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HomeMy WebLinkAbout11-4002tj'_., r 1 t ? t C T HO ?CTAtRY a 6I VA -2 PH 12: 53 ..; I ERLAND COUNTY PENNSYLVANIA Burton Neil & Associates, P.C. By: Brit J. Suttell, Esquire ID. NO. 204140 1060 Andrew Drive, Suite 170 West Chester, PA 19380 (610) 696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. 701 East 60th Street N Sioux Falls, SD 57117 Plaintiff V. IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA DEBORAH A CALLAGHAN : NO. 162 Fieldstone Drive, Carlisle PA 17015-9036 Defendant CIVIL ACTION -LAW Complaint - 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 (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 claim set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment 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. 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. LAWYER REFERENCE AND INFORMATION SERVICE Cumberland County Bar Assoc. 32 South Bedford Street Carlisle, PA 17013 Telephone No. 717-249-3166 or 800-990-9108 C-49329 .s 0 'It aa.ob ( d a 6 4 'U_ Irr"A cr, 7. Before plaintiff mailed Exhibit A, defendant had for many months made payments on account of the billing statement or retained the statement without payment. 8. Defendant's actions as set forth above constituted an account stated between parties for the sum of $27,168.95 which sum reflects the Exhibit A statement balance less credits, if any, which were applied subsequent to the date of Exhibit A. Wherefore, plaintiff demands judgment against defendant for the sum of $27,168.95, and the costs of this action. Burton Neil & Associates, P.C. By: Bp (t J. Suttell, Esquire Attorney for Plaintiff The law firm of Burton Neil & Associates, P.C. is a debt collector. X f p nNm00 AM!000 N P D O mpx 0 n ?4 n DOn v z n N 0mr p r- n ?;u0 o x n 01 z r» n 0-o ion CD X ;o C?o $n p w N Out xrn p A w N N A O N N 3: N z -.hti '- -4 F 3 3 . p c m N ^'+ OQD 3 y Or cv 10 U .p ? m N < N m 0 3 a m n E o How To Reach Us www.citicards.com 1-800-756-4000 Account Member Customer Service DEBORAH A CALLAGHAN Account Activity Account Number BOX 6500 SIOUX FALLS SD Nov 09-Dec 08, 2010 INAMEMP6151 Member Since 1989 , 57117 Minimum Payment Due: New Balance: ... .?? w,... N# Summary of Account Activity $27,168.95 $27,168.95 Previous Balance $26,495.35 Fees Payment Due Date: Payments $0.00 Sale Post Description Amount 01/06/2011 Payment must be received by 6:00 PM Other Credits -$0.00 12/08 LATE FEE- NOV PAYMENT PAST DUE 35.00 local time on the payment due date. Purchases +$0.00 -, °°- Late Payment Warning: if we do not receive your Cash Advances +$0.00 TOTAL FEES FOR THIS PERIOD 35.00 minimum payment by the date listed above, you may have to pay a late fee of up to $35 and your APRs m aY Fees Charged +$35.00 Interest Charged be Increased up to the variable Penalty APR of 28.99 94. Interest Charged +$638.60 New Raba- J7 1Aa Or Post Description Amount Minimum Payment Warning: If you make only the minimum payment each period, you will pay more in interest and it will take you longer to pay off your balance. For example: If you make no 4 You wlll pay off And you wlil end additional charges the balance shown up paying an using this card and on this statement estimated total each month you pay. In about... of,,. Only the minimum 1 month(s) $27,169 payment For information about credit counseling services, call 1-877-337-8188. 0 a s 3 n 3 ; n 4 o3 3 3 ? .'q r n 2 n° n 3 a ' t^ S Iof2 Past Due Amount $4,681.69 Amt. Over Credit Limit $4,078.95 Credit Limit $23,090 Available Credit $0 Cash Advance Limit $13,800 Available Cash Limit so SLatement Closing Date 12/08/2010 Days in Billing Cycle 30 12108 INTEREST CHARGED TO STANDARD ADV 380.23 12108 INTEREST CHARGED TO STANDARD PURCH 258.37 TOTAL INTEREST FOR THIS PERIOD 638.60 2010 Totals Year-to-Date Total fees charged in 2010 $208.00 Total Interest charged In 2010 $3,657.29 Interest Charge Calculation Your Annual Percentage Rate (APR)ls the annual Interest rate on your account. Annual Percentage Balance Sub1ect to Type of Balance Rate (APR) Interest Bate Interest Charge PURCHASES Standard Purch 28.990% (V) $10,844.24 (D) $258.37 ADVANCES Standard Adv 28.990% (V) $15,958.50 (D) $380.23 Help is available! Please call the toll-free number shown above to learn about our special payment options. Call Monday - Friday, 7 am to 9 pm, or Saturday, 8 air to 5 pm, Central Time. Please give us the opportunity to assist you. How to Reach Us 1-800-756-4000 Customer Service BOX 6500 Account Number SIOUX FALLS, SD 57117 Access your account online: www.clticards.com Please be sure to pay on time. If you submit your payment by mail, we suggest you mail it no later than 1213012010 to allow for enough time for regular mail to reach us. 2of2 Verification I, -( ena Reynolds , am employed by Citicorp Credit Services, Inc. (USA) (hereafter CCSI), a subsidiary of plaintiff, Citibank (South Dakota), N.A. CCSI is a service provider for plaintiff in that it services credit card accounts owned by plaintiff. I am authorized to make this verification on behalf of plaintiff. The statements of facts set forth in the complaint are true and correct upon my information and belief and are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Signature C-49329 Deborah A Callaghan Account number ending in 6151 1000 FILE r- ? 3 Pct 2: _, AT,' C1JM8ERLA:,' ?tl r Pc1,1 N S A ® o "_f . .'-. BURTON NEIL & ASSOCIATES, P.C. By: Derek Blasker, Esquire, Id. No. 202150 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. DEBORAH A CALLAGHAN Defendant : NO. 11-4002 CIVIL CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO COMPLAINT Plaintiff Citibank (South Dakota), N.A., by its counsel, Burton Neil & Associates, P.C., hereby answers defendant's preliminary objections to plaintiff's complaint, or so much thereof as is relevant, as follows: 1. Denied as stated. Plaintiff filed suit to recover the past due balance owed to Citibank (South Dakota), N.A. on a Citi MasterCard. 2. Admitted. First Preliminary Objection - Pa R.C.P. 1028(a)(2) - Failure to Conform to Rule of Court 3. Admitted. It is admitted that the complaint states in complaint paragraph 4 that "Plaintiff furnished consumer credit to the defendant by means of a(n) Citi MasterCard credit card with account number ending in 6151, hereinafter referred to as the credit card account." 4. Denied. Pa R.C.P. 1019(h) is a document which speaks for itself. Any interpretation of the Rule that is contrary to the express language of the Rule is specifically denied. 5. Denied. It is denied that plaintiff failed to comply with Pa R.C.P. 1019(h). It is denied that the complaint sets forth a claim or defense that is based upon an express agreement. It is further denied that the underlying assent that forms the basis of the account stated is an agreement that must be express. To the contrary, the account stated is a cause of action that may be based upon an agreement that is implied in law from the actions or inactions of the parties. 6. Denied. Pa R.C.P. 1019(i) is a document which speaks for itself. Any interpretation of the Rule that is contrary to the express language of the Rule is specifically denied. It is denied that the complaint fails to comply with Rule 1019(i). As set forth in Pa R.C.P. 1019(i), "when a claim or defense is based upon a writing, the pleader shall attach a copy of the writing..." By the express language of the Rule, defendant's objection must fail. Plaintiff set forth several claims based upon a single writing, and that writing is attached as Exhibit A to the complaint. By way of further response, each of the cases cited in defendant's objection paragraph 6 are claims brought under a breach of contract action, not an account stated theory. The account stated theory has been recognized in Fayette County, and Fayette County has held that a single statement of account is all that is required when pleading the account stated. (See Citibank (South Dakota)N.A. v Ryan Federer, Docket # 753 of 2010 GD (Ct. Comm. Pl. Fayette 2010) and Citibank (South Dakotal N.A. v Chad E Beatty, Docket # 3161 of 2008 GD (Ct. Comm. Pl. Fayette 2008) attached as Exhibits 1 and 2). 7. Denied. It is denied that a single claim or defense is based upon alleged terms of an agreement. The account stated cause of action is one based upon a running account and the sole writing required, when pleading such cause of action, is the statement of account that reflects the account balance on the date of the final statement sent to the defendant. Plaintiff did attach such statement of account to the complaint. WHEREFORE, plaintiff requests this honorable Court to overrule defendant's objection based upon failure to conform to Law or Rule of Court. Second Preliminary Objection - Pa R.C.P. 1028(a)(4) - Demurrer 8. Admitted in part, denied in part. It is admitted that plaintiff has not alleged any of the elements of a breach of contract cause of action. It is denied that the complaint was brought under a breach of contract theory. As stated in complaint paragraph 8, "Defendant's actions as set forth above constituted an account stated between the parties for the sum of $27,168.95." Since the complaint was brought under an account stated theory, plaintiff is not required to plead the elements of a breach of contract cause of action. WHEREFORE, plaintiff requests this honorable Court to overrule defendant's objection based upon defendant's demurrer. Third Preliminary Objection - Pa R.C.P. 1028(a)(3) 9. Admitted in part, denied in part. It is admitted only that plaintiff s complaint did not set forth the dates or amounts of each individual purchase, the dates and amounts of each payment, and/or the individual finance charges that were applied to defendant's credit card account. The balance of the allegation is denied. It is denied that when pleading an account stated, a party is required to set forth such individual transactions, or the individual items which make up the account stated. Such a requirement would be a requirement to plead purely evidentiary matters. Further, such requirement would be contrary to Pa R.C.P. 1019(a), which requires a party to plead the material facts in a concise and summary form. 10. Denied. It is denied that either Pa R.C.P. 1019 or Pa R.C.P. 1028(a)(3) require a party to plead purely evidentiary matters. To the contrary, Pa R.C.P. 1019(a) states that "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." There is not a single averment in the complaint that is based upon time, place, and/or items of special damages, therefore Pa R.C.P. 1019(f) is not triggered. As such, plaintiff is not required to plead such specifically. The demand for relief in the complaint is one for actual, not special damages. Further, Pa R.C.P. 1028(a)(3) does not set forth any requirements for pleading, just a basis for objecting. 11. Denied. It is denied that the complaint fails to conform to an express Rule of Court. Defendant's third objection sets forth a general objection under Pa R.C.P. 1019, however defendant failed to set forth the subsection that plaintiff allegedly failed to comply with. Assuming defendant is arguing that Pa R.C.P. 1019(f) applies, such objection should fail for the reasons set forth in response paragraph 10 above. WHEREFORE, plaintiff requests this honorable Court to overrule defendant's objection based upon insufficient specificity. BURTONNplp,,& ASSOCIATES, P.C. By: Derek Ml*er, Esquire Attorney for Plaintiff In making this communication, we advise our firm is a debt collector. IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA, CIVIL DIVISION CITIBANK (SOUTH DAKOTA), N.A., Plaintiff, VS. RYAN FEDERER, Defendant. - h, . C3 No. 753 of 2010, G.D. OPINION AND ORDER SOLOMON, P.J. November 24, 2010 Before the Court are preliminary objections filed by Defendant, Ryan Federer, to the Complaint of Plaintiff, Citibank (South Dakota), N.A. Defendant objects to the lack of an assignment or debt buying arrangement, objects to. the allegation of an account stated, .and.. objects . to the lack of . _ specificity pursuant to Pa.R.C.P. 1019ft DISCUSSION In the context of preliminary objections, the court must accept as true all well pled facts and the reasonable inferences deducible therefrom, but not EXHIBIT conclusions of law. Hess v. Fox Rothschild, LLB', 925 A.2d 798 (Pa.Super. 2047). Gekas v. Shapp, 364 A.2d 691 (Pa. 1976). With this tenet to guide us, we must look to the complaint to determine whether it sets forth a cause of action which, if proved, would entitle the plaintiff to the relief sought. Id. If such is the case, the demurrer may not be sustained. Id. On the other hand, if the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Id. The first preliminary objection of Defendant is for Plaintiff's failure to attach an assignment to the Complaint. Unless a claim is alleged to be based on a written contract, there is no necessity to attach a writing. In Plaintiffs Complaint, there is neither an allegation that the debt owed was assigned to Plaintiff, nor an allegation that Plaintiff purchased the debt. Since the Court is bound to accept all well plead facts as true, we are constrained to accept the fact that no assignment of the debt was made. Thus, the preliminary objection based on Plaintiff's failure to attach the assignment must be overruled. Defendant's second preliminary objection is for legal insufficiency of the Complaint on the theory of account stated. This action is based on the legal recovery theory of account stated, and is not a breach of contract action. An "account stated" is an account in writing, examined and accepted -2- by both parties. Leinbach v. Wolle, 61 A. 248 (Pa. 1905). Acceptance need not be express, but may be implied from circumstances. Id. The necessary averments in a complaint based upon an account stated is that there had been a running account, that a balance remains due upon that account, that the account has been rendered unto the defendant, that the defendant has assented to the account and a copy of said account is attached to the complaint. Rush's Service Center Inc. v. Genareo, 10 Pa. D. & C. 4th 445, 1991 WL 338317 (Pa.Com.Pl. 1991). Stated somewhat differently, an account stated is broadly defined as an agreement, based on the prior transactions between the parties to an open account, that the items of the account are true and that the balance struck is due and owing from one party to another. Am. Jur. 2d, Accounts and Accounting § 26. To produce an account stated, the account must be rendered, and the other party must accept, agree to, or acquiesce in the - - correctness of the account. David v. Yeitscher Magnesitwerke_Actien Gesellschaf , 35 A.2d 346 (Pa. 1944); Ryon v. Andershonis, 42 Pa. D. & C.2d 86, 1967 WL 8749 (Pa.Com.Pl. 1967). In the courts of Pennsylvania, there is disagreement as to whether the doctrine of "account stated" can apply to actions based on unpaid credit cards. See, Target National Bank v. Kilbride, 10 Pa. D. & C.5th 489 -3- (Pa.Com.P1.2010) (holding credit card company had failed to establish a prima facie case of account stated); American Express Centurion v. Decker, 9 Pa. D. & C.5th 299 (Pa.Com.P1.2009) (noting disagreement in Pennsylvania courts as to whether the account stated cause of action may be used to collect a credit card debt). A customer's ongoing receipt of credit card statements without objecting to them can give rise to an inference that the customer has accepted the balance shown as due. When a debtor has had an opportunity to scrutinize the account, his or her silence is prima facie evidence of acquiescence in an account stated. Pierce v. Pierce, 48 A. 689 (Pa. 1901). There is no binding authority on point as to whether an account stated cause of action is legally permissible in an action to recover unpaid credit card debt. Finding that case law does not exempt credit card cases from an account stated cause of action, we must overrule the preliminary objections. See, American Express Centurion. v. Decker, supra. Defendant's third objection argues a lack of specificity pursuant to Pa.R.C.P. 1019(f) for Plaintiff failing to plead specifically the date sand amounts of charges, fees, fines, interest, and the like. After review of the Complaint,. Plaintiff pled sufficient facts to pursue an account stated cause of action, and this preliminary objection must be ovemzled. -4- WHEREFORE, we will enter the following Order. BY THE IT, P.J. BALD R. SOS OMON, PRESIDENT JUINCIF ATTEST: ,UE AIND AT7'E ap COPY NOTARY -5- IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA, CIVIL DIVISION CITI13ANK (SOUTH DAKOTA), N.A., Plaintiff, vs. RYAN FEDERER, Defendant. N C.i Z lJ UJ No. 753 of 2010, G.D. ORDER AND NOW, this 24th day of November, 2010, it is hereby ORDERED and DECREED that the preliminary objections of Defendant, Ryan Federer, are overruled. ATTEST PRESIDENT JUDGE RUE AND ATTESTED Copy -6- 0-i3bou SOX ON 1 POS. CITIBANK (SOUTH DAKOTA), N.A. IN THE COURT OF COMMON PLEAS Plaintiff V. : FAYETTE COUNTY, PENNSYLVANIA NO. 3161 of 2008 GD CHAD E. BEATTY SR. Defendant : CIVIL ACTION - LAW Order AND NOW, this day of 2001, it is hereby ORDERED that defendant's preliminary objections are OVERRULED Ithheir entirety. Y THE C'. '?yV r Nxk- -0 _ TRUE AND ATTEST D COPY 0 - ° PROTHO NOTARY EXHIBIT a _„ Burton Neil & Associates, P.C. By: Derek C. Blasker, Esquire ID. NO. 202150 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, PENNSYLVANIA NO. 11-4002 Civil DEBORAH A CALLAGHAN Defendant CIVIL ACTION -LAW Certificate of Service I, Derek C. Blasker, Esquire, do hereby certify that I served a true and correct copy of the within Plaintiff's Response to Defendant's Preliminary Objections to Complaint, proposed Order and Praecipe for Listing Case for Argument on defendant's counsel, Michael J. Pykosh, Esquire, at his address of record via first class mail, postage prepaid on the da/e set forth below. Burton N41M 4siociates, P.C. &cp Date: JA( By: DerBlasker, Esquire Attorney for Plaintiff The law firm of Burton Neil & Associates is a debt collector. C-49329 C 01A FILE-ED-OFFICE Praecipe for Listing Case for Argument 1DP THE PR0THoNOTAR`o,` (Must be typewritten and submitted in duplicate) 2011 JUL 21 AM 11: 23 TO THE PROTHONOTARY OF CUMBERLAND COUNTY: CUMBERLAND COUNT PENNSYLVANIA Please list the within matter for the next Argument Court. CITIBANK (SOUTH DAKOTA), N.A. Plaintiff v. DEBORAH A CALLAGHAN Defendant NO. 11-4002 Civil 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify counsel who will argue case: (a) for plaintiff: Derek C. Blasker, Esquire c/o Burton Neil & Associates, P.C. address: 1060 Andrew Drive, Suite 170, West Chester, PA 19380 b) for defendant: Michael J. Pykosh, Esquire address: 2132 Market Street Camp Hill, PA 17011 3 4. I will notify all parties in writing within two days that this case has been listed for argument. r" Argument Court Date: August 26, 2011 Derek C. Bla'OW, Attorney for the P The law firm of Burton Neil & Associates is a debt collector. FILED-OFFICE zaE THE PROTHONOTAFiY 2011 JUL 21 AM 11: 23 CUMBERLAND COUNTY PENNSYLVANIA Burton Neil & Associates, P.C. By: Derek C. Blasker, Esquire ID. NO. 202150 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, PENNSYLVANIA NO. 11-4002 Civil DEBORAH A CALLAGHAN Defendant CIVIL ACTION -LAW Certificate of Service I, Derek C. Blasker, Esquire, do hereby certify that I served a true and correct copy of the within Praecipe for Listing Case for Argument on defendant's counsel, Michael J. Pykosh, Esquire, at his address of record via first class mail, postage prepaid on set forth below. P.C. Date: v 1 7V, By: Attorney The law firm of Burton Neil & Associates is a debt collector. sker, Esquire Plaintiff C-49329 ?: ?= ? 1t?TFtONQ?A?1 33 tt ±:?1??.L A??d .,AN1 ? Y P1SYl 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 mp -k? osh,,u'dplglaw.com Attorney for Defendant CITIBANK (SOUTH DAKOTA), : COURT OF COMMON PLEAS N.A., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No: 11-4002 - CIVIL DEBORAH A CALLAGHAN, Defendant Civil Action - Law To: CitiBank (South Dakota), N.A. c/o Brit J. Suttell, Esquire Burton Neil & Associates, P.C. 1060 Andrew Drive, Suite 170 West Chester, PA 19380 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment entered against you. Mic ae J. ykosh, Esquire Michael J. Pykosh, Esquire 1D # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mpykosh!a%dplglaw.com Attorney for Defendant CITIBANK (SOUTH DAKOTA), COURT OF COMMON PLEAS N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No: 11-4002 - CIVIL DEBORAH A CALLAGHAN, Defendant Civil Action - Law ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NOW, comes the Defendant, Deborah A. Callaghan, by and through his attorneys, Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who responds to Plaintiff s Complaint as follows: 1. Admitted. 2. Admitted. 3. Denied. After reasonable investigation, Defendant is without sufficient knowledge as to the truth or veracity of the averments set forth in Paragraph 3 of Plaintiff- s Complaint. 4. Denied. After reasonable investigation, Defendant is without sufficient knowledge as to the truth or veracity of the averments set forth in Paragraph 4 of Plaintiffs Complaint. 5. Denied. After reasonable investigation, Defendant is without sufficient knowledge as to the truth or veracity of the averments set forth in Paragraph 5 of Plaintiff's Complaint. 6. Denied. After reasonable investigation, Defendant is without sufficient knowledge as to the truth or veracity of the averments set forth in Paragraph 6 of Plaintiff's Complaint. 7. Denied. After reasonable investigation, Defendant is without sufficient knowledge as to the truth or veracity of the averments set forth in Paragraph 7 of Plaintiff s Complaint. 8. Denied. The averments as set forth in Paragraph 8 contain conclusions of law to which no response is required. WHEREFORE, the Defendant, Deborah A. Callaghan, demands judgment in his favor and against Plaintiff with costs, attorney's fees and any other relief the Court deems just. DEFENDANT'S NEW MATTER The Defendant, Deborah A. Callaghan, sets forth the following New Matter: 9. Defendant incorporates and makes part of this New Matter, Paragraphs 1 through 8 of the foregoing Answer to Plaintiff s Complaint as if fully set forth herein. 10. The claims made by Plaintiff are barred by the applicable Statute of Limitations. 11. The claims made by Plaintiff are barred by the Doctrine of Accord and Satisfaction. 12. Plaintiff s Complaint fails as an account stated theory of recovery does not apply in cases based upon credit card debt. 13. Plaintiff s actions may be barred by the Doctrine of Estoppel. 14. Plaintiff's actions may be barred by the Doctrine of Unclean Hands. WHEREFORE, the Defendant, Deborah A. Callaghan, demands judgment in his favor and against Plaintiff with costs, attorney's fees and any other relief the Court deems just. Respectfully Submitted, Dated: (D i t By: ichael J. Pykosh, Esquire VERIFICATION I, Deborah A. Callaghan, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my 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: - - Deborah A. Callaghan 41-- 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 mp ksh p aw.com Attorney for Defendant CITIBANK (SOUTH DAKOTA), : COURT OF COMMON PLEAS N.A., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DEBORAH A CALLAGHAN, Defendant No: 11-4002 - CIVIL Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing ANSWER and NEW MATTER, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: CitiBank (South Dakota), N.A. c/o Brit J. Suttell, Esquire Burton Neil & Associates, P.C. 1060 Andrew Drive, Suite 170 West Chester, PA 19380 Respectfully Submitted, Dated: By: Ichael J. Pykosh, Esquire C-) C o ? ro ro - zr '' x? r 0v , 7 O D S 5-6 =6 3 c"' tV a ? W ? BURTON NEIL & ASSOCIATES, P.C. By: Derek Blasker, Esquire, Id. No. 202150 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. DEBORAH A CALLAGHAN : NO. 11-4002 CIVIL Defendant : CIVIL ACTION - LAW REPLY TO NEW MATTER 9. Denied. There are no facts set forth or alleged in the incorporated by reference paragraphs to which a response is required. The allegation is denied pursuant to Pa R.C.P. 1029(d). 10. Denied. It is denied that plaintiff's cause of action is barred by the statute of limitations. The complaint set forth a cause of action based upon defendant's default on a credit card account. The applicable limitation for plaintiff's claim against defendant is four years from the date of the last payment on the credit card account. See 42 Pa.C.S. § 5525 et. seq. The last payment made on the credit card account that forms the subject matter of the complaint was posted on, June 7, 2010. Since the date of the last payment reflects a payment made within the applicable four year statute of limitations, plaintiff's claimed relief for the subject matter credit card account is not barred by the statute of limitations. 11. Denied. Denied as a conclusion of law to which no response is required. There are no facts alleged in the averment, therefore, pursuant to Pa R.C.P. 1029(d), the allegation is denied. 12. Denied. Denied as a conclusion of law to which no response is required. There are no facts alleged in the averment, therefore, pursuant to Pa R.C.P. 1029(d), the allegation is denied. 13. Denied. Denied as a conclusion of law to which no response is required. There are no facts alleged in the averment, therefore, pursuant to Pa R.C.P. 1029(d), the allegation is denied. 14. Denied. It is denied that the affirmative defense of unclean hands is one that is available to the defendant. Unclean hands is an affirmative defense to an action brought in equity, however this is an action at law. As such, defendant is precluded from asserting such defense to plaintiff's claim for relief. WHEREFORE, plaintiff prays that judgment be entered on its behalf and against defendant as set forth in the complaint. BVgNN NEIL & ASSOCIATES, P.C. By: Esquire Attorney for In making this communication, we advise our firm is a debt collector. Verification . (USA) . .: ?._....'!``?. am cmployed by Citicorp Credit Se[1 ices, Inc ,,•.,f?cr' ('("S1"). a suhsidiarv ofC'itibank. N.A. (hereafter "Citibank"). which i; successor-in- ur, r, st to plaintitt Citibank (South Dakota), N.A. C'C.'Sl is a service provider t'Or ( itihank in that it services credit card accounts owned by Citibank. This includes accounts previous1% owned by (')owh Dakota). VA.. which mervd intcf C.'itibank in or about July '011. 1 am iic<i to make this verification «n behalf of Citibank. The statements of feints set t'vth in the ply;tdin,? are trttc and correct upon my information and belief and are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Signature ,tfla'-han lkhorah \ Verification Derek C. Blasker, Esquire, attorney for plaintiff, makes this statement on its behalf as to the truthfulness of the facts set forth in the foregoing Reply to New Matter subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Counsel, rather than an officer or other representative of plaintiff is verifying the foregoing Reply to New Matter because plaintiff's officers and/or representatives are outside the jurisdiction of the court and the verification of none of them could be obtained within the time required to file this pleading. Plaintiff's counsel is verifying plaintiff's Reply to New Matter based upon information and belief from information in his file. Date: ?L( Burton Neil & Associates, P.C. By: Derek C. Blasker, Esquire ID. NO. 202150 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, PENNSYLVANIA NO. 11-4002 CIVIL DEBORAH A CALLAGHAN Defendant CIVIL ACTION -LAW Certificate of Service I, Derek C. Blasker, Esquire, do hereby certify that I served a true and correct copy of the within Plaintiff's Reply to New Matter on defendant's counsel, Michael J. Pykosh, Esquire, at his address of record via first class mail, postage prepaid on the gl4te set forth below. Associates, P.C. Date: LILA By: De?Blasker, Esquire Attorney or Plaintiff The law firm of Burton Neil & Associates is a debt collector. C-49329