Author Topic: pennsylvania preliminary objection sample  (Read 1106 times)

0 Members and 1 Guest are viewing this topic.

quill

  • Valued Member
  • Posts: 176
pennsylvania preliminary objection sample
« on: May 26, 2013 04:39:51 PM »
yes, this is copied from a CB post I made, thought I should share this and few others.

 haven't been around here much.


"DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT"

Defendant, Pro per,.............Comes now, and respectfully states the following:


Preliminary Objections;

1. Plaintiffs Complaint fails to conform to law or to rule of court, as Plaintiff failed to attach the Cardmember Agreement upon which the cause of action is based; a.R.C.P. Rule 1028(a)(2). Pa.R.C.P. Rule 1019(i) requires a party to attach a copy of a writing to its pleading when the cause of action alleged is based upon that writing.

2. Plaintiffs fails to conform to law or to rule of court, as Plaintiff failed to attach the assignment under which Plaintiff purportedly acquired its interest in this cause of action; Pa.R.C.P. Rule 2002(a) requires that all actions be prosecuted by and in the name of the real party in interest. and

3 . Plaintiff's Complaint is insufficiently specific, as it fails to set forth any charges or payments made by Defendant that are alleged to comprise the balance claimed to be due.Pa.R.C.P. Rule 1028(a)(3) provides that any party to a pleading may file a preliminary objection to the pleading on the basis that the pleading is insufficiently specific Rule 10 19(a) provides that the material facts upon which a cause of action or defense is based must be stated in a concise and summary form.

4 Plaintiff has submitted into evidence Exhibit "A" which consists of an "affidavit of debt" which is hearsay

 5 Said document pertains to acts and events that allegedly occurred between Defendant and a third party, _______________

6. At no time was the creator of the "affidavit of debt" nor any of Plaintiff's employees present to witness any alleged acts or creation of the records of transactions occurring between defendant and____________.

7. As such said affidavit falls under the hearsay rule and is inadmissible as evidence.

8. Source of the records are untrustworthy - since the seller of accounts does not state on their bill of sale that they warrant, represent, or ensure the accuracy or completeness of information included.

9. Defendant further states that the affidavit is not subject to the hearsay business records exemption because it was not made at or near the time of the alleged acts or events, and;

10 The information contained in the document is merely an accumulation of hearsay, and;

11. Upon information and belief, the creator of the document in Plaintiff's Exhibit " A" is not currently and has never been employed with_______________. and therefore cannot have personal knowledge of how ___________________ records were prepared and maintained, and;

12 Is unqualified to testify as to the truth of the information contained in Plaintiff's Exhibit "A".

13 It is the business records that constitute the evidence, not the testimony of the witness referring to them. There is no business record from the original creditor attached that shows that the defendant had an account or used an account that was transferred to the plaintiff,

15 The Affidavit does not establish ownership by the plaintiff, as there is no record of the assignment attached, nor is testimony based on a computer screen sufficient.

16. An affidavit that is conclusory is substantively defective. A conclusory statement is one that does not provide the underlying facts to support the conclusion. An affidavit is substantively defective when the absence of the referenced papers from evidence leaves the affidavit conclusory

17. As to assigned claims, it is essential that an assignee show its standing, which "doctrine embraces several judicially self imposed limits on the exercise of jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights" . . . A lack of standing renders the litigation a nullity, subject to dismissal without prejudice . . . . It is the assignee's burden to prove the assignment . . . . Given that courts are reluctant to credit a naked conclusory affidavit on a matter exclusively within a moving party's knowledge . . . an assignee must tender proof of assignment of a particular account or, if there were an oral assignment, evidence of consideration paid and delivery of the assignment"

18. While the Plaintiff alleges that it is the assignee of this account, the Plaintiff fails to provide proper proof of the alleged assignment sufficient to establish its standing herein

19 Pursuant to Commonwealth Financial v Smith PA Superior Court, 2011, transferred, computerized files of an original creditor are not admissible as the business records of a successor debt buyer.



Wherefore, defendant prays to the honorable court that the plaintiff's complaint be dismissed in it's entirety, and the Plaintiff take nothing for their complaint.

signed this ____day of March, 2012

,
( your name) Signature
address,


certificate of service;

I _____________ herein swear that a true an correct copy of the above was mailed on the ________ day of March, __________
to;

( attorneys name and address)

by certified mailed, return receipt