Latest case results from the files of Kenny, Burns & McGill. Client was attempting to negotiate a business arrangement over a piece of real estate in Philly. Then the world crashed and the other side filed a lawsuit (civil litigation) against the client. The client called Thomas Kenny, of Kenny, Burns & McGill to lawyer up and fight the case. Sensing a weakness in the opponents case, Attorney Kenny filed preliminary objections asking to have the case dismissed. Ultimately, the opponent withdrew the lawsuit, resulting in a big win for Kenny, Burns & McGill. Below highlights include the order allowing withdraw and an excerpt from the preliminary objections filed by Kenny, Burns & McGill. Another civil litigation win.
Filed and Attested by the
THE BANK OF NEW YORK MELLON FKA
IN THE COURT OF Philadelphia Court of Common Pleas
THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT INC., ALTERNATIVE LOAN TRUST 200 OA2MORTGAGEPASS HROUGH CERTIFICATES , SERIES 2007-OA2,
GLC, AND ADULT OCCUPANT,
CIVIL ACTION – IN EJECTMENT
PRAECIPE TO SETTLE & DISCONTINUE
To the Office of Judicial Records:
Please mark the above-captioned matter settled and discontinued without prejudice.
Dated: May 28, 2020
Attorney for Plaintiff
MEMORANDUM OF LAW IN SUPPORT OF THE
Civil Litigation win for KBM
PRELIMINARY OBJECTIONS OF DEFENDANT GLC
Defendant GLC, by and through her attorneys, Kenny, Burns & McGill, hereby submits this Memorandum of Law in support of her Preliminary Objections.
MATTER BEFORE THE COURT
Currently before this Court are the Preliminary Objections of Defendant GLC.
II. STATEMENT OF QUESTION INVOLVED
Whether the Preliminary Objections should be sustained for failure to conform to rule of court for failure to attach a verification signed by a party?
Suggested Answer: Yes
STATEMENT OF FACTS
In this ejection action, Plaintiff alleges that by virtue of a Sheriff’s Sale held on December 3, 2019, it acquired title to the property situate at and known as xxxx Delphi Place, Philadelphia, Pennsylvania 19153 and that Defendant, who is in possession of the property, should be ejected.
Plaintiff did not verify the Complaint. To the contrary, her attorney, Esquire, verified the Complaint on her behalf, and that verification is improper. Accordingly, the Complaint should be dismissed.
Plaintiff’s Complaint should be dismissed for failure to conform to a Rule of Court.
Plaintiff’s Complaint should be dismissed for failure to conform to Rule 1024 of the Pennsylvania Rules of Civil Procedure which requires that “every pleading containing an averment of fact not appearing of record in the action . . . shall be verified.” Pa. R. Civ. P. 1024 (2018).
Plaintiff did not verify the Complaint. To the contrary, an entity called NR, LLC, Servicing verified the complaint on Plaintiff’s behalf, and that verification is improper. Accordingly, the Complaint should be dismissed.
Generally, such verification should be made by a party to the case. The verification attached to Plaintiff’s Complaint appears in the following form:
Complaint at 12.
Notably, the Complaint has not been verified by Plaintiff The Bank of New York f/k/a The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2007-OA2 Mortgage Pass-Through Certificates, Series 2007-OA2.
Instead, the subject verification appears to have been executed by a “Limited Power of Attorney for the Plaintiff” or “Attorney-In-Fact,” called NR, LLC and signed by a designee whose name appears to be “CP.”
Plaintiff does not aver in its Complaint that NR, LLC or CP are attorneys or attorneys-in-fact for Plaintiff.
Plaintiff did not include as an exhibit to the Complaint a valid Power of Attorney instrument, executed by Plaintiff, which would grant NR, LLC or CP suitable powers to verify a legal action on Plaintiff’s behalf.
Neither NR, LLC nor CP appear as parties in the instant action and neither NR, LLC d/b/a CP are listed as attorneys of record for Plaintiff.
Even if NR, LLC or CP were indeed attorneys (or “attorneys-in-fact”) for Plaintiff, an attorney’s signature on a verification, as permitted by the Rules of Civil Procedure, is limited to those circumstances enumerated in the Rule.
Monroe Contract Corp. v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. Ct. 1979).
Thus, a verification which fails to aver that the verification is made by a person having sufficient knowledge, information and belief; fails to set forth the source of the person’s information as to matters not stated upon his or her own knowledge or fails to state the reason why the verification is not made by the party, is defective.
Given the failure of Plaintiff’s counsel to set forth any reason for substitute verification, Defendant’s preliminary objections should be sustained and the complaint dismissed for failure to comply with Pa. R. Civ. P. 1024.
 Rule 1024 of the Pennsylvania Rules of Civil Procedure provides:
(a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder.
(b) If a pleading contains averments which are inconsistent in fact, the verification shall state that the signer has been unable after reasonable investigation to ascertain which of the inconsistent averments, specifying them, are true but that the signer has knowledge or information sufficient to form a belief that one of them is true.
(c) 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 the person’s information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party.
Another civil litigation win for KBM. When you have needs for help in Civil and need a civil litigation win call us today.
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