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Home My WebLink About10-6321SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff at ?fiur7b t { . ?I Fy . ICE Jody S Smith Chief Deputy $ s; Richard W Stewart 10 0 CUi 12 10 8'43 Solicitor` Advantage Assets II, Inc. Case Number vs. Charles M. Kelley 2010-6321 SHERIFF'S RETURN OF SERVICE 10/07/2010 08:05 PM - Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on October 7, 2010 at 2005 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Charles M. Kelley, by making known unto himself personally, at 510 Woodcrest Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to him personally the said true and correct copy of the same. AMANDA COBAUGH, DEPQIY SHERIFF COST: $37.00 October 08, 2010 SO ANSWERS, f RON R ANDERSON, SHERIFF (C) CounfySuile Sheriff. Telecsoft.. loc ADVANTA~E ASSETS, II, INC., Plaintiff I v. CHARLES ILIA. KELLEY, Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-6321- CIVIL TERM Civil Action -Law NOTICE TO PLEAD ~, ,~ ~ To: Advantage Assets, II, Inc. ~ ~-~, c/o Frederic I. Weinberg, Esquire ~='~ `~' ~ ~ " Gordon & Weinberg, P.C. u?~ rv ~;~ . 1001 E. Hector Street, Suite 220 ~~ `~ ~° Conshohocken PA 19428 mac-, -° ~" ~~ , a ~ r-s `~= -~ ~ r.a ~7 ~' ;,~ You rare hereby notified to plead to the enclosed Preliminary Objections with in twenty (20) days from the date of service hereof or a default judgment may be entered against you.. Date: 1~ ~,1t2-' l b Respectfulyy/Submitted, ICAichael J. Pykosh, Esquire I.D. # 5 851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Charles M. Kelley ,~ Michael J. Pyko~3h, Esquire ID # 58851 Dethlefs-Pykos)# Law Group, LLC 2132 Market Stp~et Camp Hill, Pennsylvania 17011 Telephone - (719) 975-9446 Fax - (717) 975'-2309 ADVANTA E ASSETS, II, INC., Plaintiff v. for Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-6321- CIVIL TERM CHARLES M. KELLEY, Civil Action -Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT ANQ'NOW, comes the Defendant, Charles M. Kelley, by and through his attorneys D~thlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files his Prelimini~ry Objections to the Plaintiff's Complaint, and avers as follows: 1. Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintii~ arising out of an account issued by Citibank, N.A. of which Plaintiff Claims to be tie Original Creditor. Comp. ¶ 1. 2. The complaint was filed on October 5, 2010. First Pre~~iminary Objection- Pa. R.C.P. 1028(a)(2)- Failure to conform to rule of court (~ailure to state whether agreements is oral or written, state its terms, nd/or attach written contract upon which the claim is based) 3. The omplaint avers the existence of some type of contract between the parties, referre to as the "account." 4. Pu~~uant to Pa. R.C.P. 1019(h), where a claim asserted is based upon an agre~ment, 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. Purl~uant 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 substi~nce of the agreement. More specifically, Plaintiff has failed to attach the original Loan/Credit Agreement signed and dated, including both original and amer>~taed terms and conditions applicable to the credit card agreement. Asset Acceptance, LLC v Margaret Madden Order dated March 18, 2009, No. 2912 of 2008 ~D (Fayette County 2009) citing Atlantic Credit & Finance, Inc. v Guiliana, 829 ~,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. ~&C 5th 43, 45 (Centre Cty., 2008) 7. The Plaintiff has failed to describe the terms of the agreement, nor has it attach'~d a copy of a written agreement or explained its absence. Second ~I~reliminary Objection- Pa. R.C.P. 1028(a)(2)- Failure to conform to rule of court (Improper Verification) 8. Pa. F.C.P. 1024 required that every Complaint be verified by a Party, unless the party i~ without sufficient knowledge or information with which to verify, or, that the party is outside the jurisdiction of the court and its verification obtained within the time allowed for pleading. Pa. R.C.P. 1024(c)(1) and (2) 9. The ~omplaint is verified by Leonard Pryzansky CEO, as agent for Plaintiff, the facts in an attached Affidavit not the facts in the Complaint. The verifiC~ation only identifies Mr. Pryzansky as an agent of the Plaintiff yet he signs as CEO; Third Pj~eliminary Objection- Pa.R.C.P. No. 1028(a)(2)-Failure to conform to rule of court (failure to attach written assignments of debt) 10. Thy, Plaintiff is not the original creditor, but rather assignee of the original creditor. Comp. ¶ 1. Since the Plaintiff s right to maintain an action as an assignee is pr~kficted upon written assignment or agency agreement, that writing must be attached to the Complaint, pursuant to Pa. R.C.P. 1019(1). 11. By wiling 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 12. Pa. R.C.P. 2002(a) required that an action be brought by the real party in interest. 13. By Mailing to attach a copy of the necessary writing by which the Plaintiff would becorlre 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. 14. Plaintiff has not shown standing or capacity to sue Defendant. 15. Sin I e this matter was not brought by the real party in interest it must be dismi sed. 'Fifth Preliminary Objection- Pa. R.C.P. No. 1028(a)(4)- Demurrer 17. Th ' Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach cif 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 weit'e incurred, the amounts incurred on each date, the dates or amounts of payment, nor dates of accrual and amounts of interest charges and other fees. 19. Pa. ~~t.C.P. No. 1019 and Pa. R.C.P. 1028(a)(3) require that the above detail be included ~n a Complaint of this type. 20. By r~bt including the requisite detail of the account, to an express rule of Court. the Complaint fails to conform WH~REFORE, the Defendant respectfully requests that his Preliminary Objections be sustained, and that Plaintiffs Complaint be dismissed with prejudice. ~~ Date: 0 -I Ret~ju~ly~ubmitted, Michael J. Py-Tcosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 ADVANTAGE ASSETS, 11, INC., Plaintiff v. No: 10-6321- CIVIL TERM CHARLESI M. KELLEY, Civil Action -Law Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Charles M. Kelley's, Preliminarry Objections to Plaintiff s Complaint, was hereby served by depositing the same withih the custody of the United States Postal Service, First Glass, postage prepaid, adj~ressed as follows: Advantage Assets, II, Inc. clo Frederic I. Weinberg, Esquire ', Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 Date: ~0 -";~~ -( 0 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Respectfully S~~nitted, Michael J. Pykosh, Esquire I.D. # 58851 2132 Market Street Camp Hitl, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, Charles M. Kelley, 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. 1 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: lU ~'' l $1 ~d Charles M. Kelley ' sas MOM MIIIIMM MMM MOWER The Law Offices of Frederic I Weinberg & Associates, P.C. BY: Frederic I. Weinberg, Esquire 'Identification No.: 41360 Joel M. Flink, Esquire Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-05.00 .FILL HE PRO f'ONQ C#i Stp 15 i i1 1:49 CUMBERLAND COUNTY PENNSYLVANIA ADVANTAGE ASSETS II, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. DOCKET NO. : 10-6321 CHARLES M KELLEY PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above -captioned action, without prejudice.. The Law Offices of rederic I. Weinberg & Associates, P BY: Frederi. I. W-inberg, Esquire Joel M. Flin , Esquire Attorney .r Plaintiff CERTIFICATION OF SERVICE I. FREDERIC I. WEINBERG, ESQUIRE, hereby certify that I, on the date below, served a copy of the Praecipe to Withdraw Complaint to Pa.R.C.P. 1028(c)(1), via First Class Mail, postage pre -paid, to all other parties or their counsel of record. Dated FREDERILI—WEINBERG, ESQUIRE