Wednesday, August 20, 2008

consumer - credit card case - standing, pleading, etc.

Remit v. Miller - C.P. Centre County - August 15, 2008

The court upheld the POs of the defendant (represented by Carl Mollica of MidPenn) in a credit card case.

attachment of writing
The court upheld defendant's objection that plaintiff violated Pa. RCP 1019(i) by failing to attach a copy of the writing on which its claim was based, stating that in "credit card suit, a creditor must 'attach the writings which assertedly establish [the creditor’s] right to a judgment.' " Atlantic Credit and Finance, Inc. v. Giuliani, 829 A.2d 340, 345 (Pa. Super. 2003).

standing - chain of ownership must be attached to complaint
Plaintiff claimed that it had standing to pursue the claim against plaintiff by virtue of an assignment, but it did not attach any writing assignment to the complaint. The court said that several Common Pleas cases hold that an assignment must be attached to the Complaint. The Centre County case of Flanagan v. Hill, Fitzgerald and Erie Insurance Group, 2006 PA.D.&.C. 263 (Kistler, J.) holds that Pa.R.C.P. 1019 requires that an assignment be attached to a complaint. This holding is in accord with Worldwide Asset Purchasing, LLC v. Stern, 153 Pittsburgh Legal J. 111, 112 (C.P. Allegheny 2004), which specifically addressed assignments in credit card cases. This Court concurs with these holdings and determines Pa.R.C.P. 1019 requires that, in a credit card case based upon an assignment, the relevant assignments showing the chain of ownership for the account from originator to current holder must be attached to the Complaint."

lack of specificity of pleading amount owed
A bare conclusory affidavit claiming an amount owed is insufficient in a credit card case. The court followed the holding in Marine Bank v. Orlando, 25 D.&.C.3d 264 (C.P. Erie 1982), which sustained POs for failure to comply with Pa.R.C.P. 1019(f), holding that “[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Id. at 268. This information must be included in the pleading for it to comply with Pa.R.C.P. 1019(f)."

The court also held that plaintiff was entitled to know specific charges and a specific accounting information to allow the defendant to calculate what she owes and how that amount was reached. Plaintiff must provide a breakdown of charges, payments, items purchased, and interest such that defendant can formulate a response or assert a counterclaim or a defense.

The court cited with approval the holding in Premium Assignment Corp. v. City Cab Company, Inc., 2005 WL 1706976, 2005 LEXIS 311 (C.P. Philadelphia 2005), for the proposition that “[t]he specific calculations are necessary pieces of information that are known by the plaintiff and are relatively simple to aver. The addition of those specific calculations will enable the defendant to prepare its defense and address the issues without forcing the defendant to engage in unnecessary discovery.” Defendant needs this information both to be able to fully and accurately answer the Complaint, to make any necessary counterclaims or defenses, and to avoid unnecessary discovery.

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