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HomeMy WebLinkAbout10-6260 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CF TNc PROTKO OT 2010 SFP 30 PM 2: It, CUMBERL.Atiln CouliTY r EJ114S YE YA. NIA DICKINSON COLLEGE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2010 - (0014,0 CIVIL TERM OWOKEMI ABIDOYE and OLAITAN ABIDOYE, Defendants 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 Plaintiffs. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. 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 REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 0 49,q,00 PO A77y & 30q 0 24 0149W FARLES\Clients\7619 Dickinson College\Collec[ions\C=ent\369\7619C.369.com Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2010 - (? ?6 CIVIL TERM OWOKEMI ABIDOYE and OLAITAN ABIDOYE, ; Defendants COMPLAINT AND NOW, comes Plaintiff Dickinson College by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby avers as follows: 1. Plaintiff Dickinson College is a Pennsylvania educational institution and nonprofit corporation with its principal business address of Post Office Box 1773, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant Owokemi O. Abidoye is an adult individual with a last known address of 6004 Queens Chapel Road, Hyattsville, Maryland 20782. 3. Defendant Olaitan Abidoye is an adult individual with a last known address of 345 East 80`h Street, Apt. 33G, New York, New York 10075. 4. On or about February 4, 2000, Defendant Owokemi Abidoye entered into an Educational Goods and Services Retail Installment Contract with Plaintiff., a copy of which is attached hereto as Exhibit "A." 5. The Contract provided for the financing of $14,670.00 plus interest and costs by Defendant on behalf of his son, Olaitan Abidoye. 6. The Contract grants Plaintiffreasonable attorney's fees which Plaintiffhas calculated to be $2,000.00 as of this date. 7. Defendant Olaitan Abidoye is a co-signor and guarantor of the Contract. 8. As a co-signor and guarantor of the Contract, Olaitan Abidoye is obligated and liable for any outstanding amount due and payable under the Contract. COUNTI BREACH OF CONTRACT 9. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 8 of this Complaint. 10 the Contract. 11 the Contract by failing to pay the amounts financed therein. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and severally, in the amount of $22,117.45, plus interest on the Contract as set forth therein, attorney fees in the amount of $2,000.00, and costs accruing thereafter. COUNT II IN QUANTUM MERUIT 12. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 11 of this Complaint. 13. Defendants are liable to the Plaintiff and/or have been unjustly enriched in the amounts as set forth in the Contract. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and severally, in the amount of $22,117.45 plus interest on the Contract as set forth therein, attorney fees in the amount of $2,000.00, and costs accruing thereafter. MARTSON LAW OFFICES By.-(?94 '<' Ile Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: °1/3 Q`1U Attorneys for Plaintiff Plaintiffhas fulfilled, performed and complied with all obligations and conditions of Defendants breached the expressed and implied obligations, conditions and terms of This is a debt collecting firm for Dickinson College. Any information obtained will be used for that purpose. EXHIBIT "A" ?X?l 6 I't k DICKINSON COLLEGE FLEXIBLE FINANCING SYSTEM - PLAN B EDUCATIONAL GOODS AND SERVICES RETAIL INSTALLMENT CONTRACT February 4, 2000 I. Seller: Dickinson College, Carlisle, Pennsylvania 17013-2896 Buyer(s): Owokemi O. Abidoye 6004 Queens Chapel Road Hyattsville, MD 20782 If there is more than one Buyer, each of you will be obligated, jointly and severally, for all sums due and for the performance of all agreements as provided in this Educational Goods and Services Retail Installment Contract.(the "Contract"). Under the terms of this Contract, you have agreed to pay the expenses incurred for Goods and Services (as hereinafter defined) to be provided and rendered, as the case may be, to Olaitan Abidoye (hereinafter "Student") during his/her enrollment at Dickinson College during the 2000 academic year, including tuition, room and board, books and supplies as herein stated (collectively the "Goods and Services"). II. TERMS OF PAYMENT AND PAYMENT SCHEDULE Disclosures Required by Federal Law ANNUAL PERCENTAGE FINANCE CHARGE: AMOUNT FINANCED TOTAL OF TOTAL SALE RATE:* Cost of credit as Dollar amount credit will : Amount of credit PAYMENTS: Amount paid by PRICE: Total cost of yearly rate cost buyer provided by Dickinson College Buyer as total of all schedul d urchase on p e credit, including payments down payment of 1 1 ? $ 0 8.75% $ 48 $ A 9?(L $ Rev 10/99 Abidoye Buyer's payment schedule will be as follows: Number of Payments Amount of Payments When Payments are Due 116 Monthly commencing 02/28/00 until 10/28/11 *Variable Rate: The initial ANNUAL PERCENTAGE RATE disclosed above is a variable rate and may change(increase or decrease) from time to time. The ANNUAL PERCENTAGE RATE may increase or decrease during the term of this transaction if the prime rate of interest announced in the Wall Street Journal as of the close of business on June 30 of each calendar year increases or decreases, and will be increased or decreased to the prime rate plus 1 %. The ANNUAL PERCENTAGE RATE will not increase, or decrease, more than. once a year, and.the new interest rate will become effective on July 1 following the increase or decrease, if any, in the prime rate of interest. Any increase will be in the form of higher payment amounts. If your cost of the Goods and Services sold hereunder were $19,000.00 at 8.75% per annum for 116 months and the prime rate plus 1 % were increased to 9.75%, your regular monthly payments would increase to $253.55. Further, the ANNUAL PERCENTAGE RATE will not increase to more than 18% or such other rate as may be permitted under Pennsylvania law. Late Charge: If a payment is more than 15 days late, a sum equivalent to 5% of the late payment (but no more than $2.50 and not less than $1.00) may be charged. Prepayment: Buyer may prepay the unpaid balance of the AMOUNT FINANCED and any FINANCE CHARGE due through the date of early payment, in full or in art, without penalty. SEE SECTION VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL INFORMATION ABOUT NON- PAYMENT, DEFAULT AND REQUIRED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNT FINANCED. M. ITEMIZATION OF AMOUNT FINANCED 1. Cash price of Goods and Services: 2. Total down payment: 3. Unpaid balance of cash price (1 - 2): 4. Amount paid to others on Buyer's behalf. 5. Amount Financed (3 + 4): $ 29,735.00 1A, oss 00 x6756 60 l'7, lv SD, x k9; @80.40 -0- VY, 0 W,0 0, 2 IV. CREDIT INSURANCE Credit life insurance for the term of this Contract is not required. V. NO WARRANTIES THERE ARE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, GIVEN BY SELLER IN OF THE GOODS AND SERVICES COVERED BY THIS CONTRACT UNLESS BUYER HAS BEEN GIVEN A SEPARATE iV S N WARRANTY. VI. ADDITIONAL PROVISIONS ' 1. Buyer agrees to pay Seller the Total Sale Price by making the total down payment and paying Seller the Total of Pa number and amount of monthly payments shown in the Payment Schedule. Pa yments yments o in the month as the first payment date. Payments must be made to EFG Technologies, Inc. at the following address the same date of each EFG Technologies, Inc. P.O. Box 64974 St. Paul, MN 55164 2. Buyer's legal rights include the right to pay all or pact of the amounts due on this Contract in.advance of theirdtie to obtain a refund or credit of unearned Finance Charge whenever the amount is paid in full in advance, and (with Seller's conssentt)) to reinstate the Contract if Buver timely cures any default. 3. Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the occurrence of any of the following: (a) failure to make any payment on or before the date it is due, (b) failure to make a payment on any other Contract outstanding with Seller, (c) failure to perform any other provision of the Contract (d) providing Seller with false information or signatures, (e) death, incompetence, or conviction of any Buyer of crime involving fraud or dishonesty, M insolvency or bankruptcy of any Buyer. 4. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with notice,. by certified mail as required by law, addressed to Buyer's last !mown address as shown on Seller's records, advising Buyer of the default and of Buyer's right to cure the default. The notice will provide the time, amount and performance necessary to cure the default. If Buyer does not cure the default a. provided in the notice. Seller's rights shall -include the right to declare all sums due on the Contract to be immediately due and payable. The Buyer agrees to pay all attorney's fees and other reasonable collection costs and charges necessary forthe collection.of any amount not paid when due. Waiver by Seller of any Event of Default shall not be binding upon Seller if Seller should thereafter choose to exercise that or any other right or a similar Event of Default occurs later. All Seller's rights and remedies shall be cumulative. Seilees exercise of one or more rights shall not cause Seller to lose any other rights. 6. This Contract is freely assignable by Seller. Buyer agrees that upon receiving notice of the assignment Buyer shall be obligated to the Assignee of this Contract, which Assignee shall have all of Seller's right and remedies. 7. If any pan of this Contract is held to be illegal. void or unenforceable, that provision shall be deemed not to have,been a part of this Contract. which shall otherwise remain fully effective. 3 $. LI B E LAW: This Agreement, whenever called upon to be construed, shall be ' Commonwealth of pennsylvan- except to the extent governed by the domestic internal laws of the superseded or preempted by federal law. 9. CONSENT TO NRISDTCTiON VENUE A SERVICE: The parties to this Agreement consent and agree that a legal proceedings relating to the subject matter hereof shall be maintained in the Court of Common Pleas of Cumberland County, Pennsylvania, or, if applicable, the United States District Court of the Middle District of Pennsylvania, and all parties heretp consent and agree that jurisdiction and venue for such proceedings shall lie exclusively within said court: Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party, at the address set forth above. . 10. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representatives. 11. TIME IS OF THE ESSENCE OF THIS CONTRACT. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HEREE TO OR WITH THE E PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCI ED AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE TO BUYER: (1) DO NOT SIGN THIS AGREEMENT BEFORE -YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE, (2) YOU ARE ENTITLED TO A COMPLETELY FILLED-IN COPY OF THIS AGREEMENT (;) UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER CERTAIN CONDITIONS TO OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE. . BUYER(S) ACKNOWLEDGE(S) RECEIVING A COMPLETED COPY OF THIS CONTRACT AND INTEND(S) TO BE LEGALLY BOUND BY ITS TERMS. BUYER(S): xx a^---o- zi l p' O O I AGREE TO REPAY ALL AMOUNTS DUE ON THIS LOAN IF THE BORROWER(S)IBUYER(S) FAILS.TO DO SO IN ACCORDANCE WITH THE TERMS OF THE NO'T'E: STUDENT COSIGNER TRANSCRIPT OF A STUDENT'S RECORD WILL NOT BE RELEASED IF LOAN PAYMENTS TO THE COLLEGE ARE ARREARS OR DEFAULT. DATE: DICKINSON COLLEGE BY Q? Plan 8 Loans VERIFICATION I, Sally Heckendorn, Bursar of Dickinson College, acknowledge that I have the authority to execute this Verification on behalf of Dickinson College and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of this Complaint is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to my counsel, it is true and correct and to the best of my knowledge, information and belief. To the extent that the content of this Complaint is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Dickinson College Dated: q/gV//6 Notice To Plead To: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle, PA 17013 You are hereby notified to file a written response to The enclosed Preliminary Objection Under Pa.R.C.P. 1028(a)(4) Within twenty days from service hereof or a judgment Maybe entered against you Olaitan Abidoye Owokemi Abidoye Defendants DICKINSON COLLEGE, Plaintiff v. OWOKEMI ABIDOYE and OLAITAN ABIDOYE Defendants ~~~.~a-aF~~c~ a~ T~~ ~ ~o~~a~aarA~:Y 2010 OCT 18 PSI 3~ 32 °~U~~R~A~~t~ GOUTY P~l~P~SY1~VAh1A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No- 2010-6260 Civil Term PRELIMINARY OBJECTIONS OF DEFENDANTS OWOKEMI ABIDOYE AND OLAITAN ABIDOYE TO PLAINTIFF'S COMPLAINT UNDER Pa.R.C.P. 1028(a)(4) Filed on behalf of Defendants Owokemi Abidoye and Olaitan Abidoye In Pro Se OLAITAN ABIDOYE 345 EAST 80TH STREET NYC, NY 10075 OWOKEMI ABIDOYE 642 SILVERTOP ROAD ARLINGTON, TX 76002 DICKINSON COLLEGE, Plaintiff v. OWOKEMI ABIDOYE and OLAITAN ABIDOYE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.2010-6020 CIVIL TERM PRELIMINARY OBJECTIONS OF DEFENDANTS OWOKEMI ABIDOYE AND OLAITAN ABIDOYE TO PLAINTIFF'S COMPLAINT UNDER Pa.RC.P. 1028(aN4) Pursuant to Pa.RC.P.1028(a)(4), the defendants Owokemi Abidoye and Olaitan Abidoye assert Preliminary Objections to the Complaint based on legal insufficiency. The legal insufficiency is this action was instituted way past its statute of limitations. 1) A statute of limitations defense is properly raised at the preliminary objection stage where as an affirmative defense it is clear from the face of the pleadings..Malia v. Monchak, 116 Pa. Commw. 484, 543 A.2d 184, 1.87 (Pa. Cmwlth. 19881. 2) Plaintiff alleges in their Complaint that Defendant Owokemi Abidoye entered into an Educational Goods and Services Retail Installment Contract with Plaintiff "on or about February 4, 2000." Per the Complaint, no payment has ever occurred, thus the alleged default on this contract took place in February 2000. 3) The contract. at issue here, governed under 42 Pa.C.S.A. §5525 addresses the time for bringing actions on most contracts, and/or in the alternative the Pennsylvania Commercial Code at 13 Pa.C.S.A. §2725, governing the time for bringing an action for breach of contract for the sale of goods. Both statutes provide afour-yeaz limitations period. 4) The Complaint in this action was filed on September 30, 2010 more than 10 years after its inception, 10 yeazs after its alleged default and at least 6 years after the statute of limitations had made the contract unenforceable. 5) Because Plaintiff failed to bring this action within the allotted time period of 4 yeazs,'their Complaint is legally insufficient and should be dismissed with prejudice. Wherefore, the defendants request that this Court dismiss the Complaint in its entirety because the claims aze legally insufficient. V Olaitan Abidoye Owokemi Abidoye Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DICKINSON COLLEGE, Plaintiff v. OWOKEMI ABIDOYE and OLAITAN ABIDOYE Defendants ORDER No- 2010-6260 CIVIL TERM AND NOW, this day of 20_, Defendants Owokemi and Olaitan Abidoye's Preliminary Objection is sustained and Plaintiffs Complaint is dismissed by reason of legal insufficiency of a pleading (demurrer), as the statute of limitations has run out. Certificate of Service 1 certify that 1 am serving the foregoing PRELIMINARY OBJECTIONS OF DEFENDANTS OWOKEMI ABIDOYE AND OLAITAN ABIDOYE TO PLAINTIFF'S COMPLAINT UNDER Pa.R.C.P. 1028(a)(4 )today, October l~, 2010 by first class mail and. electronic mail to: Christopher E. Rice, Esq. Manson Law Offices Ten East High Street Carlisle, PA 17013 crice@martsonlaw.com y~ Olaitan Abidoye PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Dickinson College VS. Owokemi Abidoye and Olaitan Abidoye No. 2010-6260 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Ddend-safs Preliminary Ob' 'on and to Plaintiffs t with Prc*udm 2. Identify all counsel who will argue uses: ' "`r (a) for plaintiffs: r nn'- .c -or- Christopher M. Rice ty 4 (Name and Addr)-=ta Martson Law Offices, 10 East High Street, Carlisle, PA 17013 x*,?*t (b) for defendants: Olaiten Abidoye, Pro Se (Name and Address) 345 East 80th Street, Apt. 33G, New York, NY 10075 3. 1 will nobly all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 Signature Olaitan O. Abidoye Print your name Pro Se, DEFENDANTS :Novber;18 2014 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) befo ument. 2. The moving party shall file and, their brief 12 days prior to argument. 3. The responding party shall rief 5 days prior to argument. 4. If argument is continued new must be filed with the COURT ADMINISTRATOR (not the P onotary) after the case is rellsted. F'\FILES\Clients\7619 Dickinson College\Collections\Current\369\7619C.369.pra FILED-OFFICE- OF q THE PPOT O?dO tali' `, Christopher E. Rice, Esquire I.D. No. 90916 2010 DEC 13 AM I I : I R. Christopher VanLandingham, Esquire CUMBERLAND COW4 ry I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO PENNSY,qANIA GILROY & FALL MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, Plaintiff V. OWOKEMI ABIDOYE and OLAITAN ABIDOYE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010 - 6260 CIVIL TERM PRAECIPE To the Prothonotary: Please mark the above-referenced matter discontinued without prejudice. MARTSON LAW OFFICES /I a- By: y+?1 f ??-- Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. Number 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff Date: 1-2-11 1700 This is a debt collecting firm for Dickinson College. Any information obtained will be used for that purpose. CERTIFICATE OF SERVICE I, Mary A Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Olaitan Abidoye 345 East 80`' Street New York, NY 10075-0643 MARTSON LAW OFFICES LIA By: M Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: loz//,3/1D