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Home My WebLink About11-7036COMMONWEALTH OF PENNSYLVANIA k ((01 4 COURT OF COMMON PLEAS Judicial District, County Of CUMBERLAND NOTICE OF APPEAL FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT I I COMMON PLEAS No. olvi"F&P, NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. NAME OF APPELLANT LVNV FUNDING, LLC ADDRESS OF APPELLANT 15 S. MAIN ST GREENVILLE HONORABLE CHARLES A. CLEMENT JR JIAIt SC 29601 -I C ul du --' I IN I P1n I.AJt ur (Y/alnrlrr) (Defendant) 8/15/11 LVNV FUNDING, LLC _ VS STEWART RHODES CV-280-11 This block will be signed ONLY when this notation is required under R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the Magisterial District Judge, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or (see PaJ R.C/P.D.J before a Magisterial District Judge/ A within (20) days after filing the NOTICE cf APPEAL. in action INT MUST BE FILED twenty PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R. C. P. D. J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Name of appellee(s) appellee(s), to file a complaint in this appeal (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney or agent RULE: To , appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to.fle a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered' egistered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 120 Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-05 lbgho)V4 2a r£)fil9' 4-v All-W ad Vil"RiA` kSNN3d b: I I A Z I d3S 1107, 'Vfl0 iJHiOdd 3HI 4.4 41 - n -MIJ yj S COMMONWEALTH OF PENNSYLVANIA Notice of Judgment/Transcript Civil COUNTY OF CUMBERLAND `- Case . ; r Mag. Dist. No: MDJ-09-1-01 MDJ Name: Honorable Charles A. Clement Jr. Address. Olde Towne Commons 400 Bridge Street, Suite 3 New Cumberland, PA 17070 (Telephone: 717-774-5989 Attorney Michael F. Ratchford, Esq. C/o Abrahamsen & Associates 120 N. Keyser Avenue Scranton, PA 18504 Disposition Summary LVNV Funding LLC V. Stewart Rhodes Docket No: MJ-09101-CV-0000280-2011 Case Filed: 6/29/2011 Docket No Plaintiff Defendant Disposition Disposition Date MJ-09101-CV-0000280-2011 LVNV Funding LL.C Stewart Rhodes Judgment for Defendant 08/15/201 ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Date Magisterial District Judge Charles A. Clement Jr. certify that this is a true an correct copy o the record o the proceedings containing the judgment. Date Magisterial District Judge Charles A. Clement Jr. MDJS 315 Page 1 of 2 Printed: 08/16/2011 9:34:34AM ?1161 )4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LVNV Funding LLC 15 South Main Street Greenville, SC 29601 CIVIL ACTION Plaintiff vs. n c_ "Q J. ar ?p r- .4- C" M a NO: I I -'703(o 0,i"I I--[&m Stewart Rhodes 211 E. MAIN ST SHIREMANSTOWN PA 17011 Defendant : ..a 7C3 - o x'3 NOTICE TO DEFEND 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 to Defend are served, by entering a written appearance personally or by an 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT REDUCED FEE OR NO FEE. MIDPENN LEGAL SERVICES 401 EAST LOUTHER STREET CARLISLE, PA 17013 717-243-9400 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LVNV Funding LLC : 15 South Main Street CIVIL ACTION Greenville, SC 29601 Plaintiff vs. NO: Stewart Rhodes 211 E. MAIN ST SHIREMANSTOWN PA 17011 Defendant COMPLAINT Plaintiff, LVNV Funding LLC, by and through its attorneys, Edwin A. Abrahamsen & Associates, P.C., complains of the Defendant as follows: 1. Plaintiff, LVNV Funding LLC, (hereinafter "Plaintiff") is a Delaware corporation with a principal place of business located at 15 South Main Street Greenville, SC 29601. 2. The Defendant Stewart Rhodes (hereinafter "Defendant") is an adult individual residing at 211 E. Main St Shiremanstown PA 17011. 3. At all relevant times herein, Plaintiff was engaged in the business of debt purchase and collection. 4. Defendant applied for and received a credit card issued by GE Capital with the account number 7981924395103898. 5. The within account was sold by GE Capital to LVNV Funding LLC for valuable consideration and all rights under said accounts were assigned to LVNV Funding LLC. 6. Use of the GE Capital credit card was subject to the terms and conditions of the Cardmember Agreement (hereinafter "Agreement"), a copy of which was sent along to the Defendant with the credit card. A copy of this document has been requested from GE Capital, and will be provided upon receipt. 7. Defendant used the GE Capital credit card with account number, 7981924395103898, for purchases, cash advances and/or balance transfers. Use of the card in this manner constituted acceptance of the terms and conditions and subjects the Defendant to the terms and conditions contained therein. The Defendant was mailed monthly account statements relative to the Defendant's use of the subject credit card. 9. The Defendant defaulted under the terms of the Agreement by failing and refusing to make monthly payments on the account as they became due. 10. The Defendant last made payment on November 2, 2007. 11. The principal amount was $$2,134.18 at the time of charge-off. 12. Pursuant to the account agreement, any unpaid balance accrues interest at the contract rate of 6°/0. 13. The principal amount was $2,134.18 at the time it was received by Plaintiff. 14. The total amount due and owing the Plaintiff including interest, is $2,634.44. WHEREFORE, Plaintiff requests judgment in its favor and against Defendant in the amount of $2,634.44 plus costs of suit and any other relief as the Court deems just and appropriate. Edwin A. Abrahamsen &, Michael F. Ratchford, Esq Attorney I.D. Nos.: 86285 120 North Keyser Ave. Scranton, PA 18504 mratchford@eaa-law.co4 Phone: 570-558-5510 Fax: 570-558-5511 VERIFICATION I, Michael F. Ratchford, attorney for Plaintiff,LVNV FUNDING LLC, am fully familiar with the facts set forth in the within Complaint and am authorized to make this Verification on behalf of Plaintiff. I Verify that the facts set forth in the within allegations are true and correct to the best of my knowledge, knowing that any false statements are punishable by law pursuant to 18 C.S.A. 4904. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LVNV FUNDING LLC : CIVIL ACTION Plaintiff : vs. NO: 11-7036 .. :. Stewart Rhodes rnw z z' m c -n ? ' r rn ? off' Defendant Ca =° ?' C]-n 3=? :_ CD CERTIFICATE OF SERVICE I, Michael F. Ratchford, Esquire, hereby certify that on September 17, 2011 the below named Defendant received and signed for the certified mail containing the Plaintiff's Notice of Appeal of the District Justice Judgment and Complaint. Stewart Rhodes 211 E. MAIN ST SHIREMANSTOWN PA 17011 Edwin A. Abrahamsen & Associates, P.C. Michael F. Ratchford, Esquire quire Attorney I.D. No.: 86285 120 N Keyser Avenue Scranton, PA 18504 (570) 558-5510 ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: STEk 'ART FUIODES 211 F. MAIN ST SHIREMANSTOWN, PA 17011 ill lljlja --"/ I A. Signature X i Agent ? Addressee B. Received by (Printed Name) C. Pate of Delivery D. Is delivery address different from item 1? ? Yes If YES, enter delivery address below: ? No 3. Service Type )RT'Certifled Mail ? Express Mail / ? Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7 011 115 0 0002 3229 215 6 (Transfer from seMce ieDe4 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-154b ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: DISTRICT COURT 09-1-01 OLDE TOWNE COMMONS 40013RIDGE ST. SUITE 3 NEW CUMBERLAND, AP 17070 A. B. C . I (A?) 1 V-/-/ s lielivery add s drfferent from Item 1? ? Yes If YES, enter livery address below: ? No 3. Service Type ? ACertified Mail ? Express Mail Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7 011 1150 0002 3229 2163 (transfer from service hfto IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LVNV FUNDING LLC VS. Stewart Rhodes Plaintiff Defendant CIVIL ACTION NO: 11-7036 C') C_- -0:x rnrn z r. ZC r CERTIFICATE OF SERVICE I, Michael F. Ratchford, Esquire, hereby certify that on September 19, 2011 the below named District Justice received and signed for the certified mail containing the Plaintiff s Notice of Appeal of the District Justice Judgment. District Court 09-1-01 Honorable Charles A. Clement, Jr. District Justice 400 Bridge St. Suite 3 New Cumberland, PA 17070 Edwin A. Abrahamsen & Associates, P.C. B kichael F. Ratchfoi Attorney I.D. No.: f 120 N Keyser Aver Scranton, PA 1850, (570) 558-5510 LVNV FUNDING LLC : COURT OF COMMON PLEAS 15 South Main Street : CUMBERLAND COUNTY, PENNSYLVANIA Greenville, SC 29601 Plaintiff . J fq? V. No: 11-7036 - Civil Term n'zr-A3 , STEWART RHODES Civil Action - Law 211 E. Main Street Shiremanstown, PA 17011, ca c -= Defendant = C) -? NOTICE TO PLEAD To: LVNV Funding LLC c/o Edwin A. Abrahamsen & Assoc. Michael F. Ratchford, Esquire 120 North Keyser Ave. Scranton, PA 18504 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: Respectfully Submitte ichael J. P osh, sq I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Stewart Rhodes Michael J. Pvkosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mnvkosh ,dalelaw,com Attorney for Defendant LVNV FUNDING LLC : COURT OF COMMON PLEAS 15 South Main Street Greenville, SC 29601 Plaintiff V. STEWART RHODES 211 E. Main Street Shiremanstown, PA 17011, Defendant : CUMBERLAND COUNTY, PENNSYLVANIA No: 11-7036 -Civil Term Civil Action - Law DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Stewart Rhodes, by and through his attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files his Preliminary Objections to the Plaintiff's Complaint, and avers as follows: Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account issued by GE Capital Comp. ¶ 1 and 4. 2. The Complaint was filed on September 12, 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 credit account between the Defendant and an original creditor. 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 Comp. 16. 5. The Complaint does indicate the agreement was written. 6. Pursuant to Pa. R.C.P. 1019(i), 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. No. 1028(a)(4)- Demurrer The Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract. Third Preliminary Objection- Pa. R.C.P. No. 1028(a)(3) 9. 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. 10. 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. 11. 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)(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)(2)-Failure to conform to rule of court (failure to attach written assignments of debt) 16. The Plaintiff is not the original creditor, but rather assignee of the original creditor. Comp. ¶ 1 and 5. Since the Plaintiff's 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(i). 17. 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. Sixth Preliminary Objection- Pa. R.C.P. 1028(a)(2)- Failure to conform to rule of court (Improper Verification) 18. 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). 19. The Complaint is verified by the attorney of record with no mention that the Complaint cannot be verified with in the time allotted for the pleading or that the party is outside the jurisdiction of the court, WHEREFORE, the Defendant respectfully requests that her Preliminary Objections be sustained, and that Plaintiff s Complaint be dismissed with prejudice. Date: 3?l Respectfully Subpitted, Michael J. Pykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 LVNV FUNDING LLC 15 South Main Street Greenville, SC 29601 Plaintiff V. STEWART RHODES 211 E. Main Street Shiremanstown, PA 17011, Defendant : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 11-7036 - Civil Term Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Stewart Rhodes's, Preliminary Objections to Plaintiffs Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: LVNV Funding LLC c/o Edwin A. Abrahamsen & Assoc. Michael F. Ratchford, Esquire 120 North Keyser Ave. Scranton, PA 18504 Date: 30 l Respectfully Submitted, __n /I/I _. Michael J. Pykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant