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Home My WebLink About10-4709SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ~a~pSn U~ ~1tlM~rgj$~~ fu ~, . ~ y' ~ ~~ ~ ,.~ QFf tGE ,E~r T KE SN£RIFF _, rkE.. r , ,~~1~i~f ~-= ~- y P~ i ~ 22 Asset Acceptance LLC vs. Elizabeth K. Vanek Case Number 2010-4709 SHERIFF'S RETURN OF SERVICE 07/29/2010 02:45 PM -Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on July 29, 2010 at 1445 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Elizabeth K. Vanek, by making known unto herself personally, at 1920 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $33.40 August 03, 2010 R ERT ITNE PUTY SO ANSWERS, • t~~^^rt"-" RON R ANDERSON, SHERIFF tc) CountySuite Sheriff, Teleosoft, Inc. Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg. PA 17110 (717) 703-3600 jgoldberg assbc-law.com PA ID #46782 Joro A06 a3 AM W O-3 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ASSET ACCEPTANCE, LLC, Plaintiff V. ELIZABETH K. VANEK, Defendant CIVIL TERM (LAW) NO. 10-4709 JURY TRIAL DEMANDED 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 Plaintiff. Comp. ¶T 1, 2. 2. Defendant was served with the Complaint in late 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. Plaintiff is not the original creditor of any of the account, but rather an assignee of at least one predecessor. Comp. ¶ 1. Since 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(i). 4. By failing to attach a copy of the assignment of the debt to 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 Plaintiff would become the assignee of the account - and thus the real party in interest - 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 Plaintiff claims is owed by 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 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. 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. Plaintiff has also failed to include a copy of the writing signed by Defendant by which 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 Plaintiff's. 19. No provision of law permits interest at 10%, nor has 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 Plaintiff pled any contractual right to an award of attorney's fees. WHEREFORE, Defendant demands that her Preliminary Objections be sustained, and Plaintiff's Complaint be dismissed. Respe oIdbe orney ID No. 4 080 Linglesto Harrisburg, P 1 y (717)703-36 fitted, Esquire '2 ,oad, Suite 106 10 Attorney for fendant 4 CERTIFICATE OF SERVICE 1, the undersigned, hereby certify that on the/ Jday of 2009,1 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 CA~AC. i ~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next ~ Argument Court.) ~ ,~ -n CAPTION OF CASE rrt~ cn rn~ (entire caption must be stated in full) ~ ~ ~ -~ ~' Asset Acceptance, LLC ~ D ~ ~ ~ ~ ~~ vs. Aq ~ ~ ~ _ ~`~ ~ Elizabeth K. Vanek ~~ :` o --~~# 10-4709 Civil ~ m c~ ~ I~ ~~ No Te 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demu rrer to complaint, etc.): Defendant's Preliminary Objections 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 has been listed for argument. 4. Argument Court Date: December 15, 2010 K. Goldberg Print your name Defendant v September 21, 2010 Attorney for 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. CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the day of , 2010, 1 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 V , .I Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 goldberg@ssbc-law.com FILED-O Fl?:J . iiµeb,fY° 25. 11 JAN 14 AH 11: 1 3) PAID#46782 ?J EN N b Y L W' I' 2011 JAN 12 ?qlq?ySQUANIA IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, ASSET ACCEPTANCE, LLC, Plaintiff V. ELIZABETH K. VANEK, Defendant CIVIL TERM (LAW) NO. 10A76 JURY TRIAL DEMANDED ORDER 1ti day of-B upon consideration of the AND NOW, this ' Ob'ections to Complaint are stipulation of the parties, Defendant's Preliminary ? taint within thirty sustained, and Plaintiff is hereby ORDERED to file an Amended Comp date of this Order. If Plaintiff fails to file an Amended Complaint by the (30) days of the herein, the Court may, upon application by Defendant, dismiss this action deadline set with prejudice. BY THE COURT: h K. Goldberg, Esq., 2080 Linglestown Road, hohockenbPA 1 Joel M 9428 110; Copies to: Josep Hector Street, Suite 220, Cons M. Flink, Esq., 1001 E. o r$ 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 FILED-OFFICE 2082913 THE PROTHONOTARYl` iQf f JAN 31 PM 2: f i CUMBERLAND COUNTY PENNSYLVANIA ASSET ACCEPTANCE LLC ASSIGNEE OF WORLD FINANCIAL NETWORK NATIONAL BANK VS. E K VANEK COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 10-4709 PRAECIPE TO WITHDRAW C04PIAIM TO THE PROTHONOTARY: Kindly withdraw the above-captioned action, without prejudice. GORDON & WEINBERG, P.C. BY: FREDERIC I.`WF,,kt4BERG, ESQUIRE JOEL M. FLINK, ESQUIRE Attorney for Plaintiff P006 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 1 2'(0 ? (1 FREDERIC I. ERG, ESQUIRE