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Home My WebLink About14-6027 Supreme,Courtof Pennsylvania Cour/ com " Pleas For prothonotary Use Onv: I C � DCounty Docket No: 50 14- wm 011V'4-FeM The information collected on this form is used solely for court administration purposes. This,fonm does not supplement or replace the filing and service of pleadings or other papers as required Ly lana or rubs of court. S Commencement of Action: E ®Complaint El Writ of Summons El Petition ❑Transfer from Another Jurisdiction ❑Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T CAVALRY SPV I,LLC,AS ASSIGNEE OF CAPITAL TERRY PINCIN I ONE BANK USA,N.A./METRIS U Are money damages requested? ® Yes ❑ No Dollar Amount Requested: ®within arbitration limits N I (check one) ❑outside arbitration limits Is this a Class Action Suit? ❑ Yes ® No Is this an MDJAppeal? ❑ Yes ® No j A Name of Plaintiff/Appellant's Attorney: Apothaker Scian P.C. l ❑ Check here if you have no attorney (are a Self-Represented [Pro Se] Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE.If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS ❑ Intentional ❑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 E ElSlander/Libel/Defamation ❑ Other: El Employment Dispute:Other C ❑Zoning Board T ❑ Other: I ❑ Other: o MASS TORT NEl Asbestos ❑Tobacco ❑Toxic Tort-DES REAL PROPERTY MISCELLANEOUS ❑Toxic Tort-Implant ❑Ejectment ❑ Common Law/Statutory Arbitration ❑Toxic Waste ❑Eminent Domain/Condemnation ❑Declaratory Judgment B ❑ 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 ❑ Other Professional: Updated 1/1/2011 OF THE i.ROT Our File No.: 379786 Apothaker Scian P.C. 2014 OCT 10 � Z: �� BY: David J. Apothaker, Esquire Attorney I.D.#38423 CUMBERLAND COUNT? 520 Fellowship Road Suite C306 PENNSYLVANIA PO Box 5496 Mt. Laurel,NJ 08054-5496 (800)672-0215 Attorneys for Plaintiff CAVALRY SPV I, LLC, AS ASSIGNEE OF ) COURT OF COMMON PLEAS CAPITAL ONE BANK USA,N.A./METRIS ) CUMBERLAND COUNTY 500 SUMMIT LAKE DRIVE STE 400 ) (�, VALHALLA,NY 10595-1340 ) NO.: 14_ bbo ( .'mt(�P.� Plaintiff, ) VS. ) TERRY PINCIN ) 541 MAGARO RD ) ENOLA, PA 17025-2934 ) Defendant(s). ) 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 rlt�P8 ATI-V 717-249-3166 C 113�8� Q,'� 3Ia 180 s Our File No.: 379786 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 CAVALRY SPV I, LLC, AS ASSIGNEE OF ) COURT OF COMMON PLEAS CAPITAL ONE BANK USA,N.A./METRIS ) CUMBERLAND COUNTY 500 SUMMIT LAKE DRIVE STE 400 ) VALHALLA,NY 10595-1340 ) NO.: 1q— Plaintiff, ) [Q VS. ) TERRY PINCIN ) 541 MAGARO RD ) ENOLA, PA 17025-2934 ) Defendant(s). ) CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is CAVALRY SPV I, LLC,AS ASSIGNEE OF CAPITAL ONE BANK USA, N.A./METRIS, 500 SUMMIT LAKE DRIVE STE 400, VALHALLA,NY 10595-1340. 2. Defendant(s) is/are TERRY PINCIN ("Defendant"), an adult individual residing at 541 MAGARO RD, ENOLA, PA 17025-2934. 3. Plaintiff is the Assignee and Successor in Interest of a credit account("Account"). 4. The Account number ends in 3790. 5. The Account was issued to Defendant(s) by Capital One Bank USA, N.A./Metris, the original creditor. 6. Defendant(s) received, accepted and used the account by making purchases, balance transfers, and/or cash advances. 7. The account is in default due to Defendant(s) failure to make timely payments. 8. Although demand has been made, Defendant(s) failed to make payment of the amount due. 9. The amount due as of this date is $6,840.21. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of$6,840.21 and requests this Court award costs to the extent permitted by applicable law. Apothaker ScianAC. Plaint Attorney for ff A Law Firm Engaged/ D t Collection BY: t David J. ApothaMr, squire Our File No.: 379786 379786 VERIFICATION hereby state that I am ( for Plaintiff. I hereby verify that,upon information and belief,the statements made in the foregoing Civil Action Complaint are true and accurate. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification.to authorities. 7"� 7 131/y Affiant Name Defendant's Name: TERRY PINCIN Account Number: ending in 3790 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY 001, pt Cuoutirr/.t OF -ICE SOF THE SHERIFF t' ILED-0F IC`e t THE PROTHONCTAFec 20I € OCT 2 I PM 2 59 CUMBERLAND COUNTY PENNSYLVANIA Calvary SPV I, LLC, As Assignee of Capital one Bank USA, N.A./Metris vs. Terry Pincin Case Number 2014-6027 SHERIFF'S RETURN OF SERVICE 10/14/2014 09:07 PM - Deputy Shawn Harrison, being duly sworn according to law, served the rest ested Complaint & Notice by "personally" handing a true copy to a person representing th- selves t• f e the Defendant, to wit: Terry Pincin at 541 Magaro Road, East Pennsboro Township, En' - ; 170. 2934. SH HADEPUTY SHERIFF COST: $44.95 SO ANSWERS, October 15, 2014 RONNY R ANDERSON, SHERIFF (c) CountySuite Sheriff, Toleescff, h,c CAVALRY SPV I, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No: 2014-6027 TERRY PINCIN, CIVIL ACTION - LAW r-s Defendant r 2M C--3 ;= NOTICE TO PLEAD zr�- -''-ri �, To: Cavalry SPV I, LLC CD N _ c/o David J. Apothaker, Esquire Apothaker & Associates, PC :='f 520 Fellowship Road, C306 Mount Laurel, NJ 08054 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: — Michael J. kosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street, Camp Hill, PA 17011 (717) 975-9446 Attorney for Defendant Michael J. Pykosh, Esquire ID#58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 mpvkosh(a-)_dpiglaw.com Attorney for Defendant CAVALRY SPV I, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 2014-6027 TERRY PINCIN, CIVIL ACTION - LAW Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Terry Pincin, by and through his attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files his Preliminary Objections to the Plaintiff's Complaint, and avers as follows: 1. Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account issued by Capital One Bank USA, N.A./Metris of which Plaintiff claims to be Assignee and Successor in Interest of credit account. Comp. ¶ 1, 3and 5. 2. The Complaint was filed on October 10, 2014. First Preliminary Objection - Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Cotirt 3. Pa. R.C.P. 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 4. Plaintiff's Complaint fails to conform to Pennsylvania Rules of Civil Procedure. 5. Pursuant to Pa. R.C.P. 1019(h) Plaintiff has failed to indicate whether the alleged Agreement between the parties is oral or written. 6. Pursuant to Pa. R.C.P. 1019(1) Plaintiff has failed to attach a copy of the complete writing, more specifically the Loan/Credit Agreement, or the material part thereof, or, in the alternative, state, with the reason that the writing or copy thereof is not accessible to the Plaintiff and the substance of the writing in violation of Pa. R.C.P. 1019(1). Remit Corporation v Miller, 5 Pa. D&C 5th 43. See also Citibank NA v. Ralph D. Opitz, No 207-2010-C (Fulton County Branch). Second Preliminary Objection - Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 7. Pursuant to Pa. R.C.P. 1028(a)(2), a party may file a Preliminary Objection based upon the failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. 8. Plaintiff's Complaint is based upon a contract. 9. Plaintiff asserts a cause of action based upon an account stated theory of recovery. 10. Plaintiff in pleading account stated cause of action is not permitted to escape pleading requirements otherwise applicable. CitiBank (South Dakota, N.A.) v Xenofon Skaboulos, No. 09-8676 (Cumberland County). CitiBank, N.A. v Heather B. Wadas, No. 12-1705 (Cumberland County, Peck J.). CitiBank (South Dakota), N.A. v Ross,;No. 10-5668 (Cumberland County, Masland J.). Third Preliminary Objection- Pa.R.C.P. No. 1028(a)(2) Failure to Conform to Rule of Court 11. The Plaintiff is not the original creditor, but rather assignee of the original creditor (see Exhibit "A" to Plaintiff's Amended Complaint). Since the Plaintiff's right to maintain an action as an assignee is predicated upon written assignment or agency agreement, that writing must be attached to the Amended Complaint, pursuant to Pa. R.C.P. 1019(i). 12. Plaintiff failed to attach an Assignment and Assumption Agreement for Defendant's Account. 13. By failing to attach a copy of the entire assignment of the debt to the Plaintiff, the Amended Complaint does not comply with an express rule of court, in violation of Pa. R.C.P. 1028(a)(2). Remit Corporation v Miller 5 Pa. D&C 5th 43 and Capital One Bank v. Clevenstine, 7 Pa. D&C 5th 153 Fourth Preliminary Objection- Pa. R.C.P. No. 1028(a)(3) Insufficient Specificity in a Pleading 14. The Complaint contains only a general assertion of the amount the Plaintiff claims is owed by the Defendant. It provided insufficient detail as to the date(s) on which the debts were incurred, the amounts incurred on each date, the dates or amounts of payments, nor dates of accrual and amounts of interest charges and other fees. 15. Pa. R.C.P. No. 1019 and Pa. R.C.P. 1028(a)(3) require that the above detail be included in a Complaint of this type. 16. By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. Fifth Preliminary Objection- Pa. R.C.P. No. 1028(a)(4) Demurrer to Court 17. Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract and Account Stated. 18. Plaintiff has failed to fulfill the pleading requirements for an account stated cause of action. Sixth Preliminary Objection- Pa. R.C.P. 1028(a)(5) Plaintiff is a Stranger to Defendant 19. Pa. R.C.P. 2002(a) required that an action be brought by the real party in interest. '20. By failing to attach a copy of the necessary writing with all exhibits and identifying Defendant's Account as among the assigned, the Plaintiff has failed to conform with the requirements of the aforesaid rule. 21. Plaintiff has not shown standing or capacity to sue Defendant. 22. Since this matter was not brought by the real party in interest it must be dismissed. WHEREFORE, the Defendant respectfully requests that her Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Respectfully Submitted, Date: 2* Michael J. Py osh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 Attorney for Defendant Michael J. Pykosh, Esquire I D#58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 mpykosh@dpl4law,com Attorney for Defendant CAVALRY SPV I, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 2014-6027 TERRY PINCIN, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant's Preliminary Objections to Plaintiff's Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Cavalry SPV I, LLC c/o David J. Apothaker, Esquire Apothaker & Associates, PC 520 Fellowship Road, C306 Mount Laurel, NJ 08054 ^ Res7M77-- Michael Date: J. Kkosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 975-9446 Attorney for Defendant Our File No.: 379786 Apothaker Scian P.C. By: Benjamin J. Cavallaro, Esquire Attorney I.D. #307949 520 Fellowship Road Suite C306, PO Box 5496 Mt. Laurel, NJ 08054-5496 (800) 672-0215 Attorneys for Plaintiff CAVALRY SPV 1, LLC, AS ASSIGNEE OF CAPITAL ONE BANK USA, N.A./METRIS vs. TERRY PINCIN Plaintiff, Defendant. 1.., ED -OFF C CF THOO-2(RTHNOTi 20I11 NOV I L4 ki II: 00 CUMBERLAND COUNTY PENNSYLVANIA ) COURT OF COMMON PLEAS ) CUMBERLAND COUNTY ) ) ) ) NO. 14-6027 CIVIL TERM ) ) ) ) PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. Apothaker Scian P.C. Attorneys for Plaintiff A Law Firm Engaged in Debt Collection By: Ben val aro, Esquire .111 191 11111111 1 111,1111