HomeMy WebLinkAbout14-3870 r Co . MONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS NOTICE OF APPEAL
Judicial District, County Of CUMBERLAND FROM
MAGISTERIAL DISTRICT JUDGE JUDGMEN
COMMON PLEAS No. 3U )o Ald
NOTICE OF APPEAL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District
Judge on the date and in the case referenced below.
NAME OF APPELLANT MAG.DIST.NO. NAME OF MDJ
CAPITAL ONE BANK(USA), N.A. 09-1-03 HONORABLE RICHARD S. DOUGHERTY
ADDRESS OF APPELLANT CITY STATE ZIP CODE
4851 COX RD GLEN ALLEN VA 23060
DATE OF JUDGMENT IN THE CASE OF(Plaintiff) (Defendant)'
06/04/14 CAPITAL ONE BANK(USA), N.A. VS DAVID S. GARRY
DOCKET No. SIGNATURE OF APPEL T OR A ORNE RAG T
CV-022-14
This block will be signed ONLY when this notation is required under Pa. If appellant was Claimant (see Pa. R.0 .D.J. No. 1001(6) in action
R.C.P.D.J. No. 1008B.
This Notice of Appeal, when received by the Magisterial District Judge, will before a Magisterial District Judge, A OMPLAINT MUST BE FILED
operate as a SUPERSEDEAS to the judgment for possession in this case. within twenty
(20)days after filing the NOTICE of APPEAL.
Signature of Prothonotary or Deputy
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appellant was DEFENDANT(see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District
Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee.
PRAECIPE: To Prothonotary
Enter rule upon appellee(s),to file a complaint in this appeal
Name of appellee(s)
(Common Pleas No. )within twenty(20)days after service of rule or suffer entry of judgment of non pros.
Signature of appellant or attomey or agent
RULE: To appellee(s)
Name of appellee(s)
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service
of this rule upon you by personal service or by certified or registered mail.
(2) If you do not file a complaint within this time,a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU.
(3) The date of service of this rule if service was by mail is the date of the mailing.
' HWM I.,SNN3d
Date: 20 kLH(100 0HV1`39WA0
Signature of Prothonotary or Deputy
Z� : Ci WV Z— -Irlr `,19
YOU MUST INCLUDE A COPY OFT-11f(f Q7�IPIPP4F J1JRGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL.
AOPC 312-05a
CVW7 S�
V.11s
COMMONWEALTH OF PENNSYLVANIA Notice of Judgment/Transcript Civil
COUNTY OF CUMBERLAND Case
Mag. Dist. No: MDJ-09-1-03 Capital One Bank (USA), N. A.
MDJ Name: Honorable Richard S. Dougherty V.
Address: 98 South Enola Drive, Suite 1 David S Garry
Enola, PA 17025
Telephone: 717-728-2805
Capital One Bank(USA), N. A. Docket No: MJ-09103-CV-0000022-2014
4851 Cox Rd Case Filed: 2/26/2014
Glen Allen, VA 23060
Disposition Details
Disposition Summary (cc-Cross complaint)
Docket No Plaintiff Defendant Disposition Disposition Date
MJ-09103-CV-0000022-2014 Capital One Bank(USA), N.A. David S Garry Judgment for Defendant 06/04/2014
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH
THE PROTHONOTARY/CLERK OF COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF
JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL.
EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES,IF THE JUDGMENT
HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE
COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE.
UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A
REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL,SETTLES,
OR OTHERWISE COMPLIES WITH THE JUDGMENT.
^f'h o'`ary0
JUN 04 2014
dV
Date Magisterial District Judge Richard S.Dougherty A-1--
certify that this is a true and correct copy of the record of the proceedings containing the judgment.
Date Magisterial District Judge
MDJS 315 Page 1 of 2 Printed:06/05/2014 9:06:39AM
R� S N !�
Capital One Bank (USA), N. A. Docket No.: MJ-09103-CV-0000022-2014
V.
David S Garry
Participant List
Plaintiff(s)
Capital One Bank(USA), N. A.
4851 Cox Rd
Glen Allen, VA 23060
Defendant(s)
David S Garry
808 Erford Road
Camp Hill, PA 17011
Complainant's Attorney(s)
Attorney Michael F. Ratchford, Esq.
Edwin A.Abrahamsen&Associates, PC
120 North Keyser Ave
Scranton, PA 18504
Authorized Agent-Defendant(s)
Michael Paoletta
1771 S Meadow Dr
Mechanicsburg, PA 17055
MDJS 315 Page 2 of 2 Printed:06/05/2014 9:06:39AM
#Supreme Cotiii a Pennsylvania
Courx of COmmo `Pleas For Prothonotary Use Only:
CJV1 bvetheet �1,
f� t Docket No:
CUNiRI Ah1i7 County .
s�
The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court.
Commencement of Action:
® Complaint E3 Writ of Summons Petition
Transfer from Another Jurisdiction n Declaration of Taking
E
Lead Plaintiff's Name: Lead Defendant's Name:
CAPITAL ONE BANK (USA), N.A. DAVID S. GARRY .
T"
1 F Are money damages requested? ME Yes No
Dollar Amount Requested: ®x within arbitration limits
®
(check one) ®outside arbitration limits
0
N_ Is this a Class Action Suit? ®Yes IM No Is this an MDJAppeal? IM Yes ® No
Name of Plaintiff/Appellant's Attorney: MICHAEL F. RATCHFORD, ESQUIRE
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.
i
a
TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS
M Intentional Buyer Plaintiff Administrative Agencies
E3Malicious Prosecution n Debt Collection:Credit Card ® Board of Assessment
Motor Vehicle Debt Collection: Other n Board of Elections
Nuisance Dept.of Transportation
i n Premises Liability Statutory Appeal:Other
Product Liability(does not include E ® Employment Dispute:
mass tort) Discrimination
Slander/Libel/Defamation
n Other: Employment Dispute:Other 0 Zoning Board
T Other:
MDJ APPEAL
I Other:
MASS TORT
3 El Asbestos
Tobacco
® Toxic Tort-DES
Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS
® Toxic Waste
- � Other: ® Ejectment ® Common Law/Statutory Arbitration
" 0 Eminent Domain/Condemnation ® Declaratory Judgment
0 Ground Rent ® Mandamus
0 Landlord/Tenant Dispute Non-Domestic Relations
13 Mortgage Foreclosure:Residential Restraining Order
PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial ®Quo Warranto
® Dental Partition ®Replevin
n Legal ® Quiet Title ®Other:
Medical n Other:
1
Other Professional:
Updated 1/1/2011
IN THE COURT OF COMMON PLEAS OF `.�.
CUMBERLAND COUNTY, PENNSYLVANIA
CAPITAL ONE BANK(USA),N.A. + r`
CIVIL ACTION <
4851 COX ROAD
GLEN ALLEN, VA 23060 t'G,
Plaintiff
VS. NO:
DAVID S GARRY
808 ERFORD RD
CAMP HILL PA 17011-1127
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 to
Defend are served, by entering a written appearance personally or by an 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 ON AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT REDUCED FEE OR NO FEE.
MIDPENN LEGAL SERVICES
401 EAST LOUTHER STREET
CARLISLE, PA 17013
717-243-9400
NA13406
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CAPITAL ONE BANK (USA),N.A.
CIVIL ACTION_
4851 COX ROAD :
GLEN ALLEN, VA 23060
Plaintiff
vs. NO:
DAVID S GARRY
808 ERFORD RD
CAMP HILL PA 17011-1127
Defendant
COMPLAINT
Plaintiff, CAPITAL ONE BANK(USA),N.A., by and through its attorneys, Edwin A.
Abrahamsen&Associates, P.C., complains of the Defendant as follows:
1. Plaintiff, CAPITAL ONE BANK(USA),N.A., (hereinafter "Plaintiff') is a
corporation with a principal place of business located at 4851 COX ROAD GLEN ALLEN, VA
23060.
2. The Defendant DAVID S GARRY(hereinafter "Defendant") is an adult individual
residing at 808 ERFORD RD CAMP HILL PA 17011-1127.
3. Defendant applied for and received a credit card issued by CAPITAL ONE BANK
(USA),N.A. with the account number ending in 1103.
4. Use of the CAPITAL ONE BANK(USA),N.A. credit card was subject to the
terms and considerations of the Cardmember Agreement(hereinafter "Agreement"), a copy of
which was sent to the Defendant along with the credit card.
5. Defendant used the CAPITAL ONE BANK(USA),N.A. credit card account
number ending in 1103, for purchases, cash advances and/or balance transfers.
6. The Defendant defaulted under the terms of the Agreement by failing and refusing
to make monthly payments on the account as they became due.
7. The Defendant last made payment on February 6, 2013.
8. The total amount due and owing the Plaintiff is $2,976.52.
WHEREFORE, Plaintiff requests judgment in its favor and against Defendant in the
amount of$2,976.52 plus costs of suit and any other relief as the Court deems just and
appropriate.
Respectfully submitted,
ichael F. Ratchford, E quire
Attorney I.D. Nos.: 862 5
120 N. Keyser Ave
Scranton, PA 18504
mratchford@eaa-law.com
Phone: 800-503-1665
Fax: 570-558-5511
VERIFICATION
I, Michael F. Ratchford, attorney for Plaintiff, CAPITAL ONE BANK(USA), N.A., am
fully familiar with the facts set forth in the within Complaint and am authorized to make this
Verification on behalf of Plaintiff. I Verify that the facts set forth in the within allegations are
true and correct to the best of my knowledge, knowing that any false statements are punishable
by law pursuant to 18 C.S.A. 4904.
Michael F. Ratchford, Esq
uir
500781
You have new payment opportunities available.
See the next page for more information.
Ca
\' Pagel of 2 Jul.O6-Aug. 5,2013 31 Da in Billie Cy cle
�se� .~y�M .. Qulorner Servicel-8042`8.9319 9• YS 9
CIP", - www.capitaione.corNsoiutions
IMPORTANT ACCOUNT UPDATES
Platinum MasterCard 1103 Yourfull balance is due.Any paymentyou make will reduce your balance and help pay off
NEW BALANCE PAYMENT DUE DUE DATE yourdebt faster The amountyou awe may differif you've entered Ins,a separate payment
agreement.
$2,976.52 $2,976.52 PAST DUE
Available Credit:$O.OD
Previous Balance Payments and Credits Fees and Interest Charged Transactions New Balance
$2,929.33 — $0.00 + $47.19 + $0.00 0 $2,976.52
TRANSACTIONS
PAYMENTS,CREDITS&ADJUSTMENTS FOR DAVID S GARRY#1103
Help is Available.
FEES Just pick up the phone.
Tocol Fees This Period $0.00
INTEREST CHARGED Call 1-800-258-9319 and a specially trained agent will
INTERESTCHARGE: $38.96
NTEREST CHARGE:CASH be happy to help you check your balance and make payments.
ICASH ADVANCES
ANCES 88.23
Total Interest This Period $47.19
TOTALS YEAR TO DATE
Total Fees This Year $210.00 INTEREST CHARGE CALCULATION
Total Interest This Year $369.59
Your Annual Percentage Rate(APR)is the annual interest rate on Your account.
Type of Balance Annual Percentage Balance Subject to Interest Charge
Rate(APR) Interest Rate
Purchases 17.90%D $2,552.94 $38.96
Cash Advances 24.90%D $389.16 $8.23
P,L,D,F=Variable Rate.See reverse of page 1 for details
PLEASE RETURN PORTION BELOW WITH PAYMENT OR LOG ON TO WWW.CAPITALONE.COM/SOLUTIONS TO MAKE YOUR PAYMENT ONLINE.
1103 05 2976520111002976522
cap�m Account Number: -1103
Due Date New Balance Amount Enclosed Manage your
Past Due $2,976.52 0 account online.
Visit www.capitalone.com/solutions to manage
your account online.Have information at your
fingertips 24/7 without picking up the phone.
4000041)
DAVID S GARRY
80B ERFORD RD
CAMP HILL, PA 17011-1127 Capital One Bank (USA), N.A.
II Illrrl I I I I 1 11 1 I I P.O. Box 71083
'll I I'll'll"I II 1'111' I' "II II' I I' 111111 'll'I II Charlotte, NC 28272-1083
111111''I"•'n'II''rhll"'•'lluh'•II•'•Ilh'I'•IIIIIIII•Inl
Please make checks payable to Capital One Bank(USA),N.A.and mail with this coupon in the enclosed envelope.
�T
How cars I Avoid Paving Interest Charges?Each month you pay you New Balance'in full,you will have a When willyou Credit MVPavmerd?
'nw—grace permit of 25 days with no interest charge on all new 1)purchases,2)balance transfers,3)spsdid For online prover the phone,as mthe business day we receive it as long as theyam made by 5 p.m,ET,
purchases and a)other charges,If you have been paying your account in full with no interest charges applied and you -For mailed payments,as of the business day we receive it.as long as:1)you send the bottom portion m this
do not pay your next bill in full,prorated interest dirges will be assessed.There is no grace period on ash advances, statement and your check in the enclosed remitmrs envelope,and 2)your payment is received in are m our
special transfers,mon any newtransaction when there is an unpaid baleiafrom s previous till. processing centers by 5 p.m.local time.Please allow at least(7)business days for mail delivery.Mailed payments
How is the Interest Chante applied?interest charges accrue from the 1)date of the transaction,2)date the received byus at anyotherlmolionm in anyotherform maymn be credited as olthe daywe moswthem.
transaction is processed or 3)first calendar day of the billing period.Interest charges acme an every unpaid amount Do you Process Paper Checks as an Electronic Funds Transfer?Payments wit he processed in ne of two
until it is paid in full.This means you may owe interest charges even H you pay the entim'New Balance'one month, ways:When you provide a check orchedc information to make a payment,you authuiae as m ouragerts to use the
bardid am do so fm the previous month,Unpaid interest charges re added to Ne proper segment of your Account. irtormation to make a one time ACf transaction or other electronic fund transfer from your deposit account.We may
However,we reserve the right to not assess interest charges m anytime. also use the information to process the payment as a check transaction.
Do you asses a Minimum Interest Cham,e?Yes.A minimum INTEREST CHARGE of$0.50 will he assessed fu each What if I file for Pmkmvtm?If you are entitled to bankruptcy protection,this communication is for information
billing period)our account is subjectro an interest charge. only.It is net an attempt to collect,assess or mcmer a debt or claim,Do not send an payments without speaking with
How did you Calculate the Interest Charge?We se a method celled Average Daily Balance(including new yaw hankrupicy atmney orthe Bankmrpicy Court.If you or year attorney would like to contact our banlawo"claims
transactions)Under this matti we first calculme yaw daily balance;for each segment,1)tale the beginning balance servicer dlredy,feleaseconsco Capital One•PO Bene 30285•Sat lake City,UT 84130.0285
and add in new transactions and the period,interest charge an the previous day sbalaree,than 2)subtract any BIWNG RIGHTS SUTAMARY([bes Not Applyro&—URuu—A=uxut)
Payments and credits fu that segment as at that day.The result lathe daily balance for each segment.However,if you What To Do H You Think You Find A Wtake On Your Statement If you think there is an error an your
paid your previous month shalance in full(or if your balance was aro or a credit amourAl,new transactions which post statement wAWW us at
to your purchase or special purchase segments are not added to the daily balances.Also,transactions that are subject to Capital One
a grace pened are nm added to the daily balances. P.O.8.30205
Next to find your Average Daily Balarim1)add the daily balances together fu each segment,and 2)divide the sum by Sat Lake City,UT 84130.0285
the number d days in the tilling cycle. In your letter,give us the following information
At the end m aids billing cycle.we determine yourlmerest Charge as follows.l)mul ly your Average Daily Balance 'Acmranaum The:Ywrnamnt alone and e
tcted se.
by the daily periodic are UPR dvided by 365)fu that segment and 2)multiply the result by the number m days m the Dollaramount The dollarameunt mine suspected error.
billing period.NOTE Due to rounding or a minimum interest charge,this aldlmion may vary from the interest charge -Description of Proego on If you think there is an egon your bill,describe what you believe is wrong and why you
.,many assessed - believe it is a mistake.
You must Dora¢as within 60 days eherthe era appeared on yaw stabim—
is the cause twK Due'a Pawn Amount?No All stated amounts are awed on the date of the statementnyou However, you must notify us of any proemial errors in writing.You mayall us or rot'dy m Mechanically,but If you do we are
agreed interest late charges and other dsarges might change from day to day as provided in your dimmer not required to insesogate any potential errors and you may have to pay the amount in question.We will notify you
agreement,the amount due on the day you pay may be larger.Por example,n you pay the amount gated u this inwdting wbin3D days of ow receipt m your later.
statement your account might still have a balance aper your payment is relived.Alia nee that the amount you owe While sou inwsti ate whetheror not there has been an error,thefollove am tee:
fmayar idiffer eorf you mastered rant a separate payment artangemhvht Haase all the number on the from d the statement g r9
(Q an exact payoff amount. •we carrot try as collect the amount in question,or repast you as delinquent on the amount.
Have ran sty Variable Annual Percentage Rate(APF)change?Your APR may increase or decrease based on ore The charge in question may remain on your statement and we may continue to charge you interest on that amount.
of the following reported indices(reported in 71w Wal.9mat Journal)To find which had.rs used fa your account, But N we determirw that we made a mistake,you will net have to pay the amount in question m any interest or other
hakfor a liner code on the from m this statemnt erat to your APR(s).Then check the table below, fees related to that amount
While you do not have to pay the amount in question enol we send you a notice shout the potmme of our
Code nerd to yawHew do we calwlate your APR(sl? When your APRs) investigation,you are responsible fm the remainder of)-rhalarae,
APRs) Index+margin(previously disclosed to you) will change �we an applyanyou m id mount r I ins[your win s limit
Within 90 days of our receipt d your or t we win send you a written notice explaining either that we mre¢ed the
P Prime Rate+margin The first day dthe billing pentads that error(to appear on your neo statemen)mthe reasons we believe the bin is correct.
L 3 month LIBOR+margin and in)an.,April,)uly,and Od. Your Rights If You Are Dissatisfied With Your Credit Cad Purchses.If you are dissatisfied with the goods m
DPrime Rate+margin The first day of each services that you have purchased with your credit card,and you have tried in good faith to coed the pmblam with
F 1 month UBDR+ma month)billing period. the merchant you may have the right not to pay the remaining amount due on the purchase.To use this right,the
following must he tore:
Are there Additional Fees associated with say account?Yes,under certain circumstances,you may he assessed a 1)you must have used your credit cad for the purchase.Purchases made with ash advances from an ATM or with a
Late or Rammed Payment fee.You may also be assessed Overlimit fees IF permitted by law.You will also he required to chem that accesses your credit card account do not qualify;and
pay all of our actual collection expenses,attorneys fees and court costs unless the law dos not allow us m Idled these 2)You must not yet have fully paid yon the purchase.
m
aouMs.We reserve the right m not assess fees without prior notice and without waiving our right to assess a similar
fee later. R all ofthe cdtada above are met and you am still dissatisfied with the purchase,contact as in witting at
Capital One
Whet happens R sty Account is Suspended?We may done or susperd your account and your right to obtain credit P.O.B.30285
at any time and far any reason even R you are not in default Account suspension can be permanent or temporary.If Sat Lake City,LIT 84130.0285
your account is dosed or suspended you must 1)stop wing your credo cad and account,2)cancel all automatic While we investigate,the same roles apply m the disputed amount as discussed above.After w.e finish ca
payments,3)destroy all credit cads and access cheds,and 4)pay all amounts you owe us,—9 they were chaged nvertigntion,we will bill you our decision.Atthm paint it we think you owe an amount and you do not pay we may
after the account was cased or suspended.
Hon do I MakePavments?At an time,you may a the minimum a report you as delinquent
y y p y p ymemt thetmml unpaid balance,or any amount
in be-..Payments may be made in several ways: Capital One supports information privacy prroadi—seeaar websiteat wmv.capiolmecom
1)Drive by going to wisw.capdalone.mm and logging into your aonunt ®2011 Capital One.Capital One is a federally registered service mark.All rights reserved.
2)Telephone Vaice Response System by dialing 1-800-955.7070 and following the vace prompts.When you male a
phone payment through our voice response system,you auheriee us to initiate an ACH or demonic payment stet will
be debted from your bank account.Funds may be w thdrawm from your hank account as soon as the same day we
pdoss your payment;
3)Calling our telephone number 1-800-955-7070 and providing your infammim to our representative;
4)Payments by mat should be sent to the mailing address provided on the bottom porion of this statement.
ETC-10
11/30111
To change or update your address please call 1-800-258-9319 or visit www.capitalone.com/solutions
200985
You have new payment opportunities available.
Your account works differently now that it's 7 payments behind and has charged off.
1G'
Dear Valued Client,
You need to know about important changes to your account now that it has charged off.
You are still responsible for paying the full balance on your account.
If we continue to send you statements,you will receive them quarterly instead of monthly.We may continue
to report the status of your account to the credit bureaus,unless prohibited by law.We will also report
when your account is paid off.
Help is available.The changes to your account include new payment opportunities that may not have
been available before. Please review these important changes:
1) Your account is charged off.This is a change in status from past due.You are still responsible for
paying your full balance.
2) You won't be charged past due,over limit,or membership fees.
3) You have new payment opportunities available to you now. For instance,we may be able to
break your balance up into more manageable payments.
Please contact us today at 1-800-258-9319 to find out more about these new opportunities. If a
third-party agency is servicing your account,your call will be automatically routed to them. Remember,
you can check your balance and make payments any time at www.capitalone.com/solutions.
Sincerely,
Your Solutions Team _
Help is available.
Call 1-800-258-9319 today for more opportunities.
JQ Visit www.capitalone.com/solutions to make a payment or check your balance.
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TRANDATE REFERENCE NUMBER MERCHANT DESCRIPTION TRANS-AMOUNT POSTDATE C/D FC CARD NUMBER
08052013 INTEREST CHARGE:PURCHASES 38.96 08052013 D - 1103
08052013 INTEREST CHARGE:CASH ADVA NCES 8.23 08052013 D ------ -1103
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PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.)
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND ; ss
AFFIDAVIT: I hereby (swear) (affirm) that I served
® a copy of the Notice of Appeal, Common Pleas No 14-3870CIVIL, upon the Magisterial District Judge designated
therein on
(date of service) , 07/08, 2014, by personal service ® by (certified) (registered) mail,
sender's receipt attached hereto, and upon the appellee, (name) DAVID S GARRY , on
07/08, 2014, ❑ by personal service ® by (certified) (registered) mail,
sender's receipt attached hereto.
SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME
THIS 08 TH DAY OF July, 2014
Signature of official before whom affidavit was made
Title of official
My commission expires on , 20
AOPC 312A - 05
Signature of affiant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CAPITAL ONE BANK (USA), N.A.
vs.
DAVID S GARRY
: CIVIL ACTION
Plaintiff :
: NO: 14-3870CIVIL
•
Defendant :
•
•
•
PENNSYLVANIA
CERTIFICATE OF SERVICE
I, Michael F. Ratchford, Esquire, hereby certify that on July 10, 2014 the below named
District Justice received and signed for the certified mail containing the Plaintiffs Notice of
Appeal of the District Justice Judgment.
District Court 09-1-03
Honorable Richard S. Dougherty District Justice
98 S. Enola Dr. Suite 1
Enola, PA 17025
Edwin A. Abrahamsen & Associates, P.C.
B
Michael F. Ratchford, Es
Attorney I.D. No.: 8628
120 N Keyser Avenue
Scranton, PA 18504
(570) 558-5510
re
IN THE COURT OF COMMON PLEAS OF {' t T it,�
CUMBERLAND COUNTY, PENNSYLVANIAn/, 4t t�(} !
CAPITAL ONE BANK (USA), N.A.Ufbl UG p l!. JL5
CIVIL ACTION PEl�� ��� C p��, r
L 6�A Fel y
vs.
DAVID S GARRY
Plaintiff :
•
•
: NO: 14-3870CIVIL
Defendant :
CERTIFICATE OF SERVICE
I, Michael F. Ratchford, Esquire, hereby certify that on July 15, 2014 the below named
Defendant received and signed for the certified mail containing the Plaintiffs Notice of Appeal
of the District Justice Judgment and Complaint.
DAVID S GARRY
808 ERFORD RD
CAMP HILL PA 17011-1127
Edwin A. Abrahamsen & Associates, P.C.
-ArfArAr/
BY ,/�� rr
M chael F. Ratchford, E • uire
Attorney I.D. No.: 862:5
120 N Keyser Aven
Scranton, PA 18504
(570) 558-5510
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CAPITAL ONE BANK (USA), N.A./ :
Plaintiff,
v.
DAVID S. GARRY
Defendant
CASE NO.: 14-3870
PRELIMINARY OBJECTI
JURY TRIAL DEMANDED
Pa. R.C.P. 1007.1
DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S
COMPLAINT
COMES NOW, Defendant, DAVID S. GARRY, (hereinafter known as DEFENDANT
and/or GARRY) in the above -captioned action, who files these Preliminary Objections to
Plaintiff's Capital One Bank (USA) N.A.) Complaint (hereinafter known as PLAINTIFF and/or
BANK), and in support thereof, states as follows:
I. PLAINTIFF FAILED TO PROVIDE PROOF OF STANDING
1. This Complaint should be dismissed, as the PLAINTIFF does not have standing, and is
not the real party of interest, and this Court does not have Personam jurisdiction over the
Subject Matter of the Case.
2. BANK is not the real party' pursuant to PA. R.C.P. 1033 for CAPITAL ONE BANK
(USA) N.A. could not be the original creditor and/or the alleged original lender and/or
the real party in interest pursuant to Title 13 PA. C.S. §3-302(a) for BANK is not the
1 PA. Rule of Civil Procedure 1033
2
holder of the instrument2, (negotiable instrument) and lack of standing denies the bank
standing in order to prosecute this case;
a. BANK did not take the note for value, §3-302(2)(i);
b. BANK did not take the note in good faith §3-302(2)(ii);
c. BANK took the alleged note with an unauthorized signature (§3-308), and the
alleged note in questions have been altered §3-302(2)(iv);3
d. BANK must prove to what extend their performance4 gives a certain percentage
of security interest according to §3-302(2)(d)5.
_3._ :...BANK cannot substantiate that n A R,P Y ever executedany alleged Contract .with
CAPITAL ONE BANK (USA) N.A. and/or any other alleged creditor not yet named6 in
this complaint. GARRY further states that he has never negotiated any note with
CAPITAL ONE BANK (USA) N.A. and (hereinafter known as (BANK).
4. Bank's Complaint must be dismissed for their Complaint fails to conform to law or rule
of Court for it denies GARRY the knowledge and understanding and or identifying the
original alleged lender making it impossible for GARRY to properly defend his case by
2 Title 7 §303 makes it very clear that BANK must prove that they have purchased evidence of debt, and the
only way that can be accomplished is by the production of the accounting ledgers specifically relating to
Garry's accounting ledgers, and this will be denied by this Court in a "Protective Order" thus denying Garry
his due process rights.
3 Title 13 PA. C.S. §3 -407 -Alterations void the Notes and make them un -payable.
4 PA. Rule of Civil Procedure 1021, production of BANK's accounting ledgers to support the actual security
interest of BANK, if any. The ledger account will show whether the BANK actual gave consideration by
crediting BANK's net worth account, or did they deposit the fraudulently obtained notes and credit the
BANK's liability/demand deposit account.
S § 3-302(2)(d) if under section 3303(a)(1) (relating to value and consideration), the promise of performance
that is the consideration for an instrument has been partially preformed, the holder may assert rights as a
holder in due course of the instrument only to the fraction of the amount payable under the instrument equal
to the value of the partial performance divided by the value of the promised performance.
6 Based upon the credit report, which Ratchford, P.C. has pulled inquiries, which is in violation of the FCRA,
shows several different account numbers suggesting fraudulent creation and/or re -aging of old alleged
accounts. In the three reports it shows MBNA Bank as the alleged lender.
7 Title 13 PA. C.S. §3-308(a) Proof of Signature --In an action with respect to an instrument, the authenticity of,
and the authority to make, each signature on the instrument is admitted unless specifically denied in the
pleadings.
3
advising GARRY, who is the real plaintiff pursuant to PA. R.C.P. 1028a(2)(3)(4) and
(5).
5. In Worldwide Asset Purchasing, LLC v. Stem, (2004) Judge Wettick ruled, that the issuer
of the credit card and suit brought by Worldwide Asset Purchasing was required to attach
to the Complaint the written assignment or assignments that traced ownership of the
account from to Worldwide Asset Purchasing. In this case, MBNA never traced the
assignment and/or assignments and violated Rule 1019 that a Plaintiff shall (1) set forth
the material facts upon a cause of action is based and (2) attach the writings when a claim
is .based on a writing. The:: alleged_Plaintiff hag failed to.. attach all of the assignments _and
never even stated an alleged debt that the credit card was offered, applied for, received
and accepted by Plaintiff the same information lacking in the magisterial court
proceedings, which they lost, whenever a claim involves one period of time in which the
initial terms and conditions apply, the plaintiff must attach to the complaint both the
original terms and conditions9 with the dates10 on which they are applicable. Ratchford,
P.C. has never stated if the Complaint is based upon a breach of contract or statement of
accounts or account stated, which denies GARRY of a clear understanding of the
complaint. PA. Rules of C.P. 1028a(2)(3)(4) and proves that CAPITAL ONE BANK
8 The original lender and/or party in interest must substantiate that they have been financially damaged and
must advise the Defendant who exactly is the real party.
9 The attached card holder agreement only pertains to 2006 and is from Bank of America not from MBNA
Bank or Card Holder Services and lacks card holder agreements and terms and conditions of this alleged
contract from 1993 to present and they must attached all the changes relating to any specific time, which they
do not do.
18 Having one alleged card holder agreement, unsigned, could have applied to this Judge or even Mr.Ratchford
cast doubt on the validity of the attached card holder agreement relating to Garry when the account cast
different conclusions that the statements are from MBNA, the statements have missing statement of accounts
in the stated period in paragraph three (3) of Complaint and does not account for charges of $80,000 thus
proving the insufficiency of the pleading.
4
(USA) N.A. and/or lacks the capacity to sue under PA. R.C.P. 1028a(5) and this court
cannot make that determine with complete discovery."
6. Being that the complaint seeks a specific amount of money that is allegedly due the
complaint fails to comply with PA. R.C.P. 1028(a) (2) (3) (4) and (5)
The Complaint must include documentations or supporting allegations to show or permit
GARRY to calculate the total amount of damages that are allegedly due and owing by
reading the documents attached to the complaint.
7. ....CAPIW TN,.A.12 fails to comply ,wiih_P -:.R. r33-1.0.2845). andlils...
to specifically identify the true holder and/or holder in due course (Plaintiff) and this
Court is barred from making that determination and must hold an evidentiary hearing to
determine the true owner of said note or the real Plaintiff and/or the financially damaged
party.
8. Then BANK has the burden of proof that GARRY had executed (Title 13 Pa. C.S. §3-401
and §3-308 and the alleged note (which was created by unilaterally as a negotiable
instrument specifically referenced in BANK's Complaint in paragraphs 3 and 4.13
9. Paragraph 3 of Plaintiffs Complaint is based upon a conclusion of law with absolutely no
supporting documents as required. The complaint should state the date of the offer, the
11 Attorney Ratchford is used to having the courts act as his independent debt collectors and upon refer of the
deviancies one would have to think that Ratchford as a non -attorney and has now crossed the threshold of
being sued under Title 15 §1692 et seq.
12Ratchford have failed to list any address of the alleged Plaintiff, Card Services thus denying Garry his right to
discover and/or depose. Ratchford must provide the contact information of the alleged client that Mr.
Ratchford claims assisted Ratchford in the creation of the Affidavit.
13 Title 13 PA. C.S. §3-309(b) A person seeking enforcement of an instrument under subsection (a) must prove
the terms of the instrument and the person's right to enforce the instrument. If that proof is made, section 3-
308 (relating to proof of signature and status as holder in due course) applies to the case as if the person
seeking enforcement had produced the instrument. The Court may not enter judgment in favor of the person
seeking enforcement unless it finds that the person required to pay the instrument is adequately protected
against loss that might occur by reason of a claim by another person to enforce the instrument.
5
date of the acceptance by Garry, the original card holder agreement must be attached and
the date sent and received by Garry which is devoid of any of this information and
Ratchford failed to prove the terms and conditions of the original contract little lone all
the amendments. Or the addendums.
10. Ratchford has failed to list the dates of purchases that add up to the alleged amount and
has failed to prove when, who, where, how and by whom were these alleged purchases
made and identify merchandise purchased.
11. The Statements of account do not add up to the amount sought so thealleged charges are
un-liquif. P aw l ha .e. upon:a:fraudulent documents that-were. PA Y „. "?.a .�P.cl nalking the
alleged card holder agreement the phantom card holder agreement which is a contingent
note at best.
12. In paragraph 4 of the Plaintiff's Complaint Ratchford proves that he is using false and
misleading and or even fraudulent representations compounding his vicarious or
egregious liabilities under the FDCPA more favorable to Garry. See the answers in
paragraph 10 and this deceptive nature of Ratchford should afford this Court no other
option but to dismiss this complaint with prejudice for it is a real wonder of the world
that an attorney having 35 years in debt collection wrote this Complaint. Garry never
applied, used or received any credit card with an attached card holder agreement and
Plaintiff's ineffective counsel in their second attempt to prove it is once again deficient.
13. PLAINTIFF14 (whoever that may be) obtained and/or created fraudulent documents'5
(Title 13 PA. C.S. §3-308) and then monetized, created a trust, and securitized them16,
14 Garry states that he is being denied his right to know the true identity of the real party of interest and/or
the insufficiency of the Amended Complaint makes it impossible for his to properly defend and/or discover or
depose the real party in interest. Garry does not know if is the true Plaintiff or did they purchase the debt or
6
placing the fraudulent note into the stream of commerce that unjustly enriched the
PLAINTIFF. Plaintiff has failed to substantively prove that Defendant used the credit
card, received said credit card, purchased items and failed to identify any alleged
purchases and from what store were these items purchased and has failed to prove that
Defendant ever received the credit card and ever used it and the Plaintiff must prove that
Capital One Bank even mailed the card and that Defendant actually received the card as
his complaint fails to establish.
14. The real Plaintiff, yet to properly identified, are procedural and substantively
unconscionable'? for the Plaintiff:has_ viii .t d. r t1.P.,.15:-U.S.C,_0692 et seq.
15. In_µ paragraph Six (6) of PLAINTIFF's Complaint, BANK intentionally, deceptively,
deceitfully, fallaciously, and with conspiracy in their heart, states, Defendant has
defaulted under the terms of the Agreement by failing and refusing to make monthly
payments on the account as they became due." Ratchford has failed to establish that any
default occurred under the terms of any agreement and has failed to produce any
admissible evidence to be in compliance with the PA. Rules of Evidence §§901, 902,
1002, 1003 803.6 and Title 42 §6108 and has failed miserably in substantiating that Garry
is even responsible to make any payments and how has Garry refused to make payments.
This Complaint is clearly defective and should not even merit any consideration by any
honest judge.
was it assigned to them and even fails to produce any certificate of sale or assignment thus not being able to
prove chain of title and having the holder and/or holder in due course status as required in order to collect.
15 Title 13 PA. C.S. §1 -203 --Every contract or duty within this title imposes an obligation of good faith in its
performance or enforcement.
16 When the fraudulently created note was securitized it became a asset backed security thus destroying any
real holder and/or holder in du3 course status.
17 Title 13 PA. C.S. §2-302(a) Unconscionable contract or clauses) --If the court as a matter of law finds the
contract or any clause of the contract to have been unconscionable at the time it was made, the court may: (1)
refuse to enforce the contract; (2) enforce the remainder of the contract without the unconscionable clauses;
or (3) so limit application of any unconscionable clause as to avoid any unconscionable results.
7
16. This Complaint is insufficient if the Complaint is based upon an account stated based
upon Sections §§512 and 513 of the Pennsylvania Law Encyclopedia (Second). The
relevant portions of the discussion are set forth below: §512 states in part, "an account
stated has been defined as an account in writing, examined and expressly or impliedly
accepted by both parties thereto, and distinguished from a simple claim or a mere
summary of accounts. The Plaintiff must prove there is an account in writing, examined
and accepted by both parties]$, in which GARRY never agreed to any statement of
accounts showing any indebtedness to Capital One Bank.
Under_ §.513, to produce an .account-ststed _the..nocount must berendered, and the other
party must accept, agree to the correctness of the amount. In short, there must be a
meeting of the minds, and there can be no account stated where the account rendered
meets with general objection. Something more that mere acquiescence by failing to take
exception to a series of statements of account received in the mail is required to create an
account stated. 13 P.L.E. 2d Contracts §513 at 11-12 (2001.19
18. With the PLAINTIFF lacking standing to prosecute this case, this Court lacks subject
matter jurisdiction as well as personam jurisdiction, and PLAINTIFF'S Complaint must
be stricken pursuant to Pa. R.C.P. 1028a(1)(2)(3)(4) and (5).
19. GARRY raises under PA. R.C.P. §1028(a)(5) PLAINTIFF's lack of capacity to sue in
this situation. These preliminary objection to the Complaint states that this court must not
18 The Defendant has never admitted or agreed to any validity or accepted any statement of accounts
pertaining to this alleged account number. This falsified statement of fact is not only erroneous but it is a
fraudulent representation to this court and Ratchford is subject to a Fair Debt Collection Practices Act law
suit. As a matter of fact Ratchford lost both cases because he presented no admissible evidence at all to
substantiate his fraudulent claims.
19 Garry has never received any statement of accounts reflecting this debt. The Complaint never stated that
the account has been a running account, only vaguely alludes to the alleged debt on any an account stated
theory, and has never specifically stated that Garry used the credit card and has ever assented to the account
as required to support an action on account stated.
8
view and determine the controvertible facts but, rather, must resolve the dispute by
receiving evidence thereon through interrogatories, deposition, or an evidentiary hearing
to determine compliance with notices. Deyarmin v. Consolidated Rail Corp., 2007 PA.
Super. 218, 931 A. 2d 1 (2007); Wentzel-Applewood Joint Venture, v. Market street
Association, LP, 2005 PA. Super. 239, 878 A.2d 889 (2005); Mellon Bank, N.A. v.
Fabinyi, 437 PA. Super. 559, 650 A.2d 895 (1994).
WHEREFORE, GARRY hereby states that this case should be dismissed for lack of
standing and that this Court lacks personam jurisdiction and requests any and all relief that this.
.11oi rt__deems just. and proper. Yw
II PLAINTIFF DOES NOT HAVE STANDING
20. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every
one is fully set forth at length, herein.
21. Standing is a threshold issue that must be determined not by the Court, but by the party
asserting it.
22. PLAINTIFF does not have standing, nor are they the real party in interest, as
DEFENDANT contends; PLAINTIFF is not in possession of the alleged executed
application, the executed card holder agreement20 and the original note.
23. PLAINTIFF was required, by law and/or by statute, prior to filing their complaint, to
make Presentment of the Original Note; to identify themselves as having the authority to
make the Presentment pursuant to Title 13 Pa. C.S. §3-501; and that, upon Presentment,
the Promissory Note is/was properly endorsed to the benefit of the party seeking to
enforce it. PLAINTIFF has willfully failed to do any of this.
20Ratchford has produced a unsigned Bank of America alleged contract which has a date of 2006 when
Ratchford fails to states the age of this alleged account.
9
24. DEFENDANT avers that this PLAINTIFF does not have in their possession, custody, or
control of any admissible evidence so therefore this Complaint is deficient and not in
compliance with PA. R.C.P. 1028a(2)(3)(4) and (5) for the Complaint does not fully
advise GARRY of the real issues at hand including the real alleged creditor or the real
party in interest.
25. The Plaintiff in this case has failed to even allege or even state in their insufficient
Complaint, they have failed to identify the card holder agreement that specifically applied
to the class of accounts that included the alleged Defendant's account from Capital One.
The Plaintiff has failed to assemble the -_entire: 5P+cif agreements that applied to the alleged :.:
Defendant's account during the time period that it was supposedly opened.21
27. GARRY must be adequately protected from another party (the real legal holders of the
Notes) pursuant to, including, and not limited to Title 13 PA. C.S. §3309(b).
Furthermore, according to Title 13 PA. C.S. §3308, GARRY hereby categorically states
that the authenticity of any signatures do not exist and Plaintiff lacks sufficient evidence
to prosecute this case.
28. Plaintiff has not produced any signatures of GARRY pursuant to Title 13 PA. C.S. §§3-
401 and 3-308.
29. PLAINTIFF's Counsel knows and/or should know that any application and/or alleged
card holder agreement must contain a beginning date and a specific date on each any
every item purchase and their description and what dates were the alleged payments
made if any by producing the original accounting ledgers pursuant to PA. R.C.P. §1021
21 In the original Compliant Plaintiffs Counsel did not even have any statement of accounts or any alleged
card holder agreement and failed to produce a "Affidavit" from an executive of any one and the verification of
Ratchford is a dishonor upon this Court.
10
and the allegations are abuse of process, are in violation of PA. R.C.P. §1028a(1), a(2),
a(3), and 1028a(5).22
30. Plaintiff's Complaint is lacking in compliance with Pa. R.C.P. §1028a(1), a(2), a(3), a(4)
and :1028a(5) for the Complaint is deficient, insufficient specificity, lacks jurisdiction
'over the subject matter, failure to conform to the rule of law, legal insufficiency of a
pleading and lacks capacity to sue, for the Complaint does not specifically identify any
alleged account number23, does not name with specificity any real party in interest and or
Plaintiff and does not fully advise GARRY of the charges against him.
Complaint also fails,..to. support.:nn;!. hrParb-of.agreement. The Complaint fails.. -: --
to support the basic elements of contracts. The Plaintiff must prove that GARRY applied
for the card, used the card, became indebted for the use of said card and has been unable
to do that, this theory will be supported in GARRY's brief in support of these Preliminary
Objections. Plaintiff must also prove that GARRY used the card, when was the card used,
what was purchased and must prove that GARRY agreed, accepted the card and that
Plaintiff actually mailed the card, application, card holder agreements, statement of
accounts in which they have failed to do making this Complaint deficient and insufficient
for a continuation of this Complaint. GARRY's Brief will explain in great detail
additional reasons why this Complaint does not comply with either the account stated
and/or the breach of contract thus denying GARRY his rights to properly defend such
22 They must prove and produce the original account agreement for the account, any amendment to the
agreement for the account, any notice of a change in any term of the account, any alleged credit card in direct
relationship to the specific agreement, and the other alleged years, and other activities on said account. An
account is an implied claim that arises from the course of dealing between two parties who engage in a series
of transactions in which title to goods passes from one to the other.
23 On Garry's credit report it shows two different alleged account numbers, with possibly fraud, re -aged the
alleged account and Ratchford cannot mention any specific account number as referenced in the other law
suits filed in other counties showing a pattern of abuse by Ratchford opening themselves up for law suits,
both class action and/or even mass actions including and not limited to FDCPA, FCRA and RICO.
11
action and this complaint must be dismissed through the sustaining of these Preliminary
objections.
32. DEFENDANT hereby states PLAINTIFF is incapable of producing any genuine and/or
original ledger accounts, original statement of accounts,24 names and contact information
of custodian of the records for Capital One Bank has fraudulently sold this fraudulently
created account and securitize it and then sold it to Ratchford's employer who Ratchford
is representing in a respondeat superior type relationship and the real party in interest is
not the Bank. For the real party in interest is the debt purchasing law firm that employs
Ratchford.25
33. Plaintiff's Counsel is not in compliance with, including but not limited to, Title 13 PA.
C.S. §§3302, 2(i),(ii),(iii), 1203, obligation of good faith, and 2302, unconscionable
contract or clause. This Court must also rule that these alleged altered and/or fraudulently
created documents26, if they do actually exist, should not be enforced per Title 13 PA.
C.S. §2302 (1) and (3). (DEFENDANT declares that they do not even exist, and strict
proof must be presented pursuant to PA. Rules of Evidence 901, 902, 1002, 1003, 803.6
and Title 42 PA. C.S. §6108.)
34. DEFENDANT further states that PLAINTIFF must prove Title, 13 PA. C.S.
§3303(a)(1)(2)(3)(4)(5) and (b).
24 Clearly depicting all and every alleged transaction from the inceptions of this alleged account, who used the
alleged card, when was this card used, what was purchased by this card, and locations of each and every
transaction.
25 Chief Justice John Marshal ruled in Sheeley v. Manderville U.S. 11 208, 212 (1804) that the promissory note
must be produced in order to collect upon a debt. This proves how far this legal system has went of its true
course through illegal ruling in case law.
26 Statements of accounts were actually created by Ratchford using in house reproduction equipment.
Ratchford is required to produce not only their contractual agreement but provide Defendant with a list of
names for discovery and depositions purposes plus the accounting ledgers as required by PA. R. C. P. §1021.
12
35. DEFENDANT hereby states based upon his understanding, belief, knowledge,
information, and certification that the PLAINTIFF is committing fraud upon this Court,
for the PLAINTIFF is not the real party of interest pursuant to PA. R.C.P. §1033 for the
alleged note27 have been monetized,28 securitized, and possibly placed into a trust account
and through a professional Forensic and Securitization Audit, GARRY will be able to
present and/or expose a conspiracy to divest GARRY of his assets.
III. BANK MUST PROVE STANDING
36. GARRY, based upon his understanding, belief, personal knowledge, and verified
rV-pfoxmation. that BANK and/or Ratchford r.: -.in order_- to- .prove .standing as holder in
due course to be incompliance with PA. R.C.P. 1028a, 1024c, 1019, 1002 and 1021 and
as lender and/or creditor must prove the following:
a. BANK must have possession of the original executed card holder agreement and
executed application;
b. BANK must prove that they did not securitize the note in question and take it off of
the Bank's balance sheet;
c. Bank must prove that they have a perfected "Chain of Title" or proper assignment;
d. BANK must produce the real party in interest, and open their accounting ledgers for
an inspection by GARRY's expert witnesses and must prove that Bank did not
through fraudulent misrepresentation and/or altered the alleged documents pursuant
to Title 13 PA. C.S. §3 -407 -alterations;
27 If it really does exist is now an asset backed security.
28 Title 13 PA C.S. §3 -407 -Alterations
13
e. Bank must prove who used the alleged card, when was the alleged card use, what was
the purposes of each and every transactions, and a description of all the merchandise
and/or use of the alleged credit card;
f. BANK must prove that BANK didn't sell the loan to an issuer --typically a
government sponsored enterprise (GSE) or placed into a asset backed security and if
they even collected upon a insurance claim;
g. BANK must prove that the trust didn't issue securities, known as asset backed
securities (ABS), against this pool;
h, -. GARRY states based uponhis .:.personal :. kn:o ni rtd.ge, hel:ief, verified information, and
understanding that BANK also monetized GARRY's obtained negotiable instrument
and deposited them into the BANK's asset and demand deposit liability account as
will be supported by expert witnesses including authors, books, charts, graphs, former
banking experts, and a certified public accountant.
37. Now with the information in hand it becomes apparent that PLAINTIFF's Counsel has
committed fraud and lacks standing in this Court, and this Court should impose sanctions
under PA. R.C.P. § 1023 against their fellow members of the bar and their fraternity
brothers and/or sisters in the name of justice and law, and the Court should comply with
its oath of office and dismiss this case with prejudice.
38. PLAINTIFF must produce the genuine documents and/or file a Lost Note Instrument
according to Title 13 PA. C.S. §§3-309 and 3-501.
39. DEFENDANT hereby emphatically states that according to Title 13 PA. C.S. §§3-308
and 3-401 that the DEFENDANT is not financially liable unless the DEFENDANT
14
signed the Instrument(s) and further reiterates that DEFENDANT signature has yet to be
produced.
40. PLAINTIFF must file according to Title 13 PA. C.S. §8405(a)(2) a sufficient indemnity
bond, and this Court and/or County Officials are responsible to protect GARRY and/or
the alleged estate from double liability when GARRY is not liable at all.
41. PA. R.C.P. §2002(a) requires that all actions be prosecuted by and in the name of the real
party in interest. The Pennsylvania Superior Court has explained the rationale for
requiring the assignee to affirmatively plead his interest in the matter:
'When suit is brought against the Deteridant by a stranger to his contract, he is
entitled to proof that the plaintiff is the owner of the claim against him. This protection
must be afforded the Defendant. Otherwise, the Defendant might find himself subjected
to the same liability to the original owner of the cause of action, in the event that there
was no actual assignment." Id. at 94.
In this case, PLAINTIFF failed to attach any written assignment setting forth the
facts of the assignment, the date of the assignment, or the parties to any assignment.
Moreover, PLAINTIFF failed to affirmatively plead the fact of the assignment, the date
of the assignment, and the parties to the assignment. PLAINTIFF cannot provide a proper
chain of command so therefore the chain has been broken.
48. Pursuant to PA. R.C.P. §1021, PLAINTIFF must produce their accounting ledgers to
prove consideration was given.
49. DEFENDANT GARRY objects to PLAINTIFF's Complaint Pursuant to PA. R.C.P.
§1019(f), which states, "Averments of time, place and items of special damage shall be
specifically stated." PLAINTIFF in its Complaint fails to set forth any specific averment
of time, place, date, liability for payments, nonpayment of and/or refusal to make
payments must be brought forward. By reason of PA R.C.P. §1019, under the
15
Pennsylvania system of fact pleading, the pleader must define the issues. Every act of
performance essential to that end must be set forth in the Complaint. Miketic v. Baron,
450 PA. Super. 91, 104, 675 A.2d 324 (PA. Super.1996) (citing Santiago v. PA. Nat.
Mut. Ins. Co. 418 PA. Super. 178, 183 613 A.2d 1235, 1238 (1992); PA. R.C.P. 1019).
The complaint must not only apprise the DEFENDANT of an asserted claim, but it must
also synopsize the essential facts to support the claim. Miketic v. Baron, 450 PA. Super.
91, 104-105, 675 A.2d 324, 331 (PA. Super., 1996) (citing PA. R.C.P. 1019(a) and
Krajsa v. Keypunch, Inc., 424 PA. Super. 230, 234, 622 A.2d 355, 357 (1993)).
50.____ . Emthe .ore,..:th.e_complaint fails to apprise the. TDFFENJANT of the nature and extent of
PLAINTIFF's claim so that DEFENDANT has notice of what PLAINTIFF intends to
prove at trial and may not adequately prepare to meet such proof with his own evidence.
Weiss v. Equibank, 460 A.2d 271, 313 PA. Super. 446 (PA. Super. 1983).
52. Accordingly, just as in Marine Bank v. Orlando, 25 PA. D. & C. 3d 264 (1982),
Plaintiffs Complaint fails to properly set forth a cause of action for the Complaint does
not define with specificity the allegations against him by purposely obscuring who the
real party of interest really is.
53. Wherefore, GARRY moves this Court to dismiss this Complaint for failure to present the
original executed note prior to filing their Complaint and/or for Plaintiffs failure to
establish Standing pursuant to Pa. R.C.P. 1028a.
IV. PLAINTIFF FAILS TO ATTACH DOCUMENTS
54. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every
are fully set forth at length, herein.
16
56. DEFENDANT is unable to properly and fully defend himself absent the required
attachment of these documents, upon which PLAINTIFF relies.
Wherefore, PLAINTIFF's complaint should be dismissed for failure to attach the
required documents upon which PLAINTIFF relies, or for any and all other relief that this Court
deems just and proper.
V. PLAINTIFF FAILS TO PLEAD WITH SPECIFICITY
57. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every
are fully set forth at length, herein.
5.8;— . PT AFN.TIFF,,:: in their summary.. of .costs,,..faiL _,± ...wn.1_Pa_M_- w.ith.. specificity .or provide
documents in support of their contention in compliance of Pa. R.C.P. 1019(f), Averments
of time, place and items of special damage shall be specifically stated which this
Complaint falls flat on its face thus denying GARRY his right to properly defend this
action.
59. PLAINTIFF's Complaints are based upon "scandalous and impertinent"29 allegations and
thus subject to being stricken. Allegations are unproven, immaterial, and inappropriate to
support this action. Common Cause/ Penn. V. Com., 710 A.2d 367.
60. Bank's Complaint has violated PA. R.C.P. 1029(h), "When any claim or defense is
based upon an agreement, the pleading shall state specifically if the agreement is oral or
written.
61. Bank's Complaint has violated Pa. R.C.P. 1019(i) states that if the claim is based upon
the writing, the pleader shall attach a copy of the writing, This was not done. The alleged
contract is of a completely different bank and the date does not even match up to the
Plaintiff's Counsel's allegation in paragraph Three (3) of the complaint stating, "a copy
29 PA. R.C.P. 1028a(2).
17
of which was sent to the Defendant along with the credit card." Mr. Ratchford should
have known that it should have been attached to the complaint pursuant to the PA. Rules
of Civil Procedure P.R.C.P. 1019(i).
62. In paragraph Four (4) Counsel would like to have this Court believe that the alleged card
holder agreement actually exists but has failed to state why they violated 1019(i) which
violated P.R.C.P and the accounted stated theory.30
63. Wherefore, DEFENDANT moves to dismiss PLAINTIFF's complaint with prejudice for
failure to plead with specificity, or for any and all other relief that this Court deems just
: nd_proper.
VI. IMPROPER VERIFICATION
64. DEFENDANT hereby incorporates all of the preceding paragraphs as if each and every
are fully set forth at length herein.
65. Moreover, PLAINTIFF'S attorney could not possibly have firsthand personal knowledge
of the allegations set forth in their Complaint, nor do they make a distinction as to what
they have firsthand knowledge of as opposed to what is specifically based on information
and belief.
66. This Court must according to 1028(c) (2) must determine promptly all preliminary
objections. If an issue of fact is raised, the court shall consider evidence by depositions of
otherwise and if this Court ignores this sections, Defendant has the right to have it rule a
final order and will file an appeal.
67. DEFENDANT objects to PLAINTIFF's attorney signing the verification. PA. R.C.P
§ 1024(a) and (c) state that when an attorney for the PLAINTIFF signs the verification, it
30 The Plaintiff if they were in possession of true documentations should have produced all the card holder
agreements from the alleged beginning time to the alleged ending time. Garry is looking into spoliation
charges against the yet to be identified true plaintiff in this case.
18
is defective. See Monroe Contract Corp. v. Harrison Square, Inc. 266 PA. Super. 549 405
A 2d. 954 (1979) and Warren v. Williams, 370 PA. 380, 88 A. 2d 406 (1952); Rupel v.
Bluestein, 280 PA. Super. 65 421 A2d. 406 (1980); Signora v. Kaplan, 33 D &C. 4th
(1996); '3 Standard PA. Practice 2d, Ch. §16:35; `3Standard PA. Practice 2d, Chapter 16
§ 1639; and '4 Standard PA. Practice 2d, Chapter 21 §21:29. An attorney's statements and
papers are not facts before the court. The attorney cannot be counsel and give testimony
in the same matter. See Trinsey v. Pagliaro, 229, 229 F. Supp. 647, 649 (D. PA. (1964);
also see United States v. Lovasco (06/09/77) 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed. 2d
,:.:_._,75.7.,,Gonzales .v. Buist (04/01/12) 224 U.S..1.1.2E,...5.61 .E_d_....693,..32 S.Ct. 463 and Holt v.
United States, 218, U.S. 245, 54 L.Ed. 1021, 31 S.Ct.2. And PA. R.C.P. 1024 (c) states
in pertinent part, "The verification shall be made by one or more of the parties filing the
pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are
outside the jurisdiction of the court and the verification of none of them can be obtained
within the time allowed for the pleading. In such cases, the verification may be made by
any person having sufficient knowledge or information and belief and shall set forth the
source of the person's information as to matters not stated upon his or his own knowledge
and the reason why the verification is not made by a party."
68. With respect to the aforementioned, PLAINTIFF's action should be dismissed for failure
to adhere to PA. R.C.P §1024 (c), PA. R.C.P. §1002, ind PA. KC.P. §1028(a) (2) for
woeful lack of proper verification.
69. Michael Ratchford, Esquire attempted to circumvent the law by filing a verification when
it should have been called an "Affidavit. Mr. Ratchford, knew that the verification and/or
affidavit must be based upon personal knowledge, state how the affiant obtained such
19
expertise and state and attach a certified copy of the exhibits examined in order to file
said verification or Affidavit to be in compliance with §1035A and based upon this
defective intentional omission Plaintiff's Complaint must be dismissed with prejudice
and this Court should impose sanction against Ratchford. This Court should examine
other filings all over the entire state for the courts would soon establish that Ratchford is
employee of a system of an enterprise and should have his pretend license revoked.31
70. Wherefore, Plaintiff's Complaint should be dismissed for failure to provide a proper
verification or affidavit for any and all other relief that this Court deems just and proper.
7_1 - ;.;. C13rr_y plans. on investigating Mr. Ratchford.'s,be! jor_?ll_over, thestate through groups
of people that are waking up to the fraudulent practices going on in the PA. Court system
through improper Affidavits or verifications.32
72. Plaintiff's Counsel has failed to perform proper service for the Certification of Service
page does not contain GARRY's address and can not prove that GARRY was actually
mailed the Complaint thus operating in another deceptive, false and misleading and
denying GARRY his due process rights to properly defend against this bogus Complaint.
73. Plaintiff's Counsel has violated Pa. R.C.P. 1018 (Caption) for failure to conform with Pa.
R.C.P. 1018 which states, "Every pleading shall contain a caption setting forth the name
31 Garry plans on deposing employees from Bank and any other alleged creditor who was ever involved in this
misrepresentation of this alleged debt. Ratchford will be discovered and should be made to answer discovery
for he has signed illegally the verification thus denying Garry his right to cross-examine him in a deceptive
sanctionable nature as stated by the Pennsylvania Supreme Court. In the Fundamentals of Civil Practice,
written by the Penn. Bar Institute, dated 2009, it states, "A final warning in the verification area comes from
the disciplinary opinion. The Pa. Supreme Court Disciplinary Board has noted that an attorney's personal
notarization of documents not signed in the attorney's presence violates bar disciplinary rules as well as the
criminal code." In Re Anonymous No. 23 D.B. 77, 6 Pa. D&C3d 499 (1978). And Pa. R.C.P. 1002, Authority of
Attorney, "Any action other than verification required or authorized by this chapter to be done by a
party may be done by the party's attorneys."
32 Garry is in the process of gathering "affidavits" filed by Mr. Ratchford in the surrounding counties to prove
his intentional and malicious use of the courts as though they were independent debt collectors. The
verification that Ratchford used in this complaint will be sent to the PA. Disciplinary Board, the PA. Supreme
Court and the Judicial Committees in the Pennsylvania Senate and House of Representatives and the Pa.
Attorney General.
20
of the Court, :the number of the action and the name of pleading. The Caption of a
compliant shall set forth the form of the action and the names of all the parties, but in
other pleadings it is sufficient to state the names of the first party on each side in the
Complaint with an appropriate indication of other parties."
WHEREFORE, DEFENDANT moves that Plaintiff's Complaint be dismissed for lack of
established jurisdiction of this Court; for failure to prove standing; for failure to attach the
required documents upon which Bank should relies in filing this Complaint; for failure to plead
the Complaint with specificity; and for Plaintiff's failure to properly verify their Complaint.
FSR �n1a�Pc_th s court on.notice that this court's -.responsibility-is. fora-proper adjudication of
all the issues in this case without any granting of any "Motion for Protective Order" and/or any
"Motion in Limine" which would violate GARRY's rights in order to protect the Plaintiff.
GARRY seeks any and all relief that this Court deems just and proper.
Respectfully Submitted,
David S. Garry
21
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CAPITAL ONE BANK (USA), N.A. :
Plaintiff, CASE NO.: 14-3870
v. PRELIMINARY OBJECTIONS
DAVID S. GARRY
: JURY TRIAL DEMANDED
: PURSUANT TO Pa. R.C.P. 1007.1
Defendant.
CERTIFICATE OF SERVICE
David S. Garry, Defendant, hereby notifies this Court that proper service
was completed by U.S. First Class Pre -paid mail to the Plaintiff and the Plaintiff's
Counsel on August 5, 2014, to the following addresses:
CAPITAL ONE BANK (USA), N.A.
C/O Edwin A. Abrahamsen & Associates, P.C.
Michael F. Ratchford
120 North Keyser Ave.
Scranton, Pa. 18504
David S. Garry
22
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Expected Delivery: Thu 08/07/14
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CAPITAL ONE BANK (USA), N.A.
DAVID S. GARRY
Plaintiff,
v.
Defendant.
CASE NO.: 14-3870
DEFENDANT'S BRIEF IN)
SUPPORT OF HIS PRELIAI'
OBJECTIONS 1,1-
U, r`
•
JURY TRIAL DEMANiED -t,
: PURSUANT TO Pa. R.C.P. 1:1
CERTIFICATE OF SERVICE
David S. Garry, Defendant, hereby notifies this Court that proper service was completed
by U.S. First Class Pre -paid mail to the Plaintiff and the Plaintiff's Counsel on August 14, 2014,
to the following addresses:
CAPITAL ONE BANK (USA), N.A.
C/O Edwin A. Abrahamsen & Associates, P.C.
Michael F. Ratchford
120 North Keyser Ave.
Scranton, Pa. 18504
David S. Garry
21
moommiumommo
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170119998
4134870011 -0098
08/14/2014 (717)737-1461 05:22:04 PM
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Sales Receipt
Product Sale Unit Final
Description Qty Price Price
Utility 1 $1.19
Mailer 10.5"
x 16"
SCRANTON PA 18504 Zone -2
First -Class Mail Large Env
5.90 oz.
Expected Delivery: Mon 08/18/14
Issue Postage:
• $1.19
$2,03
$2.03
Total: $3.22
Paid by:
Debit Card $3.22
Account #: XXXXXXXXXXXX7024
Approval #: 505222
Transaction #: 737
23 903110005
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