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HomeMy WebLinkAbout04-5637 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. Carol S Mckee, Defendant. ) ) ) ) ) ) ) ) ) ) ) CUMBERLAND COUNTY COURT OF COMMON PLEAS TRIAL DIVISION Civil Action No.: Ct.[ - Sf,37 C10lLT Efl...~ Arbitration Matter Assessment of Damages Hearing Not Required NOTICE To: Carol S Mckee 424 Baltimore Ave R Mount Holly Springs, PAl 7065-0000 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. Pennsylvania's Lawyer Referral Services can be reached at 717-240-6200. Office headquarters are located at Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, P A 17013. 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) dfas despues que esta Queja y la nota son servidas entrando una apariencia escrita personal mente 0 por abogado y clasificaci6n a escribir con el tribunal sus defnsas 0 las objecciones a los 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. Servicio De Referencia E Informacion Legal 717-240-6200. Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, P A 17013. ***** 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. Carol S Mckee, Defendant. ) ) ) ) ) ) ) ) ) ) ) CUMBERLAND COUNTY COURT OF COMMON PLEAS TRIAL DIVISION Civil Action No.: Oll -- 5'43? 11 'CC--f.n.M L.IO~.. 18. f 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 Carol S Mckee, Defendant, is and was at all times relevant to this case a citizen and resident of, Cumberland County, Pennsylvania and may be served at 424 Baltimore Ave R Mount Holly Springs, P A 17065-0000. 3. Defendant entered a written contract (the "Contract") for a credit card account (the "Account") with the Fleet Bank (the "Original Creditor"), specifically account number 4168100025510684 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. Plaintiffs 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. Plaintiffhas 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 $1 ,555.95, 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 $1,555.95 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 $1 ,555.95, at the expense ofthe Plaintiff. 21. The Plaintiff is therefore entitled to recover from the Defendant in quantum meruit andlor 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 $1 ,555.95 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 fur \ ti})~ ,/' . ~/;~ 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. AFFIANT CREDIGY RECEIVABLES BY: EXHIBIT A FIRST SELECT CORPORATION ACCOUNT AGREEMENT Your FLEET BANK account has been transferred to First Select Corporation. Your FLEET BANK 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 now obligated to repay the Account to us instead of FLEET BANK. If the Account was opened as ajoint 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 FLEET BANK account tenn (the "Original Terms"). If your Original Terms provided for different Annual Percentage Rate to be applied to 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 in full" or marked with other restrictions, without losing our right to collect all amounts owing under this Agreement. You may ask First Select Corporation to pay your Account by debiting 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 Terms or the maximum late charge permitted by the law of your state of residence, whichever is lower. We will charge your Account a fee for each returned payment check (returned check charge). The amount of the returned check charge will be as disclosed in your Original Terms, or the maximum returned check charge permitted by the law or your state of residence, whichever is lower. To the extent provided in your Original Terms and to the extent pennitted by applicable law, in addition to your obligations 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 incur, including but not limited to reasonable attorney's fees and court costs. If your Original Terms provided for an award of attorney's fees and court costs, such provision as incorporated herein shall apply reciprocally to the prevailing party in any lawsuit 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 applicable law in your Original terms. If your Original Terms 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. If a provision of this Agreement is held to be invalid or unenforceable, you and we will consider that provision modified to conform to applicable law, and the rest of the provision in the Agreement will still be enforceable. We may transfer or assign our right to all or some of your payments. If stat law requires that you 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 offices may be monitored or recorded. Credit Reporting: If your fail to fulfill the terms of your credit obligation, a negative credit report reflecting on your credit record may be submitted to a credit reporting agency. In order to dispute any information 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 may share information with our affiliates, including without limitation. Providian National Bank and Providian Bank. However, vou may write to us at any time instructing us not to share credit infonnation with our affiliates. YOUR BILLING RIGHTS-KEEP THIS NOTICE FOR FUTURE USE This notice contains important information about your rights 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 information about an entry on your bill write us, on a separate sheet, at the following address: First Select Corporation, P.O. Box 9104, Pleasanton, California 94566. Write 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 doing so will not preserve your rights. In the letter, give us the following: -Your name and Account number. -The dollar amount of the suspected error. -A description of the error and an explanation, ifpossible, of why you believe there is and error. If you need more information, 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 correct. 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 not in question. lfwe find that we have made a mistake on your bill, you will not have to pay any finance charge related to any questioned amount. Ifwe 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 statement 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 satisJY you and you write 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 report you to that the matter has been settled between us when it finally is. lfwe do not follow these rules, we cannot collect the first $50 of the questioned amount even if your bill was correct. Special Rule for Credit Card Purchases If you have a problem with the quality of goods and services that you purchased with your FLEET BANK credit card and you have tried in good faith to correct the problem with the merchant, you may not have to pay the remaining amount due on the goods or services. There are two limitations to this right: (a) you must have made the purchase in your home state or, if not within your home state, within 100 miles of your current mailing address: and (b) the purchase price must have been more than $50. These limitations do not apply if either we or FLEET BANK own or operate the merchant, or we or FLEET BANK mailed you the advertisement for the property or services 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 4168100025510684 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 BY: AFFIANT CREDIGY RECEIVABLES IN . dayof~t ,~ REV. 01-28-00 Ap':::el1cii)~ J_ Bili o=Saj:: rHS: Select l:n~.. IG::' vaiue ':::e:eJveo anom a:coTd.anc.:::wnlnne terms o~ th:: Purchas.=: .and SBJ:: ..6,"-f!r~~IB~nl -D::l\^r~::I1 rrrSl S~le.::. ill:: _anD ."=r.~cil2"~.' _?,-~:.:::r"\"-a'Dl,::s ln~ (~rpTJ"1~J=R .!...-S.3F.~'.:. o.aI::.G a~ 0':[ L'ec.:emoer .: -:. 200~ (ID~" _b~g:reem.em"lo.o~s 11::eb, s::E. aSSlgT! and~ar...si:::-tCJ PillJ~CaASEF~ .ltS suc:essor: and asSlglli.. aDngl11. Tit}::2LT10 iuereSl IIlano le' in:: .L:..J..cQUlTeO A.ssels wrrnom r.ecours:: ane wnilom reuresemaLJOD 0:- wfu~an1)'.:msluci.ill.Q vlItl10Ul li:::nn.anon r.~Jarinc: lei :collecDoilny. ::x~em T(JID::e~::lemUl aIr, r::TITesemanon~, 0: warraIllle:: .e~:DT:::SJ', Slated ill ID~ p_f.rr;:;~men:. E)~e:UI~d'Dr ~.;'.~:"". ---- .BP~ST.sEL3CT: D'-lC. ( ;' . . . /.c-(b[.-!./v /J ;:;,vN-- 5~' ~'7.~~-U;:~ ;'V~ ~:ift j~::Z3'= -" =.':'- -:..--, \- --' ,:::_~-'~='.-.-=..:.'.~ Iiu-: . .... "--~X f 'A..' ..;C' ;~,a., . \ r,,-s_ ,-......- r. :....,...tr'v~.r.__ , . -r:: r:, .-- 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$1,555.95, plus interest on account number 4168100025510684. 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 ofthe 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). FURTHER AFFIA AUGHT. AFFIANT Sworn to and subscribed before me this ?-1+\.. day of Oc-t- , ?(Y1f. -4'c:t CI) ~ (j f! ~ '-< A:)(J If.i ....... ~ ~~ ,.J W f' r ,.. ~ . - . s.-;:' -::j ..,-'. ... ~ ! ~ LJ .....::: I '-0 9 SHERIFF'S RETURN - REGULAR CASE NO: 2004-05637 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CREDIGY RECEIVABLES INC VS MCKEE CAROL S KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MCKEE CAROL S the DEFENDANT , at 2112:00 HOURS, on the 2nd day of December, 2004 at 424 BALTIMORE AVE REAR MOUNT HOLLY SPRINGS, PA 17065 by handing to CAROL MCKEE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 5.18 .00 10.00 .00 33.18 So Answers: ,,"'/? ,o-!'7' 0~ .,r~~ .;,,;'~(~f."o:';:C:.~!:",< ./"'~';':::;""-~ ..t R. Thomas Kline 12/06/2004 ABC LEGAL SERVICES INC Sworn and Subscribed to before By: me this (.. ~ day of ~ J 1nJ.'f' A.D. ~~ 0 '>1",-((,,, ~ othonotary J t. " . . IN THE COMMON PLEAS COURT IN AND FOR CUMBERLAND COUNTY, PENNSYLVANIA CREDIGY RECEIVABLES INC., CASE NO. 2004-05637 COURT TERM: 2004-11 Plaintiff, vs. CAROL S MCKEE, Defendant. PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE COMES NOW Plaintiff, CREDIGY RECEIVABLES INe., and herewith discontinues the above styled action against Defendant, CAROL S MCKEE, without prejudice and herein requests the Prothonotary to mark said case as discontinued upon the record. G'ub On .. 23, 2006 ~/&~ Helene B. Raush, Esquire PABarNo: 60140 Attorney for Plaintiff Helene B. Raush, Esquire Attorney for Plaintiff Stewart & Associates, P.C. P.O. Box 2629 Suwanee, GA 30024 (866) 990-9968 (678) 684-4975 (fax) --. . . IN THE COMMON PLEAS COURT IN AND FOR CUMBERLAND COUNTY, PENNSYL VANIA CREDIGY RECEIVABLES INC., 12:00:00 AM Plaintiff, CASE NO. 2004-05637 COURT TERM: 2004-11/9/2004 vs. CAROL S MCKEE, Defendant. CERTnnCATEOFNON~ERVICE I certify that service of the Praecipe to Discontinue without Prejudice upon the defendant was not possible. Service of process was not perfected upon this defendant and hislher location is unknown at this time. On this Q17v!l day of ~~ , 20 Q1, ~A~ Helene B. Raush, Esq. PABarNo: 60140 Attorney for Plaintiff Helene B. Raush, Esquire Attorney for Plaintiff Stewart & Associates, P.C. P.O. Box 2629 Suwanee, GA 30024 (866) 990-9968 (678) 684-4975 (fax) ~ ~ o c- C,,) C'.