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Home My WebLink About02-3723ROBERT M. REIBSTEIN, ESQUIRE 705 Montgomery Avenue Narberth, PA 19O72 (610) 664-1999 Attorney I.D. No. 20456 REFINANCE AMERICA > LED Assignee of First USA Bank, N.A 29 PLAZA BLVD. SU1TE 112 MORRISVII J.E, PA 19067 VS. PAMF. I.A S. APPI.ERy 5 EAST GI.I~IWOOD DRIVE CAMP HII.I., PA 17011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION COMPLAINT 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 enterin8 a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the clahns s~ fo~ah aLzai~t YOU. You are warned that ifyou fail to do so, the rose may proceed without furth~ 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 fights 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 TE.I,FPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET I-~,P. Court Administrator One Courthouse Square, 4* Floor Carlisle, PA 17013 (717)-240-6200 First USA Bank, This Statement is a Facsimile - Not an Original Thank you for continuing to use your First USA Credit Card. We y~u~,~t~,~elat~o~s~h~we l],a,v~_b.u.~[t with you and your cont~essl[s~nt~Qlease let as know if there is anything we can do to service your account. II Cardmember Agreement hack of p~r ~ if ?o~ ~ not An:ach- do~e so. All extensions of o~xlit in ¢o~ueclion wi~h .your Accmtnt arc bcing m~lc by Fit~ USA B.mL N.~ in Wilmiug~on. ~ A~,- use of?m~ Ca~ or D~finid~s: In this ~:cmcnt ~he words'"pm" and'~o~" rcfer to each pev~cm ~oin~'and sex. rally if more (hah one) wh~ It~ applied f~ d~ ~mmt ~ my ~ ~ ~ ~ ~ m ~ ~ ~ ~u ~ mt n~ ~ my ~ ~ m~ly ~ ~ ~(s} s~ ~(s) (1) ~ ~ ~ ~ ~~ (2) ~ ~~ ~tem~t Y~ ~ ~ ~ ~e a ~ or o~ a ~ ~mce ~t ~ ~ ~e ~e ~t ~ ~ ~ ~t ~¢. We ~ hon~ ~ md ~ ~m~ ~ ~c~ of~ ~it ~e m ~r ~e ~fion. ~ ~, ~ ~m~t ~ ~ ~ ~ ~ ~d ~ ~ to ~y ~e ~ ~ g~ ~ ~t ~ do~.Y~ ~ my~ or und~ ~ ~m¢ We my ~ ~t ~ z ~on ~ ~t ~ h ~e for ~h ~ m~ ff~ ~ ~ md/or ~ ~ ~ ~t ~ ~ ~ ~ ~ Mon~ ~t (due ~' ~¢ ~ent Duc ~e) ~ ~ N~ ~. ~. · ¢ ~m~ M~ ~t for ~ b~ ~ ~ ~ ~¢ ~ ~ $I0.~ ~ ~c m~ of (1) 2% of ~c N~ ~ ph~ (2) ~? ammm~ ~ )ue~ plm ($) ~ ~ ~ ~ ~v ~o~t ~ ~ ~;y ~¢ ~y ~c ~ ~t ~u o~ m F~ ~ ~ ~ a ~ F~ ~GE ~ ~¢ ~ao~t sm~ ~ ~¢ T~Ic of We ~lcull~ the 'b~nce subject to ~ ~GE' ~p~ly for Purc~ ~d ~h ~c~ F~ ~h ~ ~ ~ ~d a P~c ~ ~ ~m ~e ~y ~ ~e ~e ~h Ad~nce undl ~e ~y we recei~ pa~ent in ~11. Howler, ~u ~ z ~ ~d~ for ~r~. You ~1 not ~y a P~ ~ ~GE on ~nt or p~ ~ ~ ~ pgd ~ur N~ ~ce in~ ~ ~e ~ent Due ~ on ~ ~ ~ent (or ~t ~cc ~ ~ro or a ~t ~o~t) md ~u ~5' ~our N~v ~ h [~ ~ ~e Pa~cnt Due ~te on ~ur To dcte~ine ~c P~ ~ ~GE we ~ply &e ~pH~ble D~y Peri.it ~ m ~e /7_ day's balas~c¢, a~d au ,~,' ~- Pu rcha.~es (i,~i,~ f~ ~al ac w~l~ m ~) ~ ~ ~sh ..... . ~ ~k~ f~ff~i~if *ne ~t ~ I~ ~ ~ ~ ~ ~T~le ofhm~ ~ Ho~r~ ~ ~ ~ ~t ~ (3) ~ ~ m ~ ~ ~t (~) ~ a~ me mp~, ~en~ or ~ of ~e o~, ~in~ ~om or r~ ~ my ~y to ~ .~.~- ~t me entre ~?men~ shall ~ r~l~ by binding ~i~on by ~e National en~r~ ~ ~y ~un ~j~on. ItA'CE HAl) A RIGIIT OR O?IsOR'FUNI 1",' TO I.I'I'IG^I'E CI,~ .X S FIIROCGlt A COURT, AN~/OR TO PARTIGIPATE OR BE P&~P RE.¢~\-I ~1) IN I JTK;ATR)N HI.El) IN (X)URT BY Olll- ERS. BUT EXCEPT AS OTHERWISE PROVIDED ABOVE. AI.I. CI.MMS MUST NOW Bt'. I~LVED THROUGH ARBITRAllON. Temziaat~ We may te~rainate y~xsr pcKileges under ~ Agro~k~t oe fimit '~our right to make [hll~ of o~11 Cash ~ at sm W (alii {-t~ )~llr ~CO~lO( ~ .sr~ n~ 1~1~) ~thO~ll n~fice or liai~ity. If we ~ WA m~ n~6n~ ~our ~ and any ~m~ed Con~-nience ~ ~o u~. ..~ec~m... at any tma~ If you do, )~1 m~st ~etunl ~ us all Caz~k and Com~ienee I~ presiously ~ °n thc '~'°un.t If ~t°u call u~' ~ may requir3 .that .}~u.. co~finm ~eo~r mten¢ to te~ninate mwn' t- bt'fir/£o~, all chazges posted to your Ac'co.at p~i~r to the 6m¢ ail C~ds and tllat~ i~ Co~'~'n' Cbecks issued ~m ?our .~count are ~.mmed to us. .N '.o '.6.o?'. We ',',iB send s~mcms .md any ~%r no6ces to you ~ the :~d,&css shosm in our lilts. B- this ts a JOint ~es~nt, v~ ~ send statements and uo6ccs lo ¢id~r of ym~ yo~ pvnmis¢ to iofocra t~ F~i~ O~ T~ Tr~acm~ in foreign eun~ will be c~ma~ed to U.S. [~ and po?d. to .~.'..~count at ~h¢ ,mct~ge ra .~ de~rmincd by M~*,.,,Ca~l oc VISA (of ~fr ~lili thc da~e 0£ com~:::ioo-, in .c~ by the apl~icahle co~vo-,ion durge de~amined by Maste~O_a~l or pa~sems .~?~. a y~tr ami/or v*e may mupo~ red,ce or.c~msim~ certain Faunce Om~cs on enos, y~sr regum' resume. ~ciathls.~eemme W¢c~ c~. thc terms oe ..?~isAg,'eement, indu~in~ El~T~md.an? ~ee~.at anrume~ We ~'11 notify yo~ of the d~ange. As pe~ni~'d br applic- a~e hw, an? d~mge m th~s Agreement ~11 become effecii~e at the fmc s~ated in ~r no6ce aad unless ~e state origen,rise, thc change ~tl apply to all outing balance~ in ?our Account as ~ell a~ ~--p~a~ ageac~s ax connec%n with yom' application and the admimStrafion of ~ .~co~nc You omc us to exchange credit information concerning ?O~ or ~ Acco~nt't,ith (and an~er que~ons and r~que~$ f~o~n ) other~ such as mexchan ts and credit re~o~ing a~encle~ We mar abate information about ~u with our a~i[iated compani~_ ed co~ut~.~. Yoo may t~que~a ~at we do ~ot ~ inf~ (otter than that t~lat~t to your A~ v~fi mst afg~'r'~*~ by v, tiring to u~ at Fn~t, LISA Bank, NA., F(~ZA Opt Ou~, p.O. Box 8865, C.a~:~mber Lists: From time to time, we ma}' share our caMmcm~ lists with companies whose they meet om' ~andard$. You may n=quest that */o~r rt~ne not be ghen to these eompanles by wdting us at Fuat USA Bank. N.A., P.O. Box 8651, W'dmMg~n, DE 1989°~8651. ~ include your name, addn~ and ~c¢o~mt number ~h ?our ~ee orCa~: .In {he re.dar course of o~- boniness we ~ monitor and r~:ord phone conv~natiom recei',*M by o,.n~ employe~- Yo~ agree b.hat we 'MIl ha~ ~ch right with re~pcct to all phone Refusal To H~ C. ant: We are no{ re~pomible for refusals to honor Four Can:[ or a~d money ocd?~ marked 'Paid in Fu/l' or la~ .h,3~g the same effect without bsing any of o~r Liabili{y For IJ~uthoi'izcM Use Of Your Aceo~t. ff ?our Card or Gonvenience (~eck~ are I~ stolen or if ~ z are ~ someone may use ?ur Account without ~our pe rrai~Aon, you must at once. Yo~ may be liable for that unauthorized use of your Ac~oum. You ~ not be liable for tmat:- thodzed ~ ~ occurs after you no~y Hra USA Bank. NA., by ',,M6n§ to us at P.O. Bo~ 8651, ~rdminglon. DE 19899-8651, or vedaally b? calling us at 1,8006T/-7101, of the k~ or Card or Convenience C~ed~ or the po~ble unauthorized use of ?our Account In any ca~, )'our maximum liability is $50.00. We may terminate or limi~ acce~ to ~ Accouat if you have honied us As:s~-~me We rmty at any fimc a.~iga ~ur Accouut, an), ~ums due on ,tour Account, th~ Agreement or our dghls or obllgatioos under this Ag'reemenL The pe~on(s) Io ~d{orn ~e make any such a~si~ meat shall be endded to all of our rights under d6s Agreement, to the extent assigned. GOVFARNI~G I~.W: THIS AGREEMENTAND YOUR AC(X)UNT WILL B£ GOVF~,NrED BYTHE LAW OFTHE STAT£ OF DELAWARE AND, t~; APPLICff~BLE, FEDERal. I~W 8651. Wd~c to ~s ~s soo~ as possible~ W¢ must h~r from ~ou no later 0~m ~ ~ ~ ~ ~x ~u Ibc lirsx b~l ou which d~¢ ¢rror or pmldcm appcarc4 Yo~ can tdephoa¢ us, but ddrg so will y~ur Rigl~ts ~d Om* Res/mos~ili~:s AfXer We Receive Yo~ Wdtt~s No'ice ~0 d~. wc mt~. cid ,c~ cq rr~.~ O~ cr~r or c~aln why ~ bcli~c O~ bOl w'~ c~q'~'~- an}, qucs~o~ed amount. If wc didn't make a tulslak~ you ma~' ha~c to pal' . .fi?~cc chugs, ~d ~ If)~u fax1 to pay thc ax~oua~ Ih~t we Ihink you. owe, wc .n~.? ~ you ~ dclinc]ucn~. otu- oq2iana~io~t do~ not satisfy you and you wntc to us vathla ten aID te~u~ m ~t ~ ~ to p~, we must ~1 ~nyonc we report you to G*m.? h~*~ a**q*~on about yom* bill. A~,d. ~ ra~tt* mil you thc nm~a¢ of anTon¢ wc rcpo .¢~ )~ou !o. we must tctt anyone we rct~ort ~ou to utat mc ma Spatial Rule For Credit Ca~ Purdutses If y~u ha~: a problem wiOt ~h¢ quality of property or senates that 7~u puvch,t~i with a ¢r~i, 't .c~., (it) you must h~tvc m~d¢ ~hc purchz~ in your..home s~tc or, if not withia your home state, within 100 ratl¢~ of your current railing addx~s, and (b) ~c pux~itas~ p6c¢ must have bccn mom d~n $50. Th~c li~i~tions do not apply if wc own or opc~t¢ thc mcvaham, or if we n~aik'd You thc a~i~' FIRSTUSA® M-24275 7/9g 9.90NA,qMPFUSA QCC CERTIFICATE OF ASSIGNMENT I, ~)Ot t~71~.~ ~_. ~r} ~Q~ , hereby dePose and state ih~t: I am the '~{~_ of Refinance America, Ltd., a Nevada corporation. As such, I am authorized to give this Certificate, and possess sufficient personal knowledge to do so, regarding. Customer Name: Original Creditor & No: Pamela S Appleby SSN: 585-66-5605 FIRSTUSA #4417 1226 1415 1828 This account has been purchased by Refinance America Ltd., from the original creditor, FIRST USA, for good and valuable consideration, with a past due balance of $10,274.96. After reasonable investigation, there are no uncredited payments, just counterclaims or offsets against such debt, and no timely allegations of unauthorized use of the credit card underlying the account. Sw°rn and slubscribed to before me this ~) day o~ ,- ,~t/q' tff ~ VERIFICATION I, L-- ~.~,¢~6~. , , hereby depose and state that: and a duly authorized representative of the plaintiff; as such, I am authorized to give this Verification, andpossess sufficient personal knowledge to do so; the factual allegations set forth in the foregoing pleading are true and correct to the best of my knowledge; information and belief, and they are that Pamela S Appleby SSN 585- 66-5605, owes the principal balance of $9,907.55 on FIRST USA Bank account number 4417 1226 1415 1828, which balance is due and unpaid as of the date of the execution of this Verification. I herebY verify and certify that the foregoing statements haade by me are true and correct to the best of my ability and recollection. I am aware that if any of the foregoing are willfully false, I am subject to punishment. Dated: By: (Print Name & Title) Robert ~. Reibstein, Esquire, being duly sworn and according to law, deposes and says the he is the attorney for Plaintiff herein named; that he makes this affidavit being authorized to do so; that he is acquainted with the facts set forth her~in; and that said facts are true and correct to the best of his knowledge, inform~0n and belief. Robert M. l~ib~toin, Eaquir~ 3_ttorney for Plaintiff SWORN TO AND SUBSCRIBED THIS ~'~J DAY OF Robert M. Re~b~ei~, Esq~re, being duly sworn and according to law, deposes and says the he is the attorney for Plaintiff herein named; that he m~res this affidavit being authorized to do so; that he is acquain~d with the f~cts set forth herein; a~ tlmt said facts are true and correct to the best of his knowledge, information and belief. Robert M. Reibs~in, Esquire Attorney for Plaintiff SWORN TO AND SUBSCRIBED ME THIS~_.~DAy OF Lloyd H. Appleby Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, LTD Assignee of First USA Bank, N.A. 29 Plaza Blvd, Suite 112 Morrisville, Pennsylvania 19067 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIt VS. NO. 02-3723 Civil Term Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011 CIVIL ACTION ANSWER TO C0~4PLAINT Defendant, Pamela S. Appleby, answers the complaint of plaintiff, Refinance America, LTD, in this action as follows: RESPONSE TO PRELIMINARY ALLEGATIONS o Answering paragraph 1, defendant is without sufficient information or belief to admit or deny the statements in this paragraph. Based on this lack of information or belief, defendant denies the statements. Answering paragraph 2, defendant admits to being an adult residing at 5 East Glenwood Drive, Camp Hill, Pennsylvania. RESPONSE TO FIRST CAUSE OF ACTION 7o Answering paragraph 3, defendant admits that First USA Bank, N.A. issued a credit card on or about July 1, 1994. Defendant denies all remaining allegations in this paragraph. Answering paragraph 4, defendant denies the allegations in this paragraph. Answering paragraph 5, defendant denies the allegations and statements in this paragraph. Answering paragraph 6, defendant is without sufficient information or belief to admit or deny the statements and allegations in this paragraph. Based on this lack of information or belief, defendant denies the statements and allegations in this paragraph. Answering paragraph 7, defendant denies the statements and allegations in this paragraph. Answering paragraph 8, defendant denies the allegations in this paragraph. FIRST AFFIRMATIVE DEFENSE Fraud 9. This complaint is barred by plaintiff's deceitful conduct and misrepresentations of fact. Complaint paragraph 3 states incorrect principal balance verified by plaintiff's own exhibit 1. Complaint paragraph 4 falsely states plaintiff refused to pay all or any part of principal balance, as defendant paid portions of the principal balance for many years. Complaint paragraph 5 falsely states plaintiff due additional sum due to card member agreement, as no such provisions exist in the card member agreement. Complaint paragraph 7 falsely states plaintiff exhibit 1 entitles plaintiff to attorney's fees, as plaintiff exhibit one is a statement of account. Complaint paragraph 8 falsely states a further demand, as no such demand has been made. Complaint paragraph 8 also states a false balance owing on the account relating to the false statements of plaintiff complaint paragraph 5. ~ECOND AFFIRMATIVE DEFENSE Extortion 10. The complaint is barred by plaintiff, s false statements in the complaint that intimidated and created a sense of fear in the defendant. THIRD AFFIRMATIVE DEFENSE Unclean Hands 11. The complaint is barred in whole or in part by plaintiff, s unclean hands. FOURTH AFFIRMATIVE DEFENSE Latches 12. The complaint is barred in whole or in part by latches. FIFTH AFFIRMATIVE DEFENSE Offset 13. Any amount sought to be recovered in this action is barred in whole or in part by the amount owing from plaintiff to defendant. WHEREFORE, defendant requests judgment as follows: 1. That plaintiff take nothing by the complaint, which will be dismissed with prejudice. 2. That defendant recover from plaintiff costs in the amount of $3OO.00. 3. That defendant recover from plaintiff punitive damages in the amount of $10,000.00. 4. That the Court order further reasonable relief. Dated this 20th day of August, 2002, Li~ ~App~e~ amela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 COMMONWEALTH OF PENNSYLVANIA COURT OF-COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA In the Matter of: Refinance America VS. Pamela S. Appteby No. 02-3723 Civil Action NOTICE-OF APPEARANCE Please enter my appearance in the above-designated matter. I accept service in this matter. DffOn the basis of this notice, I request a copy of each document hereafter issued by the Court of Common Pleas in this matter. [ ] t am already receiving or have access to a copy of each document issued by the-Court of Common Pleas in this matter (alone, or in a consolidated proceeding) and do not on the basis of this notice require an alt4itional copy. Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 170114 137 (717) 728-7655 SHERIFF'S RETURN - REGULAR CASE NO: 2002-03723 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND REFINANCE AMERICA LTD VS APPLEBY PAMELA S ROBERT BITNER Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon APPLEBY PAMELA S the DEFENDANT , at 1713:00 HOURS, at 5 EAST GLENWOOD DRIVE on the _gth day of August , 2002 CAMP HILL, PA 17011 PAMELA APPLEBY by handing to 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: So Answers: Docketing 18.00 Service 10.35 ~~.L~ ~~ Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 38.35 Sworn and Subscribed to before me this _w~ day of ~,~A~ ~ A.D. / P~o~hohotary 4, , 08/13/2002 ROBERT REIBSTEIN ' Depu~ ~h'~riff ROBERT M. REIBSTEIN, ESQUIRE ATTORNEY I.D. NO.: 20456 705 Montgomery Avenue P.O. Box 527 Narberth, PA 19072 610-664-1999 REFINANCE AMERICA, LTD (Assignee of First USA Bank, N.A.) VS. PAMELA S. APPLEBY :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNA. : :No. 02-3723 :CIVIL ACTION MOTION FOR JUDGMENT ON THE PLEADINGS/SUMMARY JUDGMENT Plaintiff, Refinance America, LTD, by and through their attorney, Robert M. Reibstein, Esquire, hereby moves this Honorable COurt for an Order entering Judgment on the Pleadings in favor of Plaintiff and against the Defendant, and avers as follows: 1. On August 2, 2002, Plaintiff flied the Complaint. A true and correct copy of the Complaint is attached hereto, made part hereof, and marked Exhibit 2. The Defendants filed an Answer, pro se, on or about August 22, 2002. A true and correct copy of the Answer is attached hereto, made part hereof, and marked Exhibit "B". 3.The underlying matter involves unpaid credit card debt. 4. In the Answer, the Defendant does not specifically deny the averments, and she does not provide sufficient infoni~ation to specify or state a valid defense. 5. In response to Plaintiff's averment, paragraph 3, that the account balance is $10,274.96, the Defendant provides a general denial, not a specific 10. 11. 12. 13. denial, yet, in the same paragraph, she admits obtaining the card and does not deny using it. The Defendant does not interpose anywhere a clause, 'to the contrary', identifying the balance which she believes is outstanding, due and owing. None of the information provided in the Defendant's affirmative defenses provides any further information to compensate for her failure to specifically deny the averments or to identify any valid defense. Plaintiff believes and therefore avers that the Defendant has no real defense and has merely entered an Answer in order to delay entry of judgment. Rule 1029 of the Pennsylvania Rules of Civil Procedure requires that any averment in a complaint not answered with a specific denial shall be deemed admitted. R.C.P. 1029(b). The purpose of the rule is to allow a plaintiffto quickly obtain a judgment for any amount as to which there is no real defense. For a denial to be specific, it must deny what is averred and then affirmatively aver, i.e., 'to the contrary', what did occur in place of the facts which are denied. The facts upon which the defendant bases his denial should be stated. In addition, Rule 1034 of the Pa. Rules of Civil Procedure and all relevant case law authorize entry of Judgment on the Pleadings where the defendant's answer fails to specify or state a valid defense or where the answer provided is insufficient to constitute an adequate defense even if the allegations of fact are presumed to be true. 14. In the instant matter, the Defendant's failure to specifically deny the account balance would indicate, pursuant to the court roles, that she has actually admitted the amount averred in the Complaint. 15. Furthermore, the Defendant's failure to provide any factual basis in any other part of her Answer with 'affirmative defenses' to support a valid defense, requires, pursuant to Rule 1034, that Judgment be entered based upon the pleadings in favor of the Plaintiff and against the Defendant in the sum demanded. 16. In addition, because there are no issues of material fact, the Answer indicates that Summary Judgment in favor of the Plaintiff is warranted. WHEREFORE, Plaintiffrespectfully requests that this Honorable Court enter Judgment on the Pleadings, and/or Summary Judgment in its favor and against the Defendants. BY:. ROBERT M. REIBSTEIN, ESQUIRE ROBERT M. REIBSTEIN, ESQUIRE 705 Montgomery Avenue Narberth, PA 19072 (610) 664-1999 Attorney I.D. No. 20456 RF.F]NANCE AMFRICA, LWD Assignee of First USA Bank, N.A 29 PLAZA BLVD. SUITE 112 MORRISVII J.E, PA 19067 VS. PAMEJ.A S. APPt.F. RY 5 EAST GI.h-TNWOOD DRIVE CAMP HiI.L, PA 17011 THE COURT OF COMMON PI ,FAS CUMB~ CO~, PENNSYLVANIA ! NO. CO CIVIL ACTION COMPLAINT NOTICE TO DEFEND You have been sued in Court. Ifyou wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days alter this complaint and notice are served, by entering a written appearance personally orby 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 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 fights important to you. YOU SHOUI,D TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOUDO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TI~,T,EPHONE TH~ OFFICE SET FOKTH BE, I,OW TO FIND OUT ~ YOU CAN GET I-~,I,P. Court Administrator One Courthouse Square, 4* Floor Carlisle, PA 17013 ROBERT M. RF.1BSTEIN, ESQUIRE 705 Montgomery Avenue Narberth, PA 19O72 (610) 664-1999 Attorney I.D. No. 20456 RF, FINANCE AMF~R/CA , LTl) Assignee of First USA Bank, N.A 29 PLAZABLVD. SUITE 112 MORRISVII.I.E~ PA 19067 VS. NO. PAMELA Si APPI.F~BY 5 EAST GI.FNWOOD DRIVE CAMP I-rll J., PA 17011 IN THE COURT OF COMMON PI,EAS ~ COUNTY, PENNSYLVg~_A CIVIL ACTION COMPLAINT 1. Plaintiff Refinance America, LTD, Assignee of First USA Bank, is a Colorado corporation with principal offices located at 29 Pla~a Blvd., Suite 112, Morrisville, Pennsylvania~ 2. Defendant, Pamela S. Appleby, is an adult individual residing at 5 East Glenwood Drive, Camp I451[ Pennsyhtania. 3. At the request of Defendant, First USA Bank, N.A_ issued Defendant a credit card on or about July 1, 1994 wherein Defendant nmde various charges through May 19, 1999 wherein at that time, there remained a principal balance due and owing on said account in the sum of $10,274.96. A true and correct copy of statement of said account is attached hereto made part hereof and marked as Exhibit "A". 4. Defendant has repeatedly failed and refused to pay all or any part of the principal balance due and owing on said 5. As per the Cardmember Agreement between Defendant and First USA Bank, N._A_ there remain.q additional interest due on said account at the daily rate _of $5.67 per ~ ;wherein there remains an additional sum due and owing Plaintiff in the sum of 56,012.70 and additional late fc¢s of $35.00. A tree and correct copy of said Card Member Agreement is attached hereto made part hereof and marked as Exh~"oit 'qB" in it's entirety.. 6. For value received on or about April 18, 2002, First USA Bank, N.A. or their assigns assigned all of it's fight, title and interest to said credit card account to PlainfifE. A mae and correct copy of said assignment is attached hereto made hereof and marked as Exhibit "C". 7. As per Exhibit "A", Plaintiff is entitled to reasonable attorneys fees of $350.00 and conli,afing at a rate of $175.00 per hour for the lawful collection of said debt. 8. After further demand, Defendant has failed and refused to pay all or any part ofthe balance due and o~-Ang in ~e sum of $16,22,..o6 WHEREFORE, Plaintiff demands judgment against Defendant in the sum of $16,222.66 plus contivning interest until the date ofjudgment plus reasonable attorney fees and the costs of this litigation. Robert M. Reibstein, Esquire Attorney for Plaintiff FIRST USA BANI( Ha f,,,]ll,.lll ...... II, ,il.,! ,.,ll,,ll,l,,,lll ..,l,h,,Ihl PO B, OX 5959 pAH£LA R APPLE~Y CAROL STREAN ZL 60~97-5959 LLOYD H APPLE~Y 5 E 6LENHOOD DR I,I1,,11 ....../IhL,l,,,I,l,l,hh,,,Ihhh,,,,lll c~P HZLL PA 1701~-1137 . 7 7~[712~ [ PAY~ ' ~K ~U IO0~o~ .-~ f'~O~B~O~L CHLOE O~ ~CO~T. PR~C~3 First USA Bank, N.A. This ,Statement is a Facsimile - Not an Original Thank you for continuing to use your First USA Credit Car& We v_al_ut the relationship we tl,a.veb~jlt with you and your there is anything we can do to service your account. Cardmember Agreement 'IhL~ L~ thc Ag~mK'm dtg~ ~L~ d~e ~o~ ~mr (~u~d~ ~c~am( ('.~u~ ~d~ · .,ore. ~ ~) ~ ~ ~ f~ ~ ~c~ ~d ~ ~ ~o ~ insdtudon ~{ ~ ~c ~ Y~ ~ Co acc~ ~i~ m ~w ~t i~ ~ ~ ~ ~ ~t n~ ~ ~ ~ ~ ~t~ ~ ~ ~(s) ~ ~(s) ~ur ~nt and an~ ~r cha~ and f~ ~h ~ou ~ o~ ~ ~d~ ~e ~ d~c ~c~c We ~ ~uwc ~t ~ ~ ~c ~U ~o~t ~ ~u~ fi~ ~ &e in ~ ~ d~ ~y Gl;aec ~ur ~t fine ~m ~c ~ ~c. ~ur ~;~ ~t ~ ~ ~ on ~ mon&ly ~m~c You ~ ~t ~ ~ a ~ or o~ x ~h ~ ~ ~ o,~ ~c un~d ~c ~ ~ ~t ~ ~ ~ ~t ~c. 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You ~I not ~y ~ P~ ~ O~GE on ~t or p~io~ ~ ~d ~u~ N~ ~ce in ~ ~ ~e ~cm D~ ~ on ~ p~ ~cnt (or ~t ~ z~ro or a ff~t ~o~0 ~d ~u ~y ~ur Nov ~ ~ f~ ~ ~e ~t Due ~c To dc~cnninc ~c P~ ~ ~CE ~ ~ply d~e ~pfi~lc D~v Pc~ic ~ to oJ iii ~)ur ~ly I~<e ~ of dte h(~r of ~c u~c~iot~ ~(c or d~c ~qnning of ~he bi~g ~lc a~ ,_cio cd by th: ~ o.ay s IxaJ~l~C. add ~,- n(~- Pnrch,~.cs fh~4,~;.~ f~ a ........... ~ .... ~ j)c~- Mo~ ~ ~ ff~ ~ ~ ~ a ~t ~ ~, ~ at ~ ~¢ ~ ........ . ~ ~t ~ ,n ~ T~ ~ ~.~ y~ ..~, ~_~. ~_ [°r ~ ~ (5)~ ~ ~ ~t~ ~ (6) ~ ~ ~ ~ ~ ~ ~ ~ the ~idi~ of ~e en6r¢ ~¢emea~ s~l ~ r~l~ by binding ~i~6on fo~ of ~¢ N~ ~i~don Fo~ ~y ~ ~ ~ ~ ~y ~ ~ at m~ Nado~ ~i~6on Fo~ ~cc. ~o~.com, or PO ~x ~191, ~nn~ ~l~u~ ~m~t ~ ~e p~t to a ~on ~ld~ intuit comme~e, ~d g~ by ~¢ F~e~ ~i~6on ~ 9 U.S.~ ~ 1-15Jud~t u~n ~y ~i~m~a a~rd may 'H~k ~i~6on ~n~t ~p[i~ to ~1 ~,m now in ¢~cncc or ~mt amy ~ G~r ~i.~ by or ~t any un~l~ ~hi~d ~W to ~om o~c~hip of ~gmM ~u:r d~t (u~ IJ~( ~ cic~ to ~bit~ce). Flodtit;g in rhls ~tcnt ItA~,'l.~ HAD A RI(;IIT OR OPiNIRTUNITY 'FO I.ITIGATE(]AIMS TIIROUGIt ACOURT. AND/OR TO PARTICIPATE OR BE RI-k'aRI-7.~..-N-I'ED IN I.ITKiATK)N al.ED IN (X~URT ER.S. BUT EXCEPT AS OTHERWISE PROVIDED ABOVE. AI.L Cl_~I.M$ .MUST NOW BE RESOt.VED THROUGH ARBITRAl'lOS. Tem, i,,a~,,~ We racy t~vmi,,a~: your p,i~xlcges u,~der O,is agreca~,t or li~ vuu~ ,ight to no~.. ¢ ~ tizb/hty. If we ~ 7~, mtm remm ?m,r Canis and m,/anuscd Co~'~mc¢ Checls to cu~ m I~iK Yo~ ~"~ th~ you wifl no~ ~'. to ma~e z Pun:h.~e o~ o6c~n a ~ A~no: ;near you h~vc CI~:c~ issued on your hccx~m zr¢ rammed tom. F~i~ Cm'm~T T,~ Tram~c~o~s in ~-~ ~ ~sll I~ ¢om'e~cd to U~. ..~i,p/Pru~o~mat F,,,,m,,~s: From ~ue to time., ~ m~, let you slip or retix,ce ooe or morn m~&ly ~',~e~ ~. ~his ~ We c~n ¢hm't~ the tenm of this ,S~veement, indud~ d~: .~qtXR.l~ I~R- · {A¢ Izw, any change m mu/'~w~ment wdl become effec~e at ~ ~/m¢ stzted in our nodce ,miess we: s~t¢ ~hersis¢. thc dxange ,sill apply to ~11 outsm~ b~.~u~ces in ),om' Accotmt as weft ~ I~'ot~.~i~u You ~ that we may request coasum~ ¢~-dit ~'ports from one or more credit vepo~iag .z~m~ in ¢oan¢c6on with your ~pplic~doa and thc zdminis~m6on of your Account zbo amhor~e us t~ exc~ c~:lit in~ormz6on coac.~min§ you or your A~:o~nt with (:md :m.swer qu¢~ioas and r~lue~ fix}m) others, ~ as men:hams and emdk repo~ng ~gend~. We may st~re it~ora~don about you with our ~ffilizted ~ n~test ~ w~ do ~ot ~ i~on~tlo~ (other ~- ~t r~l to your · ~ m~~ You ~ ~ ~t ~ ~ ~ ~ ~ ~ ~ ~~g ~d~ ~u~ o~ ~ ~ ~ ~or ~y~o~ ~ ~ ~ = ~ ~ ~ ~p~ hw ~ ~ ~ ~ not ~ ~r m~ ~ ~ or ~ ~ ~ ~c Lx ~ ot ~,~ ~:~ a~, ~k.e dr~ not oblate ~ a) do m aoi~ or ff~u ~ ~ ~m~ne ~y ~ ~ur ~co~t ~t ~r ~i~ ~ m~ ao~ at ~. You ~ ~ ~le for ~t ~u~ ~ of ~ ~m~c You ~ ~t ~ ~le ~r · o~ ~ ~ ~ ~ ~u no~ ~ U~ ~ N~, by ~g to m ~t P.O. ~x ~1, ~ DE 19~I, or ~y ~ ~n;~ m ~ 1~-7101, of ~e I~ or ~ of ~r da~c ~ ~ ~u&o~ acc~ to ~ur ~counc ~u We ~y ~t ~y 6m¢ ~ ~ur A~oun~ ~y ~ duc on m~ ~coua~ ~ ~t or our ~u or obl~m under ~ ~eem~ ~e ~n(s) m w~om x~ ~ ~y su~ m~t s~ ~ ~dd~ to ~ of our ~hu undc~ d~ A~ to d~e extent lnquM~ Or Qu~o~ You n,ay addr~ any inquid~ or qu¢~dons which p)u haY¢ a~)m ~t,~ 1~-7101. If ~)u ~lephonc ,,~ i~e~l o{ ~itin~. ~m u~y I~- cern 6~tes ~t~e hw gi~ ~J,, t ) dis~a c billing '~ro~ (~" ~%,,, I~dling ( gh This No6o: Fo~ Fu~ Use FIRSTUSA,~ M-24275 7/98 9.90NAf:.MPFI JSA-QCC As such, I am authorized to ~ve this Certificate, and possess sufficient personal knowledge to do so, regarding Customer Name: Original Creditor & No: Pamela S Appleby SSN: 585-66-5605 FIRST USA # 4417 1226 1415 1828 This account has been purchased by Refinance. America Ltd., from the original creditor, FIRST USA, for good and valuable consideration, with a past due balance of $10,274.96. Afmr reasonable investigation, there are no uncredited payments, just counterclaims or offsets against such debt, and no timely allegations ofanauthorized uae of the credit card underlying the accoull£. VERIFICATION I, ~...~ ~o.~'~ 6~ · ~ hereby depose ~d state ~t: ~d a d~y auto.ed representative of ~e as such, I am authorized to give this Verification, and. possess sufficient personal knowledge to do so; the factual allegations set forth in the foregoing pleading are tree and correct to the best of my .knowledge, information and belief, and they are that Pamela S ~ppleby SSN 585- 66-5605, owes the phncipal balance of $9,907.55 on FIRST USA Bank account number 4417 1226 1415 1828, which balance is due and unpa/d as of the date of the execution of this Verification. I hereby verify and certify that the foregoing statements ~nade by me are tree and correct to the best of my ability and recollection. I am aware that if any of the foregoing are willfully false, I am subject to punishment. Dated: (Print Name & Title) By: Robert M. Reibsteirg Esqttire, being duly sworn'~nd according to law, deposes and says ~e he ~s ~he attorney for Plaintiff here~n named; that he m:*kes this affidavit being authca-~ ~ dc so; that he is acquainted with ~he Pac~ ~ ~orth herein; and sa~d ~ac~ are true and cvrrec~ to ~e best of his knowledge, ~nforma~On and belief. .Rober~ M. P~ibstein, Esquire Attorney for P~ RECEIPT FOR PAYMENT Cumberland County Prothonotary's Office Carlisle, Pa 17013 REFINANCE AMERICA LTD (VS) APPLEBY PAMELA S Case Number 2002-03723 Received of PD ROBERT M REIBSTEIN ATTY IM Total Check... + 50.50 Total Cash .... + .00 Change ........ - .00 Receipt total. = 50.50 Receipt Date 8/02/2002 Receipt Time 15:14:58 Receipt No. 128040 Check No. 25092 ........................ Distribution Of Payment ............................ Transaction Description COMPLAINT TAX ON CMPLT SETTLEMENT AUTOMATION JCP FEE Payment Amount 35.00 .50 5.00 5.00 5.00 CUMBERLAND CO GENERAL FUND BUREAU OF RECEIPTS AND CONTROL CUMBERLAND CO GENERAL FUND CUMBERLAND CO AUTOMATION FUND BUREAU OF RECEIPTS AND CONTROL 50.50 Lloyd H. Appleby Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, LTD Assignee of First USA Bank, N.A. 29 Plaza Blvd, Suite 112 Morrisville, Pennsylvania 19067 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 02-3723 Civil Term Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011 CIVIL ACTION Defendant, Refinance America, LTD, ANSWER TO CO~PLAINT ~ ~o ---" Pamela S. Appleby, answers the complaint of pla~ff~ in this action as follows: RESPONSE TO PRELIMINARY ALLEGATIONS Answering paragraph 1, defendant is without sufficient information or belief to admit or deny the statements in this paragraph. Based on this lack of information or belief, defendant denies the statements. Answering paragraph 2, defendant admits to being an adult residing at 5 East Glenwood Drive, Camp Hill, Pennsylvania. RESPONSE TO FIRST CAUSE OF ACTION 3. Answering paragraph 3, defendant admits that First ~S~ Bank, N.A. issued a credit card on or about July 1, 1994. Defendant denies all remaining allegations in this paragraph. 4. Answering paragraph 4, defendant denies the allegations in this paragraph. 5. Answering paragraph 5, defendant denies the allegations and statements in this paragraph. 6. Answering paragraph 6, defendant is without sufficient information or belief to admit or deny the statements and allegations in this paragraph. Based on this lack of information or belief, defendant denies the statements and allegations in this paragraph. 7. Answering paragraph 7, defendant denies the statements and allegations in this paragraph. 8. Answering paragraph 8, defendant denies the allegations in this paragraph. ?IRST AFFIRMATIVE DEFENSE Fraud 9. This complaint is barred by plaintiff's deceitful conduct and misrepresentations of fact. Complaint paragraph 3 states incorrect principal balance verified by plaintiff's own exhibit 1. Complaint paragraph 4 falsely states plaintiff refused to pay all or any part of principal balance, as defendant paid portions of the principal balance for many years. Complaint paragraph 5 falsely states plaintiff due additional sum due to card member agreement, as no such provisions exist in the card member agreement. Complaint paragraph 7 falsely states plaintiff exhibit 1 entitles plaintiff to attorney's fees, as plaintiff exhibit one is a statement of account. Complaint paragraph 8 falsely states a further demand, as no such demand has be~n made. Complaint paragraph 8 also states a false balance owing on the account relating to the false statements of plaintiff complaint paragraph 5. SECOND AFFIRMATIVE DEFENSE Extortion 10. The complaint is barred by plaintiff's false statements in the complaint that intimidated and created a sense of fear in the defendant. THIRD AFFIRMATIVE DEFENSE Unclean Hands 11. The complaint is barred in whole or in part by plaintiff's unclean hands. FOURTH AFFIRMATIVE DEFENSE Latches 12. The complaint is barred in whole or in part by latches. FIFTH AFFIRMATIVE DEFENSE Offset 13. Any amount sought to be recovered in this action is barred in whole or in part by the amount owing from plaintiff to defendant. defendant requests judgment as follows: 1. That plaintiff take nothing by the complaint, which will be dismissed with prejudice. 2. That defendant recover from plaintiff costs in the amount of $3OO.O0. 3. That defendant recover from plaintiff punitive damages in the amount of $10,000.00. 4. That the Court order further reasonable relief. Dated this 20th day of August, 2002, LloydY~H. ~.ppleb~ Pamela S. Appleby/ 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Robert M. Reibstein, Esquire, verifies that the statements made in the foregoinH Plaintiffs, Motion are true and correct to the best of his knowledHe, information and belief. He understands that false statements herein are subject to the penalties of 18 Pa. C.S. Section 4904 relatinH to unsworn falsification to authorities. Robert M. Reibstein, Esquire ROBERT M. REIBSTEIN, ESQUIRE ATTORNEY I.D. NO.: 20456 705 Montgomery Avenue P.O. Box 527 Narberth, PA 19072 610-664-1999 REFINANCE AMERICA, LTD (Assignee of First USA Bank, N.A.) VS. PAMELA S. APPLEBY :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNA. : :No. 02-3723 :CIVIL ACTION MEMORANDUM OF LAW FACTS Plaintifffiled a Complaint because the Defendant failed to repay funds obtained through the issuance and use ora credit card. The Defendant, Pamela S. Appleby, does not specifically deny obtaining the funds, or entering into the credit card agreement, nor does she specifically deny defaulting. The individual Defendant, entering an Answer pro se, does not provide any specific denials at all but simply enters a general denial which is insufficient as a matter of law. As a result of the Defendants' Pleading, the Plaintiff hereby moves for Judgment on the Pleading and/or for Summary Judgment. LEGAL ARGUMENT ANSWER INSUFFICIENT Rule 1029 of the Pennsylvania Rules of Civil Procedure states that any averment in a complaint not answered with a specific denial will be deemed admitted. R.C.P. 1029(b). A specific denial denies what is averred and then affirmatively states what did occur in place of the facts which are denied. Jones v. Dubua_ue Fire & Marine Ins. Co.. 317 Pa. 144, 176 A 208 (1935). A denial is specific if it discloses a prima facie defense. 1~, 214 Pa. 154 (1906). These rules aim toward the efficient use of the court's time and resources in that they p¢i~iiit a plaintiff to quickly identify issues and obtain judgments pursuant to any amounts as to which there is no real defense. Wedow v. Penn. Products ~9,, 2 D&C 74 (1922). Merely answering with the word "denied" is insufficient, does not constitute a specific denial, Swirl v. Milner, 371 Pa. Super. 302, 538 A.2d 28 (1988), is a general denial, and, according to the rule, is an admission. R.C.P. 1029(b). Finally, an answer consisting merely of a general denial warrants a judgment on the pleadings in favor of the plaintiff and the court need not even provide defendant with an opportunity to correct the defective pleading. Swirl v. Milner, 371 Pa. Super. 302, 538 A.2d 28, 5~y~i~.~b_L~I, 21 Pa. Cmwlth. 462, 346 A.2d 857, Anderson-Stokes. Inc. v. Gensey, 65 D & C 2d 116 (1975). The Defendant in the instant action admitted obtaining the credit card but answered the rest of the avei-iiients of the Complaint with sweeping, general statements such as "defendant denies the allegations in this paragraph". The Defendant did not provide the information and/or facts anywhere to supply the missing, contrary affirmation, such as payment information or contrary balance infom~ation, nor to indicate that she had any real defense at all. It should be noted that the general rule to determine the sufficiency of an answer is to consider the entire instrument, rather than the reply to one individual paragraph. Arcadia Theater Co. v. Segall, 349 Pa. 412 (1944). But in the instant matter, the Defendant's improperly and incompletely plead 'affim~ative defenses' fail to provide any further factual infomsation - not even to support the 'defenses' they purport to identify. Case law suggests that where an Answer contains no real statements of fact supporting a denial, there most likely is no real defense and a Judgment on the Pleadings permits a quick and efficient resolve. Wedow v. Penn Products Co. 2 D & C 74 (1922), D-~ti~h~ull~:m~ 1 D. & C. 367 (1922). Plaintiff herein respectfully suggests that this is precisely what is happening in the instant matter. There being no real defense, the Answer cannot contain more facts than a forthright verification would allow. Pursuant to the foregoing, a Judgment on the Pleadings and/or Summary Judgment is warranted. Pursuant to all of the foregoing, Plaintiff respectfully requests that this Honorable Court enter Judgment on the Pleadings, in its favor and against the Defendant, and pursuant to the proposed order, attached hereto. RESPECTFULLY SUBMITTED BY: BY: ~ ROBERT M. REIBSTEIN, ESQUIRE ROBERT M. REIBSTEIN, ESQUIRE ATTORNEY I.D. NO.: 20456 705 Montgomery Avenue P.O. Box 527 Narberth, PA 19072 610-664-1999 REFINANCE AMERICA, LTD (Assignee of First USA Bank, N.A.) VS. PAMELA S. APPLEBY :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNA. :No. 02-3723 : :CIVIL ACTION CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiff's Motion for Judgment on the Pleadings has been sent via first class, pre-paid mail to the following: Pamela S. Appleby 5 East Glenwood Drive Camp Hill, PA 17011 Date ROBERT M. REIBSTEIN, ESQ. Pamela S. Appleby I15 East ~lenwoo~ Drive Camp Hill, Pennsylvania 17011-1137 V Assi~aee of First USA 229 Plaza Boulevard Mor~isviiie, ~ennsyivania PaF~ta $. Appteby 5 E~st ~!ezu~c~d Ori~.e Camp Hill, Pennsylvania 17011-1137 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-3723 Civil Term CIVIL ~CTtON PRAECIPE To the Prothonotary: Please add the Defendant's Objection to the Plaintiff's Motion f~r J~d~ent on t~e Pt~adin~s/S,~ary J~dg~e~t as ~ta~ea~ argument list. Dated this 6t~ day of November~ 2002~ Lloyd H. Appleby Lloyd H. Appleby Pamela S. Appieby 5 East Glenwood Drive Camp Hill, PeP~sylvania t7011-1137 Refinance America, Ltd. Assignee of First USA Bank 2~9' Plaza ~oulevard, Suite II2 Morrisvilte, Pennsylvania 19067 Vs. IN THE COURT OF COMMON PLEAS CU~BERLA~D COUNTY, PENNSYLVANIA NO. 02-3723 CIVIL TERM CIVZLACTIO~ OBJECTION TO MOTION ON THE PLEADINGS/SUMMARY JUDGMENT Dm£an~ant., Pamela S. ADplaby, pro se litigant. to the motion filed by Plaintiff, Refinance America, Ltd. 1. Defendant, Pamela S. Appleby did acknowledge a First USA Bank credit card, Answer to Complaint, paragraph 3. Defendant did not acknowledge the account to be #4417122614151828 or acknowledge any responsibility for a particular account of that identification. All other allegations of Daragraph 3 have been specifically denied. Here exist genuine issues of 2. Defendant, Pamela S. Appleby did respond, First Affirmative Defense, paragraph 9, with the discrepancies between the alleged statement of account, Plaintiff Exhibit "A", and the dollar amount prayed for in Plaintiff Complaint, paragraph 8. Further, Defendant stated no provision for collection of interest in alleged cardholder agreement or by state law as a~re~t only ~t!~ f~r act~at cotl~cti~n~_m4~_~a~, ~ continuing interest charges. Here exist genuine issues of ~aterial fact. 3. Plaintiff has demonstrated nothing to prove defendant responsibility for specific First USA account, #4417122614151828 through exhibit, or, validation, as mandated by The Fair Debt Collection Practices Act, Section 8O9. Defendant is Drepar~d to offer aubsta~utial contrary to the claims of Plaintiff. OBJECTION TO MOTION FOR JUDGEMENT ON THE PLEADINGS/SUMMARY JUDGMENT - 4. There exist both specific denials and genuine issues of material fact in Defendant,s Answer to Complaint. THEREFORE, Defendant respectfully requests this Honorable Court to deny the Plaintiff Motion For Judgment on the Pleadings/Summary Judga~nt, Defendant copy undated. Da-t~d this ~th day o£ ~ve~>er, Lloyd H. Appleby Camp Hill, Pennsylvania 17011-1137 OBJECTION TO MOTION FOR JUDGEMENT ON THE PLEADINGS/SUMMARY JUDGMENT - }} Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, Ltd. -~ssiga~e ef First USA 229 Plaza Boulevard l~orrisviiie, Pennsyivania 1f~6'~7 Pa.~ela s. Appteby 5 F~st Gler~ Orive Camp Hill, Pennsylvania 17011-1137 IN THE COURT OF CO~4ON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-3723 Civil Term CIVIL ACTION CERTIFICATE OF SERVICE Pamela S. ADDle_by, pro se litigant does hereby certify that a true and correct copy of this Defendant's Praecipe has been f~i~wer~e~ by first cia.ss mail to, the fcll~wing attorney Robert ~. Reibs%ein, Esquire 705 Montgomery Avenue Narberth, Pennayluania 19072 Dated this 6m day of Nouember, Lloyd H. Appleby pamela S. Appleb~/-- ~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and su~nitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ]i-~t the within matter for the n~ext Argtment Cou~L. CAPTION OF CASE (entire caption must be stated in REFINANCE AMERICA, LTD (Assignee of First USA Bank, N.A.) PAMELA S. APPLEBY ( p1 ai ntiff ) ( De fe_~dant ) No. 3723 Civil Action 19 2002 State matter to be argued (i.e., plaintiff's motion for new trial, defer~ant's d~,~z~r to c~m~laint, etc.): Plaintiff's Motion for Judgment on Pleadings/Summary Judgment Identify counselwho~ll arc3uecase: (a) for plmlntiff: Larry S. Eisman, Esq. (for Robert Reibstein, Esq.) ~u-]~ess: 705 Montgomery Avenue P.O. Box 527 Narberth, PA 19072 (b) for defem~mnt: ~ess: defendant is pro se 3. I~ll notify~ll parties in writin§within t~odays that thin case h~s ~-~n limted for arcjtm~_nt. 4. Ar~3tm~nt Court Date: January 8, 2002 Attorney for Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, Ltd. Assignee of First USA Bank 229 Plaza Boulevard, Suite 112 Morrisville, Pennsylvania 19067 Vs. Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-3723 Civil Term CIVIL TERM DEFENDANT MOTION FOR SUMMARY JUDGMENT OR IN LIEU DISMISSAL OF PLAINTIFF COMPLAINT Defendant, Pamela S. Appleby respectfully moves this Honorable Court for Judgment in her favor and against Plaintiff, Refinance America, Ltd. for the following reasons: 1. Plaintiff, Refinance America, Ltd., a Nevada registered corporation doing business in Morrisville, Pennsylvania is not registered to do business in the Commonwealth. Refinance America, Ltd. has no Certificate of Authority and is therefore barred from bringing or maintaining this or any other action in the Commonwealth of Pennsylvania. 2. Plaintiff, Refinahce America, Ltd. has not demonstrated by exhibit any present obligation to the assignor, First USA Bank, N.A. The only exhibits are an old statement of account and internal Refinance America, Ltd. documents. The complaint consists of unsubstantiated demands not evidenced. WHEREFORE, Defendant, Pamela S. Appleby respectfully moves this Honorable Court for a Summary Judgment in favor of the Defendant or in lieu, Dismissal of the Plaintiff Complaint. Dated this 30th day of December, 2002 Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, Ltd. Assignee of First USA Bank 229 Plaza Boulevard Morrisville, Pennsylvania 19067 Vs. Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3723 Civil Term CIVIL ACTION CERTIFICATE OF SERVICE Pamela S. Appleby, pro se litigant does hereby certify that a true and correct copy of this Defendant's Request for Leave, Amended Answer and Motion for Summary Judgment has been forwarded by first class mail to the following attorney of record: Robert M. Reibstein, Esquire 705 Montgomery Avenue Narberth, Pennsylvania 19072 Dated this 30th day of December, 2002 Pamela S. A Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, LTD Assignee of First USA Bank, N.A. 29 Plaza Blvd, Suite 112 Morrisville, Pennsylvania 19067 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 02-3723 Civil Term Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011 CIVIL ACTION AMENDED ANSWER TO COMPLAINT Defendant, Pamela S. Appleby, answers the complaint of Plaintiff, Refinance America, LTD, in this action as follows: RESPONSE TO PRELIMINARY ALLEGATIONS Answering paragraph 1, Defendant is without sufficient information or belief to admit or deny the statements in this paragraph. Based on this lack of information or belief, defendant denies the statements. Answering paragraph 2, Defendant admits to being an adult residing at 5 East Glenwood Drive, Camp Hill, Pennsylvania. RESPONSE TO FIRST CAUSE OF ACTION o 7 o o Answering paragraph 3, defendant admits that First USA Bank, N.A. issued a credit card on or about July 1, 1994. Defendant denies account was that indicated by Plaintiff exhibit and attaches Defendant exhibit "A", letter from First USA Bank, N.A. indicating same. Defendant denies all remaining allegations in this paragraph. Answering paragraph 4, Defendant denies the allegations in this paragraph. Answering paragraph 5, Defendant denies the allegations and statements in this paragraph. Answering paragraph 6, Defendant is without sufficient information or belief to admit or deny the statements and allegations in this paragraph. Based on this lack of information or belief, Defendant denies the statements and allegations in this paragraph. Answering paragraph 7, Defendant denies the statements and allegations in this paragraph. Answering paragraph 8, Defendant denies the 'allegations in this paragraph. FIRST AFFIRMATIVE DEFENSE Plaintiff Lack of Standing Plaintiff, Refinance America, Ltd., is an unregistered Foreign Corporation doing business in the Commonwealth of Pennsylvania. An unregistered corporate entity is prohibited from bringing or maintaining any action in any Commonwealth tribunal. Plaintiff had no standing with which to initiate this complaint. SECOND AFFIRMATIVE DEFENSE Fraudulent Extortion 10. The complaint is barred by Plaintiff's false statements in the complaint that intimidated and created a sense of fear in the defendant. Plaintiff complaint contains major discrepancies re Plaintiff exhibits, such as amount in question and entitlement to interest. THIRD AFFIRMATIVE DEFENSE Unclean Hands 11. The complaint is barred in whole or in part by Plaintiff's unclean hands. FOURTH AFFIRMATIVE DEFENSE Latches 12. The complaint is barred in whole or in part by latches. WHEREFORE, Defendant requests judgment as follows: 1. That Plaintiff takes nothing by the complaint, which will be Dismissed with Prejudice through an Order for Summary Judgment or a Dismissal of the Complaint in favor of the Defendant. 2. That Defendant recovers from Plaintiff costs in the amount of $500.00 and any other amount as the court sees fit. That transcripts of all proceeding relating to this case be copied to the Office of Attorney General, Division of Consumer Protection/Philadelphia, Senior Agent Kathleen M. Walker. Dated this 30th day of December, Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 d First USA Bank, N.A. PO BOX 17145 DE1 - 1406 WILMINGTON DE 19850 8OO-955-99O0 FIRSTUSA. October 11, 2O02 Pamela S Appleby 5 E Glenwood Drive CnmpHill; PA 17011 RE:~17122614151828 Impertant inf. ormat~.n eoneerning yom' dispute t~ provided below, i Dear Pamela: As a leader in the credit card industry, we are.committed to providing innovative products and superior customer service. We received your dispute from the credit reporting agencies, regarding the information reported for the above-referenced account, After resean:hing your dispute, including a review of our records related to the account, we were unable to clearly determine your responsibility for the ncco~ Therefore, we informed the credit reporting agencies that the account should be reported as disputed on your credit file pending a If you wish to continue to dispute the reporting of this account, we will be pleased to assist you. To do this, we ask that you send a signed copy of the enclosed affidavit to the following address: customer s rity overa ous Post Office Box 2003 Elgin, IL 60121-2003 ......... Otu~ 11~ ~~ received; someone from our'Frnud-~entwflt~'ontnct you to- further investigate your claim. If you have any questions or if we can help.in any other way, please call us at the toll-free number listed above. We'rehere 24 hours a day for your convenience. Sincerely, Diane Ringhber Credit Bureau Analyst ConsumerDispute Verifications Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, Ltd. Assignee of First USA Bank 229 Plaza Boulevard, Suite 112 Morrisville, Pennsylvania 19067 Vs. Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3723 Civil Term CIVIL TERM DEFENDANT REQUEST FOR LEAVE TO FILE AMENDED ANSWER AND MOTION FOR SUMMARY JUDGMENT/DISMISSAL OF COMPLAINT Defendant, Pamela S. Appleby respectfully requests leave of this Honorable Court to file an Amended Answer to the Complaint and Motion for Summary Judgment/Dismissal of Complaint. The Commonwealth Department of State, Corporation Bureau has provided Defendant with new and particularly relevant information. In the interest of justice, Defendant states the following: 1. Plaintiff, Refinance America, Ltd., a Nevada registered corporation doing business in Morrisville, Pennsylvania has failed to obtain Certificate of Authority mandated by the Foreign Business Corporations Law. The failure of Refinance America, Ltd. to obtain the Certificate of Authority is a statement of irrefutable fact. 2. Plaintiff, Refinance America, Ltd., a Nevada corporation, initiated complaint against Defendant, Pamela S. Appleby approximately July 2002 as Refinance America, Ltd., Morrisville, Pennsylvania, an unregistered foreign corporation. 3. As a consequence of not registering with the Commonwealth, Plaintiff, Refinance America, Ltd. is suspended from the right to bring or maintain actions in Pennsylvania. 4. Defendant, Pamela S. Appleby attaches the Amended Answer to Complaint with Memorandum and Motion for Summary Judgment/Dismissal of Complaint. WHEREFORE, Defendant, Pamela S. Appleby respectfully requests leave of this Honorable Court in admitting an Amended Answer to Complaint and Motion for Summary Judgment/Dismissal of Complaint. Dated this 30th day of December, 2002 ..... P_~la S. ,~leby REFINANCE AMERICA, LTD (Assignee of First USA Bank, N.A.) PAMELA IS. APPLEBY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-3723 CIVIL TERM CWIL ACTION - LAW AND NOW, this ~ ?eb~ foregoing o (1 .) (2.) (3.) /Robert M. R~ fibstein, Esquire 705 Montgor aery Avenue P.O. Box 52' Narberth, Pa 19072 ~.//Pamela S. A~pleby 5 East Glenw~od Drive Camp Hill, P~ 17011 /~athan C. Wolf, Esquire : sld _ORDER OF COURT day of JANUARY, 2002;, for the reasons stated in the ~inion it is ordered and directed as follows: Defendant is granted leave to file her "Amended[ Answer to Complaint" retroactive to the date of filing on January 3, 2003. Plaintiff's Motion for Judgment on the Pleadings is DENIED. Defendant's Motion for Summary Judgment is DENIED. O j . - 02., REFINANCE AMERICA, LTD (Assignee Of First USA Bank, N.A.) S. V. PAMELA APPLEBY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-3723 CIVIL TERM CIVIL ACTION - LAW IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, GUIDO, JJ. OPINION AND ORDER OF COURT Before us is the plaintiff's motion for judgment on the pleadings. We also note that the pr(~ se defendant has filed an amended answer without obtaining either leave of court or the: consent of the plaintiff. In addition, she has filed a motion for summary judgment. While those last two issues are not currently befi~re us, we will address both in the interes of fairness and judicial economy. DISCUSSION case arises out of a credit card debt allegedly incurred by the defendant. The :ommenced by the plaintiff who purchased the debt from the credit card Thi: action was issuer. / Th~ defendant has filed an answer in which she inartfully denies many of the allegations;.l~ In her amended answer, defendant continues to in artfully deny the same ~ Plaintiffpoi~ts to Pa.R.C.P. 1079(b) which provides that "a general denial or a demand for proof.., shall have the effe~ of an admission.' NO. 2002-3723 CIVIL allegations. However, she adds sufficient specificity to avoid judgment on the pleadings? The~ law applicable to this case is clear. In the first instance, a party may amend a pleading a~ any time with leave of court. See Pa. R.C.P. 10133. Permission to allow an amended pieading is within the sound discretion of the court. Carringer v. Taylor, 402 Pa. Super. !97 586 A.2d 928 (Pa. Super. 1990). Such permission "may be granted while a motion foriudgment on the pleadings is pending" or even after judgment has been entered. Id. at 933. In the interest of faimess, we will exercise that discretion and allow the filing o:Tthe amended answer. determinin "m In the interest of judicial economy, we will use it in whether to grant the instant judgment on the pleadings. notion for judgment on the pleadings should be granted only where the pleadings c~e~ monstrate that no genuine issue of fact exists, and the moving party is entitled to jldgment as a matter of law." Insurance Company of Evanston v. Bowers, 758 A.2d 213, ~15 (Pa. Super. 2000) quoting from Consulting Engineers, Inc. v. Insurance Co. of Nort, well-pleade against him America, 710 A.2d 82, 83-84 (Pa. Super. 1998).. We "must accept as true all facts of the party against whom the motion is raade, while considering >nly those facts which he specifically admits". Id. Finally, the motion not ~e granted unless "the moving party's case is clear and free from doubt such should that a trial v~ould prove fruitless". Id. Applying the above standard to the case at bar, we are not convinced that plaintiff's "~ase is clear and free from doubt". On the contrary, there clearly appears to 2 She also rais{ ~s the issue of the defendant's standing to sue. However, we need not address the validity of that issue as pt rt of our decision today. NO. 2002-3723 CIVIL be a genuine issue of fact. Paragraph 3 of the complaint alleges that: At the request of Defendant, First USA Bank, N.A. issued Defendant a credit card on or about July 1, 1994 wherein Defendant made various charges through May 19, 1999, wherein at that time, there remained a principal balance due and owing on said account in the sum of $10,274.96. A true and correct copy of statement of said account is attached hereto made part hereof and marker[ as Exhibit "A". While the ~omplaint is brought against only the defendant, Pamela S. Appleby, the statement df account attached as exhibit A is addressed to "Lloyd H. Appleby", as well as to the defeadant. Defendant's amended answer responds to the allegations contained in paragraph 3 of the complaint as follows: Answering paragraph 3, defendant admits that First USA Bank, N.A. issued a credit card on or about July 1, 1994. Defendant denies account was that indicated by plaintiff exhibiit and attaches defendant exhibit "A", letter from First USA Bank, N.A. indicating same. Defendant denies all remaining allegations in this paragraph.3 The letter f,om the credit card issuer attached as exhibit A to the amended answer is addressed tO the plaintiff and provides, in relevant part, as fi)llows: After researching your dispute, including a n~view of our records related to the account, we were unable to clearly determine your responsibility for the account. Therefore, we informed the credit reporting agencies that the account should be reported as disputed on your credit file pending a further investigation. If you wish to continue to dispute the reporting of this account, we will be pleased to assist you. To do this, we ask that you send a signed copy of the enclosed affidavit to the following address: Customer Security Operations Post Office Box 2003 Elgin, I1 60121-2003 3 The amende, 1 answer is substantially the same as the original answer except for the addition of Exhibit A. NO. 2002-3723 CIVIL Once the information has been received, someone from our Fraud Department will contact you to further investigate your claim. (emphasis added). A reasonable inference to be drawn from defendant's exhibit A is that she neither received n!r~ used the credit card in question. Thts certainly raises an issue of material fact that needs to be resolved at trial. That issue llone precludes the granting of plaintiff's motion for judgment on the pleadings is well as the defendant's motion for summary judgment. Therefore, they will both be de~ied. ORDER OF COURT AN~ NOW, this 27TM day of JANUARY, 2003, for the reasons stated in the foregoing }pinion it is ordered and directed as follows: (1.i Defendant is granted leave to file her "Amended Answer to Complaint" (2.) (3.) retroactive to the date of filing on January 3, 2t3,03. Plaintiff's Motion for Judgment on the Pleadings is DENIED. Defendant's Motion for Summary Judgment is DENIED. By the Court, Robert M..~eibstein, Esquire 705 Mont ~mery Avenue P.O. Box 5 27 Narberth, F a. 19072 Pamela S. ~kppleby 5 East Gler.wood Drive Camp Hill, Nathan C. Pa. 17011 ~qolf, Esquire /s/Edward E. Guido Edward E. Guido, J. Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, LTD Assignee of First USA Bank, N.A. 229 Plaza Boulevard, Suite 112 Morrisville, Pennsylvania 19067 Vs. Pamela S. Appieby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3723 Civil Term Civil Action CERTIFICATE OF SERVICE Pro Se Defenda~t, Pamela S. Appleby does hereby certify that a true and correct copy of this Defendant's Request To Plaintiff Refinance America, Ltd. For Production of Documents and Things has been forwarded by first class mail to the following attorney of record: Robert M. Reibstein, Esquire 705 Montgomery Avenue Narberth, Pennsylvania 19072 Dated this 24tn Day of February, P~ela S, Apple~y/y ~ 5 East Glenwood Dri?e Camp Hill, Pennsylvania 17011-1137 -1- Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011-1137 Refinance America, LTD Assignee of First USA Bank, N.A. 229 Plaza Boulevard, Suite 112 Morrisville, Pennsylvania 19067 VS. Pamela S. Appleby 5 East Glenwood Drive Camp Hill, Pennsylvania 17011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3723 Civil Term Civil Action REQUEST TO PLAINTIFF REFINANCE AMERICA, LTD. FOR PRODUCTION OF DOCUMENTS AND THINGS Pro Se Defendant, Pamela S. Appleby does hereby request, pursuant to Chapter 4000, Pennsylvania Rules of Civil Procedure, that Plaintiff, Refinance America, Ltd. produce the following documents and deliver them via common carrier to her residence located at 5 East Glenwood Drive, Camp Hill, Pennsylvania 17011-1137. Delivery to be made within 30 days from service of this Request: 1. Copy of signed and dated contract and/or agreement between Assignor, First USA Bank, N.A. and Defendant, Pamela S. Appleby originally establishing credit account No. 4417 1226 1415 1828 and Defendant's responsibility for said account. 2. Copy of signed and dated contract and/or agreement between Assignor, First USA Bank, N.A. and Assignee Plaintiff, Refinance America, Ltd transferring ownership of credit account No. 4417 1226 1415 1828 from AsSignor to ASsignee. 3. Copies of verification information provided to credit reporting agencies, Equifax and TransUnion, September 2002; November 2002 and February 2003 placing the derogatory Refinance America Ltd./Collect America Ltd. tradeline in dispute pending validation to the consumer, Defendant, Pamela S. Appleby. -1- 4. Copy of Certificate of Good Standing and/or Foreign Corporation Registration as filed with the Corporations Bureau, Commonwealth of Pennsylvania, Department of State for Refinance America, Ltd. 5. Name and address of Commonwealth of Pennsylvania Registered Agent, Refinance America, Ltd. 6. Copy of Commonwealth of Pennsylvania Corporate Tax Return for last fiscal year, or, in lieu, previous quarter, Refinance America, Ltd. 7. Copy of license and/or registration with the Commonwealth of Pennsylvania Securities Commission, Refinance America, Ltd. Dated this 24tn Day of February, 2003, /,~ ~a~Eae}~ GS ~ en~wPPo io~bDYr i/ye/ / Camp Hill, Pennsylvania 17011-1137 -2-