4558 2084150 n- . THIS IS AN ARBITRATION MATTER. ASSESS~EN'~'OF-Y DAMAGES HEARING ~~ ~.f._ REQUIRED. n. ~ ~ ~~= eii=-'? GORDON & WE.INBERG, P . C . ;~- s: ,, ~ ~. BY: FREDERIC I. WEINBERG, ESQUIRE r, ., ='~ ~' ls; Identification No.: 41360 !, ;-~.:. ~ JOEL M. FLINK, ESQUIRE ~:.~ ,_ ~., Identification No.. 41200 ~~' ~ ~ ~ -.~ ~' 1001 E. Hector Street, Ste 220 . -~ _ ..4 '~ Conshohocken, PA 19428 484/351-0500 ASSET ACCEPTANCE LLC ASSIGNEE OF Chase 28405 VAN DYKE AVE Warren MI 48093 vs. ELIZABETH K VANEK 1920 WALNUT BOTTOM RD CARLISLE PA 17015 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO . ~0 - 4~8 `i1Vl ~~l°~I'M1 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 O ~ga.oo Po a-rr^1 e~ 1aa84o 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 May 7, 2010 in the amount of $1,256.72. 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 10/28/07. WHEREFORE, plaintiff claims of the defendant(s) the sum of 51,256.72 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I. EIN RG, ESQUIRE JOEL M. FLI SQUIRE Attorney for Plaintiff POlA.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 coi7•ect to the best of my knowledge, information and belief and is based upon information wluch plaintiff has fiiz-nished 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 malting this verification. This verification is made subject to 1 S Pa.C.S. §4904 which provides for certain penalties for n7aking false statements. ~ ~ . .:~;_.°,.~.~._-...~:_~;. Name H~~II~S ~f~'~CH(~l~ EXHIBIT "A" STATE OF MICHIGAN ) ss COUNTY OF MACOMB ) ASSET ACCEPTANCE, LLC Plaintiff, vs ELIZABETH K VANEK Defendant, ' `~~~~ I, ~ 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 Delawaze and doing business at P.O. BOX 2041, WARREN, MI 48090. That there is justly due and owing on the account, the sum of $1229.15 representing the chazged off amount and interest. That the said account originally with /PIER 1 /Chase, account number 5888964105454097, 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. Dated this 25th day of March, 20 Asset Acceptance Representative Subscribed and sworn to before me, a Notary Public for the State of Michigan, the 25th of March, 2010 as certified by my hand s set forth immediately below. W~ Notary Public . „ ~. ~,, ., _ - ~a ~.~,,.~~mwt.~~a~ II~Npgl~l~l~r~Ir ASSET ACCEPTANCE LLC P.O. Box 2036 Warren, MI 48090 ELIZABETH K VANEK 1920 WALNUT BOTTOM RD CARLISLE,PA 17015 ACCOUNT NUMBER CURRENT BALANCE 5888964105454097 $1229.15 STATEMENT DATE DUE DATE MAR 25 2010 DUE ACCOUNT NUMBER DATE OF LAST PAYMENT 5888964105454097 10/28/07 DATE REFERENCE NO ACCOUNT INFORMATION BALANCE DUE MAR 25 2010 40340048 BALANCE DUE $1229.15 ASSET ACCEPTANCE LLC, A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAVyARE, ASSIGNEE OF AALLC/CHASE 9/09 P.O. Box 2036, Warren, MI 48090 DATE OF DELINQUENCY PURCHASED ON CHARGE OFF AMOUNT* INTEREST RATE 08/07/07 10/01/09 $901 82 18 00% . . SERVICE ADDRESS (IF APPLICABLE) INTEREST DUE AS OF MAR 25 2010 $327.33 *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 40340048 1064 GORDON & WEINBERG ` ~i {" ? L C.' Joseph K. Goldberg, Esquire 1t Tt - '~' '~`~` 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 ~• ; ;, ..~~ %. ;. '~ - (717) 703-3600 L~ ~ ~ `' "' ` ~ t ' " "~ `~" jgoldberg@ssbc-law.com JuL a~ ~~ a-~•5o PA ID #46782 "~`" `~' `"''' `r j r rr~ ~ J!'~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ASSET ACCEPTANCE, LLC, Plaintiff CIVIL TERM (LAW) ~~ NO. 10-4458 ELIZABETH K. VANEK, JURY TRIAL DEMANDED Defendant 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 be enfered i against you. Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717)703-3600 joldberg@ssbc-law.com PAID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ASSET ACCEPTANCE, LLC, Plaintiff v. CIVIL TERM (LAW) NO. 10-4458 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 on July 16, 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 18% 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. Respectfully submitted, Jose d A ney ID No. 080 Linglesto~ Harrisburg, P (717)703-3~ uire ~YRoad, Suite 106 7110 Attorney for Defendant 4 CERTIFICATE OF SERVICE A I, the undersigned, hereby certify that on the ~ day of ~ , 2009, I served a copy of the foregoing Defendant's Preliminary Objections t 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 1~ Attorneys for Plaintiff ~ cA~~a~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for th~ne~ __.. 0 `~ Argument Court.) ~ ~ ~~ o ~ w ~-~ --------------------------------------------___------------------------------------------------------__- CAPTION OF CASE -_ r=~ c-~ ~ rte-- --3 r- ~ . (entire caption must be stated in full) ~ ~ ~ ~ ~ Asset Acceptance, LLC _ ~ c~ ~,,, ~ ~ ~' i s ~o ~~ - vs. ~ o ~ A r Elizabeth K. Vanek ca ,~~ w ~ ~, No. 10-4558 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Prelimina Ob'ections to Com laint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Joel M. Flink, Suite 220, 1001 E. Hector St., Conshohocken, PA 19428 (Name and Address) 4 (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 has been listed for argument. Argument Court Date: 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 briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. October 14, 2010 Attorney for Date: CERTIFICATE OF SERVICE A I, the undersigned, hereby certify that on the ~ day of , 2010, I served a copy of the foregoing Defendant's 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 t a4 Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 HLED -0 ' THE 2011 JN 14 alb 11: 133 Joldberg@ssbc-law.com C U PIBERI_?dr,4 G Ir.?U' , PA ID #46782 P E N N S y I_%/ A I --M33 In" 3 W11111 Jbi. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ASSET ACCEPTANCE, LLC, Plaintiff V. ELIZABETH K. VANEK, Defendant CIVIL TERM (LAW) NO. 10-4558 JURY TRIAL DEMANDED ORDER AND NOW, this 11A day of ^????"??, 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: Copies t Joseph K. Goldberg, Esq., 2080 Linglestown Road, Harrisburg, PA 17110; ? Joel M. Flink, Esq., 1001 E. Hector Street, Suite 220, Conshohocken, PA 19428 2 DP mailed ILED-OFFICE 2084150`^ ?{ PROTHONOTARY 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 I'D I I JAN 31 PM 2= 11 CUMBERLAND COUNTY PENNSYLVANIA ASSET ACCEPTANCE LLC ASSIGNEE OF Chase VS. ELIZABETH K VANEK COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 10-4558 PRAECIPE TO WITHDRAN COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above-captioned ac-ion, without prejudice. GORDON & WEINBERG, P.C. BY: FREDERIC I. E ERG, ESQUIRE JOEL M. FLINK, ESQUIRE Attorney for Plaintiff P006 1r 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. Dated ( 12'r. i I I FREDERIC I. WEINBERG, ESQUIRE