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Home My WebLink About10-6374SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ~$„~>.tr of `uirebcrr,~~,b fyFFi~~7FTµG »w~RIFfi ~~~ P~~ ~ t0,~ T is ~~~a acr r 8 P~ ,: ~~~BEFj(„gi`~~ G~~~~i'' ~~~~~~~ ~~~'~ ~ ~~~l~t Advantage Assets II, Inc. vs. Stacey L. Grimes Case Number 2010-6374 SHERIFF'S RETURN OF SERVICE 10/13/2010 06:49 PM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on October 13, 2010 at 1849 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Stacey L. Grimes, by making known unto herself personally, at 3191 Spring Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $33.40 October 15, 2010 ANDA COBAUGH, DEPU SO ANSWERS, ~C~-' RON R ANDERSON, SHERIFF ;cj CountySuite Sheriff. Te;eosoft. Inc. ADVANTAGE ASSETS, II, INC., Plaintiff v. STACEY L. GRIMES, Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 10-6374- CIVIL TERM Civil Action -Law NOTICE TO PLEAD .- ..,, :: To: Advantage Assets, II, Inc. =m~ ~~~f~ ~ ~~- --~ ,=;~ c/o David J. Apothaker, Esquire -~ =- Apothaker and Associates, P.C. t.:'~--' ' rv r~ 520 Fellowship Road C306 ;.-- ~_ ~~ =-~`' Mount Laurel NJ 08054 ~' ~ ~ ~= -- , .;:~ ~ ;; -...~r-Ta ~.~~ ,.~ v "y ...~ 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. Date: 41 ~ Respectfully Sub ed, Michael J. Pyk~slh, e . D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Stacey L. Grimes 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~%dpl~law c, om Attorney for Defendant ADVANTAGE ASSETS, II, INC., :COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. , No: 10-6374 CIVIL TERM STACEY L. GRIMES, Civil Action -Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Stacey L. Grimes, by and through her attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files her 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 Citi Bank of which Plaintiff Claims to be the Original Creditor. Comp. ¶ 1 and 3. 2. The Complaint was filed on October 7, 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, andlor 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 allowed 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 her Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Respec~fu~i Submitted, Date: t ~ i Mf'c~(sYel y-~PpKlrsh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 ADVANTAGE ASSETS, II, INC., :COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. No: 10-6374- CIVIL TERM STACEY L. GRIMES, Civil Action -Law Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Stacey L. Grimes', 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: Advantage Assets, II, Inc. c/o David J. Apothaker, Esquire Apothaker and Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Date: ~ l 0 Respe~tfk~jy/~ubmitted/ MiEtYael J. Pykosh, Esquire I . D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, Stacey L. Grimes, 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: Illy I ~ ~ Our File No.: 270749 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire _ Attorney I.D.# 38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorney for Plaintiff ADVANTAGE ASSETS II, INC. Plaintiff, VS. STACEY L GRIMES Defendant. 4 OF THP140-OFFICE PROTHONOTARY ARY 1010 DEC 10 PH 1: 19 CUMBERLAND COUNTY PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-6374 CIVIL TERM PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & Attorneys A Law Firm Enaae By: Dated: 12/1/2010 TES, P.C. David J. Apothaker, Esquire 1111101111111 * Q 2 7 0 7 4 9 D I S N 1-*