HomeMy WebLinkAbout14-7077 Supreme Court of Pennsylvania
Court of Common Pleas For Prothonotary Use Only:
Civil Cover Sheet
Docket No:
Cumberland County 14- rID77
The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the ftlin g and service of pleadings or other papers as required by law or rules of court.
Commencement of Action:
Complaint r7l Writ of Summons El Petition
❑ Transfer from Another Jurisdiction 171 Declaration of Taking
S
E Lead Plaintiff's Name: Lead Defendant's Name: DEBRA A WHEELER
C TD BANK USA,N.A.
T Dollar Amount Requested: within arbitration limits
I Are money damages requested? 13 Yes ❑No (Check one) C3 outside arbitration limits
0
N Is this a Class Action Suit? El Yes No Is this an MVJ Appeal? ❑Yes No
A Name of Plaintiff/Appellant's Attorney: Syretta Martin, Frank Janello, Beth Arnold Howell, Kami S. Miller, Christoph r Titus
❑ 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
0 Intentional 0 Buyer Plaintiff Administrative Agencies
11 Malicious Prosecution 0 Debt Collection: Credit Card 11 Board of Assessment
0 Motor Vehicle 1Z,6ebt Collection: Other El Board of Elections
El Nuisance El Dept. of Transportation
S El Premises Liability 0 Statutory Appeal: Other
E El Product Liability (does not include El Employment Dispute:
mass tortl
C r_1 Slander/Libel/Defamation Discrimination
T E] Other: 0 Employment Dispute: Other 0 Zoning Board
I r_1 Other:
0
N 0 Other:
MASS TORT
13 Asbestos
D Tobacco
B 0 Toxic Tort-DES
0 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS
El Toxic Waste E3 Ejectment E3 Common Law/Statutory Arbitration
13 Other: 171 Eminent Domain/Condemnation F-1 Declaratory Judgment
El Ground Rent 13 Mandamus
11 Landlord/Tenant Dispute 13 Non-Domestic Relations
0 Mortgage Foreclosure: Residential Restraining Order
PROFESSIONAL LIABILITY El Mortgage Foreclosure: Commercial 13 Quo Wartanto
13 Dental El Partion 13 Replevin
0 Legal E3 Quiet Title E3 Other:
13 Medical 0 Other:
0 Other Professional:
Updated 111120
2953712
PPTXCPR1(07/18/2014)
11111111111111111111111111111111111111111111111111111111111111111111111 IN
Syretta Martin, Esq. PA Bar #309370
Frank Janello, Esq. PA Bar #315643
Beth Arnold Howell, Esq. PA Bar #203606 -
Kami S. Miller Esq. PA Bar #78590
Christopher Alan Titus, Esq. PA Bar #315746 "Q �I! I-. r ,-
Blatt, Hasenmiller, Leibsker & Moore, LLC L,° ` ' 'I
1835 Market Street, Suite 501 C"U'I,,IDEIR L AND l.0UNTY1
Philadelphia, PA 19103 PENNSYLVANIA
TELE: 215-564-1567
FAX: 215-564-3818
TD BANK USA,N.A.
c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS
1835 Market Street, Suite 501
Philadelphia, PA 19103 CUMBERLAND COUNTY, PA
Plaintiff,
CIVIL ACTION
vs.
No. l4' 7D`17 IV6���
DEBRA A WHEELER
1261 HIGH ST
BOILING SPRINGS PA 17007-9675
Defendant.
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set forth in the following pages,
you must take action within twenty (20) days after this complaint and notice are served, by entering a
written appearance personally or by attorney and filing in writing with the court your defenses or
objections to the claims set forth against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the court without further notice for
any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may
lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE
YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO
ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
LAWYER REFERRAL SERVICE
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
800-990-9108
.S
11.5.f75 P 1 ATTN
31�3&L
2953712
PPTCPADI (07/18/2014)
AVI O
Le flan demandado'a usted "eh`la Corte Si uste' d quiere def on derse de estas demandas expuestas en las
paginas siguientes, usted tiene veinte dia's de plazo al partir de la fecha de la demanda y la notification.
Hase falta ascentar una comparencia escrita o en persona o con un aboga do y entregar a la Corte en forma
escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisa do que si usted no
se de fiende la Corte tomara medidas y puede continuar la demanda en contra suva sin previo aviso o
notification. Ademas, la Corte puede decidir a favor del demandante y requiere que usted cumpla con
todas las provisiones de esta demands. Usted puede perder dinero o sus propieda des u otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE, SI NO TIENE ABOGADO 0 SI
NO TIENE EL DINERO SUFICIENTE DE PAGAR TAIL SERVICIO;VAYA EN PERSONA 0
LLAME POR TELEFONO AlkOFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO
PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASIST,ENCIA LEGAL.
SERVICIO DE REFERENCIA LEGAL
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
800-990-9108
5. Defendant(s) was provided with copies of Account statements showing debits and credits for
transactions on the aforementioned Account to which there was no bonafide objection by
Defendant(s).
6. Defendant(s) was in default with respect to that debt for failure to make the required payments on
the Account. The last payment date on this Account was on or about 11-11-2013.
7. As of the date within the Complaint, the remaining balance due, owing and unpaid of Defendant(s)
Account, as a result of Defendant(s) and/or any authorized user's of said Account is in the sum of
$9346.98.
8. Despite reasonable demands for payment, Defendant(s) has refused and continues to refuse to pay
all sums due and owing on the aforementioned Account, all of the damage and detriment of the
Plaintiff.
WHEREFORE, Plaintiff respectfully requests this Honorable court enter Judgment in favor of Plaintiff and
against Defendant(s) DEBRA A WHEELER, in the amount of $9346.98, plus costs of
this action and any other relief as the Court deems just and reasonable.
Respectfully Submitted,
Dated:
Syretta Martin, Esq. PA Bar #309370
Frank Janello, Esq. PA Bar #315643
Beth Arnold Howell, Esq. PA Bar #203606
Kami S. Miller, Esq. PA Bar #78590
Christopher Alan Titus, Esq. PA Bar #315746
Blatt, Hasenmiller, Leibsker & Moore, LLC
1835 Market Street, Suite 501
Philadelphia, PA 19103
TELE: 215-564-1567
FAX:. 215-564-3818
Verification
I. �t�2 �►� , am an authorized agent and/or employee of
TD BANK USA,N.A.. I am authorized to make this verification
on behalf of Plaintiff. The statements of facts set forth in the complaint are true and correct
based upon my information and belief and are made subject to the penalties of 18 Pa. C.S. Section
4904, relating to unsworn falsification to authorities.
Date:
Signature
2953712
PPTXVR11 (04/28/2014)
1111111111111111111111111111111111111111111111111111111111111
Exhibit " A "
2953712
PPTXEXAI ( 04/17/2014 )
EXECUTION COPY
ASSIGNMENT AND ASSUMP7lON AGREEMENT
This Assignment and Assumption Agreement, dated as of March 13, 2013 (the
"Assignment and Assumption") is entered into by (i) Target National Bank, a national banking
association; Target Receivables LLC, a Minnesota limited liability company ("TRLLC" and
together with Target National Bank, the "Sellers." and each a "$eller")> as the Sellers, and TD
Bank USA, N.A., a national banking association (the "Purchaser"), as the Purchaser, pursuant to
subsection 3.1(b)of the Purchase and Sale Agreement,dated as of October 22,2012, as amended
by the First Amendment thereto, dated as of March 13, 2013 (as amended, the "Purchase an
Sale A&eement"), by and among the Sellers, Target Corporation, a Minnesota corporation (the
"Parent") and the Purchaser, and (ii) Target National Bank, as the depositee (in such capacity,
the "Depositee") and the Parent, as the depositor(in such capacity, the "Depositor") as parties to
the Deposit Account Agreement #1 and Deposit Account Agreement #2, each dated as of April
282009 (collectively, the "Deposit Account Agreement"), pursuant to subsection 3.1(d) of the
Purchase and Sale Agreement.
Section 1. Definitions.
Capitalized terms used but not defined in this Assignment and Assumption have
the same meaning as set forth in the Purchase and Sale Agreement, or if such term is not defined
therein, the Credit Card Program Agreement the "Credit Card Pro am A e e t"), dated as
esota corporation
of October 22, 2012, by and among the Parent, Target Enterprise, Inc., a Minn
and the Purchaser.
Section 2. As ignment.
(a) Purchase Agreement.
(i) The Sellers hereby sell, convey and assign to the
Purchaser, free and clear of all Liens, the Acquired Assets, including, Tarut
limitation, each Private Label Account and Co-Branded Account owned by
National Bank as of the Cut-Off Time and existing as of the Closing Date,
including Closed Accounts and Written-Off Accounts as of the Closing Date (the
"Accounts")-
(6) All purchases and cash advances in connection with
the Accounts and the CardboldeT Indebtedness related to such Accounts
outstanding as of the Closing Date or thereafter effected shall create the
relationship of debtor and creditor between the Cardholder and the Purchaser,
respectively.
( ) The Sellers acknowledge and agree that, following
the Closing Date, (x) they shall have no right, title or interest in or to, any of the
Accounts or the Account Documentation related to such Accounts or any
proceeds of the foregoing, and (y) the Purchaser shall extend credit directly to
Cardholders.
(b) Deposit Account Agreement.
(i) The Depositee hereby transfers and assigns to the
Purchaser all of its rights and obligations under the Deposit Account Agreement,
including all deposit Liabilities currently outstanding.
(ii) On the Closing Date, the Depositee hereby pays to
the Purchaser an amount equal to the Deposit Liabilities held by the Depositee for
the Depositor, as estimated per subsection 3.1(d)(i) of the Purchase and Sale
Agreement (which payment shall be made by a deduction from the Purebase Price
and is subject to final adjustment as provided in subsection 3.1(d) of the Purchase
and Sale Agreement).
(iii) The Depositor and Depositee agree to terminate
those two certain Pledge and Security Agreements, each dated as of April 28,
2009, and the pledges therein.
(iv) The Depositor and Depositee agree that
notwithstanding any other provision of the Deposit Account Agreement, no
interest shall accrue thereunder on or after the Closing Date.
Section 3. Assumytion.
(a) Purchase Agreement.
(i) The Purchaser hereby assumes and shall pay, defend,
discharge and perform as and when due the Assumed Liabilities upon the terms
and conditions set forth in the Purchase and Sale Agreement. For greater certainty,
the Purchaser will not be assuming or agreeing to pay, defend, discharge and
perform the Excluded Liabilities.
(6) The Purchaser hereby agrees to purchase all the
Acquired Assets and on and after the Closing Date, thASSer shall hal be
athe
sole
e
and exclusive owner of the Accounts and other Acquired
all rights, powers, and privileges with respect thereto as such owner.
(iii) Except as expressly provided in the Credit Card
prom Agreement, the Purchaser shall be entitled to (x) receive all payments
made by Cardholders on Accounts, and (y) retain for its account all Cardholder
Indebtedness related to Accounts and such other fees and ime he Purchaser h respect to the
the Credit Card Agreements and collected by
Accounts and the Cardholder Indebtedness related to such Accounts.
(b) Deposit Account Agreement.
2
(i) The Purchaser hereby assumes all rights and
obligations of the Depositee under the Deposit Account Agreement, including all
deposit Liabilities thereunder to the extent outstanding as of the Closing Date, as
set forth in the Purchase and Sale Agrecment.
(ii) On the Business Day following the Closing Date, the
Purchaser hereby agrees to pay the amount of such deposit Liabilities assumed, as
estimated. per subsection 3.1(d) of the Purchase and Sale Agreement, to the
Depositor.
Section 4. Credit Card Program Azreement.
The terms of the operation of the Program with respect to the Acquired Assets and
Assumed Liabilities will be subject to the tern's and conditions of the Credit Card Program
Agreement. The Parent and/or its Affiliate(s) and the Purchaser shall have the rights set forth in
the Credit Card Program Agreement in accordance with the terms thereof.
Section 5. Counterparts.
This Assignment and Assumption may be executed in two or more counterparts
(and by different parties on separate counterparts), each of which shall be an original, but all of
which together shall constitute one and the same instrument.
Section 6. Effect of Headings.
The Section headings herein are for convenience only and shall not affect the
construction hereof.
Section 7. Severability.
In case any provision in this Assignment and Assumption shall be invalid, illegal
or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not
be afrecmd or impaired thereby.
Section 8. Governing Law.
THIS ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED ,BY,
AND CONSTRUED IN ACCORDANCE WIO, LTHT OF LAWS PROMS N LAWS OF THE STATE OF NEW
YORK, wIT14OUT REFERENCE TO ITS C
HER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIESH SUCH THWSARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE
3
Section 9. Effective Date.
This Assignment and Assumption shall become effective as of the day and year
first above written.
[REMAINDER OF THE PAGE BLANK]
4
.................
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption to be duly executed by their respective officers as of the day and year first above
written.
TARGET CORPORATION,
as the. Parent and as the Depositor
By:
�c
Y
Name: Sara .I. Ross
Title: Assistant Treasurer
TARGET RECEIVABLES LLC, as a Seller
By:
Naine: Sara J. Ross
Title: Vice President and Assistant Treasurer
TARGET NATIONAL BANK,
as a Seller and the Depositee
ci
By:
Name: Spencer ohnson
Title: Vice President
TD BANK USA, N.A., as the Purchaser
By:
Name: Michael Collins
Title: President and CEO
1
9M-F--N-1:AM)A-1,StWPT4(4N
TAROETe
~00000*
Target Visa Credit Card Account Number: XXXX-XXXX-XXXX-9110
Account Identification Number: Statement Closing Date:June 23,2014
DEBRA A WHEELER Page 1 of 2
Summary of • Information
Previous Balance $9,311.98 New Balance $9,346.98
Payments and Other Credits -$0.00 Minimum Payment Due $9,346.98
Purchases and Other Debits +$0.00
Cash Advances +$0,00 Payment Due Date 7/20/2014
Past Due Amount $1,943.00 If you would like information about credit counseling services,
Fees Charged +$36.00 call 1-800-991-8433.
Interest Charged +$0.00
New Balance $9,346.98 For questions,an address change or to report a
Total Credit Limit $0.00 lost or stolen card, go online or call us:
Cash Limit $0.00 Manage My REDcard Target.com/redcard
Available Credit $0.00 Target Card Services 1-888-755-5856
Portion Available for Cash $0.00 TDD/TDY 1-800-347-5842
The Cash Limit is a portion of the Total Credit Limit Outside the U.S. 1-612-307-8622(Call Collect)
Statement Closing Date 6/2312014 Calling will not preserve your billing-error rights
Days in Billing Cycle 31
Important . •
Your account has been charged off. This is your final statement.
Transactions
Trans Date Description of Transaction or Credit Location Amount
x x I tis r3' xar lilr 1 ff M1146,iji
43: :� ::_.sSi'T+►'zr- � �'i�, �n �.,-C$..a r^ _
No payments or credits were received last month.
NET,
..-
�:E?.�
Jun. 20 LATE PAYMENT FEE $35.00
TOTAL FEES FOR THIS PERIOD $35.00
(transactions continued on next page)
NOTICE:SEE REVERSE SIDE FOR IMPORTANT INFORMATION
INCLUDE THIS PORTION WITH YOUR PAYMENT MADE PAYABLE TO TARGET CARD SERVICES
Account Number XXXX-XXXX-XXXX-9110
Account Identification Number
TAROETe IIIIIIIII�II�II IIIIIII IIIIIII
Minimum aPayment Due $9,346.98
Payment Due Date July 20,2014
NEW PHONE,HOME OR Amount
E-MAIL ADDRESS? Enclosed
PLEASE UPDATE ON TARGET CARD SERVICES $
REVERSE SIDE. P.O.BOX 660170
OFFICE COPY DALLAS TX 75266.0170
I'l l l l l l l l l l"111111"'I"l l"I 1 1 1 1 1 1 l'1 1"I I I I I'1 1 l'I•I l l l l l l l l'
r
DEBRA A WHEELER
1261 HIGH ST
BOILING SPRINGS PA 17007-9675
IIII•Illl"111111'Ihl�lllllll6�111�illlllhl'I'llltll'lllll�li�
TARGET*
`00000'
Target Visa Credit Card Account Number: XXXXr-XXXX-XXXX-9110
Account Identification Number: Statement Closing Date:June 23,2014
DEBRA A WHEELER Page 2 of 2
Transactions (cont.)
Total fees charged In 2014 $210.00
Total Interest charged in 2014 $832.pg
CalculationInterest Charge
Your Annual Percentage Rate(APR)is the.annual interest rate on your account.
.i ss 'tg"^
�'r`.Yl, �4Y�,., S ��';''�' `�.'�.ELy�ij , �+wi�c(`&�.:Y C"' ����p,�S�'fi��.. �A�Yt=� '-,. 'ht�1,"CI'�'7}t,l$e .`{- L;'ST�f' j1-•r- y�T�`s.�t�J
�' � r �'�, �:.�14R 1=•��cet�targe�a � 3�'6�Ptsf`��'t �tate ,�:�, rd�ras� N1raf�es't'C��r3ge�{}n�"
a�f__r.._.-:�-_._. x._...:..��i:_4_3._�__1P"J .:..ar.F..�_.�r�e�zz.�__•z::...:. �3�:'��� _ � �._c. � >;srv�._. �L'_�_.._=t..:G.n.r..-�t».._`d"__:..,.: (.--
Purchases 0.00% $9,316.49 $0.00
Cash Advances 0.00% $0.00 $0.00
There is a Minimum Charge of$1.00 for any billing period in which an interest charge is imposed.
Syretta Martin, Esq. PA Bar #309370
Frank Janello, Esq. PA Bar #315643 6-F ,_
Beth Arnold Howell, Esq. PA Bar #203606 ' �'� �' I
Kami S. Miller, Esq. PA Bar #78590
Christopher Alan Titus, Esq. PA Bar #315746 _8 Ph �: ��
Blatt, Hasenmiller, Leibsker & Moore, LLC
1835 Market Street, Suite 501 CUM BERLA,ND COON FY
Philadelphia, PA 19103 PENNSYLVANIA
TELE: 215-564-1567
FAX: 215-564-3818
TD BANK USA, N.A.
c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS
1835 Market Street, Suite 501
Philadelphia, PA 19103 CUMBERLAND COUNTY, PA
Plaintiff,
CIVIL ACTION
VS. r�
No. 1y - 677 IVI 17"
DEBRA A WHEELER
1261 HIGH ST
BOILING SPRINGS PA 17007-9675
Defendant.
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Kindly ENTER my appearance in the above-captioned matter on behalf of PLAINTIFF
TD BANK USA,N.A..
Papers may be served at the address set forth below:
Blatt, Hasenmiller, Leibsker & Moore, LLC
1835 Market Street, Suite 501
Philadelphia, PA 19103
Telephone Number: 1-215-564-1567
BLATT, HASENMILLER, LEIBSKER
& MOORE, LLC
Dated: l ���lP� By: ?)u6s2t axg &eit�
Syretta Martin, Esq. PA Bar #309370
Frank Janello, Esq. PA Bar #315643
Beth Arnold Howell, Esq. PA Bar #203606
Kami S. Miller, Esq. PA Bar #78590
Christopher Alan Titus, Esq. PA Bar #315746
Blatt, Hasenmiller, Leibsker & Moore, LLC
1835 Market Street, Suite 501
Philadelphia, PA 19103
TELE: 215-564-1567
FAX: 215-564-3818
Attorneys For Plaintiff
PPTXPEAI (07/18/2014) 2953712
11111111111111 IN 11111111111111111111111111111111111111111111111111111 IN
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
OFFICE OF THE S' ,ERIFF
J f
:iI I DEC 19 PM 3: �3
CUMBERLAND C ,UN T I
PENNSYLVANIA
TD Bank USA, N.A.
vs.
Debra A Wheeler
Case Number
2014-7077
SHERIFF'S RETURN OF SERVICE
12/15/2014 01:42 PM - Deputy Shawn Gutshall, being duly sworn according to law, served the requested Complaint &
Notice by handing a true copy to a person representing themselves to be Ted Wheeler, Husband, who
accepted as "Adult Person in Charge" for Debra A Wheeler at 1261 High Street, Monroe Township,
Boiling Springs, PA 17007.
UT ALL, DEPUTY
SHERIFF COST: $34.78 SO ANSWERS,
December 16, 2014 RONNY R ANDERSON, SHERIFF
(c) CountySuite Sheriff, Te oft, Inc.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
TD Bank USA NA,
Plaintiff(s) Docket No.: 2014-7077
v.
Debra Wheeler,
Defendant(s)
PRAECIPE FOR APPEARANCE
Filed on Behalf of Defendant
Counsel:
The J. Murphy Firm
The Grant Building, 33rd Floor
310 Grant Street, #3309
Pittsburgh, PA. 15219
(412)521-2000
Joseph P. Murphy, Esquire
Pa. Supreme Court I.D. 83120
r)
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
TD Bank USA NA,
Plaintiff(s) Docket No.: 2014-7077
v.
Debra Wheeler,
Defendant(s)
TO THE PROTHONOTARY:
e
Kindly accept my appearance on behalf of The Defendant.
ectfully,
Joseph°. ' urphy
8312.0
The urphy Firm
The Grant Building, 33rd Floor
310 Grant Street, #3309
Pittsburgh, PA. 15219
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
TD Bank USA NA, r, { �
Plaintiff(s) Docket No.,: 2014-7077 r
V.
Debra Wheeler,
Defendant(s)
PRELIMINARY OBJECTIONS TO
COMPLAINT
Filed on Behalf of Defendant
Counsel:
The J. Murphy Firm
The Grant Building, 33rd Floor
310 Grant Street, #3309
Pittsburgh, PA. 15219
(412)521-2000
Joseph P. Murphy, Esquire
Pa. Supreme Court I.D. 83120
BEM;
r�
r
r i�
�.a
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
TD Bank USA NA,
Plaintiff(s) Docket No.: 2014-7077
v.
Debra Wheeler,
Defendant(s)
CERTIFICATE OF SERVICE
I, Joseph P. Murphy, counsel for the Defendant in the above captioned
matter, do solemnly swear that the foregoing
dAPPEARANCE
W/RELIMINARY OBJECTIONS TO COMPLAINT
BIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO COMPLAINT
OTION/REQUEST/PRAECIPIE FOR ARGUMENT
were delivered by First Class, U.S. Mail, Postage Pre -Paid to the Below:
Syretta Martin
Blatt, Hasenmiller, Leibsker & Moore, L.L.C.
1835 Market Street, Suite 501
Philadelphia, PA 19103
fitted,
Jos -• '. Murphy
M December 29, 2014
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
TD Bank USA NA,
Plaintiff(s) Docket No.: 2014-7077
v.
Debra Wheeler,
Defendant(s)
PRELIMINARY OBJECTIONS TO COMPLAINT
Now comes the Defendant, by and through counsel, the J. Murphy
Firm, and Joseph P. Murphy, Esquire and bring(s) and file(s) the within
Preliminary Objections to Complaint, averring in support thereof as follows:
OBJECTIONS TO CONTRACT CLAIMS
1. The Complaint references a credit agreement or contract.
2. Although the Complaint references a credit agreement or contract,
no copy of the agreement or contract is attached thereto.
3. The foregoing amounts to a violation of Pa. R.C.P. §1019(i).
4. Accordingly, the Complaint is the proper subject of preliminary
objections pursuant to Pa. R.C.P. §1028(a)(2) for failure to conform
to Rule of Court 1019(i).
OBJECTIONS TO ASSIGNMENT OR DEBT BUYING ARRANGEMENT
5. The Complaint references an assignment, succession of interest,
debt buying arrangement, or the like.
6. This assignment, succession of interest, debt buying arrangement,
or the like, is a "writing," upon which Plaintiff's "claim" of the right
to sue Defendant is based.
7. Prior to November 28, 2000, Plaintiffs were only required to plead
these assignments.1
8. As of November 28, 2000, the Rules committee adopted the new
rule 1019(i), which requires that, "When any claim or defense is
based upon a writing, the pleader shall attach a copy of the
writing..." (emphasis mine)
9. That is to say, the complaint claims a right to sue on an account
which plaintiff did not create. This "claim" is based on a "writing,"
and that actual "writing" is not attached.2
10. The foregoing is the proper subject or preliminary objections,
Pursuant to Pa. R.C.P. §1028(a)(2) for failure to conform to rule of
court 1019(i), as adopted 11/28/2000/
OBJECTIONS DIRECTED TOWARD LACK OF SPECIFICITY
11. These objections arise under Rule 1028(a)(3).
12. Pa. R.C.P. 1028(a)(3) provides for the filing of preliminary
objections where the complaint is insufficiently specific.
The procedural rules changes adopted on this date modified the old rule 1019(h), which, up until then,
only required that the pleader state whether an agreement is in writing. The 2000 rule changes required that
the pleader specifically plead whether the agreement is oral or written, and added a new rule, Rule 1019(i),
requiring that if the agreement is written it must be attached. All the cases still floating around that seem to
relieve, mysteriously, credit plaintiffs only, from the attachment requirement are either pre 2000, or based
on other cases that were decided pre 2000, for example, the oft cited case of Brown v. Esposito, decided in
1945, some 55 years before there even was a rule 1019(i). Of course these cases and their progeny are
thoroughly inapplicable to ruling on a 1019(i) objection, because 1019(i) didn't exist yet.
2 Of course Plaintiffs will commonly attach "bills of sale," "affidavits" and the like. These are not the
writing, just a writing that says the writing exists. In this case the "Bills of Sale" simultaneously prove that
a writing exists and that it is not attached.
13. Rule 1028(a)(3) is commonly understood to require that the
complaint be sufficiently specific as to allow the Defendant to
formulate an answer, admitting or denying the averments in the
complaint.
14. Specifically, Plaintiff pleads that a specific sum certain is due from
Defendant.
15. Defendant is required to admit or deny this averment by our rules.
16. Plaintiff has not provided enough information, in the way of
documentation of the calculations underlying its demand to enable
Defendant to formulate a response.
17. This renders the Complaint the proper subject of preliminary
objections, pursuant to Pa.R.C.P. 1028(a)(3). for insufficient
specificity.
WHEREFORE, Defendant respectfully prays that the Complaint filed by
the Plaintiff be dismissed with prejudice, or, in the alternative that the
complaint be stricken, and the Plaintiff be required to plead over in accord
with the Rules of Court.
Resp bm
Joseph P `urphy
(
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
TD Bank USA NA,
Plaintiff(s) Docket No.: 2014-7077
v.
Debra Wheeler,
Defendant(s)
-ORDER-
On this day of , 20 , it is hereby
ORDERED that Plaintiff's Complaint is stricken. Plaintiff may file an amended
complaint within 30 days. If Plaintiff fails to file an amended complaint within the
time set forth above, the Prothontary, upon praecipe of the Defendant, shall dismiss
this case with prejudice.
BY THE COURT:
J.
CP/AI.
C) -til
T,
w L
PRAECIPE FOR LISTING CASE FOR ARGUMENT" `� rn
GO
(Must be typewritten and submitted in triplicate).3
t— WJE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next: C.) :�_7°
Argument Court.) .t' C
r`
---------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
vs.
0.6nx LA•WeI0 No. 7)77 , 4P141—Term
1. State matter to be ar ued (i.e.,plaintiff's motion for new trial defendant's demurrer to
complaint, etc.):
rp� a4A11#101 0 • '10 COWi atr:'rI4"'"
2. Identifyall counsel who will argue cases:
9
(a) for plaintiffs:
St' PVLOY4,1
(Name and Address)
4615 silaritt4 2s45.ts
(b) for defendants:
les,flok
(� Nafne and Address)
30 CS4-bft33oo( 15d'l q
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
,ORIGINAL Date: t 306 I el°'
INSTRUCTIONS:
Signature
?Z&t
e htetA
Attorney for
1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case Is relisted.
*19 .b15 A-rrl
ait- 603a.
pp -36101,C°
Syretta Martin, Esq. PA Bar #309370
Frank Janello, Esq. PA Bar #315643
Beth Arnold Howell, Esq. PA Bar #203606
Kami S. Miller, Esq. PA Bar #78590
Christopher Alan Titus, Esq. PA Bar #315746
Blatt, Hasenmiller, Leibsker & Moore, LLC
1835 Market Street, Suite 501
Philadelphia, PA 19103
TELE: 215-564-1567
FAX: 215-564-3818
TD BANK USA, N.A.
do Blatt, Hasenmiller, Leibsker & Moore, LLC
1835 Market Street, Suite 501
Philadelphia, PA 19103
vs.
DEBRA A WHEELER
Plaintiff,
1261 HIGH ST
BOILING SPRINGS PA 17007-9675
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION
No. 14 -7077 -CI VI LTERM
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Kindly ENTER my appearance in the above -captioned matter on behalf of PLAINTIFF
TD BANK USA, N.A..
Papers may be served at the address set forth below:
Dated:
Blatt, Hasenmiller, Leibsker & Moore, LLC
1835 Market Street, Suite 501
Philadelphia, PA 19103
Telephone Number: 1-215-564-1567
PPTXPEAI (11/01/2014) 2953712
111111111111111111111111111111111111111111111111111111111111111111111111111
By:
BLATT, HASENMILLER, LEIBS
& MOORE, LLC
Syretta Ma , Esq. PA Bar #309370
Frank Janello, Esq. PA Bar #315643
Beth Arnold Howell, Esq. PA Bar #203606
Kami S. Miller, Esq. PA Bar #78590
Christopher Alan Titus, Esq. PA Bar #315746
Blatt, Hasenmiller, Leibsker & Moore, LLC
1835 Market Street, Suite 501
Philadelphia, PA 19103
TELE: 215-564-1567
FAX: 215-564-3818
Attorneys For Plaintiff