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HomeMy WebLinkAbout10-5882SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ??;?ntr at ?*.ar,nbtrr?f?? Jody S Smith Chief Deputy Richard W Stewart Solicitor OFFICE TrE ° 6R.i F Chase Bank USA, N.A. vs. Dawn Barefoot Case Number 2010-5882 SHERIFF'S RETURN OF SERVICE 09/22/2010 06:01 PM - Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on September 22, 2010 at 1801 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Dawn Barefoot, by making known unto Julia Nace, Mother of defendant at 144 Millers Gap Road, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $41.50 September 23, 2010 < 1Z, CD tv =- =- ? 4-' (D y . i CD ;? f . ?...4 CT- COS < L'i L_? Lt-f;2:_ __- AMANDA COBAUGH, DEP TY SO ANSWERS, RON R ANDERSON, SHERIFF is GounlySWte Shenff. Teieosott. htc. CHASE BANK USA, N.A., Plaintiff v. DAWN BAREFOOT, Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-5882- CIVIL TERM Civil Action -Law NOTICE TO PLEAD 4 ~ ~, ~ c~, -~°: To: Chase Bank USA, N.A. r~.~~ _ ° ``' c/o James C. Warmbrodt, Esquire ~~ ~ '~''~ Weltman, Weinberg & Reis Co., L.P.A. ~~. 436 Seventh Avenue, Suite 1400 `~'"- -,~ Pittsburgh, PA 15219 :~° .. ~ --r ~ ~ --: w _,~ You are hereby notified to plead to the enclosed Prelimina ry Objections wit hin twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: l o - as- Cb Resp Ily Submitted, ~A' ~~ J NKcha~Pykosh, Esquire . D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Dawn Barefoot Michael 3. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mpykosh c~d~lglaw.com Attorney for Defendant CHASE BANK USA, N.A., :COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. No: 10-5882- CIVIL TERM DAWN BAREFOOT, Civil Action -Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Dawn Barefoot, by and through her attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files his Preliminary Objections to the Plaintiffs 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 September 13, 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, andtor attach written contract upon which the claim is based) 3. The Complaint avers the existence of some type of contract between the parties. 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. There is no indication that the attached Agreement is the original. The same does not bear the Defendant's signature. 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 Remif 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. No. 102$(a)(4)- Demurrer 8. The Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract. Third Preliminary Objection- Pa. R.C.P. No. 1028(a)(3) 9. 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. 10. 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. 11. 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 her Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Respectfyf~,Submitted, Date: ~b '025- l ~ Michael J. Pykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 CHASE BANK USA, N.A., Plaintiff v. DAWN BAREFOOT, Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-5882- CIVIL TERM Civil Action -Law CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Dawn Barefoot, 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: Chase Bank USA, N.A. c/o James C. Warmbrodt, Esquire Weltman, Weinberg & Reis Co., L.P.A. 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 Respectfujly Submitted, Date: (©"c~ ~ ~I C~ Michael y cos squire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, Dawn Barefoot, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my persona! 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: /(~ - 2 S - /U ~-- °~~" Dawn Barefoot WELTMAN, WEINBERG & REIS CO., L.P.A. BY: William T. Molczan I.D. No. 47437 436 Seventh Avenue 1400 Koppers Building Pittsburgh, PA 15219 Phone: (412) 434-7955 Fax: (412) 338-7130 File # 8610786 CHASE BANK USA, N.A. „_ FILED,- r iC ,- ?_,r THE P(?C?)'! r.A 01 T 2 MAY -9 pM 1,.. 12 CUMBFRLAtiL E:`€ U;, - ?.,: PF?l?4S YL,?`A, ij 1,A, ' Attorney for Plaintiff(s) Cumberland County Court of Common Pleas vs. DAWN BAREFOOT No.: 10-5882 CIVIL TERM PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss the above matter without prejudice. WELTMAN, WEINBERG & REIS CO., L.P.A. By William T. Molczan, E uire Attorney for Plaintiff 111111 IIIII IIHI IIH illlil IIIII INII 11111 IIIII IIIII IIIII IIII IIIII IIII