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Home My WebLink About10-6228SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ~~,,,,tr of ~,u,nbrrl~~~ -.,~. ~-~~.~i~-i ~'1G~ 20~Q OAT --~ ~~~~~ ~~ :~2 ~Um~~~~~~L;~i~~D I/~t~~T~< LVNV Funding, LLC vs. Case Number Ada Spisak 2010-6228 SHERIFF'S RETURN OF SERVICE 09/30/2010 06:09 PM -Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on September 30, 2010 at 1809 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Ada Spisak, by making known unto herself personally, at 404 N. Enola Drive #B, 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 October 01, 2010 / '' DENNI FRY, DEP Y SO ANSWERS, RON R ANDERSON, SHERIFF (c) CountySuite Sheriff. 1'eleosofl b?c ~.- LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-6228 Civil Term v. ADA SPISAK CIVIL ACTION -LAW 404 N. ENOLA DRIVE #B ENOLA, PA 17025 Defendant PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: c~ ~ _, ~ -~ =g o o Q -a - ~ n ~~ ° ~ ~ `'r ~- ~ cn ~" -C ~ --- ~ ~ ~' c~ o r-.~. C~ --i+c, Dn c, ~„ ~ o~ ~ 3>~ ~' ~rn --~ -< `~ o ~ . ~ Please enter my appearance as attorney in the above-captioned action for the Defendant, Ada Spisak, per her request. Respectfully submitted, Date: ~0 j 3 O , 2010 ~. Mary K. Lemmo Scaringi & Scaringi, P.C. Attorney ID #70923 2000 Linglestown Road, Suite 106 Harrisburg, Pennsylvania 17110 (717) 657-7770 • LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff v. ADA SPISAK 404 N. ENOLA DRIVE #B ENOLA, PA 17025 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.10-6228 Civil Term CIVIL ACTION -LAW NOTICE TO PLEAD TO: LVNV Funding, LLC c/o David J. Apothaker, Esquire Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 G'"7 C na ~ a ~ ~ , ~ ~ ~~ b ~~ r- .~_ ~ ~ --~ ~~ mac, a~. ~ ~c° ~=~ %~ ° ~~ .~.. ~ n~ ~ ~ ~ You are hereby notified to file a written response to the enclosed Preliminary Objections to Complaint within twenty (20) days of service hereon or a judgment may be entered against you. Scaringi & Scaringi, P.C. Date: f d 3 D By: ~-'~' Mary K. Lemmo squire Attorney for Defendant Supreme Court I.D. # 70923 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 Phone: 717.657.7770 Fax: 717.657.7797 mlemmon@scaringilaw.com LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29601 Plaintiff v. ADA SPISAK 404 N. ENOLA DRIVE #B ENOLA, PA 17025 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.10-6228 Civil Term CIVIL ACTION -LAW DEFENDANT'S PRELIMINARY OBJECTIONS TO COMPLAINT Defendant, Ada Spisak, by and through her attorneys, Scaring & Scaringi, P.C., and pursuant to Pa.R.C.P. No. 1028, does hereby preliminarily object to Plaintiff's Complaint and in support thereof states as follows: 1. Plaintiff commenced this civil action by filing a Complaint on or about September 29, 2010. Motion to Strike Complaint for Failure to Conform to Pa.R.C.P No 1019(fl 2. Paragraph 1 hereof is incorporated herein by reference as if fully restated in its entirety. 3. Rule 1028(a)(2) of the Pennsylvania Rules of Civil Procedure permits the filing of preliminary objections where a pleading fails to conform to law or rule of court. 4. Plaintiff s Complaint fails to specifically state the time, place, and items which were allegedly purchased/charged by Defendant, which would entitle Plaintiff to special damages of $10,515.07, as required by Pa.R.C.P. No. 1019(f). 5. Plaintiff s Complaint alleges that Defendant received and accepted goods and merchandise and/or accepted services or cash advances through the use of the credit card, yet the Complaint fails to provide any information regarding the details or nature of the alleged transactions or when and where these alleged transactions occurred. 6. Plaintiff 5 Complaint is in violation of Pa.R.C.P. No. 1019(f) and should be stricken. WHEREFORE, Defendant respectfully requests this Honorable Court to strike Plaintiff's Complaint with prejudice. Motion to Strike Complaint for Failure to Conform to Pa.R.C.P. No.1019(h) 7. Paragraphs 1-6 hereof are incorporated herein by reference as if fully restated in their entirety. 8. Plaintiff s Complaint fails to conform to Pa.R.C.P. No. 1019(h) which requires that any claim based on an agreement shall specifically state whether the agreement is oral or written. 9. Plaintiff s Complaint alleges that Defendant was the holder of a credit card issued to her, at her request, by Plaintiff under terms of which Plaintiff agreed to extend to Defendant the use of Plaintiff s credit facilities; however Plaintiff's Complaint fails to specifically state whether said agreement was oral or written as required by Pa.R.C.P. No. 1019(h). 10. Plaintiff s Complaint is in violation of Pa.R.C.P. No. 1019(h) and should be stricken. WHEREFORE, Defendant respectfully requests this Honorable Court to strike Plaintiff s Complaint with prejudice. Motion to Strike Complaint for Failure to Conform to Pa.R.C.P. No.1019(i) 11. Paragraphs 1-10 hereof are incorporated herein by reference as if fully restated in their entirety. 12. Plaintiff s Complaint fails to conform to Pa.R.C.P. No. 1019(1) which requires that where a claim is based upon a writing, the pleader shall attach a copy of the writing, or provide information as to why the writing is not accessible to the pleader and the substance of the writing. 13. Plaintiff s Complaint alleges that Defendant requested a credit card and Plaintiff agreed to extend to Defendant use of Plaintiff s credit facilities. 14. Plaintiff failed to attach to its Complaint the copy of the writing which created the alleged agreement between Plaintiff and Defendant as required by Pa.R.C.P. No. 1019(1). 15. Plaintiff failed to state in its Complaint that a copy of the writing is not accessible to Plaintiff, the reasons said writing is not accessible, or the substance of the writing as required by Pa.R.C.P. No. 1019(1). 16. Plaintiff s Complaint is in violation of Pa.R.C.P. No. 1019(1) and should be stricken. WHEREFORE, Defendant respectfully requests this Honorable Court to strike Plaintiff s Complaint with prejudice. Motion to Strike Complaint for Lack of Capacity to Sue 17. Paragraphs 1-16 hereof are incorporated herein by reference as if fully restated in their entirety. 18. Rule 1028(a)(5) of the Pennsylvania Rules of Civil Procedure permits the filing of preliminary objections where a party lacks the capacity to sue. 19. Plaintiff s Complaint states Plaintiff is the assignee and the successor in interest to HSBC BanklBest Buy, who allegedly entered into an agreement with Plaintiff for credit card services. 20. Plaintiff s Complaint fails to attach any alleged assignment by and between Plaintiff and HSBC Bank/Best Buy. 21. Plaintiff's Complaint fails to show that Plaintiff has the capacity to sue the Defendant and Plaintiff's Complaint should be stricken. WHEREFORE, Defendant respectfully requests this Honorable Court to strike Plaintiff s Complaint with prejudice. Motion to Strike Complaint and Verification for Failure to Conform to Pa.R.C.P. No. 1024 22. Paragraphs 1-21 hereof are incorporated herein by reference as if fully restated in their entirety. 23. Plaintiff's Complaint fails to conform to Pa.R.C.P. No. 1024 which requires that a verification be made by a party unless all of the parties lack sufficient knowledge or information or are outside of the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. If the verification is made by a non-party, the verification must state 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. 24. Plaintiff's Complaint contains a verification made by David J. Apothaker, Esq., counsel for the plaintiff which states that the statements in the complaint are true. 25. Plaintiff s verification fails to state the source of the non-party'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. 26. Plaintiff s verification attached to the Complaint is in violation of Pa.R.C.P. No. 1024 and should be stricken. WHEREFORE, Defendant respectfully requests this Honorable Court to strike Plaintiffs Complaint and the Verification of the Complaint with prejudice. Respectfully submitted, Date: ~ ° ~3/~~ Scaringi & Scaringi, P.C. By: Mary K. Lemmo ,Esquire Attorney for Defendant Supreme Court I.D. # 70923 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 Phone: 717.657.7770 Fax: 717.657.7797 mlemmon(c~ scarin~ilaw. com LVNV FUNDING, LLC 15 SOUTH MAIN STREET STE 500 GREENVILLE, SC 29b01 Plaintiff v ADA SPISAK 404 N. ENOLA DRIVE #B ENOLA, PA 17025 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-b228 Civil Term CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, Mary K. Lemmon, Esquire, of Scaringi & Scaringi, P.C., do hereby certify that a copy of the Defendant's Preliminary Objections to Complaint in the above-captioned action has been duly served upon the following, by depositing same in the United States Mail, First Class, Postage Prepaid, addressed as follows: David J. Apothaker, Esquire Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Scaringi & Scaringi, P.C. Date: /o / 3 /O gy; ~ Mary K. Lemmo~quire Attorney for Defendant Supreme Court I.D. # 70923 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 Phone: 717.657.7770 Fax: 717.657.7797 mlemmon~u,scaringilaw.com Our File No.: 282236 APOTHAKER & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 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. ADA SPISAK 404 N ENOLA DR # B ENOLA, PA 17025 Defendant. F6LEO-O ED-OFFICE Oi= T !- F, TH?ONOTARY 2010 F,T-C - Fk t 2* 55 COUNTY p f, ISYLVPONIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 10-6228 CIVILTERM Civil Action 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 Our File loo.: 28i236 APOTHAKER & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 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. ADA SPISAK 404 N ENOLA DR # B ENOLA, PA 17025 Defendant. NO.: 10-6228 CIVILTERM Civil Action AMENDED COMPLAINT FIRST COUNT 1. Plaintiff is LVNV FUNDING, LLC ("Plaintiff,), 15 SOUTH MAIN STREET STE 500, GREENVILLE, SC 29601. 2. Defendant is ADA SPISAK ("Defendant"), an adult individual residing at 404 N ENOLA DR # B ENOLA, PA 17025. 3. Defendant applied for, received and used a credit account issued by HSBC BANK/BEST BUY, account number ending in 4653 ("Account"), pursuant to a written agreement in effect at all times relevant herein. 4. Attached hereto and incorporated by reference herein is the credit application and Bill of Sale for the Account. 5. Under the terms of the agreement, Defendant was given the right to use the Account to make purchases, cash advances, and/or balance transfers. 6. Defendant, in return, promised to timely pay the principal balance accumulated plus interest, fees and penalties where applicable. 7. Defendant's use of the Account in the manner described above constituted acceptance of the terms of the agreement. 8. Defendant defaulted under the terms of the agreement by failing and refusing to make timely payments on the Account, although demand was made for same. 9. The Account was opened on or about March 31, 2006. 10. The last payment on the Account was recorded on or about April 23, 2008. 11. The Account was charged off on or about December 31, 2008 with an outstanding balance of $9,528.30. 12. The balance on the Account increased since charge-off due to the accrual of six percent (6.00%) statutory interest. 13. Plaintiff purchased the Account and presently owns and holds the Account. 14. The Bill of Sale attached hereto evidences the chain of title for the Account. 15. Plaintiff has suffered monetary damages in the amount of $10,515.07. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $10,515.07 and requests this Court award costs to the extent permitted by applicable law. SECOND COUNT - QUANTUM MERUIT The averments contained in the First Count of Plaintiffs Amended Complaint are incorporated as though fully set forth herein: 16. Defendant opened an account with HSBC BANK/BEST BUY, account number ending in 4653. 17. Defendant used, accepted and benefitted from the Account to HSBC BANK/BEST BUY's detriment. 18. Defendant was aware that HSBC BANK/BEST BUY provided these benefits and expected to be paid m return. 19. Under the circumstances, it is inequitable for defendant to retain the benefits of use of the Account without payment of value. 20. Plaintiff purchased the account and presently owns and holds the Account. 21. Plaintiff has suffered monetary damages in the amount of $10,515.07. WAREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $10,515.07 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law Firm Engaged inyDebt Collection BY: Esquire Dated: December 1, 2010 1 Our File No.: 2822i6 APOTHAKER & ASSOCIATES, P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 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. ADA SPISAK 404 N ENOLA DR # B ENOLA, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 10-6228 CIVILTERM Civil Action CERTIFICATION OF SERVICE I, Benjamin J. Cavallaro, Esquire, attorney for Plaintiff, certify that on December 1, 2010, I mailed a copy of Plaintiff s Amended Complaint by Regular mail to: MARY LEMMON, ESQUIRE 2000 LINGLES DOWN RD HARRISBURG, PA 17110 APOTHAKER & ASSOCIATES, P.C. Attorney for Plaintiff A Law Firm Engaged irhDebt Collection BY: Esquire Dated: December 1, 2010 of O Q I ? P ? a. g v ;v g N S y G s rn ¦i' O ? o CD a a 7C m g ? IS IL L a 26I.T \ s ?. _ r a r .x r 111i qj $4 S ?, gggggg. No. v IL . IL 11F F ?e a X Z 0 8 0 ILU i x m m m m 0 z 0 D -- O 3 0 T x a 1 T o Z? 3 o { I 1 3" 0 57 Z oZ a C o 'g U ? 3 e I TI a _U. !L° irpir rL wo as sit Ir E. ? Ea sta ; ?g I A HSBC m EXHIBIT A ASSIGNMENT AND BILL OF SALE HSBC Bank Nevada, N.A., (hereinafter called "Seller") has entered into an Account Purchase and Sale Agreement as of March 4, 2008 ("Agreement"), amended on October 28, 2008, for the sale of Accounts and Account Documents described in Paragraph 1 thereof to Sherman Originator II, LLC (hereinafter called "Purchaser"), upon the terms and conditions set forth in that Agreement. NOW THEREFORE, for good and valuable consideration, Seller hereby sells, assigns, and transfers to Purchaser, its successors and assigns, all of Seller's rights, title, and interest in each and every one of the Accounts described in the Agreement and in Exhibit A attached hereto. Purchaser and Seller agree that the Purchase Price shall be as stated in Paragraph 3 of the Agreement. IN WITNESS WHEREOF, Seller has signed and delivered this instrument on the 20"' day of January, 2009. HSBC Bank Nevada, N.A. 4 L r-/se Mifflael DeSantis Senior Vice President EXHIBIT A (Continued) HSBC Retail Services 90 Christiana Road, New Castle, DE 19720 A HSBC m ASSIGNMENT AND BILL OF SALE HSBC Private Label Acquisition Corporation (USA), (hereinafter called "Seller") has entered into an Account Purchase and Sale Agreement as of March, 4, 2008, ("Agreement") amended on October 28, 2008 for the sale of Charged Off Receivables described in Paragraph 1 thereof to Sherman Originator II, LLC (hereinafter called "Purchaser"), upon the terms and conditions set forth in that Agreement. NOW THEREFORE, for good and valuable consideration, Seller hereby sells, assigns, and transfers to Purchaser, its successors and assigns, all of Seller's rights, title, and interest in each and every one of the Charged Off Receivables described in the Agreement and in Exhibit A attached hereto. Purchaser and Seller agree that the Purchase Price shall be as stated in Paragraph 3 of the Agreement. IN WITNESS WHEREOF, Seller has signed and delivered this instrument on the 20th day of January, 2009. HSBC Private Label Acquisition Corporation (USA) i el DeSantis Senior Vice President HSBC Retail Services 90 Christiana Road, New Castle, DE 19720 Declaration of Account Transfer Sherman Originator II LLC ("SOLLC II"), without recourse, to the extent permitted by applicable law, transferred, sold, assigned, conveyed, granted and delivered to Sherman Originator LLC ("SOLLC") all of its right, title and interest in and to the receivables and other assets (the "Assets") identified on the Receivable File dated January 15, 2009 delivered by HSBC Bank Nevada, N.A. and HSBC Private Label Acquisition Corporation (USA) on January 20, 2009 for purchase by SOLLC II on January 20, 2009. The transfer of the Assets included electronically stored business records. SOLLC, subsequent to the above mentioned transfer, transferred, sold, assigned, conveyed, granted and delivered to LVNV Funding LLC ("LVNV"), the above mentioned Assets. The transfer of the Assets included electronically stored business records. Sherman Originator II LLC a Delaware Limited Liability Company By: N e: Jon M i Ti e: Direct Sherman Originator LLC a Delaware Limited Liability Company By: 4*191?6n? am ` evi ranigan Title: Authorized Representative LVNV Funding LLC a Delaware Limited Liability Company By: Name: Les Gutierrez Title: Authorized Representative ^ Exhibit A Receivables File 01.20.09 Transfer Group Portfolio Transfer Batch 111106 12449 N/A Our File No.: 282236 APOTHAKER & ASSOCIATES, P.C. Bl''. 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. ADA SPISAK FILED-OFFICE OF THE PROTHONOTARY 2011) 9): 29 CU1 B 'F,'! , UN'TY COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-6228 CIVILTERM Defendant. PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & SS CIATES, P.C. Attorney for laintiff A Law Firm En ged i Deb ollectioi By: David J. Apothaker, Esquire Dated: 1/4/2011 IIIN2 3IIIIIIIII