Civil action in Court of Common Pleas

[poppabear47]

This is unusual.  Collection Agency (CA), has filed a civil action in the Court of Common Pleas.   What is unusual is this is normally in front of a District Justice and the appeal is usually to Common Pleas.  Appeal from here is Superior Court.

 

Situation.  Last payment on an account appears to be October 2008, the action was filed December 31, 2012.  HSBC charged it off in May of 2009.  I have run my credit report and the CA does not show up on this at all for this account.  They have in the suit a copy of a statement from June 2009 which shows a charge off amount but also states $0.00 due on due date of 6/22/09.

 

There is a bill of sale from HSBC to the CA that says the receivable puchase agreement dated February 20, 2009 was executed on the 30th of June 2009.  The affadavit from CA says that he is an authorized agen and a custodian of records for HSBC and that he has personal knowledge of the facts and that they are true.  

 

I do not recall getting anything on this account from them or anyone else after the last payment made. 

 

I will respond that I need a continuance and intend to defend.  Do I now send a DV letter?  Do I ask Common Pleas to refer it to lower court (district judge)?   Can I ask the CA in court how much they paid and will be willing to pay them that (over time...don't have it right now).

 

Help woudl really be appreciated.   I can probably scan and redact relevant name, account info etc from the document and post if necessary.   Also, this debt is in my name only and the house is in both wife and my name.  Car is in her name.   I have a checking account that has about $30 in it at any given time but that is all. 

 

When does SOL start, from date of last payment or date of Charge Off.  This is in PA.

 

Thanks,

PS

[admin]

SOL typically starts about 6 months from the date of last payment, which is typically, though not always when the debt is charged off.  I'm moving this topic to the legal forums.  

[BrunoTheJDBkiller]

SOL typically is defined in the agreement. I assume this is a credit card case. Usually the account goes into default when a scheduled payment is missed. Partial payments do not count, as they do not bring the account current. HSBC, nice criminals that they are, are a British bank with an American division (formerly Beneficial) located in Nevada, which has a 4 year statute of limitations. When they aren't busy laundering money for drug cartels, they sue people for credit card defaults. Look up Racecar's 20 questions, it is also on the forum home page. It isn't clear who is suing you or for how much. There are several options which depend on this info. Collection agencies do not usually buy defaulted accounts.

[DonqIII]

This is unusual.  Collection Agency (CA), has filed a civil action in the Court of Common Pleas.   What is unusual is this is normally in front of a District Justice and the appeal is usually to Common Pleas.  Appeal from here is Superior Court.

 

Situation.  Last payment on an account appears to be October 2008, the action was filed December 31, 2012.  HSBC charged it off in May of 2009.  I have run my credit report and the CA does not show up on this at all for this account.  They have in the suit a copy of a statement from June 2009 which shows a charge off amount but also states $0.00 due on due date of 6/22/09.

 

There is a bill of sale from HSBC to the CA that says the receivable puchase agreement dated February 20, 2009 was executed on the 30th of June 2009.  The affadavit from CA says that he is an authorized agen and a custodian of records for HSBC and that he has personal knowledge of the facts and that they are true.  

 

I do not recall getting anything on this account from them or anyone else after the last payment made. 

 

I will respond that I need a continuance and intend to defend.  Do I now send a DV letter?  Do I ask Common Pleas to refer it to lower court (district judge)?   Can I ask the CA in court how much they paid and will be willing to pay them that (over time...don't have it right now).

 

Help woudl really be appreciated.   I can probably scan and redact relevant name, account info etc from the document and post if necessary.   Also, this debt is in my name only and the house is in both wife and my name.  Car is in her name.   I have a checking account that has about $30 in it at any given time but that is all. 

 

When does SOL start, from date of last payment or date of Charge Off.  This is in PA.

 

Thanks,

PS

PA CODE

 

Subchapter B. Civil Actions and Proceedings.

 

§ 5525. Four year limitation.

 

The following actions and proceedings must be commenced within four years:

 

An action upon a contract, under seal or otherwise, for the sale, construction or furnishing of tangible personal property or fixtures.

 

Any action subject to 13 Pa.C.S. § 2725 (relating to statute of limitations in contracts for sale).

 

An action upon an express contract not founded upon an instrument in writing.

 

An action upon a contract implied in law, except an action subject to another limitation specified in this subchapter.

 

An action upon a judgment or decree of any court of the United States or of any state.

 

An action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal or otherwise, except an action subject to another limitation specified in this subchapter.

 

SOL STARTS FROM FIRST DELINQUENCY

 

Section 2725 of the Pennsylvania Uniform Commercial Code provides that "an action for breach of any contract for sale must be commenced within four years after the cause of action has accrued." 13 Pa. Cons. Stat. Ann. 2725(a). A cause of action for breach of a contract for the sale of goods "accrues when the breach occurs." 13 Pa. Cons. Stat. Ann. 2725(. In the case of an installment contract, breach of the whole contract occurs "whenever nonconformity or default with respect to one or more installments substantially impairs the value of the whole contract." 13 Pa. Cons. Stat. Ann. 2612©.

 

Basically in a nutshell. The first missed due date, after the last payment starts the count. NOT the actual payment date itself.

 

PA is 4 years as is Nev. so PA SOL is the defining one.

 

If your last payment was in Oct. of 2008, would that have been for a November due date? (example.. mailed on the 27th for a due date of 11-5.)

 

I suggest that SOL/time barred is applicable to this.

 

If the payment was for a due date in November then The December due date would have started the count.

Short of the due date for this account being the 31st, it has to be SOL.

 

I also sent you a PM

[racecar]

Racecar's 20 questions

 

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

6. How were you served? (Mail, In person, Notice on door)

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt?

12. What is the status of your case? Suit served? Motions filed? You can find this by calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

[racecar]

"Can I ask the CA in court how much they paid and will be willing to pay them that (over time...don't have it right now)."

They dont want what they paid for the debt,They want to collect the whole amount plus interest and attorney fee's and court costs.

Cant do much more till we have more information on your case,Im sure its one of these debt buying firms

Ability Recovery,Advantage Assets, Arrow Financial, Apothaker & Associates, Atlantic Credit, CACH, Commonwealth Financial, Gordon & Weinberg, LVNV, Main Street Acquisitions, Midland Funding, Palisades,Portfolio Recovery, Unifund, Worldwide Asset,Asset Acceptance.

 

 

 

"A breach of contract claim in Pennsylvania requires three elements:

(1) the existence of a contract (2) a breach of a duty imposed by the contract and (3) resulting damages." J.F.

Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269, 1272 (pa. Super. 2002),

citing Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881,884 (pa. Super. 2000).

 

Plaintiffs failure to attach

necessary writings to the Complaint. In accordance with Pa.R.C.P. No. l019(i),

 when any 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." If any

claim or defense set forth within the pleadings is based upon a contract, then either a copy of the

contract must be attached or if unavailable then the substance of the contract must be set forth in

writing.

In Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003), the

Court found that a complaint in debt collection action filed against credit card debtors by

creditor's alleged assignee did not satisfy the requirement set forth in Pa.R.C.P. No. l019(i),

where the alleged assignee did not attach to the complaint: (1) a cardholder agreement; (2) a

statement of account; and (3) evidence of assignment from credit card issuer to alleged assignee.

 

 

 

 

 

 

     

 

 

        

[DonqIII]

SOL typically is defined in the agreement. I assume this is a credit card case. Usually the account goes into default when a scheduled payment is missed. Partial payments do not count, as they do not bring the account current. HSBC, nice criminals that they are, are a British bank with an American division (formerly Beneficial) located in Nevada, which has a 4 year statute of limitations. When they aren't busy laundering money for drug cartels, they sue people for credit card defaults. Look up Racecar's 20 questions, it is also on the forum home page. It isn't clear who is suing you or for how much. There are several options which depend on this info. Collection agencies do not usually buy defaulted accounts.

Bruno. A partial payment MAY restart the SOL account. See the following.

 

From:  Delmar, Cengage Learning.  18429_PA_02_Part2_p007-028.indd 8

for lawyers considerations on initiating a suit and what to look for in PA

 

Initiating Litigation...CHAPTER 3

Time Limitations

 

Where a party has acknowledged an indebtedness for which a promise to pay was made or can be implied, the

statute of limitations may begin to run from that time, and not when the party failed to make payment on the debt. The

acknowledgment of the debt as an existing obligation must be clear, distinct, and unequivocal (Goodis v. Meneses, 33 D.

& C. 2d 671 (1964)). The four-year statute of limitations may be tolled by the debtors’ partial payment of a prior

debt (Natural Resources Lease Acquisition Program v. Tisi, 21 Crawford Co. Leg. J, 261 (1990)).

 

But again possibly not... as in the following

 

 

Subject: sol partial did not reset in this case

 

http://caselaw.findlaw.com/pa-superior-court/1488894.html

In order for a partial payment to toll the statute of limitations, the payment must constitute a constructive acknowledgement of the debt from which a promise to pay the balance may be inferred.  Id., 442 Pa.Super. at 410-411, 659 A.2d at 1054.

Because the insurer's payment did not constitute an acknowledgement of the existing debt, it does not toll the statute of limitations.   Accordingly, the trial court did not err in dismissing appellant's complaint, as his causes of action are all barred by the statute of limitations.   Finding no error, we affirm the trial court's order.¹

 

It would seem though that  a payment , even a partial was made on an account, specific to that account that

would definitely be anacknowledgement of that specific debt. Therefore it would re start the count.

[poppabear47]

Should I copy the 20 question and reply here or PM it?   Last payment was made 10/17/2008.  Credit report shows 30-days late in November.

 

Let me know and I can post.

 

Thanks for all the help.

[birddog1962]

Should I copy the 20 question and reply here or PM it?   Last payment was made 10/17/2008.  Credit report shows 30-days late in November.

 

Let me know and I can post.

 

Thanks for all the help.

When were you served?? SOL in PA is 4 years. I have a great lawyer in SE Pa that would jump all over this. PM me if you are interested.

[poppabear47]

When were you served?? SOL in PA is 4 years. I have a great lawyer in SE Pa that would jump all over this. PM me if you are interested.

PM sent.  I was served on January 4, 2013.  Civil Suit filed on 31 of December 2012 but the attoney dated the complaint October 29, 2012. 

[BrunoTheJDBkiller]

 

Bruno. A partial payment MAY restart the SOL account. See the following.

 

From:  Delmar, Cengage Learning.  18429_PA_02_Part2_p007-028.indd 8

for lawyers considerations on initiating a suit and what to look for in PA

 

Initiating Litigation...CHAPTER 3

Time Limitations

 

Where a party has acknowledged an indebtedness for which a promise to pay was made or can be implied, the

statute of limitations may begin to run from that time, and not when the party failed to make payment on the debt. The

acknowledgment of the debt as an existing obligation must be clear, distinct, and unequivocal (Goodis v. Meneses, 33 D.

& C. 2d 671 (1964)). The four-year statute of limitations may be tolled by the debtors’ partial payment of a prior

debt (Natural Resources Lease Acquisition Program v. Tisi, 21 Crawford Co. Leg. J, 261 (1990)).

 

But again possibly not... as in the following

 

 

Subject: sol partial did not reset in this case

 

http://caselaw.findlaw.com/pa-superior-court/1488894.html

In order for a partial payment to toll the statute of limitations, the payment must constitute a constructive acknowledgement of the debt from which a promise to pay the balance may be inferred.  Id., 442 Pa.Super. at 410-411, 659 A.2d at 1054.

Because the insurer's payment did not constitute an acknowledgement of the existing debt, it does not toll the statute of limitations.   Accordingly, the trial court did not err in dismissing appellant's complaint, as his causes of action are all barred by the statute of limitations.   Finding no error, we affirm the trial court's order.¹

 

It would seem though that  a payment , even a partial was made on an account, specific to that account that

would definitely be anacknowledgement of that specific debt. Therefore it would re start the count.

 

 

 

This is some sort of insurance case, it doesn't have much merit where credit card cases are concerned. CC cases are based upon an agreement between the parties. The Court should not set aside such an agreement. or "make for the parties an agreement they did not make for themselves." If courts could do this no contract would be valid.

[poppabear47]

Racecar's 20 questions

 

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

6. How were you served? (Mail, In person, Notice on door)

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt?

12. What is the status of your case? Suit served? Motions filed? You can find this by calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Do I post the answers here?

[inthesticks]

Do I post the answers here?

 

Yes. That's basic information people need to be able to help.

[poppabear47]

1. Who is the named plaintiff in the suit? Main Street Acquisition Corp.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Demetrios H. Tsarouhis, I.D. #88513, Attorney for Plaintiff, 21 s. 9th Street, Suite 200, Allentown, PA 18102, 610-439-1500

3. How much are you being sued for? $3,181.23, interest at the per diem of $0.52, cost of suit and any other relief as the Court deems

4. Who is the original creditor? (if not the Plaintiff) HSBC Bank Nevada

5. How do you know you are being sued? (You were served, right?) Yes

6. How were you served? (Mail, In person, Notice on door) Sheriff came to the door, wife accepted the civil action notice.

7. Was the service legal as required by your state? Don't know but I assume.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None. In fact, Main Street Acquisition does not show up on my credit report, except as a regular inquirer.

9. What state and county do you live in? Pennsylvania, Cumberland County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Last payment was processed on 10/17/2008. Credit report shows 30-days late in November 2008.

11. What is the SOL on the debt? 4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suite was served, I have 20 days to reply if I will be defending.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I could not have disputed Main Street Acquisition as I did not see them as a creditor on the two most recent reports and don't recall them on others but I do not have them.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 20 days to respond. Count I, Breach of Contract, Count II, Account Stated, Count III, Unjust Enrichment. Do you need a copy of all the points under each count?

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Copy of a statement from May 31, 2009 showing charge off. Bill of Sale from HSBC to Main Street for value received. Affidavit of origination and assignment of portfolio accounts. Verification from Attorney that statements are correct.

 

http://dl.dropbox.com/u/81102558/civil%20suit.pdf

[DonqIII]

This is some sort of insurance case, it doesn't have much merit where credit card cases are concerned. CC cases are based upon an agreement between the parties. The Court should not set aside such an agreement. or "make for the parties an agreement they did not make for themselves." If courts could do this no contract would be valid.

Bruno,

 

I do not want to hijack OPs thread any longer but I carried this subject further in a reply

to you at

 

http://www.creditinfocenter.com/community/topic/318626-pa-partial-payments-and-tolling-the-sol/

 

titled PA partial payments and tolling the SOL

[birddog1962]

PM sent.  I was served on January 4, 2013.  Civil Suit filed on 31 of December 2012 but the attoney dated the complaint October 29, 2012. 

They know this is  a time barred debt, that is why he back-dated it. You need to try and find your last payment or statement.I'ts going to be up to you to prove it's a time-barred, not them. Your credit report will be challanged as hearsay.

You can even try calling HSBC to get the info, I believe they have to give it to you?.

[poppabear47]

They know this is  a time barred debt, that is why he back-dated it. You need to try and find your last payment or statement.I'ts going to be up to you to prove it's a time-barred, not them. Your credit report will be challanged as hearsay.

You can even try calling HSBC to get the info, I believe they have to give it to you?.

They even admit the payment was made on 10/17/2008, and the credit reports show the same date.  I did web payments.  But had another account with them (smaller amount) and other household members may have had accounts too and payments were made on those accounts.  The problem with trying to determine which payment went to what account.  I could probably go to the bank too to determine where they went.

[birddog1962]

They even admit the payment was made on 10/17/2008, and the credit reports show the same date.  I did web payments.  But had another account with them (smaller amount) and other household members may have had accounts too and payments were made on those accounts.  The problem with trying to determine which payment went to what account.  I could probably go to the bank too to determine where they went.

You need to file your answer to the lawsuit. There are alot of people that can help you here. Hang on to the SOl defense, you may be able beat them without it.

[poppabear47]

Is there a particular form that I use or just kind of copy the doc in my dropbox from the 2nd page on?

[BTO429]

Post the complaint minus your identifying info,,,,complaints need to answered by what claims they make,,,,,

[poppabear47]

Best I could do for exhibits and affadavits was in Post #14.  

http://dl.dropbox.com/u/81102558/civil%20suit.pdf

 

I typed out the complaint (even with his typos as is).

http://dl.dropbox.com/u/81102558/Redacted%20Notice%20to%20Defend.doc

[racecar]

Pursuant to Pa. R.C.P. 1019(i), the pleader is required to attach a copy of

the original agreement, signed and dated, to the Complaint for any claim based

upon a written agreement. The attached copy of the agreement should include

both original and amended terms and conditions applicable to the credit card

agreement.

Atlantic Credit &Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super.

2003).

Defendant's Preliminary Objections Count I, Failure to Attach

Documentation Supporting Amount Claimed, Plaintiff has failed to attach any

monthly statements, records or receipts on which the claim for the credit card

account is based. Furthermore,

in Defendant's Count 2, Preliminary Objection for

Failure to Attach Account Application and Agreement, Plaintiff has also failed to

attach a copy of the written agreement, terms and conditions of the credit card

account to the Complaint.

Defendant's Count 3

Pa.R.C.P. No. 1028(a) (2) - Failure to conform to

rule of court (failure to state whether agreement is oral or written, state its terms, and/or

attach a written contract upon which the claim is based)

Plaintiff has also failed to explain the absence of the needed

documentation. Therefore, pursuant to Pa. R.C.P. 1019 (i), the Plaintiff's claim is

incomplete.

 

In Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003), the

Court found that a complaint in debt collection action filed against credit card debtors by

creditor's alleged assignee did not satisfy the requirement set forth in Pa.R.C.P. No. l019(i),

where the alleged assignee did not attach to the complaint: (1) a cardholder agreement; (2) a

statement of account; and (3) evidence of assignment from credit card issuer to alleged assignee.

Likewise in the case

 

sub judice: (1) Plaintiff failed to identify the terms ofthe parties'

agreement within the Amended Complaint, or attach a copy of the document upon which its

claim is based to the Amended Complaint; (2) Plaintiff failed to provide a detailed statement of

any cash advances, items purchased, dates of purchase and prices paid in the Amended

Complaint; and (3) Plaintiff failed to attach a writing to the Amended Complaint that evidences

the assigmnent of predecessor's account to the Plaintiff. Even if the writing or a copy is not

accessible to Plaintiff, it failed to provide any reason for the writings absence and also failed to

set forth the substance of the contract in writing.

 

 

 Remit Corp. v. Miller, 5 Pa. D.& C. 5th 43, 47 (Pa. Com. PI. 2008) (quoting Brown

v. Esposito, 42 A.2d 93, 94 (1945». Pa.R.C.P. No. 1019 (h) states that "when any claim or

defense is based upon an agreement, the pleading shall state specifIcally if the agreement is oral

or written." Plaintiff must indicate whether this alleged agreement with the original creditor was

oral or written. If it was a written agreement, Plaintiff must attach to the Amended Complaint a

writing evidencing the assignment of Defendant's account to Plaintiff by the original creditor.

 

 

see alsoRambo v. Green,

906 A.2d 1232, 1236 (Pa.Super. 2003).

 

 

 

"My favorite part"

It has become clear to this Court that all too often these

corporate collection plaintiffs tend to file shoddy, incomplete pleadings without making the

necessary inquiries regarding the details of these debt transactions.

 

It appears that this is done in

order to obtain quick default judgments against unrepresented debtors at minimal expense. This

case represents an example of such sub par pleading which unnecessarily increases the work of

the Court.

[poppabear47]

I changed my profile name but the case is still the same.

 

Thanks racecar, what about the SOL?  Clearly back-dated the complaint but did not file until 12/31/2012.  

 

Thanks,

poppabear47

[DonqIII]

Best I could do for exhibits and affadavits was in Post #14.  

http://dl.dropbox.com/u/81102558/civil%20suit.pdf

 

I typed out the complaint (even with his typos as is).

http://dl.dropbox.com/u/81102558/Redacted%20Notice%20to%20Defend.doc

 

They made your SOL a solid defense for you.

 

Their claim #8  The last payment of the Defendant was received and credited on 10/17/2008. Defendant has failed pay any amounts since that time.

 

Claim #11

Also of note is they say the principal amount due at the charge off date was $3,181.23.  That is an incorrect statement becasue the statement they sent to you says balance due $0. and the charge off amount they list is $2741.24

 

Based on the reading of that statement, if someone inquired as to the amount due, they would have been told $0

 

The account State claims in this are bogus under PA rules.

 

There is case law that supports the following..

 

( from Judge's decision on Richburg v Palisades Collection) (http://www.paed.uscourts.gov/documents/opinions/08D0113P.pdf)

 

An "account stated" traditionally arises when two parties, who engage in a series of transactions with one another,

come together to balance the credits and debits and fix upon a total amount owed. See David v. Veitscher Magnesitwerke Actien

Gesellshaft, 35 A.2d 346, 349 (Pa. 1944). This final tally, once assented to, becomes the "account stated," and any further cause of action is based on this "account stated" rather than on any of the underlying transactions

 

But back to your solid SOL defense.

 

The actual complaint is dated October 29, 2012

 

and the Verification is dated October 29, 2012

 

But it was not filed in the court until 12-31-12. Almost 2 months after actually drafting the complaint.

 

It is the filing date that will matter

 

From this link http://www.wolfbaldwin.com/attorneys_lawyers/articles.asp?ArticleID=30&Page=statute_limitation_time_limit_claim_law_PA_Pennsylvania.asp

 

Which is an article of  Wolf, Baldwin and Associates . A PA  lawfirm is the following.

 

"Be careful, however, as to when the actual date of the statute of limitation has run. Sending a letter or making a claim in the small claims court (in Pennsylvania known as Magisterial District Court) won’t do the trick. You have met the requirements of the statute only when you have filed your Complaint in the Prothonotary’s office of the Court of Common Pleas and have delivered the Complaint to the Sheriff for service of process."

 

This means that the date on the complaint means nothing.

 

It is the filing date that does.

 

Get your answer done and filed because if you do not and do not claim the SOL, you will loose it.

 

One final note. You will DENY each and every point in your complaint

 

EXCEPT

 

Point 2, admit your name and address.

 

Point 8, admit that date of last payment because if you deny it you may loose the SOL end or have a

big fight on your hands.

 

As to your notice to defend. This is fine... and I might note it is not fully redacted....

 

But... it is not an answer.

 

An answer will constitute the basicc that you have in your notice to defend but you need to

andswer each and every point with admit or deny.

 

Generally an explanation goes with each admission or denial .

 

Such as

 

Denied: Defendant has no way of knowing this information... or some such innocuous statement.

 

But is not necessary.

 

Then you would follow into "AFFIRMATIVE  DEFENSES." written basically as you answer.

 

This would be when you would use "Time Barred under " Pennsylvania Commercial Code at 13 Pa.C.S.A. §2725,

and Pennsylvania Statutes Chapter 55, Title 42, Section 5525.

 

You could do other defenses, such as standing but I believe time barred should be enough.

 

And if you want to you could, at this point file a counter claim against them . But it is not necessary.

 

But with out fail I would include a motion to dismiss and get that heard in the court.

 

Usually you need to write the motion, and file it.

 

You need to find out how you specific court hears motions... Either by court specified date

or showing up at motions court.

 

And you need to notice the Plaintiff's attorney of the hearing a certain number of business

days before the hearing... (I have forgotten how many) so they can be present.

 

and send them the notice CMRRR ( so you have the green card as proof of mailing,

 

 

 

 

 

 

 

 

 

 

 

[poppabear47]

Thanks.

 

If I put the doc together in the next day or so, can I repost it to have someone look at it?

 

Thanks,

poppabear47