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HomeMy WebLinkAbout10-7818PAUL J. KLEMM, ESQUIRE NUDELMAN, KLEMM & GOLUB, P.C. 425 EAGLE ROCK AVENUE ROSELAND, NJ 07068 973-618-0000 ID #92125 ATTORNEY FOR PLAINTIFF CAPITAL ONE BANK (USA), N.A. Plaintiff(s) V. THERESA M YEAGER-NIEMIEC Defendant(s) CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 10-7818CIVIL CERTIFICATE OF SERVICE I, Paul J. Klemm, attorney for Plaintiff, CAPITAL ONE BANK (USA), N.A., hereby certify that a true and correct copy of the Plaintiff's Notice to Appeal, Notice to Defend and Complaint was served this date by certified and first class U.S. Mail, postage prepaid, upon the following: THERESA M YEAGER-NIEMIEC ?. --+ 3110 MORNINGSIDE DR rn :ON CAMP HILL PA 17011-5820 ' Date: December 29, 2010 Respectfully Submitted: NUDE , KLEMM & GO UB, P.C. Paul J. Klemm, Esquire 425 Eagle Rock Avenue Roseland, NJ 07068 (973) 618-0000 NN74554 PAUL J. KLEMM,ESQUIRE FtE07?FFICE NUDELMAN,KLEMM& GOLUB,P.C. Of T PAC HONOTARY 425 EAGLE ROCK AVENUE ROSELAND,NJ 07068 "Ail WR —8 PH 2t 51 973-618-0000 CU IW( ID#92125 ATTO M11V AINTIFF CAPITAL ONE BANK(USA),N.A. CUMBERLAND COUNTY COURT OF COMMON PLEAS V. THERESA M YEAGER-NIEMIEC NO. 10-7818CIVIL AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND I, Paul J. Klemm, attorney for Plaintiff, CAPITAL ONE BANK(USA),N.A. , being duly sworn, depose and say that a true and correct copy of the Plaintiff s Notice to Appeal,Notice to Defend and Complaint was served upon the Defendant, THERESA M YEAGER-NIEMIEC,by regular first class U.S. Mail, postage prepaid and certified mail on January 14, 2011. To date, neither the certified mail, nor the copy served by regular first class U.S. Mail,postage prepaid, has been returned. PAUL J. KLEMM,ESQUIRE Attorney for Plaintiff NN74554 CAPITAL ONE BANK (USA), N.A. COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No: 10-7818 Civil Term THERESA M YEAGER-NIEMIEC Civil Action — Law Defendant C7) NOTICE TO PLEAD =' M rr— ...e To: Capital One Bank (USA), N.A. ` —r> C7 C..... c/o Robert L. Baroski, III, Esquire � r Nudelman, Klemm & Golub, P.C. 425 Eagle Rock Avenue ' Roseland, NJ 07068 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. Respectfully Submitted, Date: Michael J. Pykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 975-9446 Attorney for Defendant 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 .dplglaw,com Attorney for Defendant CAPITAL ONE BANK (USA), N.A. : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 10-7818 Civil Term THERESA M YEAGER-NIEMIEC Civil Action — Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Theresa M. Yeager-Niemiec, 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: 1. Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account issued by Capital One Bank (USA), N.A. of which Plaintiff Claims to be the Original Creditor. Comp. 14. 2. The Complaint was filed on December 21, 2010. First Preliminary Objection - Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 3. Pa. R.C.P. 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 4. Plaintiff's Complaint fails to conform to Pennsylvania Rules of Civil Procedure and Cumberland County Local Rules. 5. Pursuant to Pa. R.C.P. 1019(i) Plaintiff has failed to attach a copy of the complete writing, more specifically the Loan/Credit Agreement, or the material part thereof, or, in the alternative, state, with the reason that the writing or copy thereof is not accessible to the Plaintiff and the substance of the writing in violation of Pa. R.C.P. 1019(1). Remit Corporation v Miller, 5 Pa. D&C 5t" 43. The purported Agreement post- dates the date that the account was allegedly opened. The Agreement is not complete. Additionally, Plaintiff failed to include periodic mailings and the TILA Disclosure, amount others. Second Preliminary Objection- Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court - Improper Verification 6. 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). 7. The Complaint is verified by counsel of record for the Plaintiff, and not an employee or other agent of the Plaintiff. It has been two (2) years since said Complaint has been filed and Plaintiff still has not provided a Verification of Plaintiff. 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)(3) Insufficient Specificity in a Pleading 8. The Complaint contains only a general assertion of the amount the Plaintiff claims is owed by the Defendant. It provided insufficient 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. 9. 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. 10.By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. Fourth Preliminary Objection - Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 11.Pursuant to Pa. R.C.P. 1028(a)(2), a party may file a Preliminary Objection based upon the failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. 12.Plaintiff's Complaint is based upon a contract. 13.Plaintiff asserts a cause of action based upon an account stated theory of recovery. 14.An account stated theory of recovery is not applicable in credit card cases. Capital One Bank (USA) NA v Cleverstine 7 Pa. D&C 5th (Ct. Com. PI. Centre County .2009). JMMM PC Company v Patricia Stillwagon 2011 Pa. D&C Dec. Lexis 24 (Luzerne County). 15.Plaintiff in pleading account stated cause of action is not permitted to escape pleading requirements otherwise applicable. CitiBank (South Dakota, N.A.) v Xenofon Skaboulos, No. 09-8676 (Cumberland County). Fifth Preliminary Objection- Pa. R.C.P. No. 1028(a)(4) Demurrer to Court 16.Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract and Account Stated. Plaintiff has failed to fulfill the pleading requirements for an account stated cause of action pursuant to CitiBank N.A. v Heather B. Wadas, No. 2012-1705 (Cumberland County, Peck J.). WHEREFORE, the Defendant respectfully requests that her Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Respectful!1Y SUqPbxaAited, Date: "7 Michael J. Pykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 Attorney for Defendant 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@gpLq Law_com Attorney for Defendant CAPITAL ONE BANK (USA), N.A. : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA, V. No: 10-7818 Civil Term THERESA M YEAGER-NIEMIEC Civil Action — Law Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant's Preliminary Objections to Plaintiff's Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Capital One Bank (USA), N.A. c/o Robert L. Baroski, 111, Esquire Nudelman, Klemm & Golub, P.C. 425 Eagle Rock Avenue Roseland, NJ 07068 Respectfully Submitted, Date: Michael J. Pykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 975-9446 Attorney for Defendant ROBERT L. BAROSKA III, ESQUIRE NUDELMAN,KLEMM & GOLUB, P.C. 425 EAGLE ROCK AVENUE ROSELAND,NJ 07068 973-618-0000 ID #306728 ATTORNEY FOR PLAINTIFF CAPITAL ONE BANK(USA),N.A. CUMBERLAND COUNTY COURT OF COMMON PLEAS V. C THERESA M YEAGER-NIEMIEC NO. 10-7818CIVIL � PRAECIPE TO ENTER JUDGMENT =c TO THE PROTHONOTARY: Kindly enter Judgment in favor of Plaintiff(s), CAPITAL ONE BANK (USA),N.A. and against Defendant(s), THERESA M YEAGER-NIEMIEC, in the above- captioned matter, in the amount of $3,477.42, for failure to answer the Complaint in twenty (20) days as required by Pennsylvania Rules of Civil Procedure. ROBERT L. BAROSKA III,ESQUIRE Attorney for Plaintiff NN74554 I1o.50 PIN p aqo(P ROBERT L. BAROSKA III, ESQUIRE NUDELMAN,KLEMM & GOLUB,P.C. 425 EAGLE ROCK AVENUE ROSELAND,NJ 07068 973-618-0000 ID#306728 ATTORNEY FOR PLAINTIFF CAPITAL ONE BANK(USA),N.A. CUMBERLAND COUNTY COURT OF COMMON PLEAS V. THERESA M YEAGER-NIEMIEC NO. 10-7818CIVIL ASSESSMENT OF DAMAGES TO THE CLERK: Please assess damages against Defendant(s) as follows: Real Debt $3,275.42 Interest $.00 Costs $202.00 TOTAL $3,477.42 Damages are assessed as above in the sum of$3,477.42. PRO CLERK NN74554 ROBERT L. BAROSKA III, ESQUIRE NUDELMAN, KLEMM & GOLUB, P.C. 425 EAGLE ROCK AVENUE ROSELAND, NJ 07068 973-618-0000 ID#306728 ATTORNEY FOR PLAINTIFF CAPITAL ONE BANK (USA),N.A. CUMBERLAND COUNTY COURT OF COMMON PLEAS V. THERESA M YEAGER-NIEMIEC NO. 10-7818CIVIL AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA : COUNTY OF CUMBERLAND The undersigned, being duly sworn according to law, deposes and says that the Defendant is not in the Military or Naval Service of the United States or its Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940 as amended; That Defendant, THERESA M YEAGER-NIEMIEC, is over eighteen (18)years of age and resides at 3110 MORNINGSIDE DR, CAMP HILL PA 17011-5820. MAY 1 4 2013 ' i? ROBERT L. BAROSKA III, ESQUIRE Attorney for Plaintiff NN74554 Department of Defense Manpower Data Center Results as of:May-14-201309:29:08 SCRA 3.0 Pursuant io Serviccmmben Civil Relief Act Last Name:YEAGER-NIEMIEC First Name: THERESA Middle Name: M Active Duty Status As Of: May-14-2013 H ,,:;Aatrye[iuty,StarlTaate..' :' '� ActrveDulyEndpata.': Bietus Sarvlce,Componerit`r NA NA o. NA This response reflects itSe ihifenduals'active duty s1-'us`besed on fho NOVe Duty Status Dale ---' � ,_LeftAcfivequty:Wahin367D.ay€ofAcfivst)ury5fatus;bate ;;;AanJe OJty Sier1 Date.:, ' ,.,, ,. :?: Antivet)uty DAd Date:; ;;Sfalu� ` SeiLica,Componera�?. NA NA ,,;No NA This response rellecis where itieindrvidual left actrveAlitysiefusxntiiin:6`➢Gays preceding thaRclrve:f)uly Status Dale T 5 ,."Rae Member or His/NerLtAtan Was NotiUedbf a Futire Call Up ta,ACflve bufy;on Active i3tiry Status 15aiB Drder,NOfrliciinon Stall pa(9 _ ,OrderNot+firatroh Ehd pale "$fetus , Servlce�omponent NA -M1TA :BNB '" - NA This response reflects whether theandivlJiial O(hisfier.unil has received early-noUficatiori'to report for active dory Upon searching the data banks of the Department of Defense Manpower'Date''�9rtet;Eia§ed on the information that you provided,the above is the status of the individual on the active duty status date as to all branches of the Uniformed Services(Army,Navy,Marine Corps,Air Force,NOAA,Public Health,and Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty. HOWEVER,WITHOUT A SOCIAL SECURITY NUMBER,THE DEPARTMENT OF DEFENSE MANPOWER DATA CENTER CANNOT AUTHORITATIVELY ASSERT THAT THIS IS THE SAME INDIVIDUAL THAT YOUR QUERY REFERS TO.NAME AND DATE OF BIRTH ALONE DO NOT UNIQUELY IDENTIFY AN INDIVIDUAL. Mary M.Snavely-Dixon,Director Department of Defense-Manpower Data Center 4800 Mark Center Drive,Suite 04E25 Arlington,VA 22350 File#: NN74554 ROBERT L. BAROSKA III, ESQUIRE NUDELMAN, KLEMM & GOLUB, P.C. 425 EAGLE ROCK AVENUE ROSELAND,NJ 07068 973-618-0000 ID #306728 ATTORNEY FOR PLAINTIFF CAPITAL ONE BANK(USA),N.A. CUMBERLAND COUNTY COURT OF COMMON PLEAS V. THERESA M YEAGER-NIEMIEC NO. 10-7818CIVIL CERTIFICATION 1, Robert L. Baroska III, Esquire, Attorney for Plaintiff, being duly sworn according to law, deposes and says that he deposited in the United States mail a letter notifying the Defendant(s)that Judgment would be entered against them after ten(10) days from the date of said letter in accordance with Rule 237.1 of Pennsylvania Rules of Civil Procedure. A copy of said letter is attached hereto and marked Exhibit "A". ROBERT L. BAROSKA III,ESQUIRE Attorney for Plaintiff NN74554 EXHIBIT "A" ROBERT L.BAROSKA III,ESQUIRE NUDELMAN,KLEMM& GOLUB,P.C. 425 EAGLE ROCK AVENUE ROSELAND,NJ 07068 973-618-0000 ID#306728 ATTORNEY FOR PLAINTIFF CAPITAL ONE BANK(USA),N.A. CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff(s) V. THERESA M YEAGER-NIEMIEC Defendant(s) NO. 10-7818CIVIL To: THERESA M YEAGER-NIEMIEC 3110 MORNINGSIDE DR CAMP HILL PA 17011-5820 Date of Notice IAPR 2 6 2013, YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association Cumberland County Bar Association 32 South Bedford St 32 South Bedford St Carlisle,PA 17013 Carlisle,PA 17013 (800)990-9108 (800)990-9108 Robert L. Baroska III, Esq. NUDELMAN,KLEMM& GOLUB,P.C. 425 Eagle Rock Avenue Roseland,NJ 07068 NN74554 (973)618-0000 OFFICE OF THE PROTHONOTARY • COURT OF COMMON PLEAS CUMBERLAND COUNTY PROTHONOTARY TO: THERESA M YEAGER-NIEMIEC 3110 MORNINGSIDE DR CAMP HILL PA 17011-5820 CAPITAL ONE BANK(USA),N.A. CUMBERLAND COUNTY COURT OF COMMON PLEAS V. THERESA M YEAGER-NIEMIEC NO. 10-7818CIVIL NOTICE Pursuant to Pa.R.C..P. 236,you are hereby notified that a JUDGMENT has been entered in the above proceeding as indicated below. PROTHONOTARY X JUDGMENT BY DEFAULT MONEY JUDGMENT JUDGMENT IN REPLEVIN JUDGMENT FOR POSSESSION If you have any questions concerning this Judgment, please call Robert L. Baroska III,Esquire at 973-618-0000 . NN74554