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Home My WebLink About10-5591SLED-OFTE oF THE PPS-'ni'0TARY Our File No.: 267691 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 vs. Plaintiff, JASON A GROSS 160 S PITT ST CARLISLE, PA 17013 Defendant. 10 AUG 27 Ph I: 58 C EkLA, i COUNTY PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 10--55-`t ( 3141 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 192.00 mid 19 (o O?..? ' X11400 Our File No.: 267691 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 COURT OF COMMON PLEAS CUMBERLAND COUNTY LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff, vs. JASON A GROSS 160 S PITT ST CARLISLE, PA 17013 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 JASON A GROSS, an adult individual residing at 160 S PITT ST CARLISLE, PA 17013. 3. Plaintiff, LVNV FUNDING, LLC, is the Assignee and Successor in Interest of Account # ending in 6114; and said account was issued to Defendant(s) by CAPITAL ONE, 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 $1,093.01. 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 $1,093.01 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & AS Attorney for A Law Firm Engaged; Dated: 8/18/2010 BY: David J RTES, P.C. Debt Collection Esquire Our File No.: 267691 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 true and correct to the best of my knowledge, information, and belief. The rsigned understands that the statements therein are made subject to the penalties of 18 PaC.S.A. 4904 relati g t unsworn falsification to authorities. David J. Apo err, Esquire Attorney for tiff DATE: 8/18/2010 LVNV FUNDING, LLC JASON A GROSS 160 S PITT ST CARLISLE, PA 17013 STATEMENT OF ACCOUNT Debtor's Name: JASON A GROSS Account Number: ending in 6114 Original Creditor: CAPITAL ONE Balance Due: $1,093.01 Our File No.: 267691 EXHIBIT "A" 267691 Request for Service R. Thomas Kline Sheriff Cumberland County Office of the Sheriff One Courthouse Square Carlisle, PA 17013 Ph: 717.240.6390 Fx: 717-240-6397 Plaintiffs: Court Number: LVNV FUNDING, LLC Expiration Date: Type of Action: Civil Action Defendant/s: JASON A GROSS Serve Upon: JASON A GROSS Address for Service: 160 S PITT ST CARLISLE, PA 17013 Alternate Address for Service: Type of Service: ( ) Personal (X) Adult in Charge O Deputize O Certified Mail O Posting Special Service Instructions: * * If service is to be made by deputized service to another county please specify which county Filing Attorney Information: Name: Apothaker & Associates, P.C. Address: 520 Fellowship Road C306 Mount Laurel, NJ 08054 Telephone: 215-634-8920 LVNV FUNDING, LLC V. JASON A. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 10-5591 -CIVIL NOTICE TO PLEAD To: LVNV FUNDING, LLC c/o David J. Apothaker, Esquire 520 Fellowship Road C306 Mount Laurel, New Jersey 08054 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully Submitted, Rominger & Associates Date: September 17, 2010 Karl E ominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Jason A. Gross c>> f 7 h..9 -, j _t3 CL) r Cr1$' 73 CD cf) C) _n Z5 =: C CD rn 4 co 70 LVNV FUNDING, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO.: 10-5591 -CIVIL JASON A. GROSS PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Jason A. Gross, by and through his counsel, Karl E. Rominger, Esquire, and in support of his Preliminary Objections, avers as follows: The Parties: 1. It is believed and therefore averred that Plaintiff LVNV Funding, LLC ("Plaintiff') is a Limited Liability Company headquartered at 15 South Main Street STE 500, Greenville, South Carolina 29601. See Plaintiff's Complaint. 2. Defendant Jason A. Gross ("Defendant") is an adult individual residing at 160 South Pitt Street, Carlisle, Pennsylvania 17013 3. Plaintiff alleges that it is the Assignee and Successor in Interest of Account # ending in 6114, which Plaintiff alleges was issued to Defendant by CAPITAL, ONE. 4. Defendant now bring forth these Preliminary Objections to Plaintiff's Complaint pursuant to Pa.R.C.P. 1028 of the Pennsylvania Rules of Civil Procedure. PRELIMINARY OBJECTION I - Pa.RC.P.1028(a)(2) FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT 5. The above paragraphs are incorporated herein by reference. 6. Plaintiff alleges that Defendant is in default of a credit card which he applied for. 7. "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." Pa.R.C.P. 1019(h). 8. "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material party thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing." Pa.R.C.P. 1019(i). 9. In a credit card suit, a plaintiff must attach the writings which assertedly establish the creditor's right to judgment. See Atl. Credit & Fin., Inc. v. Giuliana, 829 A.2d 340, 345 (Pa. Super. Ct. 2003) ("We find that the failure to attach the writings which assertedly establish [a] right to a judgment... based on an alleged debt ...is fatal...."). 10. The plaintiff must attach the writings which form the alleged contractual relationship between the parties. 11. The plaintiff must attach the Cardholder Agreement to the Complaint. See Atl. Credit & Fin., 829 A.2d at 345 ("[a] preliminary objection... based on failure to produce a cardholder agreement ...establishes a meritorious defense"); Chase Bank USA, N.A. v. Rader, 2009 Pa. Dist. & Cnty. Dec. LEXIS 28 (Pa. County Ct. 2009); and Remit Corp. v. Miller, 2008 Pa. Dist. & Cnty. Dec. LEXIS 95, 2-3 (Pa. County Ct. 2008) (finding that plaintiffs failure to attach the original credit card application violated Pa.R.C.P. 1019(i)). 12. If there is a written application for a credit card signed by Defendant it should be attached. 13. Plaintiff has not attached any writing whatsoever that establishes a contractual agreement between Plaintiff and Defendant, or between Plaintiff's assignor in interest and Defendant. WHEREFORE, Defendant respectfully requests that this Honorable Court grant this preliminary objection and dismiss Plaintiff's Complaint with prejudice. PRELIMINARY OBECTION II - Pa.R.C.P. 1028(a)(3) INSUFFICIENT SPECIFICITY IN A PLEADING 14. Previous paragraphs are incorporated herein by reference. 15. Pa.R.C.P. 1019(a) provides that "The Material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.C.P. 1019(a). 16. Moreover, "averments of time, place and items of special damage shall be specifically stated." Pa.R.C.P. 1019(f). 17. Plaintiff's Complaint merely states that Defendant is in default of a credit card bearing the account number XXXXXXXXXXXX6114. 18. "[A] complaint to recover credit card balances must contain `sufficient documentation and allegations to permit a defendant to calculate the total amount of damages that are allegedly due by reading the documents attached to the complaint and the allegations within the complaint.' Included should be `the amounts of the charges that are part of the claim, the dates of the charges, credits for payments if any, dates and amounts of interest charges, and dates and amounts of other charges."' Chase Bank USA, 2009 Pa. Dist. & Cnty. Dec. LEXIS at 28. See also Marine Bank v. Orlando, 1982 Pa. Dist. & Cnty. Dec. LEXIS 224, 7 (Pa. C.P. 1982) ("The court believes that defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest"). 19. Plaintiff does not plead when the credit card was applied for. 20. Plaintiff does not plead the dates when transactions were made on the credit card. 21. Plaintiff does not plead the amounts and items purchased with the credit card. 22. Defendant must know the dates of the credit card application, charges, and transactions in order to form a defense and intelligently answer and determine what items he can admit and deny. 23. Defendant cannot properly assert a defense or answer to Plaintiff's Complaint in the manner in which the Complaint has been plead. WHEREFORE, Defendant respectfully requests that this Honorable Court grant this preliminary objection and dismiss Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION III - Pa.R.C.P 1028(a)(5) LACK OF STANDING TO SUE 24. Previous paragraphs are incorporated herein by reference. 25. Plaintiff pleads in its Complaint that it is the Assignee and Successor in Interest of Account # ending in 6114, which it alleges was an account issued to Defendant by CAPITAL ONE. 26. Plaintiff pleads no other facts whatsoever to show that it has an interest in this case. 27. "Several Pennsylvania Court of Common Pleas cases hold that an assignment must be attached to the complaint." Remit Corp., 2008 Pa. Dist. & Cnty. Dec. LEXIS 95, at 3; See also Atl. Credit & Fin., Inc., 829 A.2d 340, at 345 (finding that a preliminary objection for failure to attach evidence of an assignment in a credit card case establishes a meritorious defense). 28. Plaintiff has failed to attach any writing of any kind demonstrating that it is an assignee of the account ending in 6114. 29. No evidence of an assignment is alleged in or attached to Plaintiff's Complaint. WHEREFORE, Defendant respectfully requests that this Honorable Court grant this preliminary objection and dismiss Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION IV - Pa.R.C.P. 1028(a)(4) LEGAL INSUFFICIENCY OR A PLEADING (DEMURRER) 30. Previous paragraphs are incorporated herein by reference. 31. Plaintiff s Complaint is clearly insufficient to establish a right to relief. 32. Plaintiff s Complaint does not state a claim, but rather, merely lays out facts attempting to show that Defendant applied for a credit card and that the card is now in default. 33. Plaintiffs Complaint states no details of any kind regarding an application for the credit card. 34. Plaintiff s Complaint also fails to plead its relationship to this matter. WHEREFORE, Defendant respectfully requests that this Honorable Court grant this preliminary objection and dismiss Plaintiffs Complaint with prejudice. PRELIMINARY OBJECTION V - Pa.R.C.P. 1024 FAILURE OF PLAINTIFF TO VERIFY THE COMPLAINT 35. Previous paragraphs are incorporated herein by reference. 36. "Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified." Pa.R.C.P. 1024(a). 37. "The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person's information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party." Pa.R.C.P. 1024(c). 38. Plaintiff has not verified its Complaint. 39. "[T]he requirement of a verification is not waivable because without it a pleading is mere narration, and amounts to nothing." Ad. Credit & Fin., Inc., 829 A.2d 340, at 345. 40. The only person who has verified the Complaint is Plaintiff's attorney, David J. Apothaker, Esquire. 41. An attorney is not permitted to verify a complaint for a party unless one of the two conditions under Pa.R.C.P. 1024(c) are met, and the attorney offers an explanation for why the verification is not made by the party. 41. Plaintiff s Complaint fails to allege any facts whatsoever to establish the two conditions in Pa.R.C.P. 1024(c), namely that Plaintiff lacks sufficient knowledge or information to verify is Complaint, or that Plaintiff is outside the jurisdiction and that verification cannot be obtained within the time allowed for pleading. 42. Plaintiff s Complaint states no reason why the verification is made by counsel and not Plaintiff. WHEREFORE, Defendant respectfully requests that this Honorable Court grant this preliminary objection and dismiss Plaintiffs Complaint with prejudice.. Date: September 17, 2010 155 South Hanover Street Respectfully Submitted, Rominger & Associates Kar . Rominger, Esquire Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID4 81924 Attorney for Jason A. Gross LVNV FUNDING, LLC V. JASON A. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 10-5591 -CIVIL CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Preliminary Objections, upon the following by depositing the same in the United States Mail, postage pre-paid, via first class mail, in Carlisle, Pennsylvania, addressed as follows: David J. Apothaker, Esquire 520 Fellowship Road C306 Mount Laurel, New Jersey 08054 Date: September 17, 2010 Respectfully Submitted, Rominger & Associates E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Jason A. Gross SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor gtty tr a t k?v m tL'r/ r4b r t : - , n- -, RtrF F H- I?fs ?R?ny l 10 SEP --9 AM 8'. 43 Cl1lulhrty BOUNTY PENNSYLVANA LVNV Funding, LLC vs. Jason A. Gross Case Number 2010-5591 SHERIFF'S RETURN OF SERVICE 09/07/2010 10:50 AM - Jason Vioral, Sergeant, who being duly sworn according to law, states that on September 7, 2010 at 1050 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Jason A. Gross, by making known unto himself personally, at The Cumberland County Sheriffs Office, 1 Courthouse Square, Room 303, 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. SHERIFF COST: $33.40 September 07, 2010 JA r RAL, DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF !ci GountySuite She{+ff, Te!ecsott. fn:;. Our File No.: 267691 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 LVNV FUNDING, LLC Plaintiff, vs. JASON A GROSS Defendant. Y~ ~~,, ~O1D OCT 28 P~~ ~: Viz: `~~MBEf2L,~~~~ ~pJ~...~~~ s`4, COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-5591 CIVIL PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & ASSOCIATES, P.C. Attorneys for~~iff A Law Firm Engaged ' D t Collection By: David J. Apothaker, Esquire Dated: 10/20/2010 ~n~~iiiiimn