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Home My WebLink About06-6289 . 2027881 THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, JR., ESQUIRE Identification No. : 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 HARVEST CREDIT MANAGEMENT VII, LLC AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE 600 17th Street Denver CO 80202 COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. DOCKET NO. : Of.. -/,2f? (!lu\,ll~ JAMES E ASCH 1918 MARY LANE CARLISLE PA 17013-1043 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 JUDGEMENT 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 COMPLAINT IN CIVIL-ACTION 1. Plaintiff is a debt buyer and successor in interest to the original creditor as set forth in the caption of this Complaint. 2. At all times relevant hereto, the defendant was the holder of a credit card, which at the request of the defendant was issued to the defendant by the plaintiff under the terms of which the plaintiff agreed to extend to defendant the use of plaintiff's credit facilities. 3. Defendant accepted and used the aforesaid credit card so issued and by so doing agreed to perform the terms and conditions prescribed by the plaintiff for the use of said credit card. 4. The defendant received and accepted goods and merchandise and/or accepted services or cash advances through the use of the credit card issued by the Plaintiff. A true and correct copy of an affidavit of indebtedness is attached hereto as Exhibit "A". 5. All the credits to which the defendant is entitled have been applied and there remains a balance due in the amount of $13,145.75. 6. Plaintiff has made demand upon the defendant for payment of the balance due of $13,145.75 but the defendant has failed and refused and still refuses to pay the same or any part thereof. 6. Defendant's last payment on account was made on December 31, 2004. . WHEREFORE, plaintiff claims of the defendant the sum of $13,145.75 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: ESQUIRE P01A.DB VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. 2027881 HARVEST CREDIT MANAGEMENT VII, LLC LLC AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE JAMES E ASeR 4417128494495797 ~ ~FI::~ I, o..N\. ~ OJV sworn according to law, depose and say that: , being duly served 1. I am the agent for the Plaintiff herein and I have custody and control of the files relating to this account; 2. I have personal knowledge of the facts and circumstances in connection with this case; 3. Plaintiff's files are maintained in the usual and ordinary course of business; 4. This action is based on a claim for breach of contract and that damages are sought as a direct result of said breach; 5. After allowing for all offsets and credits, a balance remains on the subject account having account number 4417128494495797in the amount of $11,303.81; and 6. If called upon, affiant can testify at trial as to the facts pertaining to this matter. The above facts are true information and belief. st of my knowledge, Sworn to and Subscribed My CommtlltlOll ElCPm Sept 2tl 2009 6H01(, '71, ):J P i>o.. *- ~ CJ1 !f1 ~~~ Vl ~ F ~ J:' C) r--.J ~ r~ I 0 C-) --I N -..J ~ -;: f'J ':~) _~ 5.~ -" CO ::< t) HARVEST CREDIT MANAGEMENT VII, : LLC AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO.: 2006-6289 CIVIL TERM v. CIVIL ACTION - LA W JAMES E. ASCH Defendant NOTICE TO PLEAD TO: GORDON & WEINBERG, P.C. Frederic J. Weinberg, Esquire 21 South 21 5t Street Philadelphia, Pennsylvania 19103 (215) 988-9600 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Preliminary Objections or a Default Judgment may be entered against you. O'BRIEN, BARIC & SCHERER Robert J. ail J.D. # 203418 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Date: December 1,2006 HARVEST CREDIT MANAGEMENT VII, : LLC AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO.: 2006-6289 CIVIL TERM v. CIVIL ACTION - LA W JAMES E. ASCH Defendant PRELIMINARY OBJECTIONS AND NOW, comes Defendant, James E. Asch, by and through his attorneys, O'BRIEN, BARIC & SCHERER, and files the within Preliminary Objections and, in support thereof, sets forth the following: 1. Defendant entered into an agreement with a creditor ("original creditor"), the debt of which was bought by Plaintiff as the successor in interest to the original creditor. 2. In 2004, Defendant defaulted on the extension of credit. 3. Plaintiff, as successor in interest to the original creditor, filed a Complaint against Defendant for the amount of$13,145.75 in this Honorable Court on October 27,2006. I. Failure to Attach a Copy of the Contract 4. Pennsylvania Civil Procedure Rule 1019(i) requires a copy of the writing when a claim is based on a contract. 5. Plaintiff has failed to attach a copy of the credit agreement. Alternatively, Plaintiffhas failed to state a sufficient reason that the contract is inaccessible. II. Unconscionable Terms 6. Pennsylvania courts may refuse to enforce an entire contract, any part of a contract, or limit the application of any part of a contract if they find that the contract or any clause thereof to be unconscionable at the time the contract was entered into. 13 Pa.C.S.A. ~ 2302. 7. Defendant's credit card was issued to Defendant at a rate around or about twelve percent (12%). Thereafter, the original creditor raised the rate to twenty-seven point ninety-nine percent (27.99%). 8. Such contract terms, reserved by the original creditor at the inception of the agreement, are unconscionable. III. Breach of Duty of Good Faith and Fair Dealing 9. The Pennsylvania courts have adopted and enforced the Restatement (Second) of Contracts ~ 205, which imposes upon each party to a contract a duty of good faith and fair dealing in the contract's performance and enforcement. Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa.Super.2005) citing John B. Conomos. Inc. v. Sun Co.. Inc. (R & M), 831 A.2d 696, 705-706 (Pa.Super.2003), appeal denied, 577 Pa. 697, 845 A.2d 818 (2004). 10. Here, Plaintiff breached the implied covenant of good faith and fair dealing when the original creditor raised the interest rate from around or about twelve percent (12%) to twenty- seven point ninety-nine percent (27.99%). WHEREFORE, Defendant, James Asch, requests that this Court sustain Defendant's Preliminary Objections. Respectfully submitted, O'BRIEN, BARIC & SCHERER /VA}!X2 Robert J. Dailey, Esquire J.D. #203418 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that on December 1, 2006, I, Robert J. Dailey, Esquire, of O'BRIEN, BARIC & SCHERER, did serve the Preliminary Objections by first class U.S. mail, postage prepaid, to the party listed below, as follows: GORDON & WEINBERG, P.C. Frederic 1. Weinberg, Esquire 21 South 21 5t Street Philadelphia, Pennsylvania 19103 (215) 988-9600 VERIFICATION I verify that the statements made in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information and belief. This verification is signed by Robert 1. Dailey, Esquire, Attorney for Defendant and is based upon the statements provided by Defendant, as well as documents reviewed by the undersigned as attorney for Defendant. This verification will be substituted and ratified by a verification signed by the Defendant who is presently unavailable to sign said verification. I undersigned that false statements herein are made subject to penalties of 18 Pa.C.S. ~4904, relating to unsworn falsifications to authorities. Dated: December 1, 2006 (") c <:' f',) <=> <::::I ;;;:ro o r'l n I o -n :i ,:n :S; -rjQ (:)0 :'2 =H 0- -?'~ ~ ~ -0 :x w .. U'1 Ul SHERIFF'S RETURN - REGULAR CASE NO: 2006-06289 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARVEST CREDIT MANAGEMENT VS ASCH JAMES E BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ASCH JAMES E the DEFENDANT , at 2011:00 HOURS, on the 1st day of November_, 2006 at 1918 MARY LANE CARLISLE, PA 17013-1043 by handing to JUDITH ASCH, WIFE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge (-~ 18.00 4.40 .00 10.00 .00 32.401... 11/02/2006 ),Jlo~ 10 l, GORDON & By: So Answers: . /?,/ ,..or /y~"._ ~-~ c.,.~._...:x"",':';.,;,>.t:' /~~,.;"p ,;"." ._....,;_.;,~.tn". "" - -~ ~i R. Thomas Kline Sworn and Subscibed to before me this day of A.D. &. .,...... HARVEST CREDIT MANAGEMENT VII, : LLC AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. NO.: 2006-6289 CIVIL TERM JAMES E. ASCH CIVIL ACTION - LA W Defendant PRAECIPE TO ATTACH SUBSTITUTE VERIFICATION Please attach the following Substitute Verification to the Preliminary Objections filed in this matter. Respectfully submitted, O'BRIEN, BARIC & SCHERER Date: 31 J......~c'J07 Robert J. aile, Es uire J.D. #203418 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 '" VERIFICATION I, James Asch, verify that the statements made in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney, Robert 1. Dailey, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsifications to authorities. ~~ J~ E. Asch Date: OJ -/.1 -OF} (") ~.; "';- l'-.} e::> '= --J (- St~ (.A) -u (.k) ~r::- f'0