TD AUTO FINANCE, LLC v. COLLIN RUSSELL

IN THE DISTRICT COURT OF OKLAHOMA COUNTY, THE STATE OF OKLAHOMA TD AUTO FINANCE, LLC Plaintiff, -vs- COLLIN RUSSELL Defendant Case No. PETITION FOR MONEY DUE ON NOTE COMES NOW the Plaintiff and for its cause of action states as follows: 1. That Plaintiff is a LIMITED LIABILITY COMPANY organized and existing under the laws of MICHIGAN; the debt sued upon arose in and Plaintiff's cause of action accrued in the State of Oklahoma. 2. That the Defendant resides in or may be found in OKLAHOMA County, Oklahoma and within the venue of this court. 3. That upon application by the Defendant, the Defendant did enter into a Retail Installment Contract and Security Agreement ("Agreement") with BOB HOWARD NISSAN, INC., which has heretofore been assigned and sold to Plaintiff, to borrow a sum of money to purchase a vehicle. A copy of said Agreement is attached hereto and incorporated herein by reference as if set forth at this point in full and verbatim. 4. That the Defendant did fail to perform the obligations under the terms of the Agreement and are therefore in default. 5. That if required by law or the Agreement, Plaintiff notified the Defendant of his default and right to cure, but Defendant failed to cure said default. 6. That Plaintiff repossessed the vehicle under the terms of the Agreement, and the vehicle was then sold in a commercially reasonable manner. 7. That Plaintiff notified the Defendant of the sale and any deficiency remaining after the sale. 8. That the deficiency after the sale is $10719.49. 9. Interest in the amount of $261.44 is due and owing, plus interest from that date of Judgment forward at the state rate of 6.75% continuing to accrue until the Judgment is paid. 10. That pursuant to statute 12 O.S.§ 936, Plaintiff is entitled to reasonable attorney's fees. 11. Pursuant to the SCRA §201(b)(4), Plaintiff declares under penalty of perjury that Defendant COLLIN RUSSELL is not in the Armed Forces for the United States, verified on 01/04/2020 via the U.S. Department of Defense website. WHEREFORE, Plaintiff prays for Judgment against Defendant in the amount of: Amount claimed: $10719.49; Interest: Interest in the amount of $261.44 is due and owing, plus interest from that date of Judgment forward at the state rate of 6.75% continuing to accrue until the Judgment is paid; Reasonable attorney's fees; and All costs herein expended, including but not limited to court costs, sheriff's fees, and any costs for service of the summons(es). Respectfully submitted, FABER AND BRAND L.L.C BY: Michael L. Foster OK #20701 Jason P. Gubbins OK #22576 P.O. Box 10110 Columbia, Missouri 65205-4000 (888) 233-3141 (573) 442-1072 FAX [email protected] ATTORNEY FOR PLAINTIFF THIS IS A COMMUNICATION FROM A DEBT COLLECTOR IN AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. F&B Acct. No: 372724 AFFIDAVIT ***[Retail]*** I, Bailey Vernet, being first duly sworn, depose and say that I have knowledge of the facts hereinafter set forth based on a review of the business records of TD Auto Finance LLC and that if sworn as a witness I can testify competently thereto: 1. That I hold the position of Litigation Specialist for TD Auto Finance LLC; 2. I have knowledge of account number xxxxxx9687 and records related to a certain retail installment contract (the "Contract") between COLLIN RUSSELL and BOB HOWARD NISSAN, INC ("Seller"); 3. Seller assigned its rights and interests in and to the Contract to TD Auto Finance LLC ("Assignee"); 4. The defendant(s) is/are in breach of the terms of the Contract; and 5. The outstanding balance on the account related to the Contract is $10,980.93. STATE OF Florida ) COUNTY OF Dade ) ss In witness whereof I have hereunto subscribed my name and affixed my official seal this 29 day of November, 2019. My Commission Expires: ELIZABETH A. BOTELER MY COMMISSION # FF 9-9872 EXPIRES: April 7, 2020 Bonded Thru Notary Public Underwriters Notary Public RETAIL INSTALLMENT SALE CONTRACT SIMPLE FINANCE CHARGE Dealer Number 241184 Contact number Buyer Name and Address (including County and Zip Code) COLLIN RUSSELL Co-Buyer Name and Address (including County and Zip Code) Seller/Creditor Name and Address BOB HOWARD NISSAN, INC PO Box 5678 EDMOND, OK 73083 You, the buyer, or a co-buyer, may pay for the vehicle below by cash or on credit. By signing this contract, you choose to buy the vehicle on credit under the agreement set forth in the front and back of this contract. You agree to pay the Seller–Creditor (sometimes "we" or "us") in this contract the Amount Financed and Finance Charge in U.S. funds according to the payment schedule below. We will figure your finance charge on a daily basis. The Truth-in-Lending Disclosures below are part of this contract. <table> <tr> <th>New/Used/Cargo</th> <th>Year</th> <th>Make</th> <th>Model</th> <th>Odometer</th> <th>Vehicle Identification Number</th> <th>Purchase Price</th> <th>Down Payment</th> <th>Total Sale Price</th> </tr> <tr> <td>USED</td> <td>2012</td> <td>CHRYSLER</td> <td>300C</td> <td></td> <td>65570</td> <td>4890</td> <td>5400.00</td> <td>25344.81</td> </tr> </table> FEDERAL TRUTH-IN-LENDING DISCLOSURES <table> <tr> <th rowspan="2">ANNUAL PERCENTAGE RATE</th> <th colspan="2">FINANCE CHARGE</th> <th colspan="2">TOTAL SALES PRICE</th> <th colspan="2">TOTAL OF PAYMENTS</th> <th colspan="2">Total Sale Price</th> </tr> <tr> <td>The interest rate of your credit as a yearly rate</td> <td>$2764.81</td> <td>$18080.00</td> <td>20844.81</td> <td>25344.81</td> <td>$4500.00</td> <td>$20844.81</td> <td>$25344.81</td> </tr> </table> Your Payment Schedule Will Be: <table> <tr> <th>Number of Payments</th> <th>Amount of Each Payment</th> <th>When Repayment Begins</th> <th>Monthly Beginning</th> <th>11/25/2016</th> </tr> <tr> <td>63</td> <td>330.87</td> <td>M/month</td> <td></td> <td></td> </tr> <tr> <td>M/A</td> <td></td> <td></td> <td></td> <td></td> </tr> </table> Or as Follows: Late Charge: If payment is not received at full value, by a time after it is due, you will pay a late charge of $...48.00 or 5% of the part of this payment that is late, whichever is greater. Prepayment: If you pay off all your debt early, you will not have to pay a penalty. Security Interest: You are giving a security interest in the vehicle being purchased. Additional Information: See this contract for more information regarding information about nonpayment, default, any secured repayment and before the scheduled sale and security interest. TERMINATION OF AMOUNT FINANCED 1. Cash price including S H/A exc tax $17529.00 2. Total downpayment $ H/A Trade-in allowance $ H/A Gross loan amount $ H/A Lease pay off value by seller $ H/A Equity not sold in $ H/A +Cash $4500.00 -Other H/A H/A trial drivemoney lease or similar term 0 $4500.00 +Other terms of lease, short or long term H/A Unpaid balance at time lease is entered 0 $13029.00 Other charges included in amount paid to or offered on your behalf Company or Government Agency LEO $ H/A Others $ H/A Official Fuel Pricing Commission Agents $ H/A Dealer entry fee $ H/A SVC $ H/A SVC FEE $ H/A REPAIRS $ H/A SVC FEE $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A SVC OUTSIDE AUTHORITY $ H/A 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FINANCE CHARGE AND PAYMENTS a. How we will figure Finance Charge. We will figure the Finance Charge on a daily basis at the Annual Percentage Rate on the unpaid part of the Amount Financed. b. How we will apply payments. We may apply each payment to the earned and unpaid part of the Finance Charge, to the unpaid part of the Amount Financed and to other amounts you owe under this contract in any order we choose. c. How late payments or early payments change what you must pay. We'll base our Finance Charge Total of Payments, and Total Sale Price shown on the front on the assumption that you will make early payments on the day it is due. Your Finance Charge, Total of Payments, and Total Sale Price will be more if you pay late and less if you pay early. Charges may take the form of a larger or smaller final payment or, at our option, one or four payments of intermediate amounts. Your schedule of payments will be our last statement. We will send you a notice telling you about these charges before the final scheduled payment is due. d. You may prepay. You may prepay all or part of the unpaid part of the Amount Financed at any time without penalty. If you do so, you must pay the earned and unpaid part of the Finance Charge and all other amounts due by the date of your payment. e. Your right to refinance a balloon payment. A balloon payment is a scheduled payment that is more than twice as large as the average of your earlier scheduled payments. If you are buying the vehicle primarily for personal use or business purposes, you have a right to refinance the balloon payment when you wish without penalty. The terms of the refinancing will be no less favorable to you than the terms of this contract. This provision does not apply if we adjusted your payment schedule to your seasonal or irregular income. 2. YOUR OTHER PROMISES TO US a. If the vehicle is damaged, destroyed, or missing, you agree to pay us all you owe under this contract even if the vehicle is damaged, destroyed, or missing. b. Using the vehicle. You agree not to remove the vehicle from California, or to sell, lease, assign or transfer any interest in the vehicle under this contract without our written permission. You agree not to expose the vehicle to misuse, severe contamination, or involuntary transfer. If we pay any repair bills, storage bills, taxes, fines, or charges on the vehicle, you agree to repay such amount when we ask for it. c. Security interest. You give us a security interest in: • The vehicle and all parts or goods put on it, • All money or goods received (proceeds) for the vehicle, • All insurance, maintenance service, or other contracts we finance for you, and • Any optional insurance, maintenance service, or other contracts we finance for you. This includes any refunds of premiums or charges from the contracts. This security interest is also listed on the contract, if it is described in either a contract or in this contract. You will make sure that the title shows our security interest (lien) in the vehicle. You will not allow any other security interest to be placed on the title without our written permission. d. Insurance you must have on the vehicle. You agree to have physical damage insurance covering loss of or damage to the vehicle for the term of the contract. The insurance must cover our interest in the vehicle. If you do not have this insurance, we may, if we choose, buy physical damage insurance. If we decide to buy physical damage insurance, we may pay any amount necessary to maintain our interest in the vehicle, or buy insurance that covers only our interests. If we buy either type of insurance, we will tell you which type and the charge you must pay. The charge will be the premium of the insurance and a finance charge computed at the Annual Percentage Rate. If the vehicle is lost or stolen while it is being lost or damaged, you agree that we may use any insurance settlement to reduce what you owe or repair the vehicle. e. What happens to returned insurance, maintenance service, or other contract charges. If we get a refund of insurance, maintenance service, or other contract charges, you agree that we may subtract the refund from what you owe. f. If you pay late, we may also take the steps described below. b. You may have to pay all you owe at once. If you break your promises, we may demand that you pay all you owe on this contract at once. Before making: - You do not pay any payment on time. - You give false, incomplete, or misleading information on a credit application, - You start a proceeding in bankruptcy or one is started against you or your property, or - You breach your promise in this contract. The amount you will owe will be the unpaid part of the Amount Financed plus the earned and unpaid part of the Finance Charge, any late charges, and any amounts due because you defaulted. c. You may have to pay collection costs. If we hire an attorney who is not our salaried employee to collect what you owe, we may pay the attorney's legal and court costs the law permits. The maximum the attorney's fee you will pay will be 15% of the amount you owe, unless a court awards an additional amount. d. We may take the vehicle from you. If you default, we may take (repossess) the vehicle from you. We do so by posting and the amount shows if your vehicle has an electronic tracking device. If a signal still exists, we may use the device to find the vehicle. If we take the vehicle, any accessories, equipment, and replacement parts will stay with the vehicle. If any personal items are in the vehicle, we may store them for you at your expense. If you do not ask for these items back, we may dispose of them as the laws allows. e. After taking possession of the vehicle, we may sell the vehicle. If we repossess the vehicle, you may pay to get the vehicle back ("redeem"). We will tell you how much you have paid. f. Your right to redeem ends when we sell the vehicle. g. We will sell the vehicle if you do not get it back. If you do not redeem, we will sell the vehicle. We will send you a written notice of sale before selling the vehicle. h. We will apply the money from the sale, less allowed expenses, to the amount you owe. Allowed expenses are expenses we pay as a direct result of taking the vehicle, holding it, preparing it for sale, and selling it. Attorney fees and court costs, the law permits, are also allowed expenses. The money that remains after all expenses are paid goes to you. If there is not enough to pay the amount you owe, you must pay the rest to us unless the law provides otherwise. If you do not pay this amount when we ask, we may charge you interest at a rate not exceeding the highest annual rate allowed by law. i. What we may do about optional insurance, maintenance, service, or other contracts. The contract may contain charges for optional insurance, maintenance, service, or other contracts. If we demand that you pay all you owe at once or we repossess the vehicle, we may claim the proceeds under these contracts to cover the cost to obtain refunds of unearned charges to reduce what you owe or repair the vehicle. If the vehicle is a total loss because it is confiscated, damaged, or stolen, we may claim benefits under these contracts and cancel them to obtain refunds of unearned charges to reduce what you owe. 4. WARRANTIES SELLER DISCLAIMS Unless the Seller makes a written warranty, or enters into a service contract within 90 days from the date of this contract, the Seller makes no warranties, express or implied, on the vehicle, and there will be no implied warranties of merchantability or fitness for a particular purpose. This provision does not affect any warranties covering the vehicle that the vehicle manufacturer may provide. 5. Used Car Buyers Guide. The information you see on the window form for this vehicle is part of this contract. Information on the window form overrides any contrary provisions in the contract of sale. Spanish Translation: Guía para compradores de vehículos usados. La información que ve en el formulario de la ventana para este vehículo forma parte del presente contrato. La información del formulario de la ventana deja sin efecto toda disolución en contrato contenido en el contrato de venta. 6. SERVICING AND COLLECTION CONTACTS You agree that we may try to contact you in writing, by email or using preprogrammed local calling messages, text message, or autodial telephone calling systems, as the law allows. You also agree that we may try to contact you in these and other ways at any address or telephone numbers you provide us, even if the telephone number is a cell phone number. If the contract results in a charge to you. 7. APPLICABLE LAW Federal law and the law of the state of our address shown on the front of this contract apply to this contract. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREof. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. The preceding NOTICE applies only to goods or services obtained primarily for personal, family, or household use. In all other cases, Buyer will not assert against any subsequent holder or assignee of this contract any claims or defenses the Buyer (debtor) may have against the Seller, or against the manufacturer of the vehicle or equipment obtained under the contract. TD Auto Finance DATE 08/24/2018 ACCOUNT NO. MAKE/MODEL OF VEHICLE 2012 CHRYSLER 300 SERIES BUYER'S NAME AND ADDRESS COLIN RUSSELL TD BUYER'S NAME AND ADDRESS The following is an explanation of the amount of deficiency (or surplus, if applicable) following the disposition of your vehicle (1) Secured obligation, including late charges, return check fees, permitted legal fees and interest, finance charges or credit service charges due, at date of repossession $ 14,619 85 - (2) Gross disposition proceeds. $ 4,200 00 = (3) Secured obligation after deducting amount in item (2). $ 10,419 85 + (4) Repossession, storage, preparation and disposition expenses, including legal fees related to the current disposition of the vehicle, if any $ 936 48 - (5) Other credits or rebates such as insurance refunds, extended warranty or service contract refunds, or post-repossession payments $ 375 40 = (6) Deficiency Amount (or surplus, if applicable) (If the total of items 2 and 5 exceeds the total of items 1 and 4, a surplus exists. In that event, the amount of the surplus is shown on this line in parenthesis. You will receive a check in that amount ) $ 10,980 93 Future debits, credits, and charges, including additional credit service charges or interest, rebates and expenses may affect the amount of the deficiency (or surplus, if applicable). To obtain additional information about your account, please call the telephone number below, Monday - Friday from 8:00 AM - 6:00 PM Eastern Time We are sure you want to settle your account. We may be able to work with you in establishing payment terms. To make arrangements, it is important that you contact this office by telephone without delay TD Auto Finance PO Box 551082 Jacksonville, FL 32255-1080 1-866-251-9400 TD Auto Finance NOTICE AFTER REPOSSESSION OR VOLUNTARY SURRENDER NAME AND ADDRESS (BUYER 1) COLIN RUSSELL NOTE: IF YOU ARE UNDER THE PROTECTION OF THE BANKRUPTCY CODE, YOU ARE NOT REQUIRED TO MAKE PAYMENT TO US. We have obtained the vehicle described below (your vehicle) through either: ☐ repossession as a result of a default under your contract with us or ☒ voluntary surrender of your vehicle, whichever is checked DESCRIPTION OF YOUR VEHICLE: <table><tr><th>YEAR</th><th>MAKE</th><th>MODEL</th><th>VEHICLE IDENTIFICATION NUMBER</th></tr><tr><td>2012</td><td>CHRYSLER</td><td>300 SERIES</td><td>4880</td></tr></table> NOTICE OF SALE: Your vehicle will be offered for sale, at a private sale beginning on June 28, 2018, and from day to day thereafter until sold. A sale could include a lease or a license. The money that we get from the sale (after paying our costs) will reduce the amount you owe. If we get less money than you owe, you will still owe us the difference. If we get more money than you owe, you will get the extra money, unless we must pay it to someone else. REMAINING CONTRACT BALANCE / RIGHT TO MONEY LEFT OVER FROM SALE: If your vehicle is sold, the money we get from the sale (after paying our reasonable costs) will reduce the amount you owe. If we get less money than you owe, you will still owe us the difference. If there is any money left over, we will pay this money to you, unless we must pay it to someone else. ACCOUNTING: If you want us to explain to you in writing how we have figured the amount that you owe us, you may call or write us at the number or address provided in this Notice. We reserve the right to charge you $0.00 for the explanation if we sent you another explanation of the amount within the last six months. NOTICE TO ALL INTERESTED PARTIES: We are sending this notice to the following people who have an interest in this vehicle or who owe money under the contract: COLIN RUSSELL. HOW TO GET YOUR VEHICLE BACK: To get your vehicle back, you can do one of two things as described below, unless the box that follows is checked. ☐ If this box is checked, the only way to get your vehicle back is to pay the full amount you owe on your contract as described below; you do not have the right to cure your default and renew your contract. FIRST WAY: RENEW YOUR CONTRACT AT ANY TIME BEFORE YOUR VEHICLE IS ACTUALLY SOLD, you have a right to renew your contract and get your vehicle back by paying the full amount past due under your contract (excluding any amount that would not be due except for an acceleration provision) plus unpaid charges and costs we incurred as itemized below. To renew your contract, you must pay us the NET AMOUNT NEEDED TO RENEW YOUR CONTRACT shown below, plus any other amounts that may become due after the date of this Notice and before your vehicle is sold. If you renew your contract, you must continue to make regularly scheduled payments and satisfy other obligations as they come due under your contract. To learn the exact amount you must pay to renew your contract, please contact us at the address provided in this Notice or call us at 866-659-1173. You must pay with a money order, a cashier's check, or certified funds; personal checks will not be accepted. <table> <tr> <th>PAST DUE PAYMENTS</th> <td>$1,311 64</td> </tr> <tr> <th>PLUS LATE CHARGES AND OTHER COSTS</th> <td>$122 50</td> </tr> <tr> <th>PLUS REPOSSESSION, STORAGE, REPAIR AND PREPARATION COSTS (To Date)</th> <td>$190 00</td> </tr> <tr> <th>NET AMOUNT NEEDED TO RENEW YOUR CONTRACT (NOT INCLUDING AMOUNTS THAT MAY BECOME DUE AFTER THE DATE OF THIS NOTICE)</th> <td>$1,624 14</td> </tr> </table> SECOND WAY: PAY THE FULL AMOUNT YOU OWE ON YOUR CONTRACT AT ANY TIME BEFORE YOUR VEHICLE IS ACTUALLY SOLD, you have a right to get your vehicle back by paying the full amount you owe on your contract (not just the past due amount) plus unpaid late charges, finance charges and costs we incurred as itemized below. You must pay us the NET AMOUNT NEEDED TO PAY YOUR CONTRACT shown below, plus any other amounts that may become due after the date of this Notice and before your vehicle is sold. To learn the exact amount you must pay, please contact us at the address provided in this Notice, or call us at 866-659-1173. You must pay with a money order, a cashier's check, or certified funds; personal checks will not be accepted. <table> <tr> <th>UNPAID PRINCIPAL BALANCE</th> <td>$14,235.91</td> </tr> <tr> <th>PLUS LATE CHARGES AND OTHER COSTS</th> <td>$122.50</td> </tr> <tr> <th>PLUS REPOSSESSION, STORAGE, REPAIR AND PREPARATION COSTS (To Date)</th> <td>$190.00</td> </tr> <tr> <th>PLUS FINANCE CHARGE TO 06/13/2018</th> <td>$265.27</td> </tr> <tr> <th>SUBTOTAL OF CHARGES</th> <td>$14,813.68</td> </tr> <tr> <th>LESS REFUNDS OF INSURANCE PREMIUMS</th> <td></td> </tr> <tr> <th>GAP</th> <td>$375 40</td> </tr> <tr> <th>SUBTOTAL OF REFUNDS DEDUCTED</th> <td>($375 40)</td> </tr> <tr> <th>NET AMOUNT NEEDED TO PAY YOUR CONTRACT (NOT INCLUDING AMOUNTS THAT MAY BECOME DUE AFTER THE DATE OF THIS NOTICE)</th> <td>$14,438 28</td> </tr> </table> NOTE IF this box is checked and your vehicle was repossessed, you must also provide proof that you have paid the required $15 fee to the appropriate law enforcement authority for the receipt and filing of the report of repossession. The auction will not release the vehicle without proof that the repossession report fee has been paid. ☐ NOTE If this box is checked and your vehicle was repossessed you must pay $250 directly to [ ] for storage costs in order to reinstate or redeem your vehicle. Please contact [ ] at [ ] for acceptable payment type(s) prior to your vehicle being returned to you at the address listed below. IF YOU ARE UNDER THE PROTECTION OF THE UNITED STATES BANKRUPTCY CODE, THIS NOTICE IS SENT FOR THE SOLE PURPOSE OF NOTIFYING YOU OF YOUR STATE LAW RIGHTS, AND IS NOT INTENDED AS AN ATTEMPT TO COLLECT PAYMENT. YOUR OBLIGATION TO MAKE PAYMENT TO US IS SUBJECT TO DISCHARGE, AND MAY HAVE ALREADY BEEN DISCHARGED, IN BANKRUPTCY. ENTRY OF THE DISCHARGE ORDER IN YOUR BANKRUPTCY CASE RELEASES YOU FROM PERSONAL LIABILITY TO MAKE PAYMENT TO US. If you have any questions about the sale of your vehicle or any other matters covered in this Notice, please call or write us. We are available at the phone number below from 8:00 AM to 8:00 PM Eastern Time, Monday through Friday MAKE PAYMENT TO: PO Box 551080, Jacksonville, FL 32255 PHONE NUMBER: 866-659-1173 MAIL TYPE: [ ] First Class Mail ☐ Certified Mail 06/13/2018