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Home My WebLink About11-23342097097 THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. u BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 n co "a JOEL M. FLINK, ESQUIRE Identification No.: 41200cn --- 1001 E. Hector Street, Ste 220 n Conshohocken, PA 19428 C4 CD C.") 484/351-0500 ?,? per` .4 LVNV FUNDING LLC COURT OF COMMON PLEAS 15 South Main Street, CUMBERLAND COUNTY Greenville, NC 29601 ?"' 11, a 33`? Vi(-T& VS. DOCKET NO. Charles Moser 227 Faith Cir CARLISLE PA 17013 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, 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 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 'Mj,Nq,9. D6 Al eto?961 12#,25s 7/6, COMPLAINT IN CIVIL-ACTION 1. Plaintiff, LVNV FUNDING LLC a debt buyer and successor in interest to the original creditor, GE Capital. 2. 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 original creditor under the terms of which the original creditor agreed to extend to defendant(s)the use of original creditor's credit facilities. 3. 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 original creditor for the use of said credit card. 4. 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 original creditor. A true and correct copy of the Statement of Account or Affidavit of Account, if available, is attached hereto as Exhibit "A". 5. All the credits to which the defendant(s)is entitled have been applied and there remains a balance due as of January 19, 2011 in the amount of $2,582.00. 6. 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. 7. Defendant's last payment on account was made on 2/22/08. WHEREFORE, plaintiff claims of the defendant(s) the sum of $2,582.00 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I WE BERG, ESQUIRE JOEL M. F , ESQUIRE Attorney for Plaintiff PO1P.DB 2097097 VERIFICATION I, Matt Sowell, hereby verify that: 1. I am employed by Resurgent Capital Services master servicer for LVNV Funding LLC with full authority to make this Verification on behalf of LVNV Funding LLC. LVNV Funding LLC is the successor in interest to GE Capital. 2. For Account # 6011310070202053 I reviewed the following: ® Computerized Documents ? Hard Copy Documents; and ? Other: Business System of Records 3. The foregoing account was opened on 5/15/2005 in the name of Charles Moser . The documents that I reviewed were produced by GE Capital, Wal-Mart. 4. Based on my review of the foregoing documents, at the time of the sale and assignment of the said account by GE Capital, there was due and owing the purchased balance of $1,543.45 and counsel has incorporated the facts by reference in the foregoing Complaint in Civil Action. The language in the Complaint is that of counsel and not of Plaintiff so to the extent that the contents of the Complaint are that of counsel, Plaintiff has relied upon counsel in making this verification. Based on my review of the foregoing documents, there are no payments that have not been credited and the debtor named in paragraph 3 above has not asserted any counterclaims or setoffs. 6. The facts set forth in this Verification are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties for making an unsworn falsification to authorities in violation of 18 Pa. C.S. § 4904. *J40e Authorized Representative DATE: January 6, 2011 EXHIBIT "A" PLAINTIFF'S AFFIDAVIT OF INDEBTEDNESS AND OWNERSHIP OF ACCOUNT Now comes the undersigned affiant, who having first been duly sworn and cautioned according to law, depose and states as follows: 1. I am an Authorized Representative for LVNV Funding LLC (hereafter the "Plaintiff"). I am authorized to make this affidavit on its behalf, and the information below is true and correct to the best of my information and belief based on the Plaintiff's business records. 2. I have personal knowledge regarding Plaintiff's creation and maintenance of its normal business books and records, including computer records of its accounts receivables. This information was regularly and contemporaneously maintained during the course of the Plaintiffs business. 3. In the ordinary course of business, Plaintiff regularly acquires revolving credit accounts, installment accounts, service accounts and/or other credit lines. The records provided to Plaintiff have been represented to include information provided by the original creditor or its successors in interest. Such information includes the debtor's name, social security number, account balance, the identity of the original creditor and the account number. 4. To the best of my knowledge and belief, the Defendant is not a minor or mentally incompetent person. Based upon the business records maintained on account 6011310070202053 (hereafter "Account"), which are a compilation of the information provided upon acquisition and information obtained since acquisition, the Account is the result of the extension of credit to Charles Moser by GE Capital on or about 5/15/2005 (the "Date of Origination"). Said business records further indicate that Account was then owned by GE Capital, that GE Capital later sold and/or assigned Portfolio 8899 to Plaintiff's assignor which included the Defendant's Account on 11/28/2007 (the "Date of Assignment") and on the Date of Assignment, all ownership rights were assigned to, transferred to, and became vested in Plaintiff, including the right to collect the purchased balance owing of $1,543.45 plus any additional accrued interest. I affirm under penalty of perjury that the above facts are true and correct. Natalie Anderson December 11, 2010 The foregoing affidavit was signed to and subscribed before me this Saturday, December 11, 2010 (Notary Public) LaToya Woodberny Notary Public 2097097 State of South Carolina My Comm. Exp. 11-4-20 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor OFF F `LL d f. l § vet i -9 c C! '\ tkl, LVNV Funding, LLC Case Number vs. Charles Moser 2011-2334 SHERJFF'S RETURN OF SERVICE 03/03/2011 10:25 AM - Gerald Worthington, March 3, 2011 at 1025 hours, hi named defendant, to wit: Charle Carlisle, Cumberland County, P personally the said true and con SHERIFF COST: $34.00 March 07, 2011 Deputy Sheriff, who being duly sworn according to law, states that on served a true copy of the within Complaint and Notice, upon the within Moser, by making known unto himself personally, at 227 Faith Circle, nnsylvania 17013 its contents and at the same time handing to him ct copy of the same. c CCA T,S'A'S^e `t ieiec:;ft Irc . 2?'? , mw- - /,-,, GERALD WORTH INGTO EPUTY SO ANSWERS, 6Z RON R ANDERSON, SHERIFF LVNV FUNDING LLC : COURT OF COMMON PLEAS 15 South Main Street, : CUMBERLAND COUNTY, PENNSYLVANIA Greenville, NC 29601 Plaintiff V. No: 11-2334- CIVIL TERM -? CHARLES MOSER, --, 227 Faith Circle , Carlisle, PA 17013 03 Civil Action - Law - Defendant -<? C) ~}, na CDm NOTICE TO PLEAD > To: LVNV Funding LLC c/o Frederic I. Weinberg, Esquire c/o Joel M. Flink, Esquire Gordon & Weinberg, P.C. 1001 E. Hector Street, Ste 200 Conchohocken, PA 19428 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respect Submitted, Date: ?- l$ t WctTael J. Pykosh, Esquire I. D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Charles Moser 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 mpvkosh &dalglaw,com Attorney for Defendant LVNV FUNDING LLC : COURT OF COMMON PLEAS 15 South Main Street, : CUMBERLAND COUNTY, PENNSYLVANIA Greenville, NC 29601 . Plaintiff V. : No: 11-2334- CIVIL TERM CHARLES MOSER, 227 Faith Circle, Carlisle, PA 17013 Civil Action -Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Charles Moser, by and through his 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 GE Capital of which Plaintiff Claims to be the Original Creditor. Comp. % 1 and 3. 2. The Complaint was filed on February 25, 2011. 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, in the form of a credit card 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 facts set forth in the Verification are verified. However the Complaint is not verified. 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) 10. The Plaintiff is not the original creditor, but rather assignee of the original creditor. Comp. ¶ 1 and 3. Since the Plaintiffs 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(1). 11. 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 12. Pa. R.C.P. 2002(a) required that an action be brought by the real party in interest. 13. 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. 14. Plaintiff has not shown standing or capacity to sue Defendant. 15. 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 her Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Re keqpl`?lly Submitted, Date: l l tb - 11 Mithael J. Pykosh, Esquire I. D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 LVNV FUNDING LLC : COURT OF COMMON PLEAS 15 South Main Street, : CUMBERLAND COUNTY, PENNSYLVANIA Greenville, NC 29601 ; Plaintiff V. : No: 11-2334- CIVIL TERM CHARLES MOSER, 227 Faith Circle, Carlisle, PA 17013 Civil Action -Law Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Charles Moser, 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: LVNV Funding LLC c/o Frederic I. Weinberg, Esquire c/o Joel M. Flink, Esquire Gordon & Weinberg, P.C. 1001 E. Hector Street, Ste 200 Conchohocken, PA 19428 Respectfully_ §ybmitted, Date: ?3- l6 -1( Micharel J.-Pykosh, Esquire I. D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, Charles Moser, 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: 3 - 6 f/ a 4Carles Moser p 2097097 'rj NL� Oli"a,; 212'.3 OCT 28 PM 4: 82 GORDON & WEINBERG, P. C. BY: FREDERIC I . WEINBERG, ESQUIRE CUMBERLA ND COUN Y Identification No. : 41360 PENNSYLVANIA JOEL M. FLINK, ESQUIRE Identification No. : 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 LVNV FUNDING LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY vs . DOCKET NO. : 11-2334 INNIMINN Charles Moser PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above-captioned action, without prejudice. GORDON & WEINBERG, P.C. //( BY: FREDERIC I . W"`�1 :ERG, ESQUIRE mm 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. FREDERIC I. BERG, ESQUIRE Dated ( D [ l9