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Home My WebLink About10-5592Our. File No.: 268023 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. JOSEPH WINKOWSKI 335 WESLEY DR APT 627 MECHANICSBURG, PA 17055-3551 Defendant. °t TAR'( OF TKO ? ? ?, : , G 21 PM 1: 55 CUMgpEN3 SYLV ?? COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 10 - sue. c4 V; 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 WOO 'd ?.s3 ay74o } Our File No.: 268023 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. JOSEPH WINKOWSKI 335 WESLEY DR APT 627 MECHANICSBURG, PA 17055-3551 Defendant. } COURT OF COMMON PLEAS CUMBERLAND COUNTY 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 JOSEPH WINKOWSKI, an adult individual residing at 335 WESLEY DR APT 627 MECHANICSBURG, PA 17055-3551. 3. Plaintiff, LVNV FUNDING, LLC, is the Assignee and Successor in Interest of Account # ending in 1166; and said account was issued to Defendant(s) by CREDIT ONE BANK, NA, 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 $868.24. 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". T. 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 $868.24 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & A7inlbt TES, P.C. Attorney fiff A Law Firm Engage Colleen, BY: Dated: 8/19/2010 David I Apot\aker, Esquire Our File No.: 268023 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 undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unworn falsification to authorities. David J. A ,Esquire Attorney W Plaintiff DATE: 8/19/2010 LVNV FUNDING, LLC JOSEPH WINKOWSKI 335 WESLEY DR APT 627 MECHANICSBURG, PA 17055-3551 STATEMENT OF ACCOUNT Debtor's Name: JOSEPH WINKOWSKI Account Number: ending in 1166 Original Creditor: CREDIT ONE BANK, NA Balance Due: $868.24 Our File No.: 268023 EXHIBIT "A" 268023 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 Plaintiff/s: Court Number: LVNV FUNDING, LLC I Expiration Date: Type of Action: Civil Action Defendant/s: JOSEPH WINKOWSKI Serve Upon: JOSEPH WINKOWSKI Address for Service: 335 WESLEY DR APT 627 MECHANICSBURG, PA 17055-3551 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 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ?a???ts? of ?urrrt?rfif?rf? FtI1E_ -EQ? ;F R9 TARY PM 1:02 UN1Y CUM3c ie v0 PENINSYLVAN A LVNV Funding, LLC vs. Joseph Winkowski Case Number 2010-5592 SHERIFF'S RETURN OF SERVICE 09102/2010 03:54 PM - Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on September 2, 2010 at 1554 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Joseph Winkowski, by making known unto himself personally, at 335 Wesley Drive, Apartment 627, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.00 September 03, 2010 .e?" 1 ).4. ---- '4-- GE I D WORTHINGTO DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF (c Cou""`r Suite, She; ff. Iell.ecs"it h-c LVNV FUNDING, LLC, Plaintiff v. JOSEPH WINKOWSKI, Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-5592- CIVIL TERM Civil Action -Law NOTICE TO PLEAD ~ ~, To: LVNV Funding, LLC r~~ c/o David J. Apothaker, Esquire zm ~~ ~ -~ ~ ~ Apothaker and Associates, P.C. ~ v 520 Fellowship Road C306 ~~ ~ ~ - Mount Laurel NJ 08054 ~'~ ~ .~=~:~~ , ~; ~ ;- ~:, -~. You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respectfully Submjtf$d, Date: b ~ 4 ~ (b l~t~ ichael J. ko , I.D. # 588$"1 ~ 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Joseph Winkowski Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mnvkosh(c~dul~law co_m _ Attorney for Defendant LVNV FUNDING, LLC, :COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. No: 10-5592- CIVIL TERM JOSEPH WINKOWSKI, Civil Action -Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Joseph Winkowski, by and through his attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files his Preliminary Objections to the Plaintiff's Complaint, and avers as follows: Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account issued by Credit One Bank of which Plaintiff Claims to be the Original Creditor. Comp. ¶ 1 and 3. 2. The Complaint was filed on August 27, 2010. First Preliminary Objection- Pa. R.C.P. 1028(a)(2)- 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) 3. The Complaint avers the existence of some type of contract between the parties, referred to as the "account." 4. Pursuant to Pa. R.C.P. 1019(h), where a claim asserted is based upon an agreement, the pleading must state whether the agreement is oral or written. 5. The Complaint does not indicate whether the agreement is oral or written. 6. Pursuant to Pa. R.C.P. 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. 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 Cty., 2008) 7. 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. Second Preliminary Objection- Pa. R.C.P. 1028(a)(2)- Failure to conform to rule of court (improper Verification) 8. Pa. R.C.P. 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 aNowed for pleading. Pa. R.C.P. 1024(c)(1) and (2) 9. The Complaint is verified by counsel of record for the Plaintiff, and not an employee or other agent of the Plaintiff. 10. 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. 1024(c). Third Preliminary Objection- Pa.R.C.P. No. 1028(a)(2)-Failure to conform to rule of court (failure to attach written assignments of debt) 11. The Plaintiff is not the original creditor, but rather 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. 1019(1). 12. 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. 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 Fourth Preliminary Objection- Pa. R.C.P. 1028(a)(5) Plaintiff is stranger to Defendant 13. Pa. R.C.P. 2002(a) required that an action be brought by the real party in interest. 14. By failing to attach a copy of the necessary writing by which the Plaintiff would become the assignee of the account and thus the real party in interest or an agency agreement, the Plaintiff has failed to conform with the requirements of the aforesaid rule. 15. Plaintiff has not shown standing or capacity to sue Defendant. 16. Since this matter was not brought by the real party in interest it must be dismissed. Fifth Preliminary Objection- Pa. R.C.P. No. 1028(a)(4)- Demurrer 17. The Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract. Sixth Preliminary Objection- Pa. R.C.P. No. 1028(a)(3) 18. 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. 19. 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. 20. By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. WHEREFORE, the Defendant respectfully requests that his Preliminary Objections be sustained, and that Plaintiff s Complaint be dismissed with prejudice. Respectfully Subrryi t~d, Date: 10~ 4 ~ 1 n Michael J. l~/kosT~, E~sq>fre I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 VERIFICATION I, Joseph Winkowski, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my personal 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: Jo eph Winkowski LVNV FUNDING, LLC, Plaintiff v. JOSEPH WINKOWSKI, Defendant No: 10-5592- CIVIL TERM Civil Action -Law CERTIFICATE OF SERVICE f hereby certify that a copy of the foregoing Defendant, Joseph Winkowski'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: LVNV Funding, LLC c/o David J. Apothaker, Esquire Apothaker and Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Date: ~0 ` ~L~ I ~O COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Respectfully Submitted, Miofiael J. Pykb~(, Esqui~ I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant Our File No.: 268023 APOTHAKER & ASSOCIATES, P.C. 13Y:, 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. JOSEPH WINKOWSKI Defendant. HRTMO FILED-OFFICE OF T ARP 2010MOV 30 PM 1:28 CUMBERLAND COUNT,,, PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-5592 CIVIL PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & Attorneys A Law Firm Enaag By: Dated: 11/18/2010 .TES, P.C. Debt Collection David J.\,,Apothaker, Esquire * Q 2 6 8 0 2 3 D I S N 1-*