Unifund v. Sheridan

31 Pa. D. & C.5th 391
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJune 24, 2013
DocketNo. 2012 CV 4944
StatusPublished

This text of 31 Pa. D. & C.5th 391 (Unifund v. Sheridan) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Unifund v. Sheridan, 31 Pa. D. & C.5th 391 (Pa. Super. Ct. 2013).

Opinion

MINORA, J.,

I. Introduction

Unifund, plaintiff creditor, and alleged assignee of a consumer debt, files this amended complaint against defendant, alleged debtor, Robert Sheridan who preliminarily objects. For the reasons that follow, the objections will be granted in part and denied in part.

II. Factual Background

On August 13, 2012, Unifund filed a collection complaint against defendant, Sheridan. The complaint stated that this claim arose out of what was a Citibank credit card. (See complaint exhibit C). Citibank interests were allegedly sold to Pilot Receivables Management LLC on November 21, 2011. On May 1, 2012, Pilot Receivables Management LLC allegedly assigned their interest to Unifund CCR Partners. (See complaint exhibit B). On the same date, May 1,2012, Unifund CCR Partners allegedly assigned their interest to Unifund Corporation of Ohio, thus, allegedly giving our plaintiff their interest and standing.

Defendant filed timely preliminaiy objections to plaintiff’s original complaint and a brief in support thereof. Defendant is alleging that the three exhibits of assignment noted above are generic boilerplate documents which do not specifically reference this defendant nor his account number and therefore, they lack the necessary validity to confer standing and an interest on Unifund.

[394]*394The objections further challenged Unifund’s ability to file suit in the Commonwealth of Pennsylvania because it was not registered to do business in our Commonwealth. Additionally, there were two objections going to legal insufficiency of the complaint by Unifund for failure to attach the cardholder agreement nor any statements of account. Plaintiff filed a brief in opposition but on October 16,2012, Senior Judge Harold Thompson granted defendant’s objections in part and ordered that plaintiff file an amended complaint within twenty (20) days of the date of his order.

In response to the order, plaintiff filed an amended complaint onNovember 5,2012. In the amended complaint, plaintiff claimed standing by an assignment from Unifund CCR Partners to itself via a generic assignment document per exhibit A to plaintiff’s amended complaint.

To further establish standing, plaintiff alleges that their assignor, Unifund CCR Partners, received this account from Pilot Receivables Management LLC via a generic assignment document per exhibit B to plaintiff’s amended complaint.

Finally, it is alleged that Pilot Receivables Management purchased this defendant’s account from Citibank (South Dakota) N.A. (hereinafter “Citibank”) via a generic bill of sale document at exhibit C to plaintiff’s amended complaint.

These documents are referred to as generic because they are all approximately one half of one page in length containing mostly boilerplate and they make no specific reference to our defendant by name nor by his account number.

[395]*395The amended complaint then makes allegations in support of their claim relative to an unpaid balance, interest rate accruing and a default by defendant.

Apparently, recognizing that they once again did not provide a copy of the credit card holder’s agreement between our defendant and Citibank, plaintiff attached copies of monthly billing statements exhibits D-P.

Plaintiff goes on to allege that these monthly billing statements reflect defendant’s agreement to pay all charges for purchases, balance transfer fees, cash advance fees and interest on this account. Plaintiff claims that this is the case because defendant allegedly accepted same without “complaint, objection or dispute.” (See paragraph 12 of amended complaint). Based upon this, plaintiff alleges an implied contract, a breach and a balance due of $6,229.00 plus interest and costs. This legal conclusion, stated at paragraph twelve of the amended complaint, does not plead the essential elements necessary to form a contract. Not surprisingly, defendant once again raises preliminary objections to the now amended complaint of plaintiff, Unifund.

In the new set of preliminaiy objections, Sheridan again moves to dismiss for Unifund’s lack of capacity to sue per Pa. R.C.P. 1028(a)5. The basis for this objection is that at paragraph one of the amended complaint, Unifund alleges that it is a foreign corporation doing business in the state of Ohio and fails to allege that it was registered to business in Pennsylvania as required by 15 Pa. C.S.A. §4141(a). Accordingly, defendant concludes Unifund lacks capacity to bring suit.

Additionally, at pages two and three of defendant’s [396]*396preliminary objections, defendant alleges that plaintiff’s two assignments at exhibits A and B of the amended complaint and the bill of sale at exhibit C of the amended complaint are inadequate because all these exhibits make no reference at all to defendant Sheridan’s name or account number. Therefore, defendant objects to these exhibits as being inadequate to indicate that the alleged debt of defendant was assigned to the plaintiff nor are they adequate to show defendant’s debt was sold to the plaintiff, thus denying plaintiff standing to sue.

Next, at page four, defendant objects for failure of the amended complaint to conform to law or rule of court per Pa. R.C.P. 1028(a)2. The basis for this objection is the same as that objection to the original complaint. Plaintiff Unifund was required to attach a copy of the contract or cardholder agreement to the amended complaint per Pa. R.C.P. 1019(i). Again, this has not been done and defendant moves to dismiss the complaint for failure of the amended complaint to conform to law or rule of court per Pa. R.C.P. 1028(a)2.

Finally, defendant Sheridan moves to dismiss the amended complaint by demurrer per Pa. R.C.P. 1028(a)4 because plaintiff is not a corporation registered to do business in the Commonwealth; because the exhibits do not indicate plaintiff acquired defendant’s account; and, because no cardholders agreement or contract was attached to the complaint therefore, voiding all claims of interest.

In plaintiff’s answer to defendant’s preliminary objections to plaintiff’s amended complaint Unifund admits that it has not pled that it is registered to do [397]*397business in Pennsylvania, but denies this is a necessary legal prerequisite to filing suit.

Unifund also states that their exhibits A, B and C are adequate to show each step in the chain of title for defendant’s credit card account and that this gives them the standing to pursue defendant’s alleged debt.

Unifund also asserts that the amended complaint alleges an implied contract exists between defendant Sheridan and the original creditor and that monthly statements attached to the amended complaint provide all necessary information to put defendant Sheridan on notice.

III. Preliminary Objections Standard

As mandated by Pa. R.C.P. 1019(a), the material facts upon which a cause of action or defense is based shall be stated in a concise and summary form. Additionally, Pa. R.C.P. 1019(c) states,

“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of such performance or occurrence shall be made specifically and with particularity.”

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Cite This Page — Counsel Stack

Bluebook (online)
31 Pa. D. & C.5th 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unifund-v-sheridan-pactcompllackaw-2013.