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Home My WebLink About10-6447SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~g~,w,tr of ~'uuibr~^I,~~~ ~,~ ~; `'.~ •~~~ . r~ •~ ,:` ~Fi~6 ~:: ~ ~'+~ $kEf~IFF AILED-QF~ IG Jody S Smith Chief Deputy Richard W Stewart Solicitor ~~#O ~T 2 4 P~ ~,. I Portfolio Recovery Associates, LLC Case Number vs. Justin G. Weary 2010-6447 SHERIFF'S RETURN OF SERVICE 10/18/2010 11:44 AM -Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on October 18, 2010 at 1144 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Justin G. Weary, by making known unto himself personally, at 19 Trine Avenue, Mount Holly Springs, Cumberland County, Pennsylvania 17065 its contents and at the same time handing to him personally the said true and correct copy of the same. TIM B C ,DEPUTY SHERIFF COST: $34.30 October 19, 2010 SO ANSWERS, ~-• I< RON R ANDERSON, SHERIFF (cj CountySuite Shenff. Teieosoft. li;c. ~ ` D PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff vs. JUSTIN G WEARY Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA 10-6447 Civil Term CERTIFICATE OF SERVICE `,~r~~7 ~? r h ~ P1J` . . ~ ~ y4 ~ ~. .~.~'[ ~ ~ c= J -a %E -r't .~ j° `~` ~ j;~s ~ ~ ~ .~~ I, Nick Matash, the undersigned, hereby state that I served a copy of: Preliminary Objections to Plaintiff's Complaint, in the above-captioned matter upon Plaintiff by: 1. Mailing the papers First-Class Postage Pre-Paid to: David J. Apothaker, Esquire, Apothaker & Associates, P.C., 520 Fellowship Road C306, Mount Laurel, NJ, 08054 I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Ps.C.S. Section 4904, relating to unsworn falsification to authorities. Date: Nov 2, 2010 Nick Matash, Esquire Attorney ID #87916 MidPenn Legal Services 401 E. Louther Street, Suite 103 Carlisle, PA 17013 (717) 243-9400 ~•::~ . ~ ('~ :,.'.8 t L "4 PORTFOLIO RECOVERY COURT OF COMMON PLEAS i.M Z..~ ~r - "" "" r°' `~ `=' LLC ASSOCIATES CUMBERLAND COUNTY, PA w ~~ y.~ . -a y ~~ ~ ..~~ _-- , ~ ~ ' `P~'~' Plaintiff ~~:~~~ .~ -.~ vs. 10-6447 Civil Term ~~' °~" ~ c-~ =' . -~ ~~ rr JUSTIN G WEARY Defendant PRELIMINARY OB TECTIONS TO COMPLAINT -CIVIL ACTION Defendant moves for the dismissal of Plaintiff's Complaint -Civil Action, and as grounds therefore avers the following: Failure to Conform to Law and Rule of Court Pa.R.C.P. No.1028(a)2) and 1019(f)(h)(i) 1. Plaintiff filed aComplaint-Civil Action demanding damages in the amount of $2,657.23. 2. Plaintiff alleges it is owed certain funds pursuant to a credit card agreement but fails to attach a signed written contract between the Plaintiff or any other party and the Defendant. Such a writing would form the very core of Plaintiff's case, but such writing has not been appended to the Complaint, nor its absence explained, as required by Pa.R.C.P.No 1019(h) and (i). 3. The Complaint fails to provide proper documentation or accounting of charges allegedly made by the Defendant, which would support Plaintiff's claim of damages, such as a breakdown of charges, payments and interest, so that Defendant could bring a Motion for Summary Judgment based upon affirmative defenses such as the Statute of Limitations and/or Counterclaims. WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with prejudice for failure to conform to law or a rule of court. More Specific Complaint Pa. R.C.P.No.1028(a)(3) 4. Paragraphs 1-3 are incorporated herein by reference hereto. 5. The Complaint contains alleged claims for money owed, but fails to specifically account for the purported sums outstanding and for the amounts of payments made. 6. The Complaint fails to be specific as to the allegations of the amount due and owing and to state specific services or goods purchased by Defendant. 7. Plaintiff fails to state specifically how Defendant was enriched by the use of credit and fails to account for any payments made pursuant to a written agreement, a contract implied in law, or a theory of unjust enrichment. 8. Defendant is entitled to know how he has been enriched by the provisions of goods and or services and how payments have been applied to any alleged goods or services provided. WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with prejudice for failure to file a more specific complaint. Failure to Conform to Law and Rule of Court Pa. R.C.P. No. 2002(a) and Pa. R.C.P. No. 1019 (h) and (i) 9. Paragraphs 1-8 are incorporated herein by reference hereto. 10. The Plaintiff has failed to attach a valid written assignment from "the original creditor" to any other entity, properly identifying the account alleged to be owed by Defendant. Pa. R.C.P. 2002 (a) requires that all actions be prosecuted by the real party in interest. 11. Defendant is entitled to proof that the plaintiff is the owner of the claim against him. Pa. R.C.P. No. 2002(a) requires a claimant to trace in his statement of claim the derivation of the cause of action from the assignor to permit the defendant to challenge the plaintiff's claim that he or she is the present owner of the cause of action. 12. Plaintiff fails to attach assignment agreement as required by Pa. R.C.P. No. 1019 (h) and (i), which would prove that plaintiff is the real party in interest. 13. Such writings would form the very core of Plaintiff's case, but such writing has not been appended to the Complaint, nor its absence explained, as required by Pa.R.C.P. No. 1019(h) and (i). 14. The assignment agreement that which transfers legal right and ownership of a consumer debt must be attached to the complaint so that the consumer can be sure that he is being sued by the real party in interest and not subject to concurrent or consecutive liabilities. WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with prejudice for failure show that the plaintiff is the real party in interest. Failure to Properly Verify Pleading Pa.R.C.P.No.1028 (A)(2) 15. Paragraphs 1-14 are incorporated herein by reference hereto. 16. The Complaint is verified by the attorney for the Plaintiff who is not a party to the proceeding, who has not alleged that the party is outside the jurisdiction of the Court or why the verification is not made by the party. WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed for an improper verification as well as other objections raised herein. Respectfully submitted: MidPenn Legal Services Atto . s for efendant Nick Matash, Esquire 401 E. Louther Street Carlisle, PA 17013 (717) 243-9400 ID# 87916 . . VERIFICATION I verify that the statements made in this document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~ to J stin Weary FILED-OFFICE OF THE PROTHONOTARY Our File No.: 265959 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 PORTFOLIO RECOVERY ASSOCIATES, LLC 2010 DEC 21 PM 2: 56 cUt ? NN YLVANI?A TY COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, VS. NO. 10-6447 JUSTIN G WEARY Defendant. PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & A, SOVIATES, P.C. A Law Firm Enizafied in/Debt Collecti By: David J. Apothaker, Esquire Dated: 12/14/2010 * Q 2 6 5 9 5 9 D I S N 1-