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Home My WebLink About11-8521Our File No.: 328305 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D. 438423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK c/o DB SERVICING CORPORATION 6500 NEW ALBANY RD NEW ALBANY OHIO 43054 Plaintiff, vs. JEFFREY E STANCAVAGE 12 PATRICIA DR ENOLA, PA 17025-1932 Defendant. _ FiLED-OFFICE HE PROTHONOTARY 2011 NOV 14 PM 1: 56 CUMBERLAND COUNTY PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: J-? 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 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 ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 34 S. BEDFORD ST. CARLISLE PA 17013 717-249-3166 ?CL- 4u? Our File No.: 328305 APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK c/o DB SERVICING CORPORATION 6500 NEW ALBANY RD NEW ALBANY OHIO 43054 Plaintiff, vs. JEFFREY E STANCAVAGE 12 PATRICIA DR ENOLA, PA 17025-1932 Defendant. FILED-OFFICE OF THE PROTHONOTARY 1011 NOV 14 PM 1: 52 CUMBERLAND COUNTY PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.. CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is Discover Bank ("Plaintiff'), a Delaware State Bank and issuer of the Discover Card. 2. Defendant(s) is/are JEFFREY E STANCAVAGE, an adult individual residing at 12 PATRICIA DR ENOLA, PA 17025-1932. 3. At the special instance and request of Defendant, Plaintiff, DISCOVER BANK, issued to Defendant(s), Account # ending in 7938. 4. Defendant received, accepted and used the account to its benefit. 5. This account is in default and Defendant(s) has an unpaid balance of $12,705.71. A true and correct copy of the charge-off statement for period ending February 28, 2011, is attached hereto and incorporated by reference herein. 6. All credits, if any, to which Defendant(s) is entitled, have been applied to the account. 7. Plaintiff, or its predecessors in interest, reduced the balance on the account after the account was charged off. 8. Although demand has been made, Defendant(s) has failed to make payment of the amount due as above. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $12,705.71 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & AS IATES, P.C. Attorney f P intiff A Law Firm Envzav d i Debt Collection BY: David J. AnoWakeAsquire Dated: 11/3/2011 Our File No.: 328305 VERIFICATION David J. Apothaker., Esquire, hereby states that I am counsel for plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating t4sworn falsification to authorities. David J. Apotha r, Esquire Attorney for P intiff DATE: 11/3/2011 New Balance Minimum Payment Due Account Number ending in 7938 DISCOVER $0.00 [$2,292.00 Enter Amount Enclosed Below Payment Due Date $ March 23, 2011 28 SDSN6A01 0022087 JEFFREY STANCAVAGE 12 PATRICIA DR ENOLA PA 17025-1932 Address, e-mail or telephone change? Go to www,Discover.com or print change in space above. Opening Date: February 12, 2011 - Cbsing Date: Febr Discover More Card Account Summary Account number ending in 7938 Previous Balance $12,730.71 Payments And Credits 12,730.71 Purchases + 0.00 Balance Transfers + 0.00 Cash Advances + 0.00 Fees Charged + 0.00 Interest Charged + 0.00 New B nce $0.00 See Interest Charge Calculation section following transactions for detailed APR information Credit Line $16,000.00 Credit Line Available . $0.00 Cash Advance Credit Line $7,300.00 Cash Advance Credit Line Available $0.00 Gashback &muse Anniversary Month Octobar Opening Cashback Bonus Balance $ 0.00 New Cashback Bonus This Period + 0.00 Cashback Bonus Balance $ 0.00 To learn more, log in at www.Discover.com Tired of buying stamps? Go mobllel Make and schedule payments from your phone with the Discover app. Its fast and it's free. Dovrnload now at dtscover.comlapps PO BOX 6103 111111111 111111 loll CAROL STREAM IL 60197-6103 IrIIIIIIIIIILtIIIr1r,IlIII III It lrtllllnr11IIIIIr,r,IN III fill 28, 2011 page 1 of 2 Payment Information New Balance $0.00 Minimum Paymerd Due $2,292.00 Payment Due Date March 23, 2011 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 28.24% variable. Manage Your Account Online at www.Discover.com • Securely access statements and free online tools, pay bills online and track and view all transoctions simply and easily • Make your money worth moresm-Find easy ways to earn and redeem cash rewards - - - - • NEW! Access your account securely through your mobile phone 3 Easy Ways to Contact Us 1. Access your account securely at www.Discover.com 2. Call 1-800•01SCOVER {1-800.347-2683) Please have your Discover@ card available. 3. Write to us at Discover PO Box 30943, Salt Lake City, UT 84150 (Not a payment address) For payments, Pease send to address on remittance or Discover, PO Box 6103, Carol Stream, IL 601976103 For TDD (Telecommunications Device. for the DeaFl assistance, please call 1.800.347.7449. Transactions Trans. Post Date Date Payments and Credits Feb 28 Feb 28 INTERNAL CHARGE•OFF $ .12,730.71 fees TOTAL FEES FOR THIS PERIOD $ 0.00 Interest Charged TOTAL INTEREST FOR THIS PERIOD $ ' 0.00 2011 Totals Year-to-Date TOTA'. FEES CHARGED IN 2011 $ 0.00 TOTAL INTEREST CHARGED IN 2011 0.00 NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION DISCOVER Paperless statements mean less clutter, more convenience Easily access up to 2,4 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 Discovercom/poperless 02010 Discover Bank, Member MC PAPER.0310 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor i'??J 1.1i I iV1? ?JII NN 28 AM 8: 42 UMBERLANU CUAW PENNSYLVAI'41A Discover Bank Case Number vs. 2011-8521 Jeffrey E. Stancavage SHERIFF'S RETURN OF SERVICE 11/17/2011 08:21 PM - Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on November 17, 2011 at 2021 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Jeffrey E. Stancavage, by making known unto himself personally, at 12 Patricia Drive, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $43.00 November 18, 2011 Aat L(- Ll--41 ?- GERALD WORTHINGTO EPUTY SO ANSWERS, RON R ANDERSON, SHERIFF DISCOVER BANK . Plaintiff, VS. JEFFREY E. STANCAVAGE Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.: 2011-8521-CIVIL C? c C'J Znr- to ^r7 z CD PRELIMINARY OBJECTIONS Defendant, JEFFREY E. STANCAVAGE, hereby preliminarily objects to the Summons and Complaint on the following grounds: 1. FIRST PRELIMINARY OBJECTION: FAILURE TO CONFORM TO A LAW OR RULE BY FAILING TO ATTACH WRITTINGS AS REQUIRED BY PA. R.C.P. 1019(i). Plaintiff attached no terms and conditions of the alleged agreement between the parties. Though some of Plaintiff's attachments to the Complaint shows use of the card, this action is one based on a Credit Card Agreement and is clearly in violation of Pennsylvania Rules of Civil Procedure. Specifically, Pa. R.C.P 1019 requires that a plaintiff attach writings when the claim is based on a writing or must plead as to why they are not attached. Further, it has been held in Pennsylvania that if terms of an agreement differ throughout the agreement, the plaintiff must attach to the complaint both the original and amended terms and conditions. Target Nat'l Bank v. Samanez, 2007 Pa. Dist. & Cnty. Dec. LEXIS 433 (Pa. County Ct. 2007) (discussing the necessity to understand the terms and conditions of credit card agreements at all applicable periods of the agreement to calculate the precise damages claimed). If the Plaintiff cannot attach these terms and conditions they have not sufficiently plead their cause of action against the Defendant, whether such cause of action is account state, open book account, or even for breach of contract. WHEREFORE, Defendant requests this Court dismiss the case for failure to conform to a law or rule. 1. SECOND PRELIMINARY OBJECTION: INSUFFICIENT SPECIFICITY IN A PLEADING. Plaintiff may further contend this action is one for Account Stated and some form of silence is an agreement to the terms and amount claimed. However, in Samanez the Court further articulated that silence or failure to object to statements without some further facts from the Plaintiff showing an express or implied agreement between the parties cannot be construed as assent to pay the amount claimed in the statements. Samanez, at 8-9. "Something more than mere acquiescence by failure to take exception to a series of statements of accounts received in the mail is required" to form an account stated cause of action. C-E Glass v. Ryan, 70 Pa. D.&C.2d 251, 253 (C.P. Beaver 1975). Additionally, allegations that a defendant refuses or neglected to pay an account are not sufficient to establish an account stated, "[m]utual assent to the correctness of the computation is essential to an account stated. Here, there is no allegation that defendant assented to the correctness of the account submitted to him." Ryon v. Andershonis, 42 Pa. D.&C.2d 86, 88 (C.P. Schuylkill 1967). Pennsylvania Courts have further recognized that the Account Stated theory is inappropriate as applies to credit card transactions. Capital One Bank (USA) NA v. Clevenstine, 7 Pa. D.&C.5th 153, 157-58 (Ct. Com. Pl. Centre Cty. 2009). The Clevenstine Court articulated that with the fluctuating interest rates and increased number and severity of fees, it is unreasonable to believe the average debtor can understand the changing terms to object in a timely manner. Id. "If cardholders cannot be expected to know whether the information in the monthly statement accurately states what they owe, there cannot be an express or implied agreement that their silence means that they have agreed that the amount claimed is correct." Samanez, at 22-3. The Samanez Court stated further that the Account Stated theory is based on the principles of contract law, which requires an express or implied contract between the parties. Id. at 22. Either the complaint must describe the agreement or the agreement must be attached, if not the complaint must make sufficient "allegations which would support a finding that the cardholder has agreed that he or she owes the amount set forth in the writing." Id. WHEREFORE, Defendant requests this Court to dismiss the action due to the Plaintiff's insufficient pleading. WHEREFORE, defendant respectfully requests that this Court sustain the Preliminary Objections and dismiss the Complaint with prejudice. Dated this. /8 day of i4vemoeve , 2012 DEFENDANT Jeffrey E. Stancava PRO SE 12 Patricia Drive Enola, PA 17025 CERTIFICATE OF SERVICE hereby ce ify that a co y of the foregoing has been sent by fax or first class U.S. Mail this ?iday ofi9N!/?? , 2012 to the following: David J. Apothaker Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 FAX: 800-757-4928 Respectfully submitted, A Jeffrey E. Stancavage PRO SE 12 Patricia Drive Enola, PA 17025 Our file No.: 328305 7 Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK Plaintiff, vs. JEFFREY E STANCAVAGE Defendant. 0PM 1: ,UMBERLAND COUNT, PENNsYLVAWA COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: 2011-8521-CIVIL Civil Action STIPULATION IN LIEU OF JUDGMENT The matters and things in controversy having been discussed by and between the parties, and a settlement having been agreed upon: It is on March 28, 2012, STIPULATED by and between DISCOVER BANK ("Plaintiff') and JEFFREY E STANCAVAGE ("Defendant"), as follows: 1. Plaintiff filed suit in the above captioned matter seeking damages in the amount of $12,705.71, plus court costs in the amount of $135.00, for a total of $12,840.71. 2. Defendant agrees to pay to Plaintiff the sum of $12,705.71, plus court costs in the amount of $135.00, for a total of $12,840.71; which sum Plaintiff agrees to accept in full settlement of its claim herein. 3. As of this date, payments totaling $0.00 have been applied to the aforementioned sum. 4. Defendant shall remit payment(s) in the following manner: a. $1,000.00 to be paid on or before March 30, 2012; b. $339.00 to be paid on or before the 23`d day of each month, beginning April 23, 2012 until paid in full. 5. All checks shall be made payable to "DISCOVER BANK", and sent to the office of Plaintiffs attorney, Apothaker & Associates, P.C., located at the following address: Apothaker & Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 r In the event Defendant fails to pay in accordance with the terms set forth in this Stipulation and the default is not cured within ten (10) days, then Plaintiff shall be entitled to obtain the entry of Judgment against Defendant in the suit amount, plus court costs, as specified in paragraph one (1) of this stipulation less any sums paid pursuant to this Stipulation, upon ea- parte application, with supporting certification, and with notice to Defendant in the form of a copy of the application addressed to Defendant by first-class, postage prepaid. We hereby consent to the form and entry of the within Stipulation. By: Benjat in . C allaro, Esquire A y ID# 307949 Apothaker & Associates, P.C. Attorneys for Plaintiff By: 4JEFf ? EY E STANCAV Defendant 2