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HomeMy WebLinkAbout13-4694 Supreme Court of Pennsylvania Court of Common Pleas For Prothonotary Use Only. Civil Cover Sheet Docket No: Cumberland County S, v[ The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other p apers as req uired by law or rules of court. Commencement of Action: ® Complaint ❑ Writ of Summons ❑ Petition S 13 Transfer from Another Jurisdiction ❑ Declaration of Taking E Lead Plaintiff's Name: Lead Defendant's Name: SUSAN E EMIG C TD BANK USA, N.A. Are money damages requestetJ? N Yes ❑ No Dollar Amount Requested: ® within arbitration limits (Check one) ❑ outside arbitration limits O N Is this a Class Action Suit? ❑ Yes ® No Is this an MDJ Appeal? ❑ Yes ® No A Name of Plaintiff /Appellant's Attorney: Morris Scott/Syretta Martin ❑ Check here if you have no attorney (are a Self- Represented [Pro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ yer Plaintiff Administrative Agencies ❑ Malicious Prosecution ebt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections ❑ Nuisance ❑ Dept. of Transportation S ❑ Premises Liability ❑ Statutory Appeal: Other E ❑ Product Liability (does not include mass tort) ❑Employment Dispute: C ❑ Slander /Libel /Defamation Discrimination T ❑ Other: ❑ Employment Dispute: Other ❑ Zoning Board I ❑ Other: 0 N MASS TORT ❑ Other: ❑ Asbestos ❑ Tobacco B ❑ Toxic Tort - DES ❑ Toxic Tort -Implant REAL PROPERTY MISCELLANEOUS El Toxic Waste ❑ Ejectment El Common Law /Statutory Arbitration ❑ Other: ❑ Eminent Domain /Condemnation ❑ Declaratory Judgment ❑ Ground Rent ❑ Mandamus ❑ Landlord/Tenant Dispute ❑ Non - Domestic Relations ❑ Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABILITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto ❑ Dental ❑ Partion ❑ Replevin ❑ Legal ❑ Quiet Title ❑ Other: ❑ Medical ❑ Other: ❑ Other Professional: Updated 111120 2868360 PPTXSCPI t Blatt, Hasenmiller, Leibsker & Moore, LLC Attorney for Plaintiff, Morris Scott Attorney I.D. #83587 TD BANK USA, N.A. Syretta Martin Attorney I.D. #309370 1835 Market Street, Suite 501 Philadelphia, PA 19103 215- 564 -1567 TD BANK USA, N.A. c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS 1835 Market Street, Suite 501 Philadelphia, PA 19103 CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION vs. No. � 1 V h SUSAN E EMIG crt a C-D 1343 CONCORD RD t om- - MECHANICSBURG PA 17050 -1957 Defendant(s).� PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly ENTER my appearance in the above - captioned matter on behalf of PLAINTIFF TD BANK USA, N.A.. Papers may be served at the address set forth below: Blatt, Hasenmiller, Leibsker & Moore, LLC 1835 Market Street, Suite 501 Philadelphia, PA 19103 Telephone Number: 1- 215 - 564 -1567 BLATT, HASENMILLER, LEIBSKER & MOORE, LL Dated: August 2, 2013 By: Morris Cott Attorney Syretta Martin Attorney 2868360 PPTXPEAI 111lillll IIII III 111111 VIII VIII VIII 11111 VIII VIII 1111111111 IIII Blatt, Hasenmiller, Leibsker & Moore, LLC Attorney for Plaintiff, Morris Scott Attorney I .D. #83587 TD BANK USA, N.A. "C1 C; 7:' CT' Syretta Martin Attorney I.D. #309370 �� S --c-'-n 1835 Market Street, Suite 501 r. Philadelphia, PA 19103�<_ 800 - 850 -1079 TD BANK USA, N.A. c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS 1835 Market Street, Suite 501 Philadelphia, PA 19103 CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION No. SUSAN E EMIG 1343 CONCORD RD MECHANICSBURG PA 17050 -1957 Defendant. 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 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. 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. LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 S 2868360 PPTCPADI AVISO Le han demandado a usted en la corte. Si usted quiere defen derse de estas demandas expuestas en las paginas siguientes, usted tiene veinte dias de plazo al partir de la fecha de la demanda y la notificacion. Hase falta ascentar una comparencia escrita o en persona o con un aboga do y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisa do que si usted no se de fiende la corte tomara medidas y puede continuar la demanda en contra suva sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propieda des u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA E�N PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. SERVICIO DE REFERENCIA LEGAL 32 SOUTH BEDFORD STREET ;CARLISLE, PA 17013 (717) 267 -2032 Blatt, Hasenmiller, Leibsker & Moore, LLC Attorney for Plaintiff, Morris Scott Attorney I.D. #83587 Syretta Martin Attorney I.D. #309370 1835 Market Street, Suite 501 Philadelphia, PA 19103, 800 -850 -1079 TD BANK USA, N.A. c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION vs. No. SUSAN E EMIG 1343 CONCORD RD MECHANICSBURG PA 17050 -1957 Defendant(s). COMPLAINT Plaintiff TD BANK USA, N.A., claims as follows: 1. The Defendant(s), SUSAN E EMIG , is a resident of Cumberland County, Pennsylvania. 2. The Defendant(s) opened an account agreeing to make monthly payments as required by the terms of the account, for purchases charged to the account. 3. The Defendant(s) did make purchases and charged same to the account but failed to make the monthly payments called for on the account. There is a balance due and owing of $9491.94. 4. Plaintiff declared Defendant(s) to be in default and demands payment of the balance. 2868360 PPTCOCCI WHEREFORE, the Plaintiff, TD BANK USA, N.A., prays for judgment in its favor and against Defendant(s), SUSAN E EMIG in the amount of $9491.94, plus costs. Respectfully submitted, One its Attorneys Morr Scott Attorney I.D. #83587 Syrett artin Attorney I.D. #309370 Blatt, Hasenmi er, Leibsker & Moore, LLC 1835 Market Street, Suite 501 Philadelphia, PA 19103 (800) 850 -1079 Dated: August 2, 2013 VERIFICATION I, the undersigned attorney for the Plaintiff, hereby verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief, based upon information provided by the Plaintiff, that the Plaintiff is presently located outside of this jurisdiction, and that in order to file the within document in an expedient and timely manner I am authorized to sign this verification on behalf of the Plaintiff. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsifications to authorities. PPTXVERI Blatt, Hasenmiller, Leibsker & Moore, LLC Attorney for Plaintiff, Morris Scott Attorney I.D. #83587 TD BANK USA, N.A. Syretta Martin Attorney I.D. #309370 1835 Market Street, Suite 501 Philadelphia, PA 19103 800 - 850 -1079 TD BANK USA, N.A. c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS 1835 Market Street, Suite 501 Philadelphia, PA 19103 CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION vs. No. SUSAN E EMIG 1343 CONCORD RD MECHANICSBURG PA 17050 -1957 Defendant(s). AFFIDAVIT OF NON - MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA: County of Cumberland: I, Morris Scott /Syretta Martin, being duly sworn according to law, depose and say I am the attorney for Plaintiff and I am authorized to make this affidavit on Plaintiff's behalf. I hereby certify that the Defendant(s) is at least 18 years of age and not in the Military Service of the United States, nor any State or Territory thereof or its allies as defined in the Servicemembers' Civil Relief Act of 2004 and any amendments thereto. See Defendant(s) Military Status Report pursuant to 50 U.S.C. App. Section 521, 525 which was obtained from the Department of Defense Manpower Data Center ( https: / /www.dmdc.osd.mil /appj /scra/). I also herby certify that the statements made in the foregoing Affidavit of Non - Military Service are true and correct to the best of my information, knowledge, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. BLATT, H NMILLER, LEIBSKER & MO E, L C Dated: August 2, 2013 By: Mo Cott Syretta Martin 2868360 PPTJCAMI (06/28/2013) 11111111111111111111111 III 11111111111 11111 VIII 11111 VIII VIII 11111 IIII IIII Exhibit " A " PPTXEXAI EXECUTION COPY Ass IGNMENT AND AssUr pno AGREEMENT This Assignment and Assumption Agreement, dated as of March 13, 2013 (the " Assignment and Assumption ") is entered into by (i) 'Target National Bank, a national . banking association; Target Receivables. LLC, a Minnesota limited liability company ( " 3'R.LLC " and. together with Target National Bank,_ the " Sellers: " and each a "Seller as the Sellers, and TD Bank USA, N.A. a national banking association ( the "Purchaser' as the Purchaser, pursuant to subsection 3.1(b) of the Purchase and Sale Agreement, dated as of October 22,3012, as amended by the First Amendment thereto, dated as of March 13, 2013 (as amended, the " Purchase and Sale Agreement "),.by and among the Sellers, Target Corporation, a Minnesota corporation (the " Parent ") and the Purchaser, and (ii) Target National Bank, as the depositoe (in such capacity, the " Denositee 'I and the Parent, as the depositor (in such capacity, the osito ') as parties to the Deposit Account Agreement ##1 and Deposit Account Agreement #2, each dated as of April 28, 2009 (collectively, the " Deposit Account A g,�ceement "), pursuant to subsection 3.1(d) of the Purchase and Sale Agreement. Section .1. Definitions Capita tized terms used but not defined in this Assignment and..Assumption have the same meaning as set forth in the Purchase and Sale Agreement, or if such term is not defined therein, the Credit Card Program Agreement (the " Credit Card Program Agreement dated as of October 22, 2012, . by and among the Parent, Target - Enterprise, Inc., a. Minnesota corporation and the Purchaser.. Section 2. Assignment (a) Purchase Agreement (i) The Sellers. hereby .:sell; convey and assign to the Purchaser, fry :and clear of all Liens, the .Acquired Assets, including, without limitation, each Private Label.Account and Co- Branded Account owned by Target National Bank as of the Cut-Off 'Time and existing as of the Closing Date, including Closed Accounts and Wfitten -Off Accounts as of the Closing Date (the "Accounts "). (in) All purchases and cash advances in connection with the Accounts and the Cardholder Indebtedness related. to such Accounts outstanding as of the Closing Date or. thereafter effected .shall create the relationship -of debtor and creditor between the Cardholder and. the Purchaser, respectively. a '(W) The Sellers acknowledge and agree that; :following the Closing Date, (x) they shall have no right, title or interest in or to, any of the Accounts or the Account Documentation related to such Accounts or any proceeds of the foregoing, and (y) the Purchaser shall extend credit. directly to Cardholders. (b) Deposit Account Agreement (i) The Depositee hereby transfers and assigns to the Purchaser all of its rights and obligations: under the Deposit Account Agreement, including all deposit Liabilities currently outstanding. (ii) On the Closing Date, the Depositee hereby pays to the Purchaser an amount. equal to the.Deposit Liabilities held by the Depositee -bor the Depositor, as estimated per subsection 3.1(d)(i) of the Purchase and Sale Agreement (which payment shall be made by a deduction from the Purchase Price and is subject to i`wal adjustment as provided in .subsection 3.1(d) of the Purchase and Sale Agreement). (iii) The Depositor and Depositee agree to terminate those. two certain Pledge and Security Agreements, each dated as of April 28, 2009, and the pledges therein. (iv) The .Depositor and Depositee agree that notwithstanding any other provision of the Deposit Account Agreement, no interest shall accrue thereunder on or after the Closing Date. Section 3. Assumption (a) Purchase Agreement (i) The Purchaser hereby assumes and shall pay, defend, discharge and.perform. as and when due the Assumed Liabilities upon the terms and conditions set. forth in the Purchase and Sale Agreement. For greater certainty, the Purchaser will not be assuming or agreeing to pay, defend, discharge. and perform the Excluded Liabilities. (ii) The Purchaser hereby agrees to purchase: all the Acquired Assets and on and after the Closing,Date,. the Purchaser shall be the sole and exclusive owner of the Accounts and other Acquired .Assets, and shall have all rights, powers and privileges with respect thereto as such..owner. (iii) Except as expressly provided in the Credit Card Program Agreement, the Purchaser shall be entitled to (x) receive all payments made by Cardholders on Accounts, and (y) retain for its account all Cardholder Indebtedness related to Accounts and such other fees and income authorized by the Credit Card Agreements and collected by the Purchaser with respect to the Accounts and the Cardholder Indebtedness related to such Accounts. (by Deposit. Account.Ag,Leement 2 (i) The Purchaser hereby assumes all rights and obligations of the Depositee.under the Deposit Account Agreement, including all deposit Liabilities thereunder to the extent outstanding as of the Closing Date, as set forth in the Purchase and Sale Agreement. (ii) On the Business Day following the Closing Date, the Purchaser hereby agrees to pay the amount of such deposit Liabilities assumed, as estimated per subsection 3.1(d) of the Purchase and Sale Agreement, to the Depositor. Section 4. Credit Card Program Agrgtmetit The terms of the .operation of the Program with respect to the Assets and Assumed Liabilities will be subject to the terms and conditions of the Credit Card Program Agreement. The Parent and/or its Affiliate(s) and the Purchaser shall have the rights set forth in the Credit Card Program Agreement in accordance with the terms thereof. Section 5. CountergaLts This Assignment and Assumption may be executed in two or, more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. Section b. Effect of Hea&gs The Section headings herein are fdr convenience only and shall not affect.thc construction hereof. Section 7. Seyerability In case any provision in this Assignment and Assumption shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby. Section 8: Governing Lave THIS ASSIGNMENT AND ASSUMPTION SHALL BE :GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5 -1401 OF THE GENERAL, OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER ; SHALL. BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. 3 Section 9. Effective Date This:Assignment and Assumption shall become effective, as of the day and year first above written. [REMAINDER. OF' THE PAGE BLANK] 4 IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be duly executed by their respective officers . as of the day and:year first above written. TARGET CORPORATION, as the Parent and as the Depositor By: Name.: Sara J. Ross Title: Assistant Treasurer TARGET RECEIVABLES LLC, as a Seller By: Name: Sara J. Ross Title: Vice President and Assistant Treasurer TARGET NATIONAL BANK, as a Seller and the Depositee By: — — Name: Spencer ohnson Title: Vice President TD BANK USA, N.A., as the Purchaser By: Name: Michael Collins Title: President and CEO ASSIGNMENT AND ASSUMPTION TARGETo *00000° Target Visa Credit Card Account Number: XXXX - XXXX -XXXX -7780 Account Identification Number: 00033355136 Statement Closing Date: June 17, 2013 SUSAN E EMIG Page 1 of 2 Summary of Account Activity Payment Information Previous Balance $9,456.94 New Balance $9,491.94 Payments and Other Credits -$0.00 Minimum Payment Due $9,491.94 Purchases and Other Debits +$0.00 Payment Due Date 7/14/2013 Cash Advances +$0.00 Past Due Amount $1,801.00 If you would like information about credit counseling services, Fees Charged +$35.00 call 1- 800 - 991 -8433. Inter C h arg ed +$0.00 New Balance $9,491.94 For questions, an address change or to report a Total Credit Limit $0.00 lost or stolen card, go online or call us: Cash Limit $0.00 Manage My REDcard Targ -8 8- 755 5856 Available Credit $0.00 Target Card Services 1- 888 - 755 -5856 Portion Available for Cash $0.00 TDD(TDY 1- 800 -347 -5842 The Cash Limit is a portion of the Total Credit Limit Outside the U.S. 1- 612 - 307 -8622 (Call Collect) Statement Closing Date 6/17/2013 Calling will not preserve your billing-error fights Days in Billing Cycle 31 Im F account has been charged off. This is your final statement. Transacti Trans Date Description of Transaction or Credit Location Amount ' , ° .�..�f1A"'�:._: < ';I : ",shy. '. "'` `-.. No payments or credits were received last month. goal $35.00 Jun. 14 LATE PAYMENT FEE TOTAL FEES FOR THIS PERIOD $35.00 (transactions continued on next page) NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION INCLUDE THIS PORTION WITH YOUR PAYMENT MADE PAYABLE TO TARGET CARD SERVICES Account Number XXXX - XXXX -XXXX -7780 (II'I IIII III III II I II VIII IIIIII III Account Identification Number 0$9,49 5 1. New Balance 94 TAR6ETa $9,4994 Minimum Payment Due $9,491.94 Payment Due Date July 14, 2013 NEW PHONE, HOME OR Amount E-MAIL F PLEASE UUPDA ESON TARGET CARD SERVICES Enclosed $ REVERSE SIDE. P.O. BOX 660170 OFFICE COPY DALLAS TX 75266 -0170 I' Illllllllr' ullll"' 1" II "Ilhllll'll "IIIII'l SUSAN E EMIG` 1343 CONCORD RD MECHANICSBURG PA 17050 -1957 ' IIIIIIIIIIII' ll' III� 1 1 11111 1 1 1 1 111 1111 �i1� 11 1 1 1� 1 �111' .I II I 9002000949194094919490777700033355136071 TARGETe «00000" Target Visa Credit Card Account Number: XXXX - XXXX -XXXX -7780 Account Identification Number.: 00033355136 Statement Closing Date: June 17, 2013 SUSAN E EMIG Page 2 of 2 Transactions (cont.) WR in Total fees charged in 2013 $210.00 Total interest charged in 2013 $845.18 Interest Charge Calculation Your Annual Percentage Rate (APR) is the annual interest rate on your account. � s t'13 Purchases 0.00% $9,461.45 $0.00 Cash Advances 0.00% $0.00 $0.00 There is a Minimum Charge of $1.00 for any billing period in which an interest charge is imposed. 33355138 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ., } V,. D-U F F+ E Sheriff � IV fit ellig e . I'HE P 'OTHONO� RY Jody S Smith Chief Deputy 2013 AUG 23 I �� �� Richard W Stewart Solicitor ()��;CE OFT,.::S�M,P1F- CUMBERLAND C�UN�Y PENNSYLVANIA TD Bank USA, N.A. Case Number vs. Susan E Emig 2013-4694 SHERIFF'S RETURN OF SERVICE 08/15/2013 08:20 PM- Deputy Amanda Cobaugh, being duly sworn according to law, served the requested Complaint& Notice by"personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Susan E Emig at 1343 Concord Road, Hampden Township, Mechanicsburg, PA 17050. A-Unja rak"'L - AMANDA COBAUGH, DEPUTY, SHERIFF COST: $60.60 SO ANSWERS, August 20, 2013 RON R ANDERSON, SHERIFF (C)County5uite Sheriff,Teleosoft,Inc. FI LED-OFFICE OF I'llE P R 0 T H 0 N 0 TA R`( 2013 SEP 10 RFC H: 02 CUMBERLAND COUNTY PENNSYLVANIA Michael J. Pykosh, Esquire ID#58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax-(717)975-2309 mpykoshodpiglaw.com Attorney for Defendant TD BANK USA, N.A. : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 13-4694— Civil Term SUSAN E EMIG, Defendant Civil Action — Law NOTICE TO PLEAD To: TD Bank USA, N.A. c/o Morris Scott, Esquire Syretta Martin, Esquire Blatt, Hasenmiller, Leibsker & Moore, LLC 1835 Market Street, Suite 501 Philadelphia, PA 19103 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. Respectfully Submitte , Date: , }- q Ro I IZA/zil // Michael J. Py cos , Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street, Camp Hill, PA 17011 (717) 975-9446 Attorney for Defendant Michael J. Pykosh, Esquire I D#58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 mmpykosh dplglaw,com Attorney for Defendant TD BANK USA, N.A. : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 13-4694— Civil Term SUSAN E EMIG, Defendant Civil Action — Law DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Susan E. Emig, by and through her attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files her Preliminary Objections to the Plaintiff's Complaint, and avers as follows: 1. Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account of which Plaintiff claims to be the Assignee. Comp. ¶ 2. Plaintiff has attached an Assignment and Assumption Agreement as Exhibit "A" to its Complaint but has failed to reference said Exhibit. 2. The Complaint was filed on August 9, 2013. First Preliminary Objection - Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 3. Pa. R.C.P. 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 4. Plaintiff's Complaint fails to conform to Pennsylvania Rules of Civil Procedure. 5. Pursuant to Pa. R.C.P. 1019(h) Plaintiff has failed to indicate whether the alleged Agreement between the parties is oral or written. 6. Pursuant to Pa. R.C.P. 1019(1) Plaintiff has failed to attach a copy of the complete writing, more specifically the Loan/Credit Agreement, or the material part thereof, or, in the alternative, state, with the reason that the writing or copy thereof is not accessible to the Plaintiff and the substance of the writing in violation of Pa. R.C.P. 1019(i). Remit Corporation v Miller, 5 Pa. D&C 5th 43. Second Preliminary Objection- Pa.R.C.P. No. 1028(a)(2) Failure to Conform to Rule of Court 7. The Plaintiff is not the original creditor, but rather assignee of the original creditor (see unreferenced Exhibit "A" to Plaintiff's Complaint). Since the Plaintiff's right to maintain an action as an assignee is predicated upon written assignment or agency agreement, that writing must be attached to the Complaint, pursuant to Pa. R.C.P. 1019(1). 8. 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). Remit Corporation v Miller 5 Pa. D&C 5th 43 and Capital One Bank v. Clevenstine. 7 Pa. D&C 5th 153. 9. "Exhibit "A", which purports to be an Assignment and Assumption Agreement, fails to identify Defendant's account. Third Preliminary Objection - Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 10.Pursuant to Pa. R.C.P. 1028(a)(2), a party may file a Preliminary Objection based upon the failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. 11.Plaintiff's Complaint is based upon a contract. 12.Plaintiff asserts a cause of action based upon an account stated theory of recovery. 13.An account stated theory of recovery is not applicable in credit card cases. Capital One Bank (USA) NA v Cleverstine, 7 Pa. D&C 5t" (Ct. Com. PI. Centre County 2009). JMMM PC Company v Patricia Stillwagon 2011 Pa. D&C Dec. Lexis 24 (Luzerne County). 14.Plaintiff in pleading account stated cause of action is not permitted to escape pleading requirements otherwise applicable. CitiBank (South Dakota, N.A.) v Xenofon Skaboulos, No. 09-8676 (Cumberland County). CitiBank, N.A. v Heather B. Wadas, No. 12-1705 (Cumberland County, Peck J.). CitiBank (South Dakota), N.A. v Ross, No. 10- 5668 (Cumberland County, Masland J.). Fourth Preliminary Objection - Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 15.Pennsylvania Rule of Civil Procedure 1024(c) requires that the verification shall be made by one or more of the parties filing the pleading unless (1) they lack sufficient knowledge or (2) if the party is outside the jurisdiction and the verification cannot be made in a timely manner. 16.The attached Verification was signed by the Plaintiff's Attorney because the Plaintiff was outside of the jurisdiction. The Complaint does not indicate the reason for the urgency for filing with a Verification not signed by Plaintiff. Therefore, Plaintiff's counsel lacks the authority to verify the facts set forth in the Complaint. 17.Because the attached Verification fails to follow an express rule of court, the Complaint should be dismissed under Pa.R.C.P. 1028(a)(2). Fifth Preliminary Objection- Pa. R.C.P. No. 1028(a)(3) Insufficient Specificity in a Pleading 18.The Complaint contains only a general assertion of the amount the Plaintiff claims is owed by the Defendant. It provided insufficient 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. 19.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. 20.By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. Sixth Preliminary Objection- Pa. R.C.P. No. 1028(a)(4) Demurrer to Court 21.Plaintiff has failed to allege facts sufficient to maintain a cause of action for. Breach of Contract and Account Stated. 22.Plaintiff has failed to fulfill the pleading requirements for an account stated cause of action. Seventh Preliminary Objection- Pa. R.C.P. 1028(a)(5) Plaintiff is stranger to Defendant 23.Pa. R.C.P. 2002(a) required that an action be brought by the real party in interest. 24.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. 25.Plaintiff has not shown standing or capacity to sue Defendant. 26.Since this matter was not brought by the real party in interest it must be dismissed. WHEREFORE, the Defendant respectfully requests that her Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Respectfully Sub nifted, Date: S--© OLG 13 ` Michael J. kosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street, Camp Hill, PA 17011 (717) 975-9446 Attorney for Defendant Michael J. Pykosh, Esquire ID#58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 mpykosh@dplglaw,com Attorney for Defendant TD BANK USA, N.A. COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No: 13-4694 — Civil Term SUSAN E EMIG, . Defendant Civil Action — Law CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant'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: TD Bank USA, N.A. c/o Morris Scott, Esquire Syretta Martin, Esquire Blatt, Hasenmiller, Leibsker & Moore, LLC 1835 Market Street, Suite 501 Philadelphia, PA 19103 Respectfully Submitted, Date: 0 G1 0,0 � Michael J. Piykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street, Camp Hill, PA 17011 (717) 975-9446 Attorney for Defendant