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HomeMy WebLinkAbout10-7651 2097571 THIS IS AN ARBITRATION MATTER. ASSESSME NT OF DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 ~ ~ o "~- ~ JOEL M. FLINK, ESQUIRE -~=~= ~, -a Identification No.: 41200 `-='~~ ~ ~~`'~ r` 1001 E. Hector Street, Ste 220 U,r-' ``' Conshohocken, PA 19428 --~~ w ° ' 484/351-0500 ~~ -° :gyp o ~ -~ y ~ ~r*r BARCLAYS BANK DELAWARE COURT OF COMMON PLEAS ~ Gi ~ 125 S. West Street CUMBERLAND COUNTY ~ Wilmington, DE 19801 ,~ vs . DOCKET NO . , ~ = ~ (~ ~S BRADLEY OSBORNE 235 E MAIN ST 6 SHIREMANSTOWN PA 17011 NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 ~~ ~ ~~ s ~ ~ ,~ asa CL COMPLAINT IN CIVIL-ACTION 1. At all times relevant hereto, the defendant(s) was the holder of a credit .card, which at the request of the defendant(s) was issued to the defendant(s) by the plaintiff under the terms of which the plaintiff agreed to extend to defendant(s)the use of plaintiff's credit facilities. 2. Defendant(s) accepted and used the aforesaid credit card so issued and by so doing agreed to perform the terms and conditions prescribed by the plaintiff for the use of said credit card. 3. The defendant(s)received and accepted goods and merchand- ise and/or accepted services or cash advances through the use of the credit card issued by the Plaintiff. A true and correct copy of the Statement of Account or Affidavit of Account, if available, is attached hereto as Exhibit "A". 4. All the credits to which the defendant(s)is entitled have been applied and there remains a balance due as of November 29, 2010 in the amount of $5,958.17. 5. Plaintiff has made demand upon the defendant(s)for payment of the balance due but the defendant(s)has failed and refused and still refuses to pay the same or any part thereof. 6. Defendant's last payment on account was made on 3/30/09. WHEREFORE, plaintiff claims of the defendant(s) the sum of $5,958.17 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I. IN RG, ESQUIRE JOEL M. FLIN SQUIRE Attorney for Plaintiff POlA 2097571 BARCLAYS BANK DELAWARE BRADLEY OSBORNE 5140218002118790 VERIFICATION I hereby state that I am the agent for the plaintiff herein, and that the facts set forth in the attached Affidavit which is incorporated by reference in the foregoing Complaint in Civil Action are true and correct to the best of my knowledge, information and belief and is based upon information which plaintiff has furnished to counsel. The language in the Complaint is that of counsel and not of plaintiff. To the extent that the contents of the Complaint are that of counsel, plaintiff has relied upon counsel in making this verification. This verification is made subject to 18 Pa.C.S. §4904 which provides for certain penalties for making false statements. 2097571 BARCLAYS BANK DELAWARE BRADLEY OSBORNE 5140218002118790 State of Delaware § § County of New Castle § AFFIDAVIT I, being duly served sworn according to law, depose and say hat: 1. I am the agent for the Plaintiff herein and I have custody and control of the files relating to this account; 2. Plaintiff's files are maintained in the usual and ordinary course of business; 3. This action is based on a claim for breach of contract and that damages are sought as a direct result of said breach; 4. There is now due and owing from defendant to plaintiff, the amount of $5,958.17 plus interest of $.00 at the rate of 0~ less credits in the amount of $.00 totaling $5,958.17 as of 11/2/10. 5. If called upon, affiant can testify at trial as to the facts pertaining to this matter. The above facts are true and correct to the best of nowledge, information and belief. i AFFIANT: Sworn to and Subscribed before me this ~--3 day of ~U ~~ 2010 Notary Public ~~.•+.r+ ~ ~~j ~ +~, ®~~ =~ i. P120 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson FO.OFFICO Sheriff NON Jody S Smith OF ?E ? pRO Chief Deputy 4 D 29 P 2: 51 20ti Richard W Stewart RLA?aO COUNT`( Solicitor CUMg VPNIP p?@?NSYL Barclays Bank Delaware vs. Bradley Osborne Case Number 2010-7651 SHERIFF'S RETURN OF SERVICE 12/22/2010 06:11 PM - Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on December 22, 2010 at 1811 hours, he served a true copy of the within Conse and Notice, upon the within named defendant, to wit: Bradley Osborne, by making known ao personally, at 235 E. Main Street #6, Shiremanstown, Cumberland County, Pennsylvania tents and at the same time handing to him personally the said true and correct copy of the SPAWN HARRISON, DEPUTY SHERIFF COST: $55.00 December 27, 2010 SO ANSWERS, RON ~ R ANDERSON, SHERIFF BARCLAYS BANK DELAWARE, Plaintiff V. : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 10-7651- CIVIL TERM BRADLEY OSBORNE, Civil Action - Law Defendant NOTICE TO PLEAD To: Barclays Bank Delaware c/o Frederic Weinberg, Esquire ' -? L] Joel M. Flink, Esquire Gordon & Weinberg, P.C. r 4.;. Hector Street 1001 E . Conshohocken, PA 19428 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: A1 5111 Respectfully Submit d, Michael J. Py s , Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Bradley Osborne 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 mDvkosh(%dDlelaw,com Attorney for Defendant BARCLAY'S BANK DELAWARE, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 10-7651- CIVIL TERM BRADLEY OSBORNE, Civil Action - Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Bradley Osborne, by and through his attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files his 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 Barclays Bank Delaware. Comp. ¶ 1. 2. The Complaint was filed on December 13, 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(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)(4)- Demurrer 11. The Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract. Fourth Preliminary Objection- Pa. R.C.P. No. 1028(a)(3) 12. 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. 13. 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. 14. 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: 1 $ Respectfully Submitte Michael J. cos , Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 BARCLAY'S BANK DELAWARE, Plaintiff V. BRADLEY OSBORNE, Defendant : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 10-7651- CIVIL TERM Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Bradley Osborne's, 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: Barclays Bank Delaware c/o Frederic Weinberg, Esquire Joel M. Flink, Esquire Gordon & Weinberg, P.C. 1001 E. Hector Street Conshohocken, PA 19428 Date: i 5 11 Respectfully Submitted, I 2z ? ?' X9 (/ / ? Michael J. Pykosh, Esquire- I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, Bradley Osborne, 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: Bradley sborne i 2097571 (�'f F!I E -CSI° GE" OF' THE PROTHONOTARY GORDON & WEINBERG, P.C. 2013 MAY 17 PM 1: 29 BY: FREDERIC I . WEINBERG, ESQUIRE Identification No. : 41360 CUMBERLAND COUNTY JOEL M. FLINK, ESQUIRE PENNSYLVANIA ,= Identification No. : 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 BARCLAYS BANK DELAWARE COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. DOCKET NO. : 10-7651 BRADLEY OSBORNE PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above-captioned action, without prejudice. GORDON & WEINBERG, P.C. BY: FREDERIC WEINBERG, ESQUIRE JOEL M. FLINK, ESQUIRE .— Attorney for Plaintiff P006 CERTIFICATION OF SERVICE I, FREDERIC I . WEINBERG, ESQUIRE, hereby certify that I, on the date below, served a copy of the Praecipe to Withdraw Complaint to Pa. R.C. P. 1028 (c) (1) , via First Class Mail, postage pre-paid, to all other parties or their counsel of record: FREDE C . WEINBERG, ESQUIRE Dated ,� mil.