MOTION TO STAY EXECUTION

MICHELLE ASKAR

In Pro Per

IN THE COMMON PLEAS COURT OF BEAVER COUNTY

PENNSYLVANIA

CIVIL DIVISON-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. Plaintiff Michelle Askar will, and hereby do, move for an order to stay execution.

Plaintiff makes this motion because there is a defect in the Writ of execution issued on June 16, 2021, by Judge Thomas Piccone the levy and service thereof, which is adverse to Plaintiff’s rights.

DATED:                                                                                             Respectfully Submitted

                                                                                                            BY:   MICHELLE ASKAR                                                                                                                          (PRO SE LITIGANT)

MEMORANDUM

1. Background
2. 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.
3. which offered chiropractic services and All Care Medical Supply offering durable medical equipment.
4.  
5.  
6.  

1. Argument
2. 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.”

1. 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….”

1. 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 USC § 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….”

1. Violation of the Fair Credit Extension Uniformity Act (FCEUA) is also a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL).
2. The Judgment against the Plaintiffs was issued on June 16, 2021, the Writ of execution was subsequently issued on August 16^, 2021. It was served on Citizens Bank, and the bank then wrote to Plaintiff Michelle Askar on August 19, 2021, informing her of the Writ of Execution and attachment of the bank account for $ 90,320.50. Plaintiff, however, only received the Writ of execution on August 25, 2021, through USPS.
3. which constitutes illegal practices.
4. 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 a Stay of execution pending appeal by posting a supersedeas bond in the amount of 120% of the money judgment.
5. Under Rule 62, Stay of Proceedings to Enforce a Judgment “…If a judgment is a lien on the judgment debtor’s property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give.”
6. In addition, Defendant’s failed to conduct due diligence on the bank account as they would have established that it actually belonged to Plaintiff Michelle Askar’s father. Plaintiff Michelle Askar’s name is only on the bank account for check writing purposes only.  
7. In addition, Defendant would have discovered that there were funds in WesBanco bank belonging to Plaintiff Michelle Askar’s son, which were set up as an ITF (in trust for). Plaintiff Michelle Askar only learned of the attachment on WesBanco bank after receiving the letters from Citizens bank letter which prompted her to look into the WesBanco bank account and thus discovering the attachment. Plaintiff did not receive any documentation from WesBanco bank on the attachment.
8. From the foregoing, the Writ of execution was defective from the beginning as it attached funds that don’t belong to the Plaintiff.
9. 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                                                                                                                          (PRO SE LITIGANT)

DECLARATION IN SUPPORT OF MOTION

I, Michelle Askar, declare:

1. I am a Plaintiff in the above-referenced matter, and this declaration supports my application for a stay of execution of the judgment issued on June 16, 2021, by Judge Thomas Piccone in the matter.
2. I 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, which began on January 1, 2009.
3. I 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”.
4. The premises and neighboring areas experienced a torrential downpour on Friday, Friday, August 22, 2011, after the close of my business hours. On returning to the Premises on Monday, water had flooded the Premises and soaked the carpet, and wetted the floor areas.
5. I closed my business and vacated the Premises on April 26, 2012, and August 1, 2012, respectively. 
6. I sued the Defendants on August 19, 2013, for damages due to negligence and fraud, and my husband, Samuel DeSantis, Jr., sued for lack of consortium arising from injury to me. It was my case that my medical conditions were related to the flooding event.
7. Defendant Charles J. Betters filed a counterclaim against me for unpaid charges arising from the lease of November 11, 2008, stating that they re-let the Premises on January 1, 2013.
8. In the Court’s judgment issued on June 16, 2021, the Court denied both my claim and my husband’s against the Defendants but granted the Defendant’s claim against me for the breach of the November 11, 2008 lease. Damages of ninety thousand, two hundred and sixty dollars ($90,260.00) were awarded to Defendant Charles J. Betters.
9. The Writ of Execution was received by the Sheriff on or about August 17, 2021, and also served on Citizens Bank. The bank subsequently wrote me letters dated August 19, 2021, informing me of the attachment on the account.
10. I, however, only received the Writ of execution on August 25, 2021, through USPS.
11. The monies were taken out of the bank account on August 18, 2021, before receiving the Writ of Execution.
12. In addition, I did not receive any documentation from WesBanco bank; I only learned of the attachment on the account after receiving the letters from Citizens bank, which prompted me to look into the WesBanco bank account and realizing the attachment.
13. To avoid irreparable harm and in the interest of justice and fairness, I request that the judgment issued on June 16, 2021, in this case on be stayed.

DATED:                                                                                            Respectfully Submitted

BY:   MICHELLE ASKAR                         (PRO SE LITIGANT)

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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