MOTION TO STAY EXECUTION

MICHELLE ASKAR

In Pro Per

IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY

PENNSYLVANIA

CIVIL DIVISION-LAW

MOTION TO STAY EXECUTION

PLEASE TAKE NOTICE that on __________________ at __________ or as soon thereafter as the matter may be heard in the Common Pleas Court of Pennsylvania, for the County of Beaver, located at

810 Third Street, Beaver, PA 15009. Plaintiffs Michelle Askar and Samuel Desantis, her husband, will, and hereby do, move for an order to stay execution.

The Plaintiffs make this motion because there is a defect in the Writ of execution issued, the levy and service thereof and this is adverse to the Plaintiffs’ rights.

DATED:                                     Respectfully Submitted

BY:   MICHELLE ASKAR and SAMUEL DESANTIS                                                                                  (PRO SE LITIGANTS)

MEMORANDUM

1. Background

The Plaintiff, Michelle Askar leased an office with Charles J. Betters’ in the Defendants, commercial strip plaza located at 3468 Broadhead Road, Center Township, PA 15061 hereinafter (“premises”) for a five (5) year term on November 11, 2008. The term began on January 1, 2009 where Michelle Askar used the premises to run a chiropractic practice and business thereat, named “In Line Chiropractic Clinic t/d/b/a Beaver County Spinal Disc Center” which offered chiropractic services and All Care Medical Supply offering durable medical equipment.

The strip plaza and neighboring areas experienced a torrential downpour on Friday, Friday, August 22, 2011 after Michelle Askar’s close of business hours. On returning to her business on Monday, Michelle Askar discovered that water had dooded the Premises and soaked the carpet and wetted the floor areas. Plaintiff Michelle Askar closed her business and vacated the Premises on April 26, 2012 and August 1, 2012 respectively.  

The Plaintiff s sued the Defendants on August 19, 2013, Michelle Askar sued for damages due to negligence and fraud and her husband, Samuel DeSantis, Jr., sued for lack of consortium arising from injury to his spouse. It was the Plaintiff Michelle Askar’ case that her medical conditions are related to the flooding event. The Defendant Charles J. Betters filed a counterclaim against Plaintiff Michelle Askar for unpaid charges arising from the lease of November 11, 2008.  They had re-let the Premises on January 1, 2013

In the Court’s judgment issued on 16th June, 2021, the Court held that in part that “No credible evidence was produced to suggest the Premises contained unsafe levels of mold or fungus. To the contrary, the evidence presented showed a normal mold or fungus ecology existed within the Premises after the flooding event. The Defendants reasonably replied to all notifications and remedial recommendations. Defendants’ responses and actions were prompt and reasonable. The Defendants constructed, operated, and maintained the Premises in a reasonable manner, without misrepresentation or fraud to Plaintiff Michelle Askar.”

The Court also held that the Plaintiff’s claims for Negligence, Fraud and loss of consortium were denied but granted the Defendant’s claim against the Plaintiff Michelle Askar for the breach of the November 11, 2008 lease. Damages of Ninety Thousand, Two Hundred Sixty $90,260.00 Dollars are awarded to the Defendant Charles J. Betters. The damages were calculated as follows:

• unpaid rent as of August 1, 2011-$22,453.00
• unpaid rent from August 1, 2011 to December 31, 2012-14,416.00
• unpaid rent for 2013-43,248.00
• C.A.M. Gharges from August 2012-4,128 00
• Sign removal-3,250.00
• Unpaid utilities-2,765.00
• TOTAL-$90,260.00

1. Argument

231 Pa. Code § 3121 states that:

“(a) Execution shall be stayed as to all or any part of the property of the defendant.

(1) upon written direction of the plaintiff to the sheriff:

(2) upon the entry of bond with the prothonotary, by any person or party in interest, with security approved by the prothonotary, in the amount of plaintiff’s judgment, including probable interest and costs, or in such lesser amount as the court may direct, naming the Commonwealth of Pennsylvania as obligee, and conditioned to pay the amount due within ninety (90) days of the entry of bond, unless the time for payment be further extended by the court;

(3) pending disposition of a property claim filed by a third party;

(4) upon a showing of exemption or immunity of property from execution;

(5) upon a showing of a right to a stay under the provisions of an Act of Congress or any Act of Assembly.

(b) Execution may be stayed by the court as to all or any part of the property of the defendant upon its own motion or application of any party in interest showing

(1) a defect in the writ, levy or service; or

(2) any other legal or equitable ground therefor.”

231 Pa. Code § 3252

“(a) The writ of execution shall include a notice to the defendant, a summary of major exemptions, and a claim for exemption, and shall be substantially in the following form…”

(Caption)

73 Pa. Stat. § 2270.4

“(a) By debt collectors.–It shall constitute an unfair or deceptive debt collection act or practice under this act if a debt collector violates any of the provisions of the Fair Debt Collection Practices Act ( Public Law 95-109, 15 U.S.C. § 1692 et seq.).”

“(4) A creditor may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt…”

“(x) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.”

“(6) A creditor may not use unfair or unconscionable means to collect or attempt to collect any debt…”

The Judgment against the Plaintiffs was made issued on 16^th June, 2021, the Writ of execution was subsequently issued on August 16^th, 2021. It was served on the Plaintiff’s bank, Citizens Bank, and the bank then wrote to the Plaintiff Michelle Askar, on 19^th August ,2021 informing her of the Writ of Execution and attachment of her bank account for $ 90,320.50. The Plaintiff however only received the Writ of execution on August 25^th 2021 through USPS.

The monies were taken out of the Plaintiff Michelle Askar’s bank accounts on August 18, 2021 before receiving the Writ of Execution.

The law has recognized the need for stay as expressed in the case of Metro Real Estate Investment v. Siaway, No. 827 EDA 2020 where a Judgement Debtor may get as Stay of execution pending appeal by posting a supersedeas bond in the amount of 120% of the money judgment.

In addition, the Defendant’s failed to conduct due diligence on the bank account as they would have established that it actually belonged to the Plaintiff Michelle Askar’s father, the Plaintiff Michelle Askar’s name is only on the bank account for check writing purposes only. This therefore means that the Writ of execution was defective from the beginning as it attached funds that don’t belong to the Plaintiff.

Wherefore, these and other premises considered, Plaintiffs move this Court for a Stay of Execution order, as outlined above.

DATED:                                     Respectfully Submitted

BY:   MICHELLE ASKAR and SAMUEL DESANTIS                                                                                  (PRO SE LITIGANTS)

VERIFICATION

 I, Michelle Askar, hereby state that the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief). I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. §  4904 (relating to unsworn falsification to authorities).

 Date:

 (Signature)

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