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HomeMy WebLinkAbout10-6569SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ~a,~~cr of ~u~ta~r~,f~g~ ~3Fr it;6 _F -re S•:ERIF~ FiL~p-f?FftCE Z!?~0 Q~~' ~ ~ Phi t~: ! ~; .,~~ ~, Citibank (South Dakota} N.A. vs. Marlene M. Higgins Case Number 2010-6569 SHERIFF'S RETURN OF SERVICE 10/18/2010 04:17 PM -Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on October 18, 2010 at 1617 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Marlene M. Higgins, by making known unto Tony Higgins, Husband of defendant at 5525 Barbara 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. EL BAR ICK, DEPUTY SHERIFF COST: $37.00 October 19, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF ~c) CountySuite Sheriff, Teteosott. t~,c. Mazlene Higgins 5525 Bazbaza Drive Mechanicsburg, PA 17050 Court of Common Pleas Cumberland County, Pennsylvania Citibank 701 East 60`~ Street Sioux Falls, SD 57117 Mazlene Higgins 5525 Bazbaza Drive Mechanicsburg, PA 17050 ~Y~..,,... , DF TNE~~RO ~HONOTARY ZQIf1 ~Iflt~ -~ P~1 2~ I 0 ~Ur~U~~~A~<U COU~~TY P~~iF1SYLVAP~IA Case Number: 10-6569 Plaintiff Defendant Motion to Compel Arbitration Marlene Higgins (Defendant), hereby answers the complaint of Citibank (Plaintiff) for its self alone as follows and moves this court to bar, stay or dismiss Plaintiffs claim based on the following: 1. Plaintiff filed a complaint against the defendant for credit cazd balance due. 2. Defendant moves this court to compel binding azbitration based on the credit card agreement provided by the Plaintiff. a. The parties are bound by Credit Card Agreement to settle disputes by binding arbitration, not by litigation, upon election of either party. This motion constitutes notice of election by the undersigned to have this dispute resolved by binding arbitration, as provided for in the Credit Card Agreement. 3. Plaintiff has never sought to take the defendant to arbitration. 4. The Federal Arbitration Act (FAA), 9 USC, Section 1-2 provides: a. "A written provision in any maritime transaction or a contract evidencing a translation involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 5. Defendant requests that pending the court's ruling on this Motion this action be stayed. 6. FAA, 9 USC, Section 1-3 provides: a. "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceedings is referable to arbitration under such agreement, shall on application of one of the parties stay the trial of the .. action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." WHEREFORE, Defendant requests that: 1. The honorable court stay the Plaintiffs complaint and any and all actions related to this case. 2. The honorable court compels the Plaintiff to seek binding arbitration per the terms and conditions of the Credit Cazd Agreement. November 4, 2010 Marlene Higgins Defendant in Pro Per Marlene Higgins 5525 Barbara Drive Mechanicsburg, PA 17050 Court of Common Pleas Cumberland County, Pennsylvania Citibank 701 East 60' Street Sioux Falls, SD 57117 Marlene Higgins 5525 Barbara Drive Mechanicsburg, PA 17050 p 0-OFFICE "Ji Case Number: I10-6569 Plaintiff Defendant i7 Ste? 1. Marlene Higgins (Defendant), hereby answers the complaint of it's self alone as follows and generally denies the allegations based and belief. 2. Defendant elects to have all disputes related to the credit card binding arbitration. 'itibank (Plaintiff) for lack of information resolved by 3. Due to serious financial crisis, defendant does not have sufficie t funds to pay the full amount of the debt, if any. Over the past 9 months the defendant has undergone treatment for cancer. Treatment is intensive and chemotherapy three days. In addition, the defendant's husband had several serioi was hospitalized for over three weeks and subsequently diagnosed these have created significant emotional and financial distress on t family. The Defendant is enrolled with a program with Diamond getting financial matters in order. every 11 days for car accidents and epilepsy. Both of defendant and ial to assist in WHEREFORE, Defendant requests that: 1. Plaintiff takes nothing by way of their complaint; and 2. For Defendant's cost of the suit. November 4, 2010 Marlene Higgi Defendant in Pro Per T ? CITIBANK, Plaintiff/Respondent VS. MARLENE HIGGINS, Defendant/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-6569 CIVIL IN RE: DEFENDANT'S MOTION TO COMPEL ARBITRATION RULE TO SHOW CAUSE AND NOW, this day of November, 2010, upon consideration of the foregoing petition, it is hereby ordered and decreed as follows: 1. A rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the petition within twenty (20) days of service; 3. the petition shall be decided under Pa. R.C.P. No. 206.7; 4. argument is set for :December 16, 2010, at 9:15 a.m. in Courtroom Number 4; and 5. notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT, Kevin Cam) 6 peg ewe, ?'?'q r:?s r r?Q ?L d jo??//o Cn mCD - =-,, M M- - -<,- > W ? C) ,. ?- M ? a BURTON NEIL & ASSOCIATES, P.C. Neil Sarker, Esquire ID. No. 203465 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. Plaintiff V. MARLENE HIGGINS FILED-OFFICE TNOF TorAay "" NOV 29 AM 9: 16 CU BM ND eouNT ?, PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-6569 Defendant : CIVIL ACTION - LAW Plaintiffs Response to Defendant's Motion to Compel Arbitration 1. Admitted. 2. It is admitted the defendant filed a motion to compel arbitration and that terms and conditions governing defendant's account allow for arbitration. By way of further response, plaintiff consents to defendant submitting this matter to arbitration with the American Arbitration Association contingent upon this Court staying the proceeding pending that private arbitration as required by Pa. R. C. P. 1329, and provided that defendant initiates the arbitration within a reasonable time period, such that the instant litigation is not stayed indefinitely. 2a. Denied that the arbitration is binding arbitration. It is further denied that the terms and conditions preclude plaintiff filing a lawsuit to recover the past due balance. To the contrary, the terms and conditions allow for arbitration but do not preclude litigation. Additionally, plaintiff consents to defendant submitting this matter to arbitration with the American Arbitration Association contingent upon this Court staying the proceeding pending that private arbitration as required by Pa. R. C. P. 1329, and provided that defendant initiates the arbitration within a reasonable time period, such that the instant litigation is not stayed indefinitely. 3. Admitted. However, plaintiff does not oppose defendant submitting this matter to private arbitration contingent upon this Court staying the proceeding pending that private arbitration as required by Pa. R. C. P. 1329, and provided that defendant initiates the arbitration within a reasonable time period, such that the instant litigation is not stayed indefinitely. 4a. Denied. There is no 9 U.S.C. § 1-2. To the extent that defendant attempts to cite the Federal Arbitration Act, that is a federal law and a writing which speaks for itself. 5. It is admitted the defendant is requesting this action be stayed pending litigation. By way of further response, plaintiff consents to defendant submitting this matter to arbitration with the American Arbitration Association contingent upon this Court staying the proceeding pending that private arbitration as required by Pa. R. C. P. 1329, and provided that defendant initiates the arbitration within a reasonable time period, such that the instant litigation is not stayed indefinitely. 6a. Denied. There is no 9 U.S.C. § 1-3. To the extent that defendant attempts to cite the Federal Arbitration Act, that is a federal aw and a writing which speaks for itself. WHEREFORE, plaintiff requests that the Court entered the attached Order allowing this proceeding be stayed pending the defendant's submission of this matter to private arbitration with the American Arbitration Association and in accordance with Pa. R. C. P. 13292 Should the defendant not proceed with election for arbitration, plaintiff requests the litigation proceed. Burton Neil & Associ , P.C. By Neil Sarker, Esquire Attorney for Plaintiff In making this communication, we advise our firm is a debt collector. IIt is noted that in defendant's proposed order she requests that plaintiff submit a status update to the Court every ninety (90) days until the arbitration is completed. There is no provision in Pa. R. C. P. 1329 which requires such a status update. Furthermore, if defendant wants a status report to be submitted to the Court, then perhaps defendant should take the initiative to do so. BURTON NEIL & ASSOCIATES, P.C. Neil Sarker, Esquire ID. No. 203465 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 10-6569 MARLENE HIGGINS Defendant : CIVIL ACTION - LAW Plaintiffs Brief in Response to Defendant's Motion to Compel Arbitration A. History of the Case Plaintiff sued defendant to recover the past due balance owed on a credit card account. Defendant filed a formulaic response asserting three affirmative defenses and also filed a motion to compel arbitration. Plaintiff is not opposed to defendant submitting the case for private arbitration. B. Issue Whether defendant actually intends to compel arbitration? C. Argument Plaintiff does not oppose defendant submitting this case for private arbitration, and does not oppose the Court staying the litigation pending the same. However, should defendant not proceed as she has represented she will to the Court, the litigation could be stayed indefinitely. Accordingly, plaintiff request the Court enter the proposed Order attached to its response to defendant's motion. The proposed Order would provide defendant 60 days in which to initiate the private arbitration proceedings. If at the end of 60 days, the defendant did not elect for private arbitration, the litigation could proceed in this Court. l A Conclusion For the reasons set forth above, plaintiff does not and will not oppose this matter being directed to arbitration provided defendant adheres to the procedures designed for that purpose, and provided that there is provision for the litigation to proceed, should defendant not elect the private arbitration. Burton Neil & Associa C. By Neil Sarker, Esquire Attorney for Plaintiff in making this communication, we advise our firm is a debt collector. Burton Neil & Associates, P.C. By: Neil Sarker, Esquire ID. NO. 203465 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 _Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. Plaintiff V. MARLENE M HIGGINS Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-6569 : CIVIL ACTION -LAW Certificate of Service I, Neil Sarker, Esquire do hereby certify that I served a true and correct copy of the within proposed Order, Response to Motion to Compel, and Response Brief on pro se defendant, Marlene M Higgins at her address of record via first class mail, postage prepaid on the date set forth below. Date: ?y a Burton Neil & Associates . By: Neil Sarker, Esquire Attorney for Plaintiff The law firm of Burton Neil & Associates is a debt collector. C-41976 rn ca Z? rn -urn ..?? O? C3 -c:J > 3 c=> CDrA - i ) d r 7 CITIBANK (SOUTH DAKOTA), N.A. IN THE COURT OF COMMON PLEAS Plaintiff V. CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-6569 MARLENE HIGGINS Defendant : CIVIL ACTION - LAW Order AND NOW, this J L ` day of ?Lcs•. , 20 , upon defendant's motion to compel arbitration and plaintiffs response thereto, it is hereby ORDERED that the current proceedings are STAYED pending the defendant proceeding to private arbitration with the American Arbitration Association in accordance with Pa. R. C. P. 1329. Should the defendant not elect for the arbitration within 60 days of date of this Order, the parties may proceed with the litigation of this matter. BY THE COURT: J., ?. ey, e THE PRO ? ONO TA 2012 JUL 30 PH 1: 52 f,-UMSERLAND COUNTY PENNSYLVANIA Burton Neil & Associates, P.C. By: Neil Sarker, Esquire ID. NO. 203465 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A IN THE COURT OF COMMON PLEAS Plaintiff V. CUMBERLAND COUNTY, PENNSYLV NO. 10-6569 MARLENE M HIGGINS Defendant : CN1L ACTION - LAW Praecipe to Settle, End, & Discontinue To the Prothonotary: Mark the above matter Settled, Ended and Discontinued. Burton Neil & Assoc' t , P.C. By: Neil Sarker Esquire Attorney for Plaintiff The law firm of Burton Neil & Associates is a debt collector. C-41976 / 318 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson }, } r Sheriff �CIN, l�r Jody S Smith Chief Deputy 2014 FEB 25 AM 9: 18 Richard W Stewart CUMBERLAND COUNTY Solicitor PENNSYLVANIA Advantage Assets II, Inc. vs. Case Number Tammie K. Ross 2010-6549 SHERIFF'S RETURN OF SERVICE 02/20/2014 10:49 AM-Jason Kinsler, Deputy, who being duly sworn according to law, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the Defendant, in the hands, possession, or control of the within named garnishee, Metro Bank, 20 Noble Blvd, Carlisle Borough, Carlisle, PA 17013, Cumberland County, by handing to Nicole Erickson,Assistant Store Manager, personally three copies of interrogatories together with three true and attested copies of the Writ of Execution and made the contents there of known to her. The writ of execution and notice to defendant was mailed on February 21, 2014 to Tammie K. Ross at 1183 Kingsley Road, Camp Hill, PA 17011-6113. Ig ASOh KINAER, DEPUTY SO ANSWERS, 4z � z/� ( 2 February 21, 2014 RONNY R ANDERSON, SHERIFF c'r C cw^b- u0 aherif`.Tc!cosa. ._,.