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Home My WebLink About10-5076Our File No.: 277801 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D. #38423 - 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK BY ITS SERVICING AGENT DFS SERVICES LLC 6500 NEW ALBANY ROAD NEW ALBANY, OH 43054 Plaintiff, vs. DAVID J MCALICHER 255 G ST CARLISLE, PA 17013-1394 Defendant. aDlo Aug 3 QM ?? 3a? COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 10 - 50%0 C.1 % I Tem 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 judgment 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. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 34 S. BEDFORD ST. CARLISLE PA 17013 717-249-3166 n ?v *Q01.00 PO R Tr-1 el# Iq 1040 Our File Nb.: 277801 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK BY ITS SERVICING AGENT DFS SERVICES LLC 6500 NEW ALBANY ROAD NEW ALBANY, OH 43054 Plaintiff, vs. DAVID J MCALICHER 255 G ST CARLISLE, PA 17013-1394 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.. CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is DISCOVER BANK BY ITS SERVICING AGENT DFS SERVICES LLC, 6500 NEW ALBANY ROAD, NEW ALBANY, OH 43054. 2. Defendant(s) is/are DAVID J MCALICHER, an adult individual residing at 255 G ST CARLISLE, PA 17013-1394. 3. At the special instance and request of Defendant, Plaintiff, DISCOVER BANK BY ITS SERVICING AGENT DFS SERVICES LLC, issued to Defendant(s), Account # ending in 6874. 4. Defendant received, accepted and used the account to its benefit. 5. This account is in default and Defendant(s) has an unpaid balance of $14,361.51. A true and correct copy of the total due and owing is attached hereto, made a part hereof and marked as Exhibit "A". 6. All credits, if any, to which Defendant(s) is entitled, have been applied to the account and are included in Exhibit "A". 7. ' Although demand has been made, Defendant(s) has failed to make payment of the amount due as above. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $14,361.51 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & OCIATES, P.C. Attorne fo Plaintiff A Law Firm En ane in Debt Colleotoi BY: David J. A kotl40er, Esquire Dated: 7/26/2010 Our File No.: 277801 VERIFICATION David J Apothaker Esquire Esa hereby states that I am counsel for plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. relating to unworn falsification to authorities. David J. ker, Esquire Plaintiff DATE: 7/26/2010 DISCOVER BANK BY ITS SERVICING AGENT DFS SERVICES LLC DAVID J MCALICHER 255 G ST CARLISLE, PA 17013-1394 STATEMENT OF ACCOUNT Debtor's Name: DAVID J MCALICHER Account Number: ending in 6874 Balance Due: $14,361.51 Our File No.: 277801 EXHIBIT "A" SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~~~~titr of ~uu~b~r~~~ ~ ~~ .,i4S1 -• -... 9tFF(Ge of ~ ~~ s~sERta~ h's(_ Jody S Smith Chief Deputy Richard W Stewart Solicitor Discover Bank vs. David J. Mcalicher 27iQ ~i~~~ i i ,j~ ~ I f~ l '2Ct(O tAcaG f'i AM 1 ~.~ ~} (,~ G+.~I L_~._ ._ ~~i'~rP z ~" _- ~ I ._ Case Number 2010-5076 SHERIFF'S RETURN OF SERVICE 08/13/2010 02:50 PM -Valerie Weary, Deputy Sheriff, who being duly sworn according to law, states that on August 13, 2010 at 1450 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: David J. Mcalicher, by making known unto himself personally, at 255 G Street, Carlisle, Cumberland County Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. VALERIE WEARY, DEPUTY SHERIFF COST: $33.40 August 16, 2010 (c) CountySuite Sheriff. Teleosoft, Inc. SO ANSWERS, RON R ANDERSON, SHERIFF DISCOVER BANK BY ITS SERVICING : COURT OF COMMON PLEAS AGENT oFS SERVICES I-I-C : CUMBERLAND COUNTY, PENNSYLVANIA 6500 New Albany Road New Albany, OH 43054 Plaintiff . Q No: 10-5076- CIVIL TERW, Z< = -, T-ri DAVID J MCALICHER ? _~ ? 255 G ST ? •' ! ?? { {'' i Carlisle, PA 17013-1394 r_ :jam ` Defendant r NOTICE TO PLEAD To: Discover Bank by its Servicing Agent DFS Services, LLC c/o David J. Apothaker, Esquire Apothaker and Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: 101 I 1 t7 Respectfully Sub/tted, Michael 1 PrykdSt1," Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, David J. McAlicher l E ell 0, "1 T 1 2 r'"iKH5,1'ID COWITY Michael J. Pykosh, Esquire G z? ?i ?r?F?1 I :'? ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mvvkosh?u dp1y-1a3v&om Attorney for Defendant DISCOVER BANK BY ITS SERVICING : COURT OF COMMON PLEAS AGENT DFS SERVICES LLC : CUMBERLAND COUNTY, PENNSYLVANIA 6500 New Albany Road New Albany, OH 43054 Plaintiff V. No: 10-5076- CIVIL TERM DAVID J MCALICHER 255 G ST Carlisle, PA 17013-1394 Defendant DEFENDANT'S, PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, David J. McAlicher, who files his Preliminary Objections to the Plaintiffs Complaint, as follows: Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account issued by Discover Bank of which Plaintiff DFS Services, LLC claims to be the Servicing Agent. Comp. ¶ 1 and 3. 2. The Complaint was filed on August 3, 2010. First Preliminary Objection- Pa. R.C.P. No. 1028(a)(2)- Failure to conform to rule of court (improper Verification) 3. Pa. R.C.P. No. 1024 required that every Complaint be verified by a Party, unless the party is without sufficient knowledge or information with which to verify, or, alternatively, that the party is outside the jurisdiction of the court and its verification cannot be obtained within the time allowed for pleading. Pa. R.C.P. No. 1024(c)(1) and (2). 4. The Complaint is verified by counsel of record for the Plaintiff, and not an employee or other agent of the Plaintiff. 5. The Verification does not state that the party was unable to sign it "within the time allowed for pleading," nor the reason why the Verification is not made by a party, as required by Pa. R.C.P. No. 1024(c). Second Preliminary Objection- Pa.R.C.P. No. 1028(a)(2)-Failure to conform to rule of court (failure to attach written assignments of debt) 6. The Plaintiff is not the original creditor, but rather an agent or assignee of the original creditor. Comp. ¶ 1 and 3. Since the Plaintiff's right to maintain an action as an assignee is predicted upon written assignment or agency agreement, that writing must be attached to the Complaint, pursuant to Pa. R.C.P. No. 1019(i). 7. 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). See Remit Corporation v Miller 5 Pa. D&C 5th 43 and Capital One Bank v Clevenstine, 7 Pa. D&C 5th 153 Third 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 8. Pa. R.C.P. 2002(a) required that an action be brought by the real party in interest. 9. By failing to attach a copy of the necessary writing by which the Plaintiff would become the assignee of the account and this the real party in interest or an agency agreement - the Plaintiff has failed to conform with the requirements of the aforesaid rule. 10. Since this matter was not brought by the real party in interest it must be dismissed. Fourth Preliminary Objection- Pa. R.C.P. No. 1028(a)(2),(3)- Failure to conform to rule of court, and insufficient specificity 11. The Complaint contains only a general assertion of the amount the Plaintiff claims is owed by the Defendant. It provided 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, nor dates of accrual and amounts of interest charges and other fees. 12. 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. 13. By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. Fourth Preliminary Objection- Pa. R.C.P. No. 1028(a)(2),(3)- Failure to conform to rule of court (failure to state whether agreements is oral or written, state its terms, and/or attach written contract upon which the claim is based) 14. The Complaint avers the existence of some type of contract between the parties, referred to as the "account." 15. 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. 16. The Complaint does not indicate whether the agreement is oral or written. 17. Pursuant to Pa. R.C.P. No. 1019(i), 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. More specifically, Plaintiff has failed to attach the original Loan/Credit Agreement signed and dated, including both original and amended terms and conditions applicable to the credit card agreement. Asset Acceptance, LLC v Margaret Madden Order dated March 18, 2009, No. 2912 of 2008 GD (Fayette County 2009) citing Atlantic Credit & Finance, Inc. v Guiliana, 829 A.2d 340 (Pa. Super. 2003). Plaintiff has also failed to attach "other periodic mailings detailing changes to the terms of the contract Remit Corporation v Miller, 5 Pa. D&C 5th 43, 45 (Centre County, 2008) 18. 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. WHEREFORE, the Defendant demands that his Preliminary Objections be sustained, and the Plaintiffs Complaint be dismissed. Date: 10 1809 ? 10 Respectfully ubmi d, f Michael J. P cosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 VERIFICATION I, David J. McAlicher, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. % Date: G f6- g-ao/a Da J. cAlicher DISCOVER BANK BY ITS SERVICING : COURT OF COMMON PLEAS AGENT DFS SERVICES LLC : CUMBERLAND COUNTY, PENNSYLVANIA 6500 New Albany Road New Albany, OH 43054 Plaintiff , V. No: 10-5076- CIVIL TERM DAVID J MCALICHER 255 G ST Carlisle, PA 17013-1394 Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, David J. McAlicher's, Preliminary Objections to Plaintiffs Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Discover Bank by its Servicing Agent DFS Services, LLC c/o David J. Apothaker, Esquire Apothaker and Associates, P. C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Dater Respectfully S4mitted, Micha6T. Posh, Esquire I. D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant Our File No.: 277801 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D.# 38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorney for Plaintiff DISCOVER BANK BY ITS ) SERVICING AGENT DFS SERVICES ) LLC ) Plaintiff, ) VS. ) DAVID J MCALICHER ) Defendant. FILED-OFFICE OF THE PROTHONOTARY 2010 DEC 21 PM 2: 55 CUMBERLAND COUNTY PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-5076 CIVIL TERM PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & AS AttorneT z A Law Firm Ent d By: Dated: 12/16/2010 TES, P.C. bt Collection David J. Apothaker, Esquire IIINIIIIIIIIII