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Home My WebLink About11-8852COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Asset Acceptance, LLC assignee of Citibank Plaintiff V. Dean Costopoulos Defendant c zzj - ?D No 11-8852 CERTIFICATE OF SERVICE 0 x r w crt The undersigned hereby certifies that on this date a true and correct copy of the Notice of Appeal has been served by United States first-class mail, postage prepaid, upon the individual(s) at the address indicated below: =-n rn-Orn 1=a --tom DQ Gordon & Weinberg, P.C. Attn: Frederic I. Weinberg, Esquire Attn: Joel M. Flink, Esquire 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 Respectfully ubmitte, t ,s ,r Dean J Costopoulos 125 Cumberland Drive Carlisle, PA DATE: l -,--) ?21 f 2 ASSET ACCEPTANCE, LLC IN THE COURT OF COMMON PLEAS Assignee of Citibank, OF CUMBERLAND COUNTY Plaintiff CIVIL ACTION -- LAW c " ten N `-4 VS. Zrn 3a r - Z.;0 Orn ° DEAN J COSTOPOULOS r c) -+o )> Cn Defendant NO.: 11-8852-Civil s C)n PRELIMINARY OBJECTIONS Plaintiff fled its complaint on November 28, 2011. 2. Defendant now files these Preliminary Objections. 3. According to the allegations contained in the Complaint, it alleges that it is owed a debt pursuant to a credit card cardholder agreement. 4. Plaintiff's claims in the Complaint are essentially limited to a breach of contract action/account stated action and/or an unjust enrichment action based upon the execution of a credit card cardholder agreement. 5. No contract or agreement was attached to the Complaint as an Exhibit. 6. Further, PLAINTIFF has not alleged or provided any evidence within the Complaint demonstrating that Defendant agreed, accepted or acquiesced in the correctness of the figures in the exhibits attached to the Complaint. 7. PLAINTIFF has failed to produce evidence demonstrating that Defendant agreed, accepted or acquiesced in the correctness of the figures in the exhibits attached to the Complaint, upon which its claims are based. FIRST PRELIMINARY OBJECTION PRELIMINARY OBJECTION BASED UPON FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT. INSUFFICIENT SPECIFICITY IN A PLEADING and LEGAL INSUFFICIENCY OF A PLEADING CONCERNING THE PLAINTIFF'S FAILURE TO ATTACH A WRITING PURSUANT TO PA. R.C.P. 1028(4)(2). 1028(a ) (3). and 1028(a (41 12. The Defendant incorporates paragraphs I through 11 of the Defendant's Preliminary Objections as though the same were set forth fully herein at length. 13. Pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(2), 1028(a)(3), 1028(a)(4), a party may file Preliminary Objections to the Complaint based upon the failure of a pleading to conform to law or rule of Court, insufficient specificity of a pleading and legal insufficiency of a pleading. 42 Pa. C.S.A. § 1028(a)(2-4). 14. Pennsylvania Rule of Civil Procedure 1019 provides, in part: "(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written. 0 When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing." Pennsylvania Rule of Civil Procedure 1019 (h. - i.) 15. A complaint should be stricken for failure to attach an essential document. Adamo v. Cirri, 656 A.2d 576, 579 (PaCmwlth. 1995), citing, 4 Standard Pennsylvania Practice 2d, Complaint, Generally § 21:66. 16. In a credit card suit, a creditor must, "attach the writings which essentially establish [the creditor's] right to a judgment." Capital One Bank (USA) NA v Clevenstine 7 Pa, D & C. 5+h 153, 154 (C.C.P. Centre 2009) citing, Atlantic Credit and Finance Inc. v. Giuliana 829 A.2d 340, 345 (Pa. Super. 2003). 17. An unsigned customer agreement is insufficient to establish a plaintiffs claim. Cale, 7 Pa. D & C. 5TH 153, 154 (C.C.P. Centre 2009) citing, Atlantic Credit and Finance Inc. v. Giuliana 829 Aid 340, 345 (Pa. Super. 2003). 18. In a credit card suit, the creditor has a threshold burden of proving the existence of the contract that the defendant allegedly breached. Commonwealth Financial Systems v. Smith, 13 Pa. D. & C. 5th 1, 32 (C.C.P. Delaware 2010). 19. No contract whatsoever was attached to the Complaint as an Exhibit. 20. Plaintiff has failed to produce a signed, executed contract or agreement upon which its claims are based. 21. The failure to produce the cardholder agreement establishes a meritorious defense and a basis for preliminary objections pursuant to Pa.R.C.P. No. 1019(1). Commonwealth Financial Systems v. Hartzell, 17 Pa. D. & C. 5th 176, 180 (C.C.P. Lawrence 2010), citing, Atlantic Credit, and-Finance. Inc. v. Giuliano, 829 A.2d 340,345 (Pa. Super. 2003). has failed to meet its threshold burden to substantiate its claims. WHEREFORE, the Defendant, respectfully requests this Honorable Court to sustain its Preliminary Objections, and dismiss the Plaintiffs Complaint in its entirety with prejudice, and grant any and all other relief this Honorable Court deems just. SECOND PRELIMINARY OBJECTION PRELIMINARY OBJECTION BASED UPON FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT. INSUFFICIENT SPECIFICITY IN A PLEADING. and LEGAL INSUFFICIENCY OF A PLEADING CONCERNING THE CLAIMS OF BREACH OF CONTRACT/ACCOUNT STATED AND UNJUST ENRICHMENT PURSUANT TO PA. R C P 1028 (j(2) 1028 (a)(3) and 1028(a)(4) 24. The Defendant incorporates paragraphs I through 23 of the Defendant's Preliminary Objections as though the same were set forth fully herein at length. 25. Pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(2), 1028(a)(3), 1028(a)(4), a party may file Preliminary Objections to the Complaint based upon the failure of a pleading to conform to law or rule of Court, insufficient specificity of a pleading and legal insufficiency of a pleading. 42 Pa. C.S.A. § 1028(a)(2-4). 6. The claims as set forth in the Plaintiffs Complaint, in particular, but not exclusively, Count H of the Plaintiffs Complaint, set forth a cause of action in the nature of breach of contract and/or account stated. 27. In order to establish breach of contract claim, Pennsylvania law mandates that, "a typical breach of contract action involves (1) the existence of a contract. (2) a breach of a duty imposed by the contract, and (3) damages." Zolcaitcs Contracting Inc. v. Trant Corp. 968 A.2d 1282, 1287 (Pa. Super. 2009) appeal denied, 604 Pa. 691, 985 A.2d 972 (2009)(emphasis added), citing, J.F. Walker Co., Inc. v. Excalibur Oil Group Inc 792 A.2d 1269 (Pa. Super. 2002). 28. In order to establish an account stated claim, "there must be a contract between the parties, that is, an express or implied promise by the debtor to the creditor." Target National Bank v. Kilbride, 10 D.&C. 5111 489, 492 (C.C.P. Centre 2010), citing, Wetter H.E. Jaeger, 15 Williston on Contracts § 1862 at 566 (3d ed. 1972). 29. No contract or Account Opening Form whatsoever was attached to the Complaint as an Exhibit. 30. PLAINTIFF has failed to produce a signed, executed contract or agreement, including, without limitation, the Account Opening Form, upon which its claims are based. 31. Therefore, PLAINTIFF has failed to meet its threshold burden to substantiate its claims against Defendant for breach of contract and/or account stated. 32. Moreover, where there is a cause of action on account stated, "the account must be rendered, and the other party must accept, agree to, or acquiesce in the correctness of the account." Target National Bank v. Kilbride 10 D.&C. 5th 489, 492 (C.C.P. Centre 2010), citing, Target National Bank v. Samanez AR07-009777, 2007 D.&C. Dec. Lexis 433 (Allegheny Cty. 2007). Additionally, when presenting allegations of defendant's assent to the amount owed, "something more than mere acquiescence by failure to take exception to a series of statements of accounts received in the mail is required." Target National Bank v. Kilbride 10 D.&C. 5th 489, 492 (C.C.P. Centre 2010), citing, C-E Glass v. Ryan. 70 Pa. D. & C.2d 251, 253 (Beaver Cty. 1975), Target National, 2007 D.&C. Dec. Lexis at * 13. 34. No evidence was alleged or provided within the Complaint demonstrating that Defendant at any time agreed, accepted or acquiesced in the correctness of the figures in the exhibits attached to the Complaint. . 35. PLAINTIFF has failed to produce evidence demonstrating that Defendant agreed, accepted or acquiesced in the correctness of the figures in the exhibits attached to the Complaint, upon which its claims are based. 36. Therefore, PLAINTIFF has failed to meet its threshold burden to substantiate its claims sounding in breach of contract and/or account stated against Defendant. WHEREFORE, the Defendant respectfully requests this Honorable Court to sustain its Preliminary Objections, and dismiss the Plaintiffs Complaint in its entirety with prejudice, and grant any and all other relief this Honorable Court deems just. n ;i j ? re• 1 l' Tan J Costopoulos Date:3 Z, Z