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HomeMy WebLinkAbout10-6382SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny RAnderson ~~LEq-OFFICE Sheriff f;~ '~~~ ~R~TNQMOTA~'' Jody S Smith ~a,,~~ttr nC ~icrp6,~~.~~fi Chief Deputy ~; ~~~ ~ ~' ~~ ~ ~ ~~~ ~ ~ ~~ ~~' Q ~ iii i~J ~~ Richard W Stewart ~- j~- ~~~~ER~.~~Q ~(~~~"~~ ~' solicitor c~F~ce of Tf-G ~.:,ERIFF Y ~~P3SYt-1/A"{ Advantage Assets II, Inc. vs. Joon H. Lee Case Number 2010-6382 SHERIFF'S RETURN OF SERVICE 10/11/2010 06:16 PM -Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on October 11, 2010 at 1816 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Joon H. Lee, by making known unto himself personally, at 11 E. Beale Avenue, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. AMANDA COBAUGH, EPUTY SHERIFF COST: $41.50 October 12, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF (c) CountySuite Sheriff. Teleosoft, Inc. ADVANTAGE ASSETS II, INC. ) COURT OF COMMON PLEAS 7322 SOUTHWEST FREEWAY, SUITE 1600 ) CUMBERLAND COUNTY HOUSTON, TX 77074 ) NO. 10 - 6382 Civil Term Plaintiff, Vs. JOON H LEE 11 E. BEALE AVE ENOLA, PA 17025-2804 Defendant. ) ~ o "+i -p ~ a --i fi ~ t~'~ fZri ~7 ~ ~ ~ ~ ) r~ Ct~ O , ~~ ff ~ ) ~~ ~ `T1 ~ D~ ~ a~ ==, rv -~ © ~ -c DEFENDANT'S PRELIMINARY OBJECTIONS Defendant, JOON H LEE, files Preliminary Objections to Plaintiff's Complaint, as follows; 1. Plaintiff alleges in paragraph 3 of its complaint that Defendant was issued a credit card and/or line of credit by CITIBANK (SOUTH DAKOTA) N.A. /THE HOME DEPOT, the Original creditor but fails to attach the contract or agreement and identify the transaction date(s). 2. Plaintiff also alleges in paragraph 3 of its complaint that it is the Assignee and Successor of the alleged credit account from CITIBANK /THE HOME DEPOT but fails to attach any contractor agreement between CITIBANK/THE HOME DEPOT and itself. (.PRELIMINARY OBJECTION LACK OF CONFORMITY TO LAW OR RULE OF COURT. 3. Paragraph 1 through 3 are incorporated by reference as if set forth at length herein. 4. As a geral rule, an action must be brought "by and in the name of the real party in interest." Pa.R.C.P. No.2002(a). 5. A real party in interest is one who can discharge a given right, obligation, or liability and control an action brought to enforce it. 6. Plaintiff alleges in paragraph 3 of its complaint that it is the assignee and successor of the alleged account; however, Plaintiff fails to attach a copy of any assignment or agreement with CITIBANK/TH E HOME DEPOT. 7. Rule 1019(1) of the Pennsylvania Rules of Civil Procedure requires that where a claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing. 8. Plaintiff fails to produce a cardholder agreement and statement of account, as well as evidence of the assignment of the aforesaid account. 9. Plaintiff's complaint is silent about the substance of these writings and whether each writing is accessible. 10. Plaintiff's pleading is insufficient and Plaintiff has not established that it is real party in interest or that it has capacity to sue in its own name. WHEREFORE, defendant respectfully requests that this Court dismiss plaintiff's complaint. II. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO APPLICABLE RULES OF LAW. 11. Paragraph 1 through 7 are incorporated by reference as if set forth at length herein. 12. The verification to Plaintiff's complaint was not made by one of the Plaintiffs, but rather was made by plaintiff's attorney, David J. Apathaker, Esquire. 13. Pa.R.C.P. 1024 (c) requires that: The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth 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. 14. The verification to plaintiff's complaint does not set forth the source of Plaintiff's attorney's information as to the matters contained in the complaint. 15. Further, there is no reason given by plaintifYs attorney why the verification could not be taken by the plaintiff. Counselor's claim of expediency fails to explain why verification could not be obtained within the time allowed, in violation of Rule 1024 (c). 16. The verification to plaintiff's complaint is defective under Rule 1024 (c). 17. The verification being defective, plaitiff's complaint is not properly verified as required of a pleading under Rule 1024 (a), and must be stricken. WHEREFORE, defendant respectfully requests that plaintiff's complaint be stricken. III. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO APPLICABLE RULES OF LAW. 18. Paragraph 1 through 7 are incorporated by reference as it set forth at length herein. 19. Plaitiff s complaint fails to set forth sufficient facts as to time, place and items of special damage with specificity, as required by Pa. R. C. P. 1019 (f). 20. Plaintiff alleges in paragraph 3 of its complaint that CITIBANCK/THE HOME DEPOT issued a credit card or/and a line of credit, account number ending in 3564, and that that Plaintiff is assignee of this account; however, Plaintiff fails to attach or to explain the absence of its credit account and the assignment thereof as required by Pa. R. C. P. 1019 (h). 21. The complaint purports to state a claim against Defendant for default under the terms and conditions of a written agreement governing the use of a credit card and/or line of credit; however, instead of attaching the written agreement, Plaintiff attaches a printout prepared for litigation and then merely alleges that Defendant is responsible for an unpaid balance and that demand has been made for $1,826.51. 22. Plaintiff fails to attach a signed contract, the charge slips, the application for the credit card, or any statement of account. Plaintiff fails to attach the assignment or purchase of the account from CITIBANK/THE HOME DEPOT to Plaintiff. 23. Plaintiff fails to identify those specific dates of use or terms under the contract that substantiate the alleged balance or amount owed. 24. The Complaint does not comply with Pa. R. C. P. 1019 (a), which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 25. As a result, Plaintiff's Complaint is vague and general and does not specifically state the debt incurred or what, if any, payments are due and the nature of the charges included as part of the amount Plaintiff claims to be owed. 26. Under Pa. R. C. P. No. 1028 (a)(2), a party may preliminally object by way of a motion to strike off a pleading because of lack of conformity to law or rule of court. 27. The substance of Plaintiff's Complaint violates the Pennsylvania Rules of Civil Procedure and must be dismissed. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint against him be dismissed for lack of conformity to the Pennsylvania Rules of Civil Procedure. IV. INSUFFICIENT SPECIFICITY OF A PLEADING. 28. Paragraph 1 through 7 are incorporated by reference as if set forth at length herein. 29. Plaintiff's Complaint lacks sufficient specificity to apprise defendant of the issues to be litigated or to allow him to adequately prepare and assert defenses to plaintifYs allegation. 30. Additionally, Defendant is entitled to more specific information to be able to answer intelligently and determine if he is even obligated for such credit card and what items he can admit and what he must contest. 31. The Complaint generally asserts a breach of contract and other failures of performance against Defendant, contrary to Rule 1019 (f). 32. The Complaint fails to state any facts upon which the amount of damages may be calculated, in violation of Pennsylvania Rules of Civil Procedure 1019 (a), which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." WHEREFORE, Defendant respectfully requests this Court to require that Plaintiff plead more specifically the averments of its complaint relating to damages are the nature of the default. VERIFICATION I, Joon H Lee, hereby acknowledge that I am the Defendant in the foregoing Preliminary Objections, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. ~, / Dat~/~ ~ c /' ~ Pro se Defendant Our File No.: 282733 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.P.# 38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorney for Plaintiff ADVANTAGE ASSETS II, INC Plaintiff, VS. JOON H LEE 2010 DEC 28 AH 8: r-UMBE:RLAND uB?t k r r, PENNSYLVAtj# COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-6382 CIVIL TERM Defendant. PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & AS IATES, F.C. Attorneys r Pl 'tiff A Law Firm Eng ed in bt Collection By: David J. haker, Esquire Dated: 12/14/2010 * Q 2 8 2 7 3 3 D I S N 1-