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HomeMy WebLinkAbout14-4392 Supreme Court-of Pennsylvania Cow �IiGoing n Pleas • ` For Prothonotary Use 0.11 111 ��><t:.;oyes Sheet. County DocketNo: N� , the u formation collected on this form is used solelyfor coial administration p aposes. This formdoes not supplement or replace the filing and sen-ice of pleadings or other papms as required by 1mv or rules of court. S Commencement of Action: E ®Complaint El Writ of Summons ❑Petition [-]Transfer from Another Jurisdiction ElDeclaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T DISCOVER BANK JEREMY L MILLER s I Dollar Amount Requested: ®within arbitration limits Are money damages requested? ® Yes ❑ No (check one) ❑outside arbitration limits N Is this a Class Action Suit? ❑ Yes ® No Is this an MDJAppeal? ❑ Yes ® No A Name of Plaintiff/Appellant's Attorney:Apothaker Scian P.C. ❑ Check.here if you have no attorney(are a Self:-Represented [Pro Se] Litigant) L--- 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 ❑Buyer Plaintiff Administrative Agencies ❑Malicious Prosecution ®Debt Collection:Credit Card ❑Board of Assessment ❑Motor Vehicle ❑Debt Collection:Other ❑Board of Elections ❑Nuisance ❑Dept.of Transportation ❑Premises Liability ❑ Statutory Appeal:Other ❑Product Liability(does not S include mass tort) El Employment Dispute: Discrimination Slander/Libel/Defamation El l E El Employment Dispute:Other C El Other: El Zoning Board ,I, ElOther: I ❑Other: Q MASS TORT ❑Asbestos ' N j [:1 Tobacco ❑Toxic Tort-DES REAL PROPERTY MISCELLANEOUS ❑Toxic Tort-Implant ❑Ejectment ❑ Common Law/Statutory Arbitration ❑Toxic Waste ❑Eminent Domain/Condemnation ❑Declaratory Judgment $ ❑Other: ❑ Ground Rent ❑Mandamus ❑Landlord/Tenant Dispute ❑Non-Domestic Relations ❑Mortgage Foreclosure:Residential Restraining Order ❑Mortgage Foreclosure: Commercial ❑ Quo Warranto PROFESSIONAL ❑Partition ❑Replevin LIABLITY ❑ Quiet Title ❑ Other: ❑Dental ❑ Other: ❑Legal ❑Medical I ❑Other Professional: i Updated 1/1/2011 Our File No.: 380009 , T�f� ( Apothaker Scian P.C. By: David J. Apothaker, Esquire C(J� �r 1: '" Attorney 520 Fellowship Road Suite C306 �� � 5 � �' PO Box 5496 NI Mt. Laurel,NJ 08054-5496 (800)672-0215 Attorneys for Plaintiff DISCOVER BANK ) COURT OF COMMON PLEAS CIO DB SERVICING CORPORATION, 6500 ) CUMBERLAND COUN r U 1 NEW ALBANY ROAD ) � r � , �,�n r� NEW ALBANY, OH 43054 ) NO.: ( Plaintiff, ) vs. ) JEREMY L MILLER ) 5400 OXFORD DR UNIT B ) MECHANICSBURG, PA 17055-5462 ) Defendant. ) NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty(20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. 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. CUMBERLAND COUNTY BAR ASSOCIATION 34 S. BEDFORD ST. CARLISLE PA 17013 717-249-3166 C� L 94 3,S S } Our File No.: 380009 Apothaker Scian P.C. By: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road Suite C306 PO Box 5496 Mt. Laurel,NJ 08054-5496 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK ) COURT OF COMMON PLEAS C/O DB SERVICING CORPORATION, 6500 ) CUMBERLAND COUNTY NEW ALBANY ROAD ) NEW ALBANY, OH 43054 ) NO.: Plaintiff, ) vs. ) JEREMY L MILLER ) 5400 OXFORD DR UNIT B ) MECHANICSBURG, PA 17055-5462 ) Defendant. ) CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is Discover Bank("Plaintiff'), a Delaware State Bank and issuer of the Discover Card. 2. Defendant(s) is/are JEREMY L MILLER ("Defendant"), an adult individual residing at 5400 OXFORD DR UNIT B, MECHANICSBURG, PA 17055-5462. 3. At the special instance and request of Defendant, Plaintiff issued a credit account ("Account")to Defendant. 4. The Account number ends in 3698. 5. Defendant received, accepted and used the account by making purchases, balance transfers, and/or cash advances. 6. The account is in default due to Defendant's failure to make timely payments. 7. .Although demand has been made, Defendant has failed to make payment of the amount due. 8. The amount due as of this date is $8,867.85. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $8,867.85 and requests this Court award costs to the extent permitted by applicable law. Apothaker ian C. Attorney or Plai tiff A Law Firm Enga ed in D bt Collectio BY: David J. Apot Ysquire Our File No.: 380009 VERIFICATION (Name) (Title) of DB Servicing Corporation, servicing affiliate of Discover Bank does hereby verify,under penalty of perjury and subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities states,that he/she is a duly authorized representative of plaintiff herein. Additionally,he/she verifies that Discover Bank, f/k/a Greenwood Trust Company,which is an FDIC-insured Delaware state bank,lacks sufficient knowledge or information to verify this complaint.He/she verifies that he/she is authorized to make this verification. As an employee of DB Servicing Corporation,he/she has sufficient knowledge and information to make this verification,and consequently verifies that the facts set forth in the foregoing complaint are true and correct to the best of his/her knowledge and information and that he/she is personally familiar with the account and the relationship between Discover Bank and DB Servicing Corporation. It is further stated that Discover Bank and DB Servicing Corporation extend credit through issuance of the Discover Card.As the servicing affiliate,DB Servicing Corporation performs a variety of services for Discover Bank,including business management services in support of Discover Bank business lines, including,among other things, credit card,deposits,personal loans and student loans,customer service, collections,credit risk,collection of delinquent accounts and other support services. The collection of delinquent accounts includes the right to forward the same to the attorneys and/or collection agencies for collection and to file suit on Discover Bank's behalf.Both DB Servicing Corporation and Discover Bank are wholly owned subsidiaries of Discover Financial Services. (Signature) Defendant's Name: JEREMY L MILLER DB Servicing Corporation servicing affiliate of Account Number: ending in 3698 Discover Bank Our File No.: 380009 PO Box 3025 New Albany,OH 43054 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson f= fLEO-UI EfCE SheriffUF THE PROTHONOTARY os, of e'u o be y� Jody S Smith ` 2014 AUG _5 Aii 9. ,51 Chief Deputy Richard W Stewart CUMBERLAND COUNTY Solicitor ©FFICE OF THE SHERIFF P E NN S Y LVA N I A Discover Bank vs. Jeremy L Miller Case Number 2014-4392 SHERIFF'S RETURN OF SERVICE 07/29/2014 08:02 PM - Deputy Dawn Kell, 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: Jeremy L Miller at 5400 Oxford Drive, Unit B, Lower Allen, Mechanicsburg, PA 17055. DAWN KELL, DEPUTY SHERIFF COST: $39.30 SO ANSWERS, July 30, 2014 RONfR ANDERSON, SHERIFF (c) CountySuito Sheriff, Toleosoft, Inc. Our File No.: 380009 Apothaker Scian P.C. By: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road Suite C306, PO Box 5496 Mt. Laurel, NJ 08054-5496 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK vs. JEREMY L MILLER Plaintiff Defendant FILED -OF FICE OF THE PROTHONOTAR%* 2814 OCT -9 AM 43 CUMBERLAND COUNTY PENNSYLVANIA ) COURT OF COMMON PLEAS OF ) CUMBERLAND COUNTY ) ) ) NO.: 14 -4392 -CIVIL ) ) Civil Action ) ) PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: Kindly enter judgment against Defendant, JEREMY L MILLER, in the default of an Answer, in the amount of $8,867.85 computed as follows: Amount claimed in complaint: Less: Amount Paid: Plus: Interest from July 25, 2014 to September 2, 2014 at the legal interest rate of 0.00% per annum Attorney fees 8,867.85 ( 0.00) 0.00 0.00 8,867.85 I certify that Defendant, JEREMY L MILL R, last own address is 5400 OXFORD DR UNIT B MECHANICSBURG, PA 17055-5462. David J. Apotha er, Esquire Attorney for Plaintiff ib.opI1747 Ce1133eo ei3/.2fit Alohc-4. d9a/lea1 DISCOVER BANK vs. JEREMY MY I.., MILLER "Io: JEREMY L MILLER 5400 OXFORD DR UNIT B 'MI CHANIC:;SI3UR.G, P.A. 17055-5462 Date of Notice: August 21, 2014 ) COURT OF COMMON PLEAS CUMBERLAND COUNTY ) ) NO. 14 -4392 -CIVIL IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE. PERSONALLY OR BY A" T"ORNI:?Y AND FILE IN WRITING W.IT"11 THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE. A JUDGMENT MAY BE 1 N"I'T RI=M AGAINST YOU WITHOUT A 1=ILA.RING AND YOU MAY LOSE YOUR PROPERrY OR OTHER. IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT IIAVI? A LAWYER, GO TO OR TELEPHONE THE OFFICE SET 1OWF BELOW. THIS OFFICE"; CAN PROVIDE YOU WITH. INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD T O HIRE A I.AW�r.- ,R THIS OFFICE MAY BE ABLE TO PROVIDE; YOU W`I ITH INF ORMA TION ABOUT // NGLES THAT MAY OH F R I EGAI.., Si_ RVIC;ES "10 EI..IGTBI_,E PERSONS Al"" A :REDUCED FEIN OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 34 S. BEDFORD ST. CARLISLE, I'A 17013 71.7-249-3166 380009 ])AVID .i. APO`T`FIAK.ER., ESQUIRT? Apothaker Scian P.C. A Law Firm Engaged in Debt Collection 520 Fellowship Road Suite C306, PO Box 5496 Mt. Laurel, NJ 08054-5496 (800) 672-0215 Attorney for Plaintiff Attorney Il.) #38423 7 _ILL 1,1 Our File No.: 380009 Apothaker Scian P.C. By: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road Suite C306, PO Box 5496 Mt. Laurel, NJ 08054-5496 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK vs. JEREMY L MILLER Plaintiff Defendant r 4 L L U- V, F 1 C E DF THE PROTHOP O TAR' 2014 OCT -9 AP i i 149 CUMBERLAND COUNTY PENNSYLVANIA ) COURT OF COMMON PLEAS OF ) CUMBERLAND COUNTY ) ) ) NO.: 14 -4392 -CIVIL ) ) Civil Action ) ) AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND : SS. David J. Apothaker, Esquire, being duly sworn according to law, deposes and says that I am the attorney for Plaintiff, and authorized to make this affidavit; that Defendant(s) resides at 5400 OXFORD DR UNIT B MECHANICSBURG, PA 17055-5462. We inquired with the web site of the Defense Manpower Data Center, located at 1600 Wilson Boulevard, Suite 400, Arlington, VA 2221.' - • 3, if the Defendant(s) is/are in any branch of the military. Mary M. Snavely -Dixon, Director of the our inquiry indicated that the Defendant(s) is/are n efense anpower Data Center has sent back t in the ilitary. David J. Apothaker, Esquire Attorney for Plaintiff I verify that the statements made in this Certification are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Department of Defense Manpower Data Center Status Report Pursuant to Scrvicetn : nbers Civil Last Name: MILLER First Name: JEREMY Middle Name: Active Duty Status As Of: Sep -02-2014 Results as of : Sep -02-2014 09:42:43 AM SCRA 3.0 On Active Duty On Active Duty Status Date Active Duty Start Date Active Duty End Date Status Service Component NA NA No NA This response reflects the individuals' active duty status based on the Active Duty Status Date Left Active Duty Within 367 Days of Active Duty Status Date Active Duty Start Date Active Duty End Date Status Service Component NA NA No NA This response reflects where the individual left active duty status within 367 days preceding the Active Duty Status Date The Member or His/Her Unit Was Notified of a Future Call -Up to Active Duty on Active Duty Status Date Order Notification Start Date Order Notification End Date Status Service Component NA NA No NA This response reflects whether the individual or his/her unit has received early notification to report for active duty Upon searching the data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the status of the individual on the active duty status date as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty. Mary M. Snavely -Dixon, Director Department of Defense - Manpower Data Center 4800 Mark Center Drive, Suite 04E25 Arlington, VA 22350 w p The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense (DoD) that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems. The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act (50 USC App. § 501 et seq, as amended) (SCRA) (formerly known as the Soldiers' and Sailors' Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the individual is currently on active duty" responses, and has experienced only a small error rate. In the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual was on active duty for the active duty status date, or is otherwise entitled to the protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service via the "defenselink.mil" URL: http://www.defenselink.mil/faq/pis/PCO9SLDR.html. If you have evidence the person was on active duty for the active duty status date and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked against you. See 50 USC App. § 521(c). This response reflects the following information: (1) The individual's Active Duty status on the Active Duty Status Date (2) Whether the individual left Active Duty status within 367 days preceding the Active Duty Status Date (3) Whether the individual or his/her unit received early notification to report for active duty on the Active Duty Status Date. More information on "Active Duty Status" Active duty status as reported in this certificate is defined in accordance with 10 USC § 101(d) (1). Prior to 2010 only some of the active duty periods less than 30 consecutive days in length were available. In the case of a member of the National Guard, this includes service under a call to active service authorized by the President or the Secretary of Defense under 32 USC § 502(f) for purposes of responding to a national emergency declared by the President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the unit they support. This includes Navy Training and Administration of the Reserves (TARs), Marine Corps Active Reserve (ARs) and Coast Guard Reserve Program Administrator (RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S. Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps). Coverage Under the SCRA is Broader in Some Cases Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods. Title 32 periods of Active Duty are not covered by SCRA, as defined in accordance with 10 USC § 101(d)(1). Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service. Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of the SCRA extend beyond the last dates of active duty. Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA are protected WARNING: This certificate was provided based on a last name, SSN/date of birth, and active duty status date provided by the requester. Providing erroneous information will cause an erroneous certificate to be provided. Certificate ID: UCR5HAOEDOOCK20 Our File No.: 380009 Apothaker Scian P.C. By: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road Suite C306, PO Box 5496 Mt. Laurel, NJ 08054-5496 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK vs. JEREMY L MILLER Plaintiff Defendant OF THE, PRor��or�oTtitt 2014 QM' -9 AM 11: 49' CUMBERLAND COUNTY PENNSYLVANIA ) COURT OF COMMON PLEAS OF ) CUMBERLAND COUNTY ) ) ) NO.: 14 -4392 -CIVIL ) ) Civil Action ) ) CERTIFICATION PURSUANT TO RULE 237.1 Pursuant to PA Rule Civil Procedure 237.1, I certify that, after the failure to plead and at least ten days prior to the date of the filing of the within praecipe, written notice of Plaintiff's intention to file the within praecipe was sent to the defendant and defendant's attorney of record, if any. I verify that the statements made in this Certification are true and correct. I understand that false statements herein are made subject to the penaltie o 8 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. David J. Apothaker I'quire Attorney for Plaintiff OFFICE OF THE PROTHONOTARY COURT OF COMMON PLEAS TO: JEREMY L MILLER 5400 OXFORD DR UNIT B MECHANICSBURG, PA 17055-5462 DISCOVER BANK vs. JEREMY L MILLER Plaintiff Defendant NOTICE ) COURT OF COMMON PLEAS OF ) CUMBERLAND COUNTY ) ) ) NO.: 14 -4392 -CIVIL ) ) Civil Action ) ) Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a Judgment has been entered against you in the above proceeding as indicated below. XX JUDGMENT BY DEFAULT JUDGMENT IN REPLEVIN JUDGMENT BY CONFESSION JUDGMENT FOR POSSESSION JUDGMENT ON AWARD OF ARBITRATORS JUDGMENT ON VERDICT JUDGMENT ON COURT FINDINGS JUDGMENT ON WRIT OF REVIVAL IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL: ATTORNEY David J. Apothaker, Esquire at this telephone number: 800-672-0215 • Jeremy Miller SLit)* 4?c rol L? Nte- G' lc Ci0 Address) —c'76)—o'}(pg (Phone) DISCOVER BANK Plaintiff Vs. JEREMY L MILLER Defendant ) ) ) ) ) ) ) ) ) CF On' ME p 0 T HO iU ii1 I. 2611i OCT 21 to 01 CUPENNSYLVAN A COUNTY COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.: 14-4392- CIVIL AFFIDAVIT IN SUPPORT OF DEFENDANT'S MOTION TO SET ASIDE DEFAULT JUDGMENT I, JEREMY L MILLER, do hereby affirm and declare subject to the penalties of perjury that: 1. I am an individual over 18 years of age and competent to sworn in this affidavit. 2. I am the Defendant in the above captioned proceeding and I submit this affidavit in support of my Motion to Set Aside the Default Judgment entered against me. 3. As set forth below, I have a justifiable excuse for my failure to file a timely answer and have meritorious defenses against Plaintiff's action. 4. Specifically, I am not liable to Plaintiff for the amount claimed in Complaint. I did not open the alleged credit account with Plaintiff. No account was stated between Plaintiff and me. Plaintiff failed to provide legally admissible evidence to show that I am indebted to Plaintiff for the amount(s) claimed in the Complaint. The failure to include admissible and legally sustainable evidence will prove that Plaintiff has failed to establish a prima facie case and hence it is not entitled for a Default Judgment. Therefore, a Default Judgment in favor of Plaintiff in this case was improper and liable to be vacated. Case No. 14-4392- CIVIL Jeremy L Miller — MTSA DJ Page 2 of 9 5. On receipt of the Complaint, I was really shocked and perplexed by reading the allegations of Plaintiff claiming unreasonable and exorbitant amounts for which I am not liable. As a pro se litigant, I have only limited legal knowledge regarding the procedures to be followed while preparing and filing the answer to the Complaint. I lost considerable amount of time for searching a reliable attorney in seeking legal advice and thus there was a delay in filing the answer. There is no inexcusable neglect on my part for failing to file the answer on time. I have attached my late answer as Exhibit 1. Moreover, I have meritorious defenses against Plaintiff's action. 6. As a law abiding citizen, I am well aware that an answer to the Complaint need to be filed in court without much delay. However, as a pro se litigant, my limited legal knowledge was not enough to prepare a proper reply hence I sought for expert advice and prepared my answer. But, by the time I prepared my answer, the statutory period for filing the answer had elapsed and this court has entered a Default Judgment against me on 10/09/2014. This has happened only due to an overt act, i.e. time devoted for finding proper legal advice in order to prepare answer and seeking legal advice on how to go forward in this case. Therefore, my omission to file a timely Answer is an `excusable neglect' on my part while considering this Motion. 7. I am advised by the counsel that although I have a meritorious defense, my failure to file a timely answer may constitute a waiver of my rights in prosecuting the case. It was never my intention to waive my rights; I have to prove my case since I am not liable for any amounts as claimed in the Complaint filed by Plaintiff. 8. Plaintiff has filed a bogus claim against me without any legally admissible documents. I have meritorious defense in this case as stated in the answer (Exhibit 1) and a trial in this case will definitely unveil the mischief. Now the Default Judgment entered against me for non -filing of my answer on time will unjustly enrich Plaintiff which this court should not allow. Case No. 14-4392- CIVIL Jeremy L Miller — MTSA DJ Page 3 of 9 9. I would submit that the setting aside of the Default Judgment will not be prejudicial to the interest of Plaintiff, but a denial of the Motion will be detrimental to me. The Default Judgment, if confirmed, will cause severe hardships to me. 10. For the foregoing reasons, this court may kindly allow my Motion to Set -Aside Default Judgment against me and accept my late answer (Exhibit 1) in the best interest of justice and Re -Open the case for a fair adjudication of this case on merits. Dated: October 211, 2014. Case No. 14-4392- CIVIL Jeremy L Miller — MTSA DJ Page 4 of 9 Jeremy L eller Saco 5 ox.Artv-e_.- f 4 1 w'r\ ,Pc C7OSS (Address) '.)f -57(0v-09. B (Phone) DISCOVER BANK, ) C/O DB SERVICING CORPORATION, 6500 ) NEW ALBANY ROAD ) NEW ALBANY, OH 43054 ) Plaintiff, ) vs. ) JEREMY L MILLER ) Defendant. ) COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 14 -4392 -CIVIL ANSWER TO CIVIL ACTION COMPLAINT DEFENDANT JEREMY L MILLER'S ANSWER TO PLAINTIFF'S CIVIL ACTION COMPLAINT Defendant, Jeremy L Miller, Answers the Civil Action Complaint filed by Plaintiff, Discover Bank, as follows: ANSWER TO FIRST COUNT 1. Defendant has no sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained in Paragraph 1 of the Complaint. 2. Defendant admits Paragraph 2 of the Complaint. 3. By specifically denying the entire allegations contained in Paragraph 3 and 4 of the Complaint, Defendant submits that Defendant never opened an account having number ending in 3698 with Plaintiff as alleged. Defendant never received, accepted or used the account as alleged. Plaintiff has failed to submit signed copies of the account opening application form and credit agreement and other relevant documentary evidence to prove the allegations contained Paragraph 3 and 4 of the Complaint. 4. By specifically denying the entire allegations contained in Paragraph 5, 6, 7 and 8 of the Complaint, Defendant submits that Defendant does not owe Plaintiff in the amount of $8,867.85 as alleged. Defendant submits that Defendant never received demand for payment from Plaintiff as alleged. Defendant does not owe Plaintiff for the alleged amount. Plaintiff has failed to present the No.: 14 -4392 -Civil Jeremy L Miller — Answer Page 1 of 5 copies of account opening application duly signed by Defendant, credit agreement, receipts, bills and other valid evidence to prove its allegations. In this regard, in the case of Citibank South Dakota v. Whiteley, Missouri Court of Appeals, Southern District, Division Two, 2004(Exhibit 'A') it has been stated as follows: "To recover on a suit on account, a Plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges." So, the burden of proof is on Plaintiff to submit valid documentary evidence to prove its allegations. Moreover, Defendant challenges the veracity of document attached with the Complaint. 5. Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $8,867.85 and requests this Court award costs to the extent permitted by applicable law. Plaintiff fails to establish its prayer by providing legally sufficient supporting documents. Therefore, this Court may kindly deny Plaintiff's prayer. GENERAL DENIAL 6. Defendant specifically denies each and every allegation contained in the Civil Action Complaint not specifically heretofore admitted, denied, or otherwise controverted. FIRST AFFIRMATIVE DEFENSE 7. The service of process was insufficient/improper. SECOND AFFIRMATIVE DEFENSE 8. Plaintiff has failed to state a claim against Defendant for which a relief can be granted. THIRD AFFIRMATIVE DEFENSE 9. Plaintiff has failed to satisfy all requirements and conditions precedent to the institution of this action. FOURTH AFFIRMATIVE DEFENSE 10. Defendant never agreed to pay the amount to Plaintiff as per any agreement. No.: 14 -4392 -Civil FIFTH AFFIRMATIVE DEFENSE Jeremy L Miller — Answer Page 2 of 5 11. Defendant invokes the Doctrine of Unclean Hands as Defendant alleges that Plaintiff acted in a dishonest, misleading or fraudulent manner with respect to the disputes at issue in this case. SIXTH AFFIRMATIVE DEFENSE 12. Plaintiff and Plaintiff's attorneys and agents with the consent of Plaintiff, have violated the Fair Debt Collection Practices Act (FDCPA) by, among other things, improperly and wrongfully contacting/harassing Defendant and not properly validatingthe debt allegedly .due. SEVENTH AFFIRMATIVE DEFENSE 13. A violation of the FDCPA is, among other things, a denial of the due process rights guaranteed to Defendant. EIGHTH AFFIRMATIVE DEFENSE 14. Defendant reserves the right to add additional affirmative defenses as discovery progresses. 15. Responses to requests for production of documents should be delivered to the address of the Defendant as stated in this answer or as on file with the court in this matter. WHEREFORE, Defendant respectfully submits to the Court as under: 1. Plaintiff's Civil Action Complaint should be rejected. 2. Necessary costs should be awarded to the Defendant. 3. Such other relief be granted to the Defendant as to this Honorable Court deems just. Date: October , 2014. No.: 14 -4392 -Civil Signature of Defendant. Jeremy L Miller — Answer y L Miller Page 3 of 5 Exhibit 'A' CITIBANK SOUTH DAKOTA v. WHITELEY CITIBANK (SOUTH DAKOTA) N.A., A Bank Corporation, Plaintiff -Respondent, v. Danny H. WHITELEY, Defendant -Appellant. No. 25925. -- November 23, 2004 Daniel T. Moore, Moore & Walsh, L.L.P., Poplar Bluff, for appellant.Mayer S. Klein, Michael J. Payne, Frankel, Rubin, Bond, Dubin, Siegel & Klein, P.C., St. Louis, for respondent. Citibank (South Dakota) N.A., (plaintiff) brought a suit on account against Danny H. Whiteley (defendant). The case was heard by the trial court without a jury. Judgment was entered for plaintiff in the amount of $4,218.58 principal, interest in the amount of $728.14, and costs. Defendant appeals. This court reverses and remands with directions. Plaintiff's petition alleged defendant was "indebted to it on account of goods, services and/or merchandise provided by Plaintiff at Defendant's instance and request"; that "*t+he charges for said goods, services and/or merchandise provided by Plaintiff to Defendant *were+ reasonable." Plaintiff alleged that payment was demanded but had been refused.1 Plaintiff called an employee, Paula Sullinger, as a witness. Ms. Sullinger stated she was "a manager in the recovery unit" located in Kansas City. Ms. Sullinger identified plaintiff as a banking corporation authorized to do business in Missouri. Ms. Sullinger testified, over the objection of defendant, that although there was no documentation of a credit card account, she had knowledge that defendant maintained a credit card account with plaintiff. She testified, over the objection of defendant, that an account maintained by plaintiff revealed a balance owed by defendant. Ms. Sullinger explained, again over defendant's objection, that charges were posted to accounts based upon notification by merchants of charges made by a cardholder; that any documentation for a charge belonged to the merchant and was not maintained by plaintiff. Ms. Sullinger was asked whether she had knowledge about what goods were purchased by defendant for which charges were made to the account plaintiff sought to collect. She had no knowledge concerning what defendant would have purchased from a particular merchant. Ms. Sullinger had no knowledge whether charges were fair and reasonable. No other evidence was offered on the question of reasonableness of charges. Ms. Sullinger was asked the following questions and gave the following answers about the nature of plaintiffs business. Q. My question is, you, being Citibank of South Dakota, didn't provide any merchandise, did you? A. No. Q. You didn't provide any goods to the defendant, did you? A. No, just a service. Q. And you didn't come out and perform any services for the defendant and charge him for that, did you? A. No, just paid the merchants for him. Defendant asserts one point on appeal. He argues the trial court erred in granting judgment for plaintiff on its suit on account "because there was no evidence to support the judgment in that *plaintiff] failed to prove that *defendant+ received any goods, services or merchandise provided by *plaintiff+." Defendant contends further that there was no evidence that anything plaintiff claims defendant received was reasonable in cost. Defendant further asserts that any theory of recovery plaintiff may assert, other than the suit on account it pleaded, would constitute a variance to which plaintiff timely objected at trial. "A suit on open account means a suit in contract for each purchase transaction." Medicine Shoppe International, Inc. v. Mehra, 882 S.W.2d 709, 713 (Mo.App.1994). To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges. Welsch Furnace Co., Inc. v. Vescovo, 805 S.W.2d 727, 728 (Mo.App.1991). "Such evidence consists of proof that: 1) Defendant requested plaintiff to furnish merchandise or services; 2) plaintiff accepted the offer of the defendant by furnishing such merchandise or services; and 3) the charges were reasonable." Id. Even if this court were to accept plaintiff's assertion that providing credit to a credit card holder amounted to providing a service for purposes of maintaining a suit on account, an issue this court need not and does not address, the evidence was silent as to the reasonableness of any charge that was made to defendant. A party bringing a cause of action cannot prevail if one or more elements of the cause of action are not supported by substantial evidence. Vintila v. Drassen, 52 S.W.3d 28, 38 (Mo.App.2001); Mills Realty, Inc. v. Wolff, 910 S.W.2d 320, 322 (Mo.App.1995). Further, as asserted by defendant, defendant scrupulously objected throughout the trial to any evidence that was outside plaintiffs pleadings. Defendant's point is granted. The judgment is reversed. The case is remanded. The trial court is directed to enter judgment for defendant. FOOTNOTES 1. Plaintiffs attorney assured the trial court at the commencement of trial that plaintiff had no credit card agreement signed by defendant; that plaintiff was "suing on an account theory, suit on account." SHRUM and BARNEY, JJ., concur. CERTIFICATE OF SERVICE A copy of this Motion to Set Aside Default Judgment with Notice, Affidavit, Memorandum and proposed Order was served upon Plaintiff's attorney at the following address: David J. Apothaker Apothaker Scian, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054-5496. By ordinary U. S. Mail, this day of October, 2014. Case No. 14-4392- CIVIL Signatur Jeremy L Miller — MTSA DJ Page 9 of 9 DISCOVER BANK : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. JEREMY L. MILLER : NO. 2014 — 4392 CIVIL TERM ORDER OF COURT AND NOW, this 4TH day of NOVEMBER, 2014, a Rule is issued upon Plaintiff to Show Cause why Defendant's Motion to Open the Default Judgment should not be granted. An answer to the motion shall be filed within twenty (20) days. A hearing and/or argument shall be held on TUESDAY, DECEMBER 2, 2014, at 1:00 p.m. in Courtroom # 3 of the Cumberland County Courthouse, Carlisle, Pa. `� David J. Apothaker, Esquire ✓ Jeremy Miller :sld fes 191— Airy Edward E. Guido, J. DISCOVER BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 14-4392 CIVIL TERM JEREMY L. MILLER, Defendant CIVIL ACTION ORDER OF COURT AND NOW, this 2nd day of December, 2014, upon consideration of the Defendant's Motion to "Set Aside Default Judgment," the Defendant's response thereto, and for the reasons stated on the record during argument, it is hereby ordered and directed that the default judgment is opened. The Defendant's answer attached to the Motion is deemed filed. The case shall proceed accordingly. By the Court, Edward E. Guido, ./ Jason D. Arnold, Esquire P.O. Box 6462 Harrisburg, PA 17112 .,//Apothaker Scian, P.C. 520 Fellowship Road, Suite C306 P.O,. Box 5496 Mt. Laurel, NJ 08054-5496 ., remy L. Miller 5400 Oxford Drive, Unit B Mechanicsburg, PA 17055-5462 srs coP�£s ��1�. ialaly Jeremy L Mill r 9tQO9j Wont Jr= 1'h A r)Oss (Address) 1157 O2 (Phone) ) DISCOVER BANK ) ) ) Plaintiff, ) ) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY vs. ) NO. 14 -4392 -CIVIL ) JEREMY L MILLER, ) ) ) Defendant. ) ) Civil Action DEFENDANT JEREMY L MILLER'S RESPONSE TO PLAINTIFF'S BRIEF IN ANSWER TO DEFENDANT'S MOTION TO OPEN DEFAULT JUDGMENT Defendant, Jeremy L Miller, Comes Now and files this Response to Plaintiff, Discover Bank's brief in Opposition to Defendant's Motion to set aside the Default Judgment and states as follows: 1. This court had entered a Default Judgment against Defendant for failure to file answer and Defendant had filed a Motion to Set -Aside Default Judgment stating valid and cogent reasons. Now, Plaintiff has deliberately filed this Opposition in order to deny Defendant's right for a fair trial. This court may kindly consider the averments in Defendant' s Motion to find that Defendant has a meritorious defense in this case and a Default Judgment will result in denial of justice to Defendant. 2. In its Opposition, Plaintiff has alleged that "Defendant has not provided any excuse for delay in filing response to Complaint." This is not true. Defendant submits that Defendant had filed a Motion to Set Aside Default Judgment with the court. Defendant admits that there was a No. 14 -4392 -CIVIL Jeremy L Miller — Response to P's Page 1 of 4 delay in filing answer to Plaintiff's Complaint and the reasons for the delay was explained in Defendant's Affidavit filed along with Defendant's Motion. As a pro se litigant, Defendant has only a limited knowledge about the proceedings of the court and hence Defendant thought it would be a good idea to consult with an attorney. Defendant could find a proper attorney only after searching for a considerable amount of time. There is no willful neglect on Defendant's part and hence Defendant's failure to file a timely answer in the court is excusable. Therefore, the default entered against Defendant may kindly be set aside. Further, Defendant would submit that, the court has discretionary powers to set aside the default judgment and may relieve a party or said party's legal representative from a final judgment, order, or proceeding for the following reasons such as mistake, inadvertence, surprise, or excusable neglect etc. 3. As a law abiding citizen, Defendant was well aware that answer to the Complaint need to be filed in court without much delay. But Defendant was not able to file answer only due to the above mentioned reasons. There is no inexcusable neglect on Defendant's part in failure to file answer on time. This is an unjustified verdict resulted from the reasons beyond Defendant's control and hence this court should set aside the Default Judgment entered against Defendant in the best interest of justice. 4. Moreover, Defendant has some meritorious defenses against Plaintiff's Complaint. Defendant is not indebted to Plaintiff as alleged in the Complaint. Plaintiff failed to establish its claim by providing legally sufficient documents to show that Defendant is indebted to Plaintiff as alleged in the Complaint. The failure to include legally sustainable evidence or documents substantiating the claim will prove that Plaintiff has failed to establish a prima facie case and hence it is not entitled for a Default Judgment. No. 14 -4392 -CIVIL Jeremy L Miller — Response to P's Page 2 of 4 5. For the above reasons, Defendant submits that Plaintiff's Brief in Answer to Defendant's Motion to Open Default Judgment may not be considered by the court and allow Defendant's Motion to Set -Aside Default Judgment. Dated: December IS , 2014 No. 14 -4392 -CIVIL Signature of Defendan Jeremy L Miller — Response to P's Page 3 of 4 CERTIFICATE OF SERVICE A copy of this Response to Plaintiff's Brief in Answer to Defendant's Motion to Open Default Judgment was served upon Plaintiff's attorney at the following address: Derek A. Moatz Apothaker Scian P.0 520 Fellowship Road, Suite C306 P.O Box 5496 Mt. Laurel, NJ 08054-5496 By ordinary U. S. Mail, this 1S day of December, 2014. No. 14 -4392 -CIVIL Signature. .adi Jeremy L Miller — Response to P's Page 4 of 4 Our File No.: 380009 Apothaker Scian P.C. By: Kimberly F. Scian, Esquire Attorney I.D. #55140 520 Fellowship Road Suite C306, PO Box 5496 Mt. Laurel, NJ 08054-5496 (800) 672-0215 Attorneys for Plaintiff ) DISCOVER BANK ) ) Plaintiff, ) DOCKET NO.: 14 -4392 -CIVIL COURT OF COMMON PLEAS OF CUMBERLAND COUNTY VS ) JEREMY L MILLER ) ) ) Defendant. ) ) Matter: Civil Action ANSWER TO NEW MATTER Plaintiff, DISCOVER BANK, by and through their attorney, answers the following New 6. No responsive pleading required. 7. Denied. Service was not improper or insufficient. 8. Denied. Plaintiffs claim brings a valid cause of action. 9. Denied. Plaintiff has satisfied all requirements and conditions precedent before filing suit. 10. Denied. Defendant agreed to pay the balance owed on the account. 11. Denied. Plaintiff's claim is not barred by the doctrine of unclean hands. 12. Denied. Neither plaintiff nor plaintiffs attorneys/agents have violated the Fair Debt Collection Practices Act. 13. This paragraph contains a conclusion of law to which no responsive pleading is required. By way of further answer, defendant was not denied any due process rights. 14. No responsive pleading required. MI 11 1I 1 11 • 15. No responsive pleading required. WHEREFORE, Plaintiff demands that Defendant's New Matter be dismissed. Apothaker Scian P.C. Attorneys for Plaintiff A Law Firm Engaged in Dei ection K mbe Scian, Esquire VERIFICATION , �I d1%44Aen I Of �ir.�c,Ylaa' (Name) (Title) of DB Servicing Corporation, the servicing affiliate of Discover Bank, does hereby verify, under penalty of perjury and subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsifications to authorities and states, that he/she is a duly authorized representative of plaintiff herein and authorized to make this verification, and that the facts set forth in the foregoing Answer to New Matter are true and accurate to the best of his/her knowledge and information and that he/she is familiar with the manner and method by which plaintiff maintains its normal business books and records, including computer records of defaulted accounts. S/he is also familiar with the relationship between Discover Bank and DB Servicing Corporation. That Discover Bank, f/k/a Greenwood Trust Company, is an FDIC insured Delaware State bank, and its servicing affiliate, DB Servicing Corporation performs a variety of services for Discover Bank including, among other things, business management services, customer service, and collection of delinquent accounts. The collection of delinquent accounts includes the right to forward the same to the attorneys to file suit on Discover Bank's behalf. Date (2-2(-/4 Defendant's Name: JEREMY L MILLER DB Servicing Corporation, servicing Account Number: ending in 3698 affiliate of Discover Bank Our File No.: 380009 6500 New Albany Rd New Albany, OH 43054 Our File No.: 380009 Apothaker Scian P.C. By: Kimberly F. Scian, Esquire Attorney I.D. #55140 520 Fellowship Road Suite C306, PO Box 5496 Mt. Laurel, NJ 08054-5496 (800) 672-0215 Attorneys for Plaintiff DISCOVER BANK vs. JEREMY L MILLER Plaintiff Defendant ) COURT OF COMMON PLEAS OF ) CUMBERLAND COUNTY ) ) ) NO.: 14 -4392 -CIVIL ) ) Civil Action ) ) CERTIFICATION OF SERVICE I, Kimberly F. Scian, Esquire, attorney for Plaintiff, certify that on regular mail on: , I caused to be served a copy of Plaintiff s Answer to New Matter by JEREMY L MILLER 5400 OXFORD DR UNIT B MECHANICSBURG, PA 17055-5462 Apothaker Scian P.C. Attorney for Plaintiff A Law Firm Engaged`'n Debt Collection Ki berly F. Scian, Esquire