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HomeMy WebLinkAbout2010-3040 LVNV FUNDING, LLC, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : JOY A. MURLATT, : DEFENDANT : 10-3040 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF’S AMENDED COMPLAINT BEFORE OLER, J., GUIDO, J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., May 25, 2011:-- Before the court is the preliminary objection of Defendant, Joy A. Murlatt to the amended complaint filed by Plaintiff, LVNV Funding, Inc. For the reasons stated briefly below, Defendant's preliminary objection is granted. This is a collections matter arising from an allegedly delinquent credit card account. Defendant objects to the adequacy of Plaintiff's amended complaint on the grounds that Plaintiff has failed to establish itself as a real party in interest because it has failed to attach a complete history of the assignment of the alleged debt. We agree 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); Arrow Financial Servs. v. Witmer, 59 Cumb. L. J. 154 (2010) (Ebert, J.). Here, Plaintiff's complaint includes two 10-3040 CIVIL TERM documents purporting to establish the chain of assignment. One document is an affidavit from an authorized representative of Sherman Originator LLC stating that account number "4185866591287563, Joy Murlatt" belongs to Plaintiff and that Plaintiff acquired this account from its affiliate Sherman Originator LLC. The second document is a "Bill of Sale" transferring an unspecified number of accounts from Washington Mutual Bank to Sherman Originator, LLC. This documentation is insufficient. 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. We note that our esteemed colleague, the Honorable M.L. Ebert, Jr., rejected an identical "Bill of Sale" in Arrow Financial. There, he reasoned: [T]his document reflects a transfer of some unspecified accounts. The individual accounts that were transferred by the original creditor to Plaintiff are not specified in this document. Nowhere does it reflect that Defendant's account was among the accounts that were transferred to Plaintiff by the original creditor. Id. We are compelled to reach the same conclusion here. Plaintiff has failed to attach adequate evidence of assignment of the purported credit card account and has therefore failed to establish itself as a real party in interest to this litigation. For these reasons, the Defendant's preliminary objection is sustained and the amended complaint is dismissed without prejudice to Plaintiff's right to file an adequate second amended complaint within 30 days. 2- - 10-3040 CIVIL TERM ORDER OF COURT AND NOW, this ___ day of May, 2011, the preliminary objection filed by SUSTAINED Defendant, Joy A. Murlatt is . The amended complaint filed by the DISMISSEDGRANTED Plaintiff, LVNV Funding LLC is . Plaintiff is thirty (30) days to file a second amended complaint. By the Court, Albert H. Masland, J. Benjamin J. Cavallaro, Esquire For Plaintiff Michael J. Pykosh, Esquire For Defendant :saa 3- - LVNV FUNDING, LLC, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : JOY A. MURLATT, : DEFENDANT : 10-3040 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF’S AMENDED COMPLAINT BEFORE OLER, J., GUIDO, J. AND MASLAND, J. ORDER OF COURT AND NOW, this ___ day of May, 2011, the preliminary objection filed by SUSTAINED Defendant, Joy A. Murlatt is . The amended complaint filed by the DISMISSEDGRANTED Plaintiff, LVNV Funding LLC is . Plaintiff is thirty (30) days to file a second amended complaint. By the Court, Albert H. Masland, J. Benjamin J. Cavallaro, Esquire For Plaintiff Michael J. Pykosh, Esquire For Defendant :saa