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Sued in PA by Asset Acceptance / D. Galloway - Can Anyone Help Please?


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Hi,

I'm new to this so please bear with me & forgive me if I'm going about this incorrectly! :roll:

I received a certified letter yesterday for a Civil Action Hearing Notice & I really, really need some help. I've read a lot of helpful things here but I really don't fully understand most of it. I lost my job back in March of 2010, have four children & a husband who is mentally ill & unable to work so I am not in the position to hire a lawyer.

Juggling a lot of balls here & this is the last thing I needed. Padded room, here I come! lol

Any & all help is greatly appreciated as I don't even know where to start!

Here's what was sent:

Civil Complaint

Plaintiff: Name and Address

Asset Acceptance, LLC

c/o Fulton, Friedman & Gullace, LLP

130B Gettysburg, PA 17055

VS.

Me . . . Minniem22

Filing cost: 103.00

Potage: 10.30

Serving cost:

Constable ed.

Total: 113.30

Pa. R.C.P.D.J. No 206 sets forth those costs recoverable by the prevailing party.

TO THE DEFENDANT: The above named plaintiff(s) asks for judgement against you for $3,***.**, together with costs upon the following claim.

Plaintiff is the owner of a certain WELLS FARGO / RAYMOUR & FLANIGAN account bearing number XXXXXXXXXXXX-**** (The x's are how they have it on paperwork, the * I put in place of the 4#'s they have) (hereafter, "the Account") by virtue of the assignment of the account. As a result of the assignment, plaintiff now holds all rights, title and interest in and to the Account. Upon information and belief, defendant entered into a credit agreement with WELLS FARGO / RAYMOUR & FLANIGAN, used or authorized the use of the Account to obtain loans for the purpose of obtaining goods and/or services and/or cash advances. Defendant breached the agreement by not paying the amounts due and owing on the Account. Based upon review of records kept on behalf of plaintiff, the last payment posted to the Account on February **, 2010. The Account shows that the defendant owes a balance of $3,***.** plus interest which has accrued from the date of assignment at the rate of 6.00% per year in the amount of $1**.**.

I, Christine Nieman (No idea who she is!) verify that the facts set fourth in this complaint are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C.S. 4904) related to unsworn falsification to authorities.

Christine Nieman

___________________

(Signature of Plaintiff or Authorized Agent

Plaintiff's Attorney: DAVID R. GALLOWAY

Telephone: ****

Address: Mechanicsburg, PA 17055

The plaintiff's attorney shall file an entry of appearance with the magisterial district court pursuant to PA. R.C.P.M.D.J.207.1

---------------------------------------------

IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, YOU SHOULD NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGEMENT MAY BE ENTERED AGAINST YOU BY DEFAULT.

If you have a claim against the plaintiff which is within magisterial district judge jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five days before the date set for the hearing.

That's it . . . No other paperwork! No original contract/agreement NOTHING! (Cause we all know . . . THEY DON'T HAVE IT!!)

Okay, they have I'm guessing close to the correct amount owed before interest & the last payment date correct.

I did call & let the court know I will be attending & asked if I needed to file anything for my defense & was told No, that I really didn't even need a lawyer.

Is there anything else you need from me?

Thank you in advance for your help in this matter.

Minniem22

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Well you have one of worst JDB after you. Just started a new thread a few hours ago on defeating a JDB using the standing argument.

I'd recommend you read this thread. It talks about your exact issues and the hearsay they have included with their complaint.

http://www.creditinfocenter.com/forums/there-lawyer-house/312714-standing-when-dealing-jdb.html

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Wow that was some great information . . . Thank you!

Now for the questions . . .

How/when do I do a discovery request for a complete accounting of the debt, dates of the alleged sale & (correct me if I'm wrong) the original agreement/contract with the OC.

How/when do I challenge each document a JDB produces & when will they produce the documents? Will it be in court?

I told you I have no idea what I'm doing but i intend to learn! lol My knees may be knocking but I'll be darned if I'm going to let them get a default judgement against me when I stand a fighting chance!!

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Your rules of evidence will answer all those. Generally speaking, you can start discovery after your served. You would complete discovery. They would probably move for summary judgment. You defeat that and then move to trial. That is when you would challenge their evidence.

However, you file legit discovery, tear holes apart in their arguments, and defeat summary judgement, the odds are very, very, slim they would even show up for a trial. In other words you beat them before there is ever a trial.

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Bear with me . . . I find the rules of evidence for my jurisdiction where? I tried to find a website for this district court but came up empty. Would I look on Delaware County Court house website?

I also found these on another, older thread. Would they pertain to my case & would they help?

VERIFICATION

I, ______ , hereby acknowledge that I am Defendant in the foregoing Preliminary Objections, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief.

I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities.

DATE:_______________

_________________

Minniem22

[for your certificate of service]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Preliminary Objections was furnished by U.S. Mail, first class, postage prepaid on the date set forth below, to:

David R. Galloway, Esquire

[address]

Attorney for Plaintiff

Dated: __________

Minniem22

Pro se Defendant

[Finally, for your prososed order]

[CAPTION OF CASE]

ORDER OF COURT

On this ____ day of _________, 2009, upon consideration of

defendant's preliminary objections, it is hereby ORDERED that:

(1) plaintiff's complaint is stricken; and

(2) within twenty (20) days, plaintiff may file an amended

complaint, including an amended verification, which complies

with the pleading and verification requirements set forth in the

Opinion accompanying this Order of Court.

BY THE COURT:

_______________

CAPTION OF THE CASE]

NOTICE TO PLEAD

TO:

David R. Galloway, Esquire

[address]

Attorney for Plaintiff

You are hereby notified to file a written response to the enclosed DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT within twenty (20) days from service hereof or a judgment may be entered against you.

Dated: ______________

Minniem22

[address]

Pro se Defendant

[CAPTION OF THE CASE]

DEFENDANT'S PRELIMINARY OBJECTIONS

Defendant, Minniem22, files preliminarily objections to Plaintiff's Complaint, as follows:

1. Plaintiff alleges in paragraph ___ of its complaint that it is a Foreign Limited Liability Co. authorized to do business in the state of Pennsylvania but fails to provide the basis of its authority or the licensed business address in Pennsylvania.

2. Plaintiff alleges in paragraph ___ of its complaint that Defendant was issued a credit card and/or line of credit by BANK OF AMERICA but fails to attach the contract and identify the transaction date(s).

3. Plaintiff also alleges in paragraph ___ of its complaint that it is the assignee of the alleged credit account from BANK OF AMERICA but fails to attach any contract or agreement between BANK OF AMERICA and itself.

I. PRELIMINARY OBJECTION LACK OF CONFORMITY TO LAW OR RULE OF COURT

4. Paragraphs one through three are incorporated by reference as if set forth at length herein.

5. As a general rule, an action must be brought ``by and in the name of the real party in interest.'' Pa. R.C.P. No. 2002(a).

6. A real party in interest is one who can discharge a given right, obligation, or liability and control an action brought to enforce it.

7. Plaintiff alleges in paragraph ___ of its complaint that it is the assignee of the alleged account ; however, Plaintiff fails to attach a copy of any assignment or agreement with BANK OF AMERICA.

8. Rule 1019(i) of the Pennsylvania Rules of Civil Procedure requires that where a claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.

9. Plaintiff’ fails to produce a cardholder agreement and statement of account, as well as evidence of the assignment of the aforesaid account.

10. Plaintiff’s complaint is silent about the substance of these writings and whether each writing is accessible.

11. Plaintiff’s pleading is insufficient and Plaintiff has not established that it is a real party in interest or that it has capacity to sue in its own name.

WHEREFORE, defendant respectfully requests that this Court dismiss

plaintiff's complaint.

II. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO APPLICABLE RULES OR LAW.

12. Paragraphs 1 through 11 are incorporated by reference as if set forth at length herein.

13. The verification to plaintiff’s complaint was not made by one of the plaintiffs, but rather was made by plaintiff’s attorney, David R. Galloway, Esq.

14. Pa. R.C.P. 1024© requires that:

The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of his information as to matters not stated upon his own knowledge and the reason why the verification is not made by a party.

15. The verification to plaintiff’s complaint does not set forth the source of plaintiff’s attorney's information as to the matters contained in the complaint.

16. Further, there is no reason given by plaintiff’s attorney why the verification could not be taken by the plaintiff. Counsel’s claim of expediency fails to explain why verification could not be obtained within the time allowed, in violation of Rule 1024©.

17. The verification to plaintiff’s complaint is defective under Rule 1024©.

18. The verification being defective, plaintiff’s complaint is not properly verified as required of a pleading under Rule 1024(a), and must be stricken.

WHEREFORE, defendant respectfully requests that plaintiffs' complaint be stricken.

III. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO APPLICABLE RULES OR LAW.

19. Paragraphs 1 through 11 are incorporated by reference as if set forth at length herein.

20. Plaintiff’s Complaint fails to set forth sufficient facts as to time, place and items of special damages with specificity, as required by Pa. R.C.P. 1019(f).

21. Plaintiff alleges in paragraph ___ of its complaint that BANK OF AMERICA issued a credit card and/or line of credit, account number ****** and that that Plaintiff is assignee of this account; however, Plaintiff fails to attach or to explain the absence of its credit account and the assignment thereof as required by Pa. R.C.P. 1019(h).

22. The Complaint purports to state a claim against Defendant for default under the terms and conditions of a written agreement governing the use of a credit card and/or line of credit; however, instead of attaching the written agreement, Plaintiff attaches a printout prepared for litigation and then merely alleges that Defendant is responsible for an unpaid balance and that demand has been made for $6,159.39.

23. Plaintiff fails to attach a signed contract, the charge slips, the application for the credit card, or any statements of account. Plaintiff fails to attach the assignment or purchase of the account from BANK OF AMERICA to Plaintiff.

24. Plaintiff fails to identify those specific dates of use or terms under the contract that substantiate the alleged balance or amount owed. Plaintiff even fails to properly identify itself or provide its place of business.

25. The Complaint does not comply with Pa. R.C.P. 1019(a), which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form".

26. As a result, plaintiff's complaint is vague and general and does not specifically state the debt incurred or what, if any, payments are due and the nature of the charges included as part of the amount Plaintiff claims to be owed.

27. Under Pa. R.C.P. No. 1028(a)(2), a party may preliminarily object by way of a motion to strike off a pleading because of lack of conformity to law or rule of court.

28. The substance of Plaintiff's Complaint violates the Pennsylvania Rules of Civil Procedure and must be dismissed.

WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint against her be dismissed for lack of conformity to the Pennsylvania Rules of Civil Procedure.

IV. INSUFFICIENT SPECIFICITY OF A PLEADING.

29. Paragraphs 1 through 28 are incorporated by reference as if set forth at length herein.

30. Plaintiff's complaint lacks sufficient specificity to apprise defendant of the issues to be litigated or to allow her to adequately prepare and assert defenses to plaintiff's allegations.

31. Additionally, Defendant is entitled to more specific information to be able to answer intelligently and determine if she is even obligated for such credit card and what items she can admit and what she must contest.

32. The Complaint generally asserts a breach of contract and other failures of

performance against Defendant, contrary to Rule 1019(f).

33. The Complaint fails to state any facts upon which the amount of damages may be calculated, in violation of Pennsylvania Rule of Civil Procedure 1019(a), which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form."

WHEREFORE, Defendant respectfully requests this Court to require that Plaintiff plead more specifically the averments of its complaint relating to damages and the nature of the default.

Respectfully submitted

Dated: __________________

Minniem22

[address]

Pro se Defendant

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It would just be the Penn rules of civil procedure. Google that and just take your pick from sites, they are all over the place. You could call the local court and ask if the court has their local rules posted anywhere, and if not, can you pick up a copy of them.

Those documents you posted appear to be Penn specific. I have no idea about those. It does appear you better know what it all means if you use them. They look very detailed full of references to the Penn rules of civil procedure.

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Yeah they are. I was like a deer struck by headlights reading them.

And okay, it's been confirmed . . . A savant in this field I am not but I was sooo hoping! lol

I found Penn's RULES OF CIVIL PROCEDURE (Once again, Thank you)

There was nothing attached to my notice for "Answering the Complaint" other then requesting that I call if I intended to appear. (Which I did & I do!)

As far as the discovery (And no eye rolling please, remember baby steps.) Do I just send the request for discovery to the lawyer almost like a validation letter? (Certified mail with receipt request?)

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You send the discovery to the atty for the other side. Yes, I would send certified, but that is not required.

You have to do discovery by the rules. There is a format and certain requests will fall under different parts of discovery.

For example, you will admissions, production of documents, and interrogatories. You can't ask for an admission in discovery that is for interrogatories.

Also, in my state there is no limit, but in others there are limits. Also the type of requests are different from state to state. Generally speaking, you can't ask something that calls for a legal conclusion. For example, asking the other side to admit they violated XXX as the court described in case XXX vs XXX.

It's more informal than something you file with the court, but a lot more formal than a dv letter. If you don't do the form right, the other side will object that you are not complying with the rules.

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I am so lost as to what I need to send to the JDC attorney for discovery. I did find this notice to produce. Not sure if this is the same as discovery.

I'm in Brookhaven , PA if that helps.

Rule 234.8. Form of Notice to Produce.

The notice to produce required by Rule 234.3(B) shall be substantially in the following form:

(Caption)

NOTICE TO PRODUCE

To : (Name(s) of Party/Parties)

You are directed to produce the following:

at , , Pennsylvania, (Courtroom or other place) (Address)

on at o’clock . M.

If you fail to produce the documents or things required by this notice to produce, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure.

Date:

(Party or Party’s Attorney)

(Address)

(Telephone Number)

Source

The provisions of this Rule 234.8 adopted December 14, 1989, effective January 1, 1990, 20 Pa.B. 7.

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Here are your rules of civil procedure. Read up on "Pleadings." That's legal lingo for all the paperwork you submit to the court.

Pennsylvania Code

Here are the rules of evidence. Read 8 and 9. That will teach you that their affidavit is no good, and what they can introduce as business records. Don't worry, they won't have any.

Pennsylvania Code

Per what the clerk told you, I would not send anything as of yet. This sounds like a small claims type of court, very informal. The hearing is probably designed to find out what is going on; are you going to defend, (YES) if discovery is necessary, (YES) etc. Most people don't even show up for these hearings. That's what they count on. When you go, tell the judge you intend to challenge their lack of standing to sue and would like to conduct discovery so that you can determine if they legally own this account. If he asks you if you would like a trial say yes. It would help if we knew for certain what level of court this is. Once you get the green light, we have plenty of pre-planned discovery designed to beat these JDBs. (junk debt buyers) Usually when they see that they are going to be in for a fight, they drop the case. It isn't in their business model to fight.

If you want to kick their tail and get that "I just beat up on a lawyer in court" high, stay on the forum. Don't disappear. The longer members here usually don't read threads that are beyond two days old.

Edited by legaleagle
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Thank you . . . Reading the replies & other postings, I feel that there's really hope for me to knock this down before I even have to go to trial. And don't worry, I'm not going anywhere! If it helps, it's going in front of a lower court (Magistrate). I just received my copy of Notice of Intent to Defend today. :D

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Hello just an update & looking for your opinions

Today I received a letter From Fulton, Friedman & Gullace, LLP which is the law firm David R. Galloway works for & who is suing me. I know they must have received their copy of my "Notice of Intent to Defend". In the spirit of seeking a mutually satisfactory resolution of this matter. (LOL!) At this time he is authorized to accept a lump sum payment & would like to offer me a settlement with a 40% discount. How great of him!!

Why bother sending this to me if they're suing me? I know, I know . . . They don't really want to go to court. So is this a last ditch effort to collect before we go in front of the Magistrate?

Would love your thought!! Thanks!

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  • 1 month later...
Hello just an update & looking for your opinions

Today I received a letter From Fulton, Friedman & Gullace, LLP which is the law firm David R. Galloway works for & who is suing me. I know they must have received their copy of my "Notice of Intent to Defend". In the spirit of seeking a mutually satisfactory resolution of this matter. (LOL!) At this time he is authorized to accept a lump sum payment & would like to offer me a settlement with a 40% discount. How great of him!!

Why bother sending this to me if they're suing me? I know, I know . . . They don't really want to go to court. So is this a last ditch effort to collect before we go in front of the Magistrate?

Would love your thought!! Thanks!

This is the same point I am at with FF&G and David R. Galloway. Would love to hear what happened with your case.

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They always do this when they know they can't win. I would take their letter and smear some chocolate on it and send it back to them. Let them figure out what that means. Chocolate is not illegal, but it makes one hell of a statement. You think I'm bad? Wait until you get a load of Coltfan1972.

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