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HomeMy WebLinkAbout11-5817IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA Discover Bank c/o DB Servicing Corporation 6500 New Albany Road East New Albany, OH 43054 No. I I-Sgt / eivi( 1 -V ZI M CO zM =- M cn r- -< D r- CC:3 p yC 2 --1 `r= N3 t`J M Plaintiff vs. CIVIL ACTION - LAW SHELLY M PORTER 95 INDEPENDENCE DR SHIPPENSBURG, PA 17257-8218 Defendant NOTICE TO DEFEND t1? r\ M rll-„ -r? C :7 -ry CJrn D ?a 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 is served, by entering a written appearance, personally of 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 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, 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 South Bedford Street Carlisle PA 17013 800-990-9108 S ?°Col? pd a ? k tf aSrl?f 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA Discover Bank No. c/o DB Servicing Corporation 6500 New Albany Road East New Albany, OH 43054 Plaintiff VS. SHELLY M PORTER 95 INDEPENDENCE DR SHIPPENSBURG, PA 17257-8218 Defendant CIVIL ACTION - LAW AVISO PARA DEFENDER USTED HA SIDO DEMANDADO/A EN LA CORTE. Si usted desea defender conta la demanda puestas en las siguientes paginas, usted tienen que tomar acci6n dentro veinte (20) dias despu6s que esta Demanda y Aviso es servido, con entrando por escrito una aparencia personalmente o por un abogado y archivando por escrito con la Corte sus defensas o objeciones a las demandas puestas en esta contra usted. Usted es advertido que si falla de hacerlo el caso puede proceder sin usted y un juzgamiento puede ser entrado conta usted por la Corte sin mas aviso por cualquier dinero reclamado en la Demanda o por cualquier otro reclamo o alivio solicitado por Demandante. Usted puede perder dinero o propiedad o otros derechos importante para usted. USTED DEBE LLEVAR ESTE PAPEL A SU ABOGADO ENSEGUIDA. SI USTED NO TIENE UN ABOGADO, VAYA O LLAME POR TELEFONO LA OFICINA FIJADA AQUI ABAJO. ESTA OFICINA PUEDE PROVEERE CON INFORMACION DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PUEDE PROVEERE INFORMACION ACERCA AGENCIAS. QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. Cumberland County Bar Association 32 South Bedford Street Carlisle PA 17013 800-990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA Discover Bank No. c/o DB Servicing Corporation 6500 New Albany Road East New Albany, OH 43054 Plaintiff VS. SHELLY M PORTER 95 INDEPENDENCE DR SHIPPENSBURG, PA 17257-8218 Defendant CIVIL ACTION - LAW COMPLAINT 1. The Plaintiff is Discover Bank, f/k/a Greenwood Trust Company (hereafter 'Discover Bank"), an FDIC-insured Delaware State Bank. The business address for legal action is DB Servicing Corporation, 6500 New Albany Road East, New Albany, OH 43054. DB Servicing Corporation is the servicing affiliate of Discover Bank. Both Discover Bank and DB Servicing Corporation are wholly owned subsidiaries of Discover Financial, an independent, publicly traded company. The Defendant, SHELLY M PORTER, is an adult individual, residing at: 95 INDEPENDENCE DR SHIPPENSBURG, PA 17257-8218 3. At all relevant times, Discover Bank was, and is a bank chartered under the laws of the State of Delaware. 4. At all relevant times, Defendant was the holder of a Discover Card credit card (the "Card") that enabled Defendant to charge items to a Discover Card Account (Account Number: XXXXXXXX-XX- 1547) (the "Account"). 5. At all relevant times, Defendant was the basic cardmember on the Account, and was responsible for paying all amounts charged to the Account. 6. The Terms Level Agreement between the Discover Card Cardmember and Discover Card (the "Agreement") was provided to Defendant during the time period in which the Card was utilized and maintained by Defendant, and therefore, Defendant assented to the terms and conditions therein, and a true and correct copy of the Agreement is attached hereto, and incorporated herein, as Exhibit "A". 7. By accepting and using the Card, Defendant agreed to all of the terms and conditions set forth in the Agreement, including the following: a. Defendant agreed that, as the basic cardmember, Defendant is liable for all amounts charged to the Account. b. Defendant agreed to make "Minimum Payment" (as that term is used in the Agreement) due each month, for charges on the account, by the payment due date indicated on the monthly billing statements mailed by or on behalf of Discover Card. True and correct copies of statement(s) are attached hereto, incorporated herein, and collectively marked as Exhibit "B". C. Defendant agreed that if the payment was not made by the payment due date indicated on the monthly billing statements, Discover Card may assess additional fees per the terms of the agreement. d. Defendant agreed that in the event of default, Defendant would pay all reasonable costs, including reasonable attorney's fees, incurred by Discover Card in collecting the balance due, including finance charges and delinquency fees, and in protecting itself from any harm it may suffer as a result of the default. 8. Defendant used the Card to charge various items to the Account. 9. Discover Card issued and sent to Defendant the Account Statements, which set forth in detail all items charged to the Account, and the total amount due and owing by Defendant to Discover Card. Count 1- Breach of Contract 10. Discover Card incorporates by reference the averments of paragraphs 1 through 9. 11. Defendant failed to make the minimum payment specified on the statements. 12. By reason of the foregoing, Defendant breached the Agreement with Discover Card. 13. As a result of the breach, Defendant is personally liable to Discover Card for the sum of $4,355.19. See Exhibit "B" as previously identified and incorporated herein. 14. Despite due demand, Defendant has failed to pay Discover Card the sum stated in paragraph 13. 15. As a result of Defendant's failure to pay the amount that Defendant owes, Discover Card referred its claim to outside attorneys for collection, and is entitled to collect reasonable attorney's fees from Defendant. 16. By reason of the foregoing, Discover Card is entitled to judgment against Defendant for breach of contract in the sum of $4,355.19, plus reasonable attorney's fees, costs and prejudgment interest. WHEREFORE, Discover Bank demands judgment against Defendant on County 1 in the sum of $4,355.19, plus reasonable attorney's fees, costs and prejudgment interest. Count 2- Account Stated (in the alternative of Counts I and 3) 17. Discover Bank incorporates by reference the averments of paragraphs 1 through 16 18. Defendant used the Card to charge various items to the Account for which payment was never made. Discover Card and/or its servicing affiliate DB Servicing Corporation. kept accurate records of all debits and credits to the Account for the prior billing period. 19. Discover Bank mailed to Defendant monthly billing statements for the Account, which accurately stated the previous balance, and the debits and credits to the Account for the prior billing period. 20. Defendant had, for many months, made payments on account of the billing statements or retained the statements without payment. 21. Defendant's actions as set forth above constituted an account stated between the parties for the sum of $4,355.19, which sum reflects the balance, less credits, if any which were applied prior to the date of this complaint. WHEREFORE, Discover Card demands judgment against Defendant on Count 2 in the sum of $4,355.19, plus prejudgment interest and the costs of this action. Count 3- Unjust Enrichment (in the alternative to Counts 1 and 2) 22. Discover Card incorporates by reference the foregoing paragraphs 1 through 21. 23. As a result of the foregoing, Defendant received the benefit of Discover Card's extension of credit in the amount of $4,355.19, without paying for same. 24. Defendant was aware of, apprehended and appreciated Discover Card's provision of credit by reason of Defendant having made payments on the account of the Account statements received on and after Defendant opened the account. 25. The reasonable value of the credit Discover Card provided Defendant is the sum of $4,355.19. 26. Discover Card is entitled to prejudgment interest on the outstanding balance from the statement due date. 27. Discover Card believes and avers if the relief requested herein is not granted, Defendant will be unjustly enriched at Discover Card's expense. WHEREFORE, Discover Card demands judgment against Defendant on Count 3 in an amount to be determined at trial. York, PA 17402 Processing/Mailing Address: P.O. Box 251298 West Bloomfield, MI 48325 For Court(s)/Attorney(s): 248-851-6000 Ext.601 888-286-5001 (Phone) 443-588-0417 (Facsimile) Counsel for Plaintiff PA Supreme Court ID 87062 Schlee and Stillman, LLC. Physical Address: 204 St. Charles Way, Unit E#177 . STATE OF OHIO COUNTY OF FRANKLIN VERIFICATION P?&//j r C fr ' p Is I am a Legal Placement Account Manager for DB Servicing Corpora on, the servicing gent of Discover Bank, an FDIC insured Delaware State Bank located at Discover Bank c/o DB Servicing Corporation., 6500 New Albany Road, New Albany, OH 43054. I am employed by DB Servicing Corporation and am competent to testify to the matters stated in the Complaint which are made on my personal knowledge, based upon the books and records of the Plaintiff, and are true and correct to the best of my information knowledge and belief. In the ordinary course of business and as a regular business practice, DB Servicing Corporation, the servicing agent of Discover Bank, employees or representatives with knowledge of the accounts compile business records memorializing account activity and transactions at or near the time they occur. Entries in the files and business record of Plaintiff are made contemporaneously with transactions in order to preserve the accuracy of the transaction. 4. Plaintiff's files and business records are maintained by DB Servicing Corporation, the servicing agent of Discover Bank. 5. I have access to the files and business records relating to this account. 6. There is now due and owing from Defendant, Shelly M Porter, to Plaintiff, upon Account Number XXXXXXXX-XX-1547, the amount of $4355.19, including credit(s) and adjustment(s). 7. The documents attached to this affidavit, if any, are true and accurate copies of business records regarding the Defendant's account. 8. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, in the military service of the Unites States as defined in the Servicemembers Civil Relief Act as amended nor an infant, incompetent, under mental defect or infirm. 9. Defendant is entitled to no known valid defenses, setoff or counterclaims, and further states that written demand was made upon the Defendant. I understand this verification is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Affiant Sworn to and Subs ed befor e this ay of , 20. L Notary Public 2W•,; LAURATURNER Public * *1 In and for the Sale of OW Nj? .??? 23,2014 fl-ml!s DISCOVER a YOUR DISCOVER° BUSINESS CARD ACCOUNT CAROMEMBER_AGREEMENT .:..............Pages 1-14 The terms and conditions of your Account, Including how we calculate finance charges, our fees and an Arbitration of Disputes section. You have the right to nqebt ;#* adwft.0P- pnfvls/am 1a0 ittJreet to your newAcrount withln 30 days after recefving your Cara as elv/ained in the * 'Right to Reject Arbitra Lion' section at page 13 PRIVACY POUCY ......................... Pages 14-16 A summary of the personal information we collect, vhmw# okay bk4harect"ft tttfinets, an4libw Vve safeguard the confidentiality and security of Information. You may r1n*-our sharing cif such information with others at explained in section 4 of the A*acyPoficy at page 1S.. DESCRIPTION OF COVERAGE .:.............Pages 16-2S The terms and conditions of the Common Carrier Accident Insurance and the Primary Collision Damage . Walver that is provided at no.charge to you when 17iw use your Card to purdmase-a ine or other common.carier tickets or rent an automobile. GLOW TRAiI/ELf 1 HOTWN)b ...................Pay,- 25 The terms and conditions of this free travel assistance benefit 02010 Oiscaver Bade, Member FDr- TL22EF.0210 IODM O-02BOILT1.22EF0210 000aZndarJMd 1-2 12(21M 929:12AM I CAR. 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Phone andinntemet paymeenstts must be made by 5:00pm ET For same day Go paerless and make your account information more secure with password- pratected statements only you can access. Learn more at discover conVpaperless. PO BOX 6103 111.11 1111111111111111111111111 CAROL STREAM IL 60197-6103 I,II,rllr,r?,,IIIrlrnlr,rl,Il,rnn,1111?,,,,II,II„?ttll,,I,rl1 000001986458144384795043551900000000435519 Upening Dols: tebrvary I, 20I 1 - Closing Dale: I Discover More Card Account Summary I Account number ending in 1547 Previous Balance $4,355.19 Payments And Credits 0.00 Purchases + 0.00 Balance Transfers + 0.00 Cash Advances + 0.00 Fees Charged + 0.00 Interest Charged + 0.00 New Balance 4,355.10 See Interest Charge Calculation section following transactions for detailed APR information Credit line $3,700.00 Credit Line Availobts $0.00 Cash Advance Credit Una $0.00 Cash Advance Credit Line Available $0.00 W711YU16R WrR/i Anniversary Month December Opening Cashback Bonus Balance $ 0.00 New Cashbock Bonus This Period + 0.00 Cashbadk Bonus Balance $ 0.00 To learn more, 69 in at www.Discover.com 3 Easy Ways to Contact Us 1. Access your account securely at www.D6c*vw corn 2. Call I.800•DISCOVER (1.800.347-2683) Please have your Discover® card available. 3. Write to us at Discover PO Box 30943, Salt Lake City, UT 84130 (Not a payment address) For payments, plsnss send to address on remittance or - Discover, PO F6x 6103; Caret Shoam,4460197-6103 For TDD (Telecommunications Device for the Deal) assistance, please call 1-800.347.7449. ry 15, 2011 pop 1 of 2 Payment Information New Balance $4,355.19 Minimum Payment Due* $4,355.19 Payment Due Date March 10, 2011 *Includes past due amount of $1,230.00 Late Payment Warning: If we do not receive your minimum payment by the date listed above, you may have to pay a late fee of up to $35.00 and your purchase and balance transfer APRs for new transactions may be increased up to the Penalty APR of 29.99% variable. Mirinum Payment Warning: IF you make only 16 minimum payment each period, you will pay more in interest and it will take you longer to pay off your balance. For example: I Only the minimum I 6 year $4,355 f payment If you would like information about credit counseling services, call 1-800.347-1121. Manage Your Account Online at wwwb6covw.com • Access free online tools like Paydown Planner to create a plan to pay down your balance, securely access statements, pay bills online and easily track all transactions • Make your money worth moresm -find easy ways to earn and redeem cash rewards A-Gh Wear • -NE-WI-Access-your accourrt securely mobile e phone GYL.Iitt?e•*• Transactions Trans. Post D1111119 Dcft Fees TOTAL FEES FOR THIS PERIOD Interest Charged TOTAL RJMST FOR THIS PERIOD $ 0.00 2011 Totals Year-to-Date DISCOVER It pop to -? SHELLY PORTER DISCOVER Account number ending in 1547 page 2 of 2 Interest Change Calculation Your Annual Percentage Rate (APR) is the annual interest rate on your account. Current wing period: 15 days TYPE OF L6 ANCE Purchases Cash Advances V - Variable Rate ANNUAL PERCENTAGE BALANCE SUBJECT TO MEREST CHARGE 29.99% $0 $0 29.99% $0 $0 Addiiond Impartant Inforr whon See your CoAnombor Agreement. Your Cardmember Agreement contains all the terms of your Account. Lest or dolon cards. Report immediotelyl Cap 1400347-2693. What To Do H You Think You Find A Mistake On Your Statentant If you think there is an error on your statement, write to us at: Discover, PO Box 30421, Solt Lake City, UT 8 4 1 30-04 2 1. In your letter, give us the following information: • Account information: Your name and account number. • Dollar amount: The dollar amount of the suspected error. • Description of Problem: If you think there is an error on your bill, describe what you believe is wrong and why you believe it Is a mistake: ._ . You must contact us within 60 days after the error appeared on your statement. You must notify us of any potential errors in writing. You may call us, but if you do we are not required to investigate any potential errors and you may bays to pay the amount in question. While we investigate whether or not there has been an error, the following are true: • We cannot try to collect the amount in question, or report you as delinquent on that amount. • The charge in question may remain on your statement, and we may continue to charge you interest on that amount. But, if we determine that we made a mistake, you will not have to pay the amount In question or any interest or other fees related to that amount. • While you do not have to pay the amount in question, you are responsible for the remainder of your balance. • We can apply any unpaid amount against your credit limit. Your Rights N You Are Dissatisfied With Your Credit Card Purchases If you are dissatisfied with the goods or services that you have purchased with your credit card, and you have tried in good faith to correct the problem with the merchant, you may haw the right not to pay the remaining amount due on the purchase. To use this right, all of the following must be true: 1. The purchase must have been made in your home state or within 100 miles of your current mailing address, and the purchase price must have been more than $50. (Nob: Neither of these are necessary if your purchase was based on an advertisement we mailed to you , or if we own the company that sold you this goods or services.M 2. You must have used your credit card for the purchase. Purchases made with cash advances from an ATM or with a check that accesses your credit card account do not qualify. 3. You must not yet have fully paid for the purchase. if all ofthe, criteria abovo wo met and you we still dissatisled with the purchase, contact us in writing at: Discover, PO Box 30945, Salt Lake Cify, UT 84130.0945 While we investigate, the some rules apply to the disputed amount as discussed above. After we finish our investigation, we will tell you our decision. At that point, if we think you owe an amount and you do not pay we may report you as delinquent. Payments. Send only your payment and the top portion of this statement in the envelope provided. Do not send cash. By sending yaw check as described above, you authorize us to use information on your check to make on electronic fund transfer from your account at the financial institution indicated on your check or to process the payment as a check transaction. It payment is processed as an electronic fund transfer, the transfer will be for the amount of the check. When we use information from your check to make an electronic fund transfer, funds may be withdrawn from your account as soon as the same day we receive your payment, and you will not receive your check back from your financial institution. The processing of your payment may be delayed if you send cash, correspondence or other items with your payment, if you send N?e payment Many eNrer address or if you use on em+slop . other than the one provided. Paymenh received in proper Form of our processing facility 5PM focal time on any day will be credited to your Account as of that day. Payments received at our processing Facih after SPM local time will credited to your Account as of the next day. If you have misplaced your envelope, send your payment to Discover, PO Box 6103 Carol Stream, IL 601976103. Please allow 7-10 days for delivery. If your payment is returned unpaid, we reserve the right to resubmit it as an electronic debit. You can pay your minimum payment or a greater amount over the telephone, and you can set up automatc payments. Call us at 1-800-347.2683. You will need this statement and your bank account information. You must ensure that sufficient funds are available in your bank account and all transactions must comply with U.S. law. You will be asked to provide the first 5 digits of your account statement ZIO code. By entering those numbers as your electronic signature, you will be agreeing to this oufhorization to allow us and your bank to deduct each payment you authorize from your bank account, and to initiate debit or credit entries to your bank account, as applicable, to correct an error in the processing of such Paymoint. You must tell us the amount of each payment or you can select an amount such as the Minimum Payment Due or the New Balance on each statement. You can cancel a payuient; however we must receive notice at bast three business darn In advance of the scheduled payment- You may ndi usby pfions al T 800 3a7-2683 a by moil ct 1Tie address listed Willie- previous poi raph. If your payments vary in amount, we will tell you on each monthly statement when your paymerd will be made ondw much it will be. Your automatic payment amount may be less than indicated on the month rY statement based on credits or payments applied during the bit sling cycle. Cndif Repatisg. We may report information abouF your Account to credit bureaus. Late payments, missed payments, or other delauhs on your Account may be reflected in your credit report. We normally report the status and paymsnt history of your Account to credit reporting agencies sash month. If believe that our report is maceurote or incanplete, please writ us at the following address: Diswver, PO Box 15316, ilmingtan, DE 1985Q5316. Please indicate your name, address, home tebPhone number and Account number. r Paying bterest: Webegin to impose Interest Charges on all transactions from the Transaction Date for the transaction shown on your billing stabment, unless a transaction is posted to your Account after the close of the billing period in which it occurs, in which case we begin to impose interest charges on that transaction from the first day of the billing period in which it is posted to your Account. We continue to impose Interest Charges until the date you pay your entire Now Balance shown on your billing statement by makin& payments or receiving credits. If you paid the IVew Bobnce on your previous billing statement by the Payment Due Dote shown on that billing statement, we will not im se Interest Charges on new purchases, that is, purchases first appearing on the current billing statement, a ari?r portion of a new purchase, paid by the Payment Due in on your current billing statement. We toll this the "grace rind. k is not loss than ZS days Theis is no grace period on balance h_for. or cash advances. As more fvpy described in the section of your Cardmorn Agregiment titled "How We Apply Payments," we geneol apply payments to your Account based on the APR applicable to the balance of each transocfi_ coFsgory This means that if you do not pay the New Bak]nCe on the current billing statement by the Payment Due r. shown on tTint billing statement, then, depr++nding on the amount of your payment and the APRs on other balances, you may not get a grace period on new purchases. Mirinum behest Cimirae. We will charge you a minimum Interest Charge of $.50 for any billing period in which interest Charges of less than $30 would otherwise be imposed. Annual fee. If your Account has on annual fee, it will be billed at the (inning of each anniversary year your Account is open. The amount of the fee appears on the statement when the fee is billed. The annual fee is not refundable unless you notify us that you wish to close your Account within 30 days of the mailing or delivery date of the statement on which the fee is billed. You will receive this refund even if you use your Card during that period. How We CoWals Merest Charges - Daily Balance Method (ii c6diig turned transactions): We figure Interest Charges for each billing period. To do this: • We calculate your Interest Charges separately for each balance subject to different terms (for example, standard purchases, standard cash advances and each purchase, balance transfer and cash advance balance subject to promotional terms). We refer to these balances as transaction categories. • We figure the "daily balance" for each transaction category. To get the "doily balance" we take the beginning balance for each ?, add any new transactions and fees and any Interest Charges accrued on the previous day's daily balance. We then subtract any credits and payments and make other adjustments (including those adjustments required in the section titled "Paying Interest"). In calculating the daily balance for the first day of the biling period, we consider the "previous day's daily balance" to have been your balance on the lost day of your previous billing period. This gives us the doily balance for each transaction category. • We figure the Interest Charges on your Account by multiplying the daily balance for each transaction category by its doily periodic rate, for each day in the billing period. • The total interest Charges for the billing period are the sum of the daily interest Charges for each transaction category for each day during that billing period. When we calculate daily balances, we odd a new transaction as of the Transaction Date shown on your billing statement, unless the transaction is posted to your Account oNer the close of the billin period in which it occurs, in which case the transaction will be added to the daily balance as of the first day of the biUii g period in which it is posted to your Account. All fees chargged to your Account are added to the standard purchase transaction category with the exception of Cash Advance Fees whicTi are added to the applicable cash advance transaction category and Balance Transfer Fees which are added to the applicable balance transfer transaction category. Foreign Currency Fee: 2% of the U.S. dollar amount of each purchase made in a foreign currency. APRs: Each time you foil to make a payment when due, we may, in accordance with applicable low, (i) terminate the avail ility of any introductory/ promotional APRs on new transactions and (ii1 increase your APRs for new transactions to variable Penalty APRs which will be determined by addinngg up to an additions Spertentage points to the otherwise applicable APR. Your Penalty APR is determined based on your creditworthiness and other Factors such as your current APRs, and your account history. It your APRs for new transactions are increased for a kite payment, the Penalty APRs will apply indefinitely. For TDD {Telecomawri cations Device for tire Deaf) assistance, please call 1-800.347.7449. Discover may monitor and/or record telephone calls between you and Discover representatives for quality assurance purposes. The Discoverocard is issued by Discover Bank, Member FDIC OITBK172 3• Paperless statements mean less clutter, more convenience Easily access up to 24 months of downloodable, password protected statements. • See your statement as soon as it's available rather than wait for it to arrive in your mailbox. • Get helpful payment reminders through e-mail or text messages on your mobile phone. • Print a paper copy of your statement anytime. • Sign up today at Discowcom/paperless 02010 Discord Bonk, Member FDIC PAPER 0310 CA 0 U) z os D 0 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff K4t1Vt' at Ctrrrjl""fT? i HE PRO I o-!011' Jody S Smith Chief Deputy . ; ; ?011 AUG -8 PEA ? Richard W Stewart Solicitor CUMBB'LAIND CUB, l .'., P EM SYLVAHI11-% Discover Bank Case Number vs. Shelly M. Porter 2011-5817 SHERIFF'S RETURN OF SERVICE 07/25/2011 04:59 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on July 25 2011 at 1659 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Shelly M. Porter, by making known unto Jeff Porter, Husband of Defendant at 95 Independence Drive, Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to him personally the said true and correct copy of th same. W T , DEPUTY SHERIFF COST: $48.00 July 26, 2011 SO ANSWERS, RONK'Y R ANDERSON, SHERIFF C . _ -? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK, Plaintiff(s) V. SHELLY M. PORTER, Defendant(s) Docket No.: 11-5817-Civil PRAECIPE FOR APPEARANCE Filed on Behalf of Defendant Counsel: The J. Murphy Firm 210 Grant Street, #301 Pittsburgh, PA. 15219 (412)521-2000 R -? [,-:) C- cn -v rn X ; r-:2: o ° c? Joe Murphy, Esquire Pa. Supreme Court I.D. 83120 ;To --f c? ,ORIGl?IA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK, Plaintiff(s) Docket No.: 11-5817-Civil v. SHELLY M. PORTER, Defendant(s) TO THE PROTHONOTARY: Kindly accept my appearance on behalf of The Defendant. Respeiffttfu I l)f, Joe??Grphy 83??O Jfi'e J. Murphy Firm X210 Grant Street, #301 Pittsburgh, PA. 15219 d U IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYLVANIA t CIVIL DIVISION DISCOVER BANK r6 aj M ,'- . t: 3 , <> CD ?. Plaintiff(s) Docket No.: 11-5817-Civil v CJ yC .._ -- ` - c) , . t <- SHELLY M. PORTER, Defendant(s) PRELIMINARY OBJECTIONS TO COMPLAINT Filed on Behalf of Defendant Counsel: The J. Murphy Firm 210 Grant Street, #301 Pittsburgh, PA. 15219 (412)521-2000 Joe Murphy, Esquire Pa. Supreme Court I.D. 83120 AI61N IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK, Plaintiff(s) Docket No.: 11-5817-Civil v. SHELLY M. PORTER, Defendant(s) CERTIFICATE OF SERVICE I, Joe Murphy, counsel for the Defendant in the above captioned matter, do olemnly swear that the foregoing APPEARANCE RELIMINAR.Y OBJECTIONS TO COMPLAINT Qo?f`EF IN SUPPORT OF PRELIMINARY OBJECTIONS TO COMPLAINT L_I'MOTION/REQUEST/PRAECIPIE FOR ARGUMENT were delivered by First Class, U.S. Mail, Postage Pre-Paid to the Below: Amy Doyle, Esq.Schlee & Stillman, L.L.C. 204 St Charles Way, Unit E #177 York, PA. 17402 III/ Sulga* ted, Joe phy M ay, August 08, 2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK, Plaintiff(s) Docket No.: 11-5817-Civil v. SHELLY M. PORTER, Defendant(s) PRELIMINARY OBJECTIONS TO COMPLAINT Now comes the Defendant, by and through counsel, the J. Murphy Firm, and Joe Murphy, Esquire and bring(s) and file(s) the within Preliminary Objections to Complaint, averring in support thereof as follows: OBJECTIONS TO CONTRACT CLAIMS 1. The Complaint references a credit agreement or contract. 2. No averment is made as to whether said agreement is oral, or written. 3. The foregoing amounts to a violation of Pa. R.C.P. §1019(h), as amended, which requires that, "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." 4. Accordingly, the Complaint is the proper subject of preliminary objections pursuant to Pa. R.C.P. 1028(a)(2) for violation of rule of court 1019(h). 5. Although the Complaint references a credit agreement or contract, no copy of the agreement or contract is attached thereto. 6. The foregoing amounts to a violation of PA. R.C.P. §1019(i). 7. Accordingly, the Complaint is the proper subject of preliminary objections pursuant to Pa. R.C.P. §1028(a)(2) for failure to conform to Rule of Court 1019(i). OBJECTIONS TO UNJUST ENRICHMENT/QUANTUM MERUIT 8. Plaintiffs Complaint pleads unjust enrichment/quantum meruit but is legally insufficient to sustain an award of damages under this theory. 9. Accordingly, the Complaint is the proper subject of preliminary objections pursuant to Pa. R.C.P. 1028(a)(4) as it is legally insufficient OBJECTIONS TO ACCOUNT STATED 10. Plaintiffs Complaint pleads account stated. 11. The law of account stated in this Commonwealth is well settled that a "statement of account" is not same this as "account stated." 12. Plaintiff's Complaint is legally insufficient to make out a cause of action in account stated, and therefore is the proper subject of preliminary objections pursuant to Pa. R.C.P. 1028(a)(4) OBJECTIONS DIRECTED TOWARD LACK OF SPECIFICITY 13. Pa. R.C.P. 1019 requires, inter alia, that facts be pled and that items of special damage be pled with specificity. 14. In the context of a credit case, the facts and items of special damage, which are to be pled, include the dates and amounts of charges, fees, fines, interest, and the like. 15. In the context of a credit case, the requirements of 1019 are normally met by attaching copies of an un-interrupted chain of statements, starting with a zero balance and ending with a statement showing the amount sought in the complaint. 16. It is respectfully submitted that the neither the Complaint, nor the documents attached thereto, sufficiently or specifically plead the facts and items of special damage underlying the case. 17. This renders the Complaint the proper subject of preliminary objections, pursuant to Pa. R.C.P. 1028(a)(2), for failure to conform to Rule of Court 1019, and the proper subject of preliminary objections, pursuant to Pa.R.C.P. 1028(a)(3) for insufficient specificity. WHEREFORE, Defendant respectfully prays that the Complaint filed by the Plaintiff be dismissed with prejudice, or, in the alternative that the complaint be stricken, and the Plaintiff be required to plead over in accord 1 , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK, Plaintiff(s) Docket No.: 11-5817-Civil v. SHELLY M. PORTER, Defendant(s) - ORDER - On this _ day of , 20 , it is hereby ORDERED that Plaintiff's Complaint is stricken. Plaintiff may file an amended complaint within 30 days. If Plaintiff fails to file an amended complaint within the time set forth above, the Prothontary, upon praecipe of the Defendant, shall dismiss this case with prejudice. BY THE COURT: J. r f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DISCOVER BANK, Plaintiff(s) Docket No.: 11-5817-Civil v. SHELLY M. PORTER, Defendant(s) - ORDER - On this _ day of , 20 , it is hereby ORDERED that Plaintiff's Complaint is stricken. Plaintiff may file an amended complaint within 30 days. If Plaintiff fails to file an amended complaint within the time set forth above, the Prothontary, upon praecipe of the Defendant, shall dismiss this case with prejudice. BY THE COURT: ]. 'ri- ILC. :... R0 HONOTA :e 1011 AUG 10 AM 11: 02 PRAECIPE FOR LISTING CASE FOR ARGUMFN? ERLANO COUNTY (Must be typewritten and submitted in triplicatepENNSYLVANIA TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) 0(5( C)V-R,r ?) CAf\ ?L- vs. No. Term 1. State matter to be argued (i.e., plaintiff's otion for new trial, defendant's demurrer to complaint, etc.): S 2. Identify all counsel who will argue cases: (a) for plaintiffs: 6/77 AVV4 Y l tC Nc V4- (Name-7 ? d?dress (b) for defendants: r^ (Name and Address) s-L15 - - - 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 10.1-t( ell ' \\ v Print your me Attorney for Date: `6 l INSTRUCT l 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted.