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HomeMy WebLinkAbout2009-1720 ARROW FINANCIAL SERVICES, LLC, : IN THE COURT OF COMMON PLEAS Assignee and Successor in interest : OF CUMBERLAND COUNTY, PENNSYLVANIA of WASHINGTON MUTUAL BANK, : PLAINTIFF : : V. : : DEBORAH L. GRAHAM, : DEFENDANT : 09-1720 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE OLER, J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., October 5, 2010:-- Before the court are the preliminary objections of Deborah L. Graham, Defendant, to the amended complaint filed by Plaintiff, Arrow Financial Services LLC. For the reasons stated briefly below, Defendant's preliminary objections are granted. This is a collections matter arising from an allegedly delinquent credit card account. Defendant representing herself, objects to the adequacy of Plaintiff's amended complaint on the grounds that Plaintiff has not established it is a real party interest, it does not include the “Schumer Box” to establish the basis for claimed interest, late fees, returned check fees, and over-the-limit fees, and it is improperly verified. I. Evidence of Assignment Where, as here, a plaintiff is not the defendant's original creditor, the complaint must include a writing evidencing the assignment of the defendant's account from the original creditor to the plaintiff. Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003). Without such a document, plaintiff fails to establish its status as a real party in interest to the instant matter. Here, Plaintiff's amended complaint includes a document labeled “Bill of Sale” indicating the sale of various accounts from Washington Mutual Bank to Plaintiff. This 09-1720 CIVIL TERM writing is wholly inadequate to establish Plaintiff is a real party in interest in this matter. First, the Bill of Sale contains no information whatsoever to establish its relevance to the Defendant's alleged debt. Neither her name nor her account number appear in the document. Instead, the Bill of Sale refers to “Accounts listed in the Account Schedule attached … as Appendix A to the Agreement ….” See Am. Compl. “Appendix A” does not appear in the record. Plaintiff concedes as much, justifying its absence on the grounds that Appendix A: [I]s simply an excel spreadsheet with all the account numbers that were sold in the particular lot of accounts. Nearly the entire document would need to be redacted. Only the last four digits of defendant's account number could be displayed. As such, attaching said document would provide no further verification that defendant's account was among those in the lot sale referenced in the Bill of Sale. Pl.'s Br. at 5. This explanation is wholly unsatisfactory. A supposedly onerous redaction process does not excuse Plaintiff from properly establishing it is a real party in interest. Also troubling is that the Bill of Sale refers to the transfer of Washington Mutual accounts while the record clearly indicates Defendant's original creditor was Providian National Bank. Plaintiff asks us to excuse this inadequacy by taking judicial notice that Providian was purchased by Washington Mutual. We decline to do so. In light of these problems, the Bill of Sale is insufficient to satisfy the requirement of including a writing to account for the assignment of Defendant's account. II. Absence of Cardholder Agreement Next, we address Defendant's objection to the absence of the terms of her original cardholder agreement. She argues the alleged debt is based upon a written cardholder agreement, and accordingly, Plaintiff must attach a copy of the document to the complaint. We agree. Plaintiff's complaint includes an exhaustive balance statement history of the -2- 09-1720 CIVIL TERM alleged debt and a copy of Defendant's signature on an account acceptance card. What it does not contain, however, are the terms of the cardholder agreement. In the absence of this information, Defendant's objection must be sustained. III. Adequacy of Verification Finally, we address Defendant's objection to the verification. Plaintiff's complaint is verified by a person identified as “Outsource Manager for Plaintiff Arrow Financial Services.” Based on Plaintiff's representation that the verification was completed by an officer of the Plaintiff business, we are satisfied that it comports with the requirements of Pa. R.C.P. No. 1024. IV. Conclusion In conclusion, we sustain Defendant's preliminary objections due to the serious deficiencies of the amended complaint. Plaintiff has not established itself as a real party in interest, nor has it established the terms of the underlying credit agreement allegedly breached by the Defendant. Accordingly, Plaintiff's amended complaint must be dismissed for failure to provide documentation to substantiate its claim. The court grants Plaintiff leave to file a legally sufficient amended complaint within 30 days of this opinion and order. ORDER OF COURT AND NOW, this day of October, 2010, Defendant's preliminary objections to SUSTAINED Plaintiff's amended complaint are . The court grants Plaintiff leave to file a legally sufficient second amended complaint within 30 days of this order. By the Court, Albert H. Masland, J. -3- 09-1720 CIVIL TERM Benjamin J. Cavallaro, Esquire For Plaintiff Deborah Graham, Pro se 902 Allenview Drive Mechanicsburg, PA 17055 :saa -4- ARROW FINANCIAL SERVICES, LLC, : IN THE COURT OF COMMON PLEAS Assignee and Successor in interest : OF CUMBERLAND COUNTY, PENNSYLVANIA of WASHINGTON MUTUAL BANK, : PLAINTIFF : : V. : : DEBORAH L. GRAHAM, : DEFENDANT : 09-1720 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE OLER, J. AND MASLAND, J. ORDER OF COURT AND NOW, this day of October, 2010, Defendant's preliminary objections to SUSTAINED Plaintiff's amended complaint are . The court grants Plaintiff leave to file a legally sufficient second amended complaint within 30 days of this order. By the Court, Albert H. Masland, J. Benjamin J. Cavallaro, Esquire For Plaintiff Deborah Graham, Pro se 902 Allenview Drive Mechanicsburg, PA 17055 :saa