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Home My WebLink About10-5084Our File No.: 260418 . 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 LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff, VS. STEVEN L DANIELS 203 11TH ST NEW CUMBERLAND, PA 17070 Defendant. 't.1 xi 0?0l0 !f vb- 3 h4f *2:33 COURT OF COMMON PLEAS CUMBERLAND COUNTY( NO.: 10 - rJ' 05q 11iv i t -re K 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 G) +qA. 00 P P A1'M c? ?Raa?l? ? ?y c? fag Oixr File No.: 260418 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 LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, vs. STEVEN L DANIELS 203 1 ITH ST NEW CUMBERLAND, PA 17070 Defendant. NO.. CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is LVNV FUNDING, LLC, 15 SOUTH MAIN STREET STE 500, GREENVILLE, SC 29601 2. Defendant(s) is/are STEVEN L DANIELS, an adult individual residing at 203 11TH ST NEW CUMBERLAND, PA 17070. 3. Plaintiff, LVNV FUNDING, LLC, is the Assignee and Successor in Interest of Account # ending in 8395; and said account was issued to Defendant(s) by CITIBANK/SEARS, the Original creditor. 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 $2,527.18. 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 $2,527.18 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & rdi'Debt IATES, PC. Attorney tiff A Law Firm Engag CoWec"iioi BY: David J. Apot ker, Esquire Dated: 7/28/2010 Our File No.: 260418 VERIFICATION David J. Apothaker Esquire 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 hue 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.C.S.A. 4904 relating t5xnsworn falsification to authorities. David J. Apot er, Esquire Attorney for Plaintiff DATE: 7/28/2010 LVNV FUNDING, LLC STEVEN L DANIELS 203 1 I TH ST NEW CUMBERLAND, PA 17070 STATEMENT OF ACCOUNT Debtor's Name: STEVEN L DANIELS Account Number: ending in 8395 Original Creditor: CITIBANK/SEARS Balance Due: $2,527.18 Our File No.: 260418 EXHIBIT "A" SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~a~~t4, ~t `lu~6rrr,~~~ ~kt ~, ~`~" ~~ ~: ~~, 17~fIcE ~•,' r..E gFtERtFF' }-i i , ~~~_.w: . TI :a Jody S Smith Chief Deputy Richard W Stewart Solicitor ~ (O'''I O qUG 14 Prl~l ^'1=r2~t vi4~. ~- ,i ,: ,;: .~, LVNV Funding, LLC vs. Steven L. Daniels Case Number 2010-5084 SHERIFF'S RETURN OF SERVICE 08/12/2010 04:40 PM -Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on August 12, 2010 at 1640 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Steven L. Daniels, by making known unto himself personally, at 203 11th Street, New Cumberland, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $43.30 August 13, 2010 ~~~ RYAN BURGETT, DEPUTY SO ANSWERS, ~~ RON R ANDERSON, SHERIFF (c} CountySuite Sheriff. Teleosoft. Inc. LVNV FUNDING, LLC 15 South Main Street, Suite 500 Greenville, SC 29601 Plaintiff V. STEVEN L. DANIELS 203 11th Street New Cumberland, PA 17070 Defendant NOTICE TO PLEAD To: LVNV Funding, LLC c/o David J. Apothaker, Esquire Apothaker and Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 = n `r c? rri U X- 7 5 cn 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: '?- co COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-5084- CIVIL TERM Respectfully Subgjteq', Mid'hael J. P*kosh0,4qCfire I. D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Steven L. Daniels Michael. Pykosh, Esquire ID # 58851 Dethlef's-Pykosh l,aw Group, 11C 2132 Market Street Camp Hill_ Pennsylvania 17011 Telephone - (717) 975-9446 Fax -(717) 975-2309 mpykosh'u;-dplglaw.com Attorney for Defendant LVNV FUNDING, LLC : COURT OF COMMON PLEAS 15 South Main Street, Suite 500 : CUMBERLAND COUNTY, PENNSYLVANIA Greenville, SC 29601 Plaintiff V. No: 10-5084 CIVIL TERM STEVEN L. DANIELS 203 11th Street New Cumberland, PA 17070 Defendant DEFENDANT'S. PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Steven L. Daniels, by and through her attorneys, DETHLEFS-PYKOSH LAW GROUP, by Michael J. Pykosh, Esquire, and hereby files Preliminary Objections to the Plaintiff's Complaint, and avers as follows: 1. On or about August 3, 2010, a Civil Complaint was filed at Docket Number 10- 5084 Civil Term. 2. Defendant now files the instant Preliminary Objections to Plaintiff's Complaint pursuant to Pa. R.C.P. 1028. PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(2) 3. Paragraphs 1 through 2 are incorporated herein by reference as though fully set forth below. 4. Pa. R.C.P. 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 5. Plaintiff's Complaint fails to conform to Pennsylvania Rules of Civil Procedure and Cumberland County Local Rules. 6. Plaintiff has failed to attach a copy of the writing, more specifically the Loan/Credit Agreement, or the material part thereof, or, in the alternative, state, with the reason that the writing or copy thereof is not accessible to the Plaintiff and the substance of the writing in violation of Pa. R.C.P. 1019(i). See Remit Corporation v Miller 5 Pa. D&C 5th 43 7. Plaintiff's Complaint is in violation of Pa. R.C.P. 1019 (a) and (f) in that Plaintiff's Complaint fails to provide the specifics of the alleged credit card purchases or charges and application of interest and late charges. Remit Corporation v Miller 5 Pa. D&C 5th 43. See also Capital One Bank v Clevenstine, 7 Pa. D&C. 5th 153. WHEREFORE, for all the reasons set forth above, Defendant, Steven L. Daniels, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and dismiss Plaintiff's Complaint for failing to conform to law or rule of court pursuant to Pa. R.C.P. 1028(a)(2). PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(3) 8. Paragraphs 1 through 7 are incorporated herein by reference as though fully set forth below. 9. Pa. R.C.P. 1028 (a)(3) allows a party to object to a pleading if there is insufficient specificity in a pleading. 10. Plaintiff has not set forth sufficient facts regarding Defendant's Agreement relative to either the total amount due and that Defendant has agreed to pay the amount to Plaintiff. See Capital One Bank (USA) NA v Patricia L. Clevenstein No. 2008-4139 (Centre County 2009). WHEREFORE, for all the reasons set forth above, Defendant, Steven L. Daniels, respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and strike Plaintiff's Complaint for failure to comply with Pa. R.C.P. 1028(a)(3). PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(5) 11. Paragraphs 1-10 are incorporated herein by reference as though fully set forth below. 12. Pa. R.C.P. 1028(a)(5) allows a party to object to a pleading if the Plaintiff lacks capacity to sue, nonjoinder of a necessary party, or misjoinder of a cause of action. 13. Plaintiff has failed to establish standing in that Plaintiff has not attached a properly executed assignment to support the allegation that Plaintiff is the successor to the original creditor. See Atlantic Credit and Finance, Inc. v Carmen L. Giuliana and Patricia Wilson a/k/a Patricia A. Maurizo 2003 Super 259; 829 A 2d 340 (PA Super 2003). WHEREFORE, for all the reasons set forth above, Defendant, Steven L. Daniels respectfully requests that this Honorable Court sustain Defendant's Preliminary Objections, and dismiss Plaintiff's Complaint for lack of capacity to sue pursuant to Pa. R.C.P. 1028(a)(5). Date: !K 1 ?- /to Respectful! Sub i ed, ichael J. 13-1k uire I. D. # 5885 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 LVNV FUNDING, LLC 15 South Main Street, Suite 500 Greenville, SC 29601 Plaintiff V. STEVEN L. DANIELS 203 11 ch Street New Cumberland, PA 17070 Defendant : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 10-5084^ CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Steven L. Daniels', Preliminary Objections to Plaintiff's Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: LVNV Funding, LLC c/o David J. Apothaker, Esquire Apothaker and Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Date: 1110 Respectful Submitted, 1. D.' 58851 Attorney for Defendant Mic J. P ,Esquire 2132 Market Street Camp Hill, Pennsylvania 17011 VERIFICATION I, Steven L. Daniels, 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: 12 S 7 t o Steven L. anie s LVNV FUNDING, LLC 15 South Main Street, Suite 500 Greenville, SC 29601 Plaintiff V. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-5084- CIVIL TERM STEVEN L. DANIELS 203 11 t" Street New Cumberland, PA 17070 Defendant ORDER AND NOW, this day of , 2010, it is hereby ORDERED and DECREED that Defendant, Steven L. Daniels', Preliminary Objections to Plaintiff's Complaint are hereby GRANTED, and further that it is hereby ORDERED that Plaintiff's Complaint be Dismissed with Prejudice. BY THE COURT: J. Our File No.: 260418 APOTHAKER & ASSOCIATES, P.C BY: David J. Apothaker, Lsquire Attorney I.D.# 38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorney for Plaintiff LVNV FUNDING, LLC Plaintiff, VS. STEVEN L DANIELS Defendant. F1t_ED-OFFICE ?„ Qr T E ; OTHOHOTA;, 5 2 1'UMRLARD COU""" COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-5084-CIVIL TERM PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & ASSOCIATES, P.C. Attorneys o Plaintiff A Law Firm Ena Qed n Debt Collection By: Dated: 9/24/2010 David J'tp6thaker, Esquire 111111111M111111