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HomeMy WebLinkAbout10-4719SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith ~4~~t~ od ~~Erx~,~~,~,~~~ ~~= T~~ ~ ~:' ~ y~?'{ Chief Deputy C~ =: ~ ~~,~ ~. ;,~ , Richard W Stewart ~- Solicitor ~eF~c~ ~~ - ~ .:,~ks~rF ~,~ i~ ,,, . ~~i •.;~ ; _., ~~ F`;_ ~ ~~_ Citibank (South Dakota) N.A. vs. Case Number Ederell R. Cortez 2010-4719 SHERIFF'S RETURN OF SERVICE 07/20/2010 08:00 PM -Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on July 20, 2010 at 2000 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Ederell R. Cortez, by making known unto himself personally, at 3 Catalpa Co ing Springs, Cumberland County, Pennsylvania 17007 its contents and at the same time ha i o personally the said true and correct copy of the same. MAR CO KLIN, DEPUTY SHERIFF COST: $33.40 July 21, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF (c~ Count;+Suite Sheriff. Teieosoft. Inc. CITIBANK (SOUTH DAKOTA), N.A. 701 East 6i}th Street N Sioux Falls, SD 57117 Plaintiff v. EDERELL R. CORTEZ Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PArY, c~ ~, ~;. ~'• ~~ ~' ~ - NO.: 10-4719 Civil Terms c ~' ._ ~ _- CIVIL ACTION-LAW _ ~- ~ =- -- , _ ~ ~:. NOTICE OF APPEARANCE '"" ~ ~= The undersigned enters an appearance in this action, and demands notice of all further proceedings. The Clerk of Court and the opposing party will be informed of any changes in address. Any and all notices may be sent to: Service Address: EDERELL R. CORTEZ, 3 CATALPA CT, BOILING SPRINGS, PA 17007. Dated this the ~~y of August, 2010 in BOILING SPRI~fGS, PENNSYLVANIA ~~-- EDERELL R. C R z, ~.. .:~ r CITIBANK (SOUTH DAKOTA), N.A. 701 East 60th Street N Sioux Falls, SD 57117 Plaintiff v. EDERELL R CORTEZ Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA c~ NO.: 10-4719 Civil Term;';'; ~~ ~ '-'.' CIVIL ACTION-LAW - = ~ ~- _ , 6, c , ~ -~-. ANSWER AND AFFIRMATIVE DEFENSES - " ~ _ ~ ~.~. .. Lr` Comes Defendant, Pro Se, who answers the Plaintiff's Complaint as follows: ~''' 1. Defendant lacks knowledge about the truth and therefore denies the allegations contained in Paragraphs 3, 4, 5, 6, 7, 8, and 9. II. AFFIItMATIVE DEFENSES Defendant's other defenses are: Plaintiffs Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the Complaint was not in writing and not signed by Defendant or by some another person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person. 2. Plaintiff is barred under the Fair Debt Collection Practices Act from collecting any fees, costs, and any amount not specifically provided for by purported agreement. 3 Plaintiff has not proven that they are authorized. and licensed to collect claims for others in the State of Pennsylvania and to solicit the right to collect or receive payment of a claim of another. 4. The Summons fails to allege or prove that the Plaintiff is licensed and/or has procured a bond in the State of Pennsylvania. `. ..~ r -„ 5. Defendant reserves the right to plead other affirmative defenses that may . T become applicable and/or available at a later time. WHEREFORE, Defendant prays that the court take nothing of Plaintiffs Complaint by virtue and dismisses the complaint. August 1~~2010 Ederell R. Cort z 3 Catalpa Ct. Boiling Springs, PA 17007 CITIBANK (SOUTH DAKOTA), N.A. 701 East 60th Street N Sioux Falls, SD 57117 Plaintiff v. EDERELL R. CORTEZ Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 10-4719 Civil Term CIVIL ACTION-LAW CERTIFICATE OF SERVICE I certify under penalty of perjury under the laws of the State of PENNSYLVANIA that, on the date stated below, I did the following: On the ~ day of August, 2010, I mailed by Certified Mail, Return Receipt, postage pre-paid, a true copy of the Notice of Appearance, Answer and Affrrmative Defenses and Certificate of Service to CITIBANK (SOUTH DAKOTA), N.A., at the offices of Derek C. Blasker, Esq., at the following address: Burton, Neil & Associates, 1060 Andrew Drive, Suite 170, West Chester, PA 19380. ~- Dated this the ~0 dayy of August, 2010 in BOILING SPRINGS, PA. EDERELL R. C BURTON NEIL & ASSOCIATES, P.C. Derek Blasker, Esquire, Id. no. 202150 1060 Andrew Drive, Suite 170 West Chestier. PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. Plaintiff V. EDERELL R CORTEZ % 10 V,102b AM 11.51 PENNSYI.VANIA NTY : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-4719 civil term Defendant : CIVIL ACTION - LAW REPLY TO NEW MATTER 1. Denied. There are no facts set forth or alleged in the averment to which a responsive pleading is required. The allegation is denied pursuant to Pa R.C.P. 1029(d). It is further denied that statute of frauds is an available defense to plaintiffs account stated cause of action. This case involves the provision of revolving credit, which is a service. It is not one of the particular contract types the legislature specified had to be in writing: land transfers (33 P.S. Section 1), trusts (33 P.S. Section 2), suretyship and guarantee contracts (33 P.S. Section 3). Further, if defendant's credit card account were of the type of account that fell under the requirements of the statute of frauds, such defense would be inapplicable to the instant action because of defendant's use of the subject matter credit card and payments upon the such account. It is well established law that performance upon an agreement trumps the statute of frauds defense. 2. Denied. Denied as a conclusion of law to which no response is required. There are no facts alleged in the averment, therefore, pursuant to Pa R.C.P. 1029(4), the allegation is denied. By way of further response, plaintiff s account stated cause of action is not based upon a purported agreement, but instead defendant's actions in response to receipt of the statement of account attached to the complaint as Exhibit A. 3. Denied. It is denied that plaintiff seeks to collect the claims of others in the instant cause of action. As alleged in, complaint paragraph 4, plaintiff issued consumer credit to defendant. Plaintiff is the party in interest and is collecting a debt defendant owes to plaintiff. 4. Denied. It is denied that a Summons was filed by plaintiff. It is denied that plaintiff, a national bank, is required to be licensed or procure a bond in Pennsylvania. 5. Denied. It is denied that defendant may reserve the right to add additional new matter as a matter of course after the filing of this Reply to New Matter. Once this Reply is riled, the pleadings will be closed. Such reservation would constitute an amendment to a pleading, which would need to be made pursuant to Pa R.C.P. 1033 and would require the consent of counsel for plaintiff or leave of this Court: Any affirmative defenses not raised within defendant"s answer or new matter are now deemed waived by defendant. See Pa R.C.P. 1032(a). WHEREFORE, plaintiff prays that judgment be entered on its behalf and against defendant as set forth in the complaint. BURTON ly1I / ASSOCIATES, P.C. By: Deter, Esquire Attorney fdr Plaintiff In making this communication, we advise our firm is a debt collector. Verification Derek C. Blasker, Esquire, attorney for plaintiff, CITIBANK (SOUTH DAKOTA), N.A. , makes this statement on its behalf as to the truthfulness of the facts set forth in the foregoing Reply to New Matter subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Counsel, rather than an officer or other representative of plaintiff is verifying the foregoing Reply to New Matter because plaintiff's officers and/or representatives are outside the jurisdiction of the court and the verification of none of them could be obtained within. the time required to file this pleading. Plaintiff's counsel is verifying plaintiffs Reply to New Matter based upon information and belief from information Date: Burton Neil & Associates, P.C. By: Derek C. Blasker, Esquire ID. NO. 202150 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-21.20 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. IN THE COURT OF COMMON PLEAS Plaintiff V. : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-4719 civil term EDERELL R CORTEZ Defendant : CIVIL ACTION - LAW Certificate of Service I, Derek C. Blasker, Esquire do hereby certify that I served a true and correct copy of the within Reply to New Matter on defendant's counsel, Law Offices of Richard Lenard at his address of record via first class mail, postage prepaid on the date set forth below. l Burton Neil ociates, P.C. Date: By: re C. Blasker, Esquire Attorney for Plaintiff The law firm of Burton Neil & Associates is a debt collector. C-35805 SPPl3 Burton Neil & Associates, P.C. By: Derek C. Blasker, Esquire ID. NO. 202150 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. EDERELL R CORTEZ Defendant NO. 10-4719 civil term CIVIL ACTION - LAW Praecipe to Substitute Verification To the Prothonotary: Kindly substitute the attached verification for the attorney verification filed with plaintiffs Reply to New Matter. Associates, P.C. Dei Blasker, Esquire Attorne for Plaintiff In making this communication, we advise that our firm is a debt collector. Burton By: C-35805 a Verification Pam Cline is an employee of Citicorp Credit Services, Inc. (USA) (hereafter CCSI), a subsidiary of plaintiff, Citibank (South Dakota), N.A. CCSI is a service provider for plaintiff in that it services credit card accounts owned by plaintiff. I am authorized to make this verification on behalf of plaintiff. The statements of facts set forth in the Reply to New Matter are true and correct upon my information and belief and are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date; Signature Ederell R Cortez Account No Ending in 5285 C-35805 Ir IL~o-fl~'FICE flF THE PROTHflNflTARY 2014 OCT 18 P~3 3~ ~ 7 CUh~BERLAJO COUNTY PENNSYLVANIA Burton Neil & Associates, P.C. By: Derek C. Blasker, Esquire ID. N0.202150 1060 Andrew Drive; Suite 17.0 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. Plaintiff v. EDERELL R CORTEZ Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4719 civil term CNIL ACTION -LAW Praecipe to Discontinue To the Prothonotary: Kindly discontinue the above-captioned action without p}rej Burton N By: Dere Attorney The law firm of Burton Neil & Associates is a debt collector. P.C. esker, Esquire Plaintiff C-35805