HomeMy WebLinkAbout04-5489
Helene B. Raush
Bar No: 60140
Of Counsel to
Stewart & Associates, P.C.
P.O. Box 2629
Suwanee, GA. 30024
(866) 990-9968 phone
(678) 684-4120 fax
Credigy Receivables Inc.,
Plaintiff,
vs.
Robert L Lotz Jr,
Defendant.
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CUMBERLAND COUNTY
COURT OF COMMON PLEAS
TRIAL DIVISION
Civil Action No.: 04. - .t4J>'j
G w~L~fpJr
Arbitration Matter
Assessment of Damages Hearing
Not Required
NOTICE
To: Robert L Lotz Jr
4824 Brian Rd
Mechanicsburg, P A 17050-0000
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.
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Pennsylvania's Lawyer Referral Services can be reached at 717-704-1991, st.
%'tt'7. Office headquarters are located at Court Administrator Columbia Coml~
C'OCrthoueo Bloomllburg, PA. 17815. ~~ (7.h~ Cumber'tOf'd C~ ~rJ..~~ \ eo.t4~~ P fJ. no I ~
NOTICE PURSUANT TO FAIR DEBT COLLECTION PRACTICES ACT
This communication is from a debt collector.
This is an attempt to collect a debt and any information obtained will be used for that
purpose
Usted ha sido demandado en el Tribunal. Si usted desea defender contra 105
reclamos expuso en las paginas siguientes, usted debe tomar medidas dentro de
veinte (20) dlas despues que esta Queja y la nota son servidas entrando una
apariencia escrita personalmente 0 por abogado y ctasificaci6n a escribir con el
tribunalsus defnsas 0 las objecciones a 105 reclamos exponen contra usted. Usted
es advertido que si usted falla de hacer asf, el caso puede avanzar sin usted y un
juicio puede ser entrado contra usted por el tribual sin sota adicional para cualquier
dinero reclamado en la queja 0 para cualquier otro reclamo 0 el alivio solicitados por
el Demandante, Usted puede perder dinero 0 propiedad u otros derechos
importantes a usted.
USTED LE DEBE TOMAR ESTE PAPEL A SU ABOGADO INMEDIATAMENTE, SI
USTED no TIENE a UN ABOGADO ni no PUEDE PROPORCIONAR UNO, IR A ni
TELEFONEAR LA OFICINA EXPUSO DEBAJO DE A VERIGUAR DONDE USTED
PUEDE OBTENER A YUDA LEGAL.
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Servicio De Referencia E Informacion LegaI717-78~-199.t, ext. 16".. C\.u.ct
'i\(lminist..,tfl.l CU'hudbla County C(,U( thuu;,~ BloolII~1Jurg, P A 'i 1815.
4~ f7ot>t; Cunh?r1Jno~!J ~urfhoU~1 M~~'pA ,70/3
***** NOTICE PURSUANT TO FAIR DEBT COLLECTION PRACTICES ACT*****
This communication is from a debt collector.
This is an attempt to collect a debt and any information obtained will be used for that
purpose
Helene B. Raush
Bar No: 60140
Of Counsel to
Stewart & Associates, P.C.
P.O. Box 2629
Suwanee, GA. 30024
(866) 990-9968 phone
(678) 684-4120 fax
Credigy Receivables Inc.,
Plaintiff,
vs.
Robert L Lotz Jr,
Defendant.
)
)
)
)
)
)
)
)
)
)
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CUMBERLAND COUNTY
COURT OF COMMON PLEAS
TRIAL DIVISION
Civil Action No.:
Arbitration Matter
Assessment of Damages Hearing
Not Required
COMPLAINT
The Plaintiff asserts the following cause of action against the Defendant:
1. That Credigy Receivables Inc., Plaintiff, was and is, during all times mentioned in
this Complaint, a corporation organized and existing under and by virtue of the laws of the State
of Nevada, having its principal place of business located at 9404 Drew Court Las Vegas, Nevada
89117.
2, That Robert L Lotz Jr, Defendant, is and was at all times relevant to this case a citizen
and resident of, Cumberland County, Pennsylvania and may be served at 4824 Brian Rd
Mechanicsburg, P A 17050-0000,
3. Defendant entered a written contract (the "Contract") for a credit card account (the
"Account") with the Discover Card (the "Original Creditor"), specifically account number
4168100018854065 and thereafter assigned the account to First Select, Inc. (the "Prior
Creditor"). An exemplary copy of the Contract is attached hereto as Exhibit "A" and
incorporated herein by reference.
4. Among the terms and conditions of the Contract, Defendant agreed to pay promptly
on rendition of a statement, all charges on the account.
5. Defendant accepted and used the credit card provided by the Original Creditor.
6. The Original Creditor rendered monthly statements of charges to Defendant.
7, The Original Creditor made written demand on Defendant for the balance due and
owing on the account separate and apart from the statements rendered to Defendant, but the
Defendant failed and refused to pay,
8. Defendant agreed in the Contract to pay all reasonable costs of collection, including
reasonable attorney's fees, if Defendant's account was referred to an attorney for collection.
9. The Prior Creditor duly assigned and transferred all of its rights, title and interest in
and to the Account and the Contract, to Plaintiff, and by reason of that assignment, Plaintiff
became, and now is, the holder and owner of the Account and the Contract, as shown on the
Officer's Certificate attesting to the account transfer only attached hereto and incorporated herein
as Exhibit "B."
10. Plaintiff's attorney has notified Defendant as required by the Fair Debt Collection
Practices Act by letter.
FIRST CLAIM FOR RELIEF
(Breach of Contract)
11. The allegations contained in paragraphs 1 through 10 of the Plaintiffs Complaint are
incorporated by reference herein.
12. Plaintiff has performed all conditions precedent to be performed by Plaintiff under the
Contract or the conditions have been satisfied.
13. Defendant has not repaid Plaintiff for credit extended under the Contract and on the
Account.
14. As a result of Defendant's failure and refusal to pay the balance due on the account,
Plaintiff is entitled to a judgment against Defendant in the amount of$16,71O.07, that is due with
interest as shown on the Affidavit in Proof of Claim and Non-Military Service attached hereto
and incorporated herein as Exhibit "C."
WHEREFORE, the Plaintiff respectfully requests that the court award the following
relief:
1. Enter a judgment in favor of the Plaintiff and against Defendant in the amount of
$16,710.07 for breach of contract plus interest;
2. Tax the costs of this action against the Defendant;
3. Award to the Plaintiff its reasonable attorneys' fees, costs and expenses incurred in
prosecuting this action; and
4. Grant such other and further relief in favor of the Plaintiff as the court deems just and
appropriate.
SECOND CLAIM FOR RELIEF
(Quantum Meruit or Implied Contract)
15. The allegations contained in paragraphs 1 through 14 of the Plaintiffs Complaint are
incorporated herein by reference.
16. At the specific instance and request of the Defendant, and for its use and benefit, the
Plaintiff, or its predecessor in interest as the case may be, extended credit to the Defendant under
the Contract and on the Account.
17. Despite the Plaintiffs reasonable expectation to be fully paid by the Defendant for the
balance due and owing on the Account, the Defendant has failed to pay the Plaintiff for said
balance.
18. The Defendant incurred said balance on the Account with knowledge or reason to
know that the Plaintiff expected to be fully paid for such credit extended plus interest.
19, The Plaintiff made demand on the Defendant to fully pay the Plaintiff the above-
stated sum, but the Defendant has failed and refused to do so.
20. As a result of the Defendant's failure and refusal to pay the Plaintiff the above-stated
sum for the credit extended, the Defendant has become unjustly enriched in at least the amount
of$16,710.07, at the expense of the Plaintiff.
21. The Plaintiff is therefore entitled to recover from the Defendant in quantum meruit
and/or on the basis of implied contract the sum of credit extended on the Account, plus interest
thereon.
WHEREFORE, the Plaintiff respectfully requests that the court award the following
relief:
1. In the alternative, enter a judgment in favor of the Plaintiff and against Defendant in
the amount of$16,7l0.07 in quantum meruit, or on implied contract plus interest;
2. Tax the costs of this action against the Defendant;
3. Award to the Plaintiff its reasonable attorneys' fees, costs and expenses incurred in
prosecuting this action; and
4. Grant such other and further relief in favor of the Plaintiff as the court deems just and
appropriate.
Respectfully submitted this ~ day of oj, ~,(fH
~fJ~
Helene B. Raush
Bar No: 60140
Of Counsel to
Stewart & Associates, P. C.
P.O. Box 2629
Suwanee, GA. 30024
(866) 990-9968 phone
(678) 684-4120 fax
NOTICE PURSUANT TO FAIR DEBT COLLECTION PRACTICE ACT
This communication is from a debt collector. This is an attempt to collect a debt and any
information obtained will be used for that purpose.
VERIFICATION
I hereby state that I am the Assistant Vice President of Plaintiff, that I am authorized to make this
verification on behalf of Plaintiff in the foregoing action, that I have personal knowledge of the
statements made in the foregoing Complaint, and that the statements made in Plaintiffs
Complaint are true and correct to the best of my knowledge, information and belief.
I understand that the statements in this verification are made subject to the penalties of 18
Pa.CS S 4904 relating to unsworn falsification to authorities,
CREDIGY RECEIVABLES INC.
BY:
EXHIBIT A
FIRST SELECT
CORPORATION
ACCOUNT AGREEMENT
Your DISCOVER account has been transferred to First Select CorporatIOn. Your DISCOVER account was closed at the time of thIS transfer and will therefore continue to be
closed, This Account Agreement contains the terms that govern your FIrst Select account (the "Account"). In this Agreement "you" and "your" mean each person who is
liable for payment on the Account. "We" "our" and "us" mean First Select Corporation or its assignees. Because your Account has been transferred to us. you are no,,",
obligated to repay the Account to us instead of DISCOVER. [I' the Account was opened as a Joint account, we may act on the Instructions of any joint account holder.
PaymentslFinance Charges: As long as you have a balance outstanding on your Account. finance charges are calculated as follows.
To figure the finance charges for each billing cycle, we multiply the average daily balance periodic rate. The daIly periodic rate we apply is your Account Annual Percentage
Rate divided by 365. The Annual Percentage Rate will be calculated as disclosed In your most recent DISCOVER account tenn (the "Onginal Tenns"). If your Original
T enns provided for different Annual Percentage Rate to be applied 10 different components of your outstanding balance. we will apply the lowest such Annual Percentage
Rate on your entIre outstanding balance.
We may accept late or partial payments, or payments marked "paid 10 full" or marked with other restrictions, without losmg our right to collect all amounts owing under thIS
Agreement. You may ask First Select Corporation to pay your Account by debltlng your checking or savings account. You may revoke your authorization by writing to FIrst
Select Customer Service.
Fees: We will charge your Account a fee for each billing cycle within which your Account is delinquent (late charge). The amount of the late charge will be as disclosed In
your Original Tenns or the maximum late charge pennitted by the law of your state of residence, whichever is lower.
We will charge your Account a fee tor each returned payment check (returned check charge). The amount of the returned check charge will be as dIsclosed in your OngInal
T enns, or the maximum returned check charge pennitted by the law or your state of residence, whichever is lower.
To the extent provided in your Original Tenns and to the extent permitted by applicable law. in addItion to your obhgalIons to pay the outstandIng balance on your Account,
plus interest and fees as disclosed herein. we may also charge you for any collection costs we mcur, including but not limited to reasonable attorney's fees and court costs. If
your Original Tenns prDvided for an award of attorney's fees and court costs, such provision as incorporated herein shall apply recIprocally to the prevailing party in any
lawsUlt arisIng out of thIS Agreement
Non- Waiver of Certain Rights: We may delay or waive enforcement of any proviSIOn of thIS Agreement without losing our right to enforce It or any other provision later.
Applicable Law, Severability, Assignment: No matter where you live, this Agreement and your Account are governed by federal law and by the law of the state designated
as the apphcable law In your Onginal terms. If your OngInal Tenns did not contain an applIcable law proviSIOn, then this Agreement and your Account are governed by
federal law and the law of your state of residence. This Agreement IS a final expressIOn of the agreement between you and us and may not be contradicted by evidence of any
alleged oral agreement ]1' a provision of thlS Agreement is held to be Invalid or unenforceable, you and we will consider that proVlslon modified to confonn to applicable law.
and the rest of the provIsion in the Agreement will still be enforceable. We may transfer or asslgn our right to all or some of your payments. If stat law requires that YOll
receIve notIce of such and event to protect the purchaser or the assignee. we may give you such notice by filing a finanCIng statement with the state' S Secretary of State.
Customer Service: For general questions regarding your First Select account, please call our toll-free serVIce number, 1-888-924-2000. For quality assurance purposes, and to
Improve customer service and security, telephone calls to or from our otIices may be monitored or recorded.
Credit Reporting: If your fail to fulfill the tenns of your credit obligatIOn, a negal1ve credit repon reflectIng On your credit record may be submitted to a credIt reportmg
agency. In order to dispute any infonnation we are reporting about your Account, you must write to us at the following address: First Select Corporation. P.O. Box 9104,
Pleasanton, California 94566.
Sharing Information: We mav share intonnation with our atIiJiates, including without limitatIOn, Providian National Bank and Providian Bank. However, you may write to
us at any Wne Instructing us not to shan~ credit intonnation with our affiliates.
YOUR BILLING RIGHTS-KEEP THIS NOTICE FOR FUTURE USE
This notice contains Important intonnation about your nghts and our responsibilities under the Fair Credit Billing Act
Notify Us in Case of Errors or Questions about Your Bill
If you thInk your bill is wrong or if you need more Inlonnation about an entry on your bill write us, on a separate sheet, at the tollowing address: First Select Corporation, P.O.
Box 9104, Pleasanton, California 94566. Wnte us as soon as possible. We must hear from you no later than 60 days after we sent you the first bill on whIch the error or
problem appeared. You can telephone us, but domg so will not preserve your rights.
In the letter, gIve us the following:
- Your name and Account number.
-The dollar amount of the suspected enor.
-A description of the enol' and an explanation. if possible. of why you believe there is and error. If you need more intonnatlOn, describe the item you are not sure about.
Your Rights and Our Responsibilities After We Receive Your Written Notice
'We must acknowledge your letter within 30 days. unless we have corrected the error by then. Within 90 days, we must either correct the error or explain why we believe the
bill was conecl. After we receive your letter, we cannot try to collect or report you as delinquent as to any amount you questIOn. IncludIng finance charges. We can apply any
unpaid amount against your credIt lIne. You do not have to pay any questioned amount while we are InvestIgatIng, but you are still obligated to pay the parts of'the bill that are
nm In queslion.
If we find that we have made a mistake on your bill, you will not have to pay any finance charge related to any questIOned amount. If we dId not make a mistake, you may
have to pay finance charges, and you will have to make up the mIssed payments on the questioned amount. In either case. we will send you a stalement of the amount you owe
and the date that it is due. If you fail to pay the amount we think you owe. we may report you as delinquent. However, if our explanation does not satisfy you and you wnte to
us WIthIn 10 days telling us that you still refuse to pay. we must tell anyone we report you to that you question your bill. And we must tell you the name of anyone we reported
you to. We must tell anyone we repon you to that the matter has been settled between us when it tinally is. lfwe do nOI follow these rules, we cannot collect the tirst $50 of
the queslioned amount even if your bill was correct.
Special Rule for Credit Card Purchases
If you have a problem wllh the quahty of goods and serVIces that you purchased with your DISCOVER credn card and you have tried in good faith to corrcct the problem wnh
the merchant. you may not have to pay the remainmg amount due on the goods or servIces. There are two Iimllatlons to thIS nght: (a) you must have made the purchase In
your home state or. if not within your home state, within 100 mdes of your cutTent maillOg address: and (b) the purchase price must have heen morc than $5(1. These
limitations do not apply if either we or DISCOVER own or operate the merchant. or we or DISCOVER mailed you the advertisement lor the property or se1'Vlces
EXHIBIT B
Officer's Certificate
I, being duly sworn, hereby state and attest that I am a designated officer of
Credigy Receivables Inc. ("Credigy"), a Nevada Corporation and the PURCHASER in
that certain Purchase and Sale Agreement between First Select, Inc. ("First Select"), the
SELLER, dated as of December 27,2002.
In accordance with the Agreement, First Select sold, assigned and conveyed to
Credigy all right, title and interest in and to the account numbered 4168100018854065
and its unpaid balance. A copy of the Bill of Sale confirming that sale and assignment is
attached hereto as Appendix "A",
FURTHER AFFIANT SA YETH NAUGHT
CREDIGY RECEIVABLES INC.
AFFIAN
BY:
Sworn to and subscribed before me this [}7 day of D~O ft\ ' ~
N~~\~d~O"rJO:D
MY COMMISSION EXPIRES:
REV. 01-28-00
I.;
Appeno.1X }"
Bill ofSaj~
rlIST Selec.t. Ine.. io~ vaiue received and iD accordance witb the tenus of the Purchase and
Sai:: .Lo.gre::;rnemDeTween fIrsl Selec'... 1nc. ano Crea.Igy Eeceivaole5 Ine ("PTJRCtLL....S3F...L
ciaeG a5 of Decemoer ::. 200:: (the ".b~greement") does llereby sell. assigD and rransrer to
PURCH..6...SEP. its successors and assign~. all riglll. lltle and imeresl 1D and to the .LI,.cquired
.1>.55e15. wrchoUl recourse ane withom represemalion or warranty, incluciing \^'~tnoUl limnaliun
relatinf: to colle.ctibility. except w thee,aem of any repre senlati 0115 .0,' wfu-rami es e;:pre.ssJ:,- slaed
in me Agreement
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EXHIBIT C
Affidavit in Proof of Claim and Non-Military Service
BEFORE ME, the undersigned authority, this date personally appeared Affiant
who, being first duly sworn, deposes and says:
1. That Affiant is an officer for the Plaintiff in the above-styled action.
2. That the Affiant is familiar with the above-styled cause and states that
Affiant has reviewed the business records of the Plaintiff kept in the
normal course of business and makes this statement on personal
knowledge.
3. Defendant(s) owes Plaintiff a principal sum of$16,71O.07, plus interest on
account number 4168100018854065.
4. Defendant(s) has repeatedly failed to pay the sum requested.
5. That all credits and offsets to which the Defendant(s) is entitled have been
gIVen.
6.
That to the best of the Affiant's knowledge and belief Defendant(s) in this
action is not in the military service of the United States, and was not in the
military service of the United States at the time of the filing of this action
or at the time of service of process on the Defendant(s).
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Sworn to and subscribed before me this d7
day of &Op-\'~
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IN THE COMMON PLEAS COURT IN AND
FOR CUMBERLAND COUNTY, PENNSYLVANIA
CREDIGY RECEIVABLES, INC.,
CASE NO. 04-5489
Plaintiff,
vs.
ROBERT L LOTZ JR,
Defendant.
PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE
COMES NOW Plaintiff, Credigy Receivables, Inc., and herewith discontinues the
above styled action against Defendant, Robert L Lotz Jr, without prejudice and herein
requests the Prothonotary to mark said case as discontinued upon the record.
On January 09, 2006
'1&w 13 ;2a~
Helene B. Raush, Esquire
PA BarNo: 60140
Attorney for Plaintiff
Helene B. Raush, Esquire
Of Counsel to
Stewart & Associates, P.C.
P.O. Box 2629
Suwanee, GA 30024
(866) 990-9968
(678) 684-4975 (fax)
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IN THE COMMON PLEAS COURT IN AND
FOR CUMBERLAND COUNTY, PENNSYLVANIA
CREDIGY RECEIVABLES, INC.,
CASE NO. 04-5489
Plaintiff,
vs.
ROBERT L LOTZ JR,
Defendant.
CERTIFICATE OF SERVICE
This is to certify that I have this day served the opposing party (through counsel if
represented) with a copy of Praecipe to Discontinue Without Prejudice by depositing in the
United States Mail with a copy of same in a properly addressed envelope with adequate
postage to:
Robert L Lotz Jr
4824 Brian Rd
Mechanicsburg, P A, 17050-0000
On this
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day ofr.:;brLIclf'j_, 20 0(,
~111 -I> J}u..d!,
Helene B. Raush, Esq.
PABarNo: 60140
Attorney for Plaintiff
Helene B. Raush, Esquire
Of Counsel to
Stewart & Associates, P.C.
P.O. Box 2629
Suwanee, GA 30024
(866) 990-9968
(678) 684-4975 (fax)
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