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Home My WebLink About10-6696SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor LVNV Funding LLC vs. Bobbi Koch ~~,,rt1~ oC ''Li~int~r~,ri~~G Case Number 2010-6696 SHERIFF'S RETURN OF SERVICE 10/28/2010 09:55 AM -Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on October 28, 2010 at 0955 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Bobbi Koch, by making known unto herself personally, at 13 Fairfield Street, Newville, Cumberland County, Pennsylvania 17241 its contents and at the same time handing to her personally the said true and correct copy of the same. . ~~-~ TIM LA K, DEPUTY SHERIFF COST: $38.80 October 29, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF ~ ~ N ca o 'T1 -p ~ o -i ~~ o ~' ~ ~ ~~ ,~ ~ ..o r ~Q ~o -v zo ~~ ~ Z' ~•c rv ~r r ~ ~ ~- ~ i.c;. CeuntySuile Sh2r.~T. 7eeosofi. Inc. LVNV FUNDING, LLC, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 10-6696- CIVIL TERM BOBBI KOCH, Civil Action - Law Defendant s LL., rri NOTICE TO PLEAD w ? rn > ry . r-:;47 tao C7 ? To: LVNV Funding, LLC ar` 3?0 ti ° c/o Michael F. Ratchford, Esquire c -?-, Abrahamsen & Assoc =- . 120 North Keyser Avenue Scranton, PA 18504 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: t 2131 10 Respectfully Submitted Michael J. Pylgh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Bobbi Koch 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 mpykosh(idplglaxN com Attorney for Defendant LVNV FUNDING, LLC, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 10-6696- CIVIL TERM BOBBI KOCH, Civil Action - Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Bobbi Koch, 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 Citifinancial, Inc. of which Plaintiff claims to be the Original Creditor. Comp. ¶ 1 and4. 2. The Complaint was filed on October 20, 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, and/or 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(i), 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 5. 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(i). 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 his Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Date: 7i 3 Xey Submitted, ykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 LVNV FUNDING, LLC, Plaintiff V. BOBBI KOCH, Defendant : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 10-6696- CIVIL TERM Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Bobbi Koch, Preliminary Objections to Plaintiffs Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: LVNV Funding, LLC c/o Michael F. Ratchford, Esquire Abrahamsen & Assoc. 120 North Keyser Avenue Scranton, PA 18504 Date: 1116N Res ectful Submitted, ichae . ykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, Bobbi Koch, 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: )o ?l0 M Bobbi K David D. Buell' Prothonotary Office of the Prothonotary Cum6erfand County, Pennsylvania xirkS. Sohonage, EsQ Solicitor - L910 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE — THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite100 • Carlisle, TA • phone 717 240-6195 0 Ta.,717 240-6573