Communication Federal Credit Union v. Noah Scraper

IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA COMMUNICATION FEDERAL CREDIT UNION, Plaintiff, vs. NOAH SCRAPER, Defendant. FILED IN DISTRICT COURT OKLAHOMA COUNTY NOV - 1 2024 RICK WARREN COURT CLERK Case No. 128 PETITION IN REPLEVIN THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. FIRST CAUSE OF ACTION - REPLEVIN COMES NOW Plaintiff, Communication Federal Credit Union (hereafter “Plaintiff”), by and through counsel of record Joshua C. Greenhaw, Thomas M. Weatherford and Breanne Stewart of Mee Hawkins Greenhaw & Cotner PLLP, and for its claims against Noah Scraper (hereafter referred to as “Defendant”), alleges and states: 1. On or about February 22, 2024, Defendant, for good and valuable consideration, executed and delivered to Battison Honda, a Retail Installment Sale Contract and Security Agreement (hereafter the “Contract”), in the amount of $21,766.25. 2. As part of Contract, and to secure the payment of the amounts owed pursuant to said Contract, Defendant granted to Battison Honda, a security interest in a 2020 Volkswagen Jetta (VIN: 3VWCB7BUXLM044523) (hereafter the “Vehicle”). 3. Said Contract was subsequently assigned to Plaintiff and Plaintiff is the current owner and holder thereof and is the current creditor. A true and correct copy of the Contract is attached hereto as Exhibit “A”. 4. Under the terms of said Contract, Defendant agreed to make payments to Plaintiff as set out therein. 5. Defendant did not pay said Contract in accordance with the terms thereof and is in default. 6. As of September 17, 2024, after credit for all payments and offsets, the balance due under Contract was $23,475.11. Interest and fees continue to accrue on the unpaid balance at the rate of $9.00 per diem, until paid, pursuant to Contract. 7. Under the terms of Contract and under the Uniform Commercial Code, Plaintiff has a special interest in the Vehicle and the right to the immediate and permanent possession of said Vehicle. 8. Defendant may claim an interest in the Vehicle, but Plaintiff alleges that any interest claimed by Defendant is subject to and inferior to the interest of the Plaintiff in the Vehicle. 9. Upon information and belief, Defendant is in actual possession of said Vehicle, which Plaintiff believes is located in Blaine County, Oklahoma. Defendant has not permitted Plaintiff to take possession thereof. 10. The actual value of said Vehicle is unknown to this Plaintiff, but Plaintiff believes the approximate value of said Vehicle to be $14,155.00. 11. The aforementioned Vehicle was not taken in execution on any order or judgment against said Plaintiff, or for the payment of any tax, fine or amercement assessed against it, or by virtue of an Order of Delivery issued, or any other mesne or final process issued against said Plaintiff. WHEREFORE, Plaintiff requests that the Court grant judgment for an Order of Delivery (Writ of Replevin) for the Plaintiff against the Defendant for the permanent possession of the Vehicle pursuant to 12 O.S. § 1583. Plaintiff further requests judgment decreeing that Plaintiff’s interest in said Vehicle is senior and prior to the interest of the Defendant in said property, for costs of the action, and a reasonable attorneys’ fee. Plaintiff further requests judgment pursuant to 12 O.S. § 1582 that, should the Defendant refuse to grant possession of the Vehicle to Plaintiff, the Sheriff of Blaine County, or any other county in Oklahoma where the Vehicle may be found, shall be authorized to break open any property or enclosure in which the Vehicle is concealed after first demanding entry thereto. SECOND CAUSE OF ACTION – MONEY JUDGMENT For its second cause of action, Plaintiff alleges and adopts all statements made in its first cause of action, and in addition thereto, alleges and states: 12. Due to Defendant’s default, Plaintiff has declared the entire balance due under the terms of Contract in the principal amount of $21,898.45, together with interest in the amount of $1,452.66, plus interest continuing to accrue from and after September 17, 2024, at the contractual rate of $9.00 per diem, until paid, fees/charges in the amount of $124.00, costs of the action, and a reasonable attorneys’ fee, all as provided by the Contract. WHEREFORE, Plaintiff requests that the Court grant judgment pursuant to its second cause of action as follows: A money judgment for Plaintiff, against the Defendant, in the sum of $21,898.45, together with interest in the amount of $1,452.66, plus interest continuing to accrue from and after September 17, 2024, at the contractual rate of $9.00 per diem, until paid, fees/charges in the amount of $124.00, costs of the action, and a reasonable attorneys’ fee, all as provided by the Contract. Plaintiff further requests that any judgment herein be deemed a final judgment pursuant to 12 O.S. § 994 (OSCN 2024), and for any other relief to which it is entitled. Respectfully submitted, BREANNE STEWART, OBA #35747 [email protected] THOMAS M. WEATHERFORD, OBA #30766 [email protected] JOSHUA C. GREENHAW, OBA #19111 [email protected] MEE HAWKINS GREENHAW & COTNER PLLP 50 Penn Place 1900 NW Expressway, Suite 1400 Oklahoma City, OK 73118 Telephone: (405) 646-6784 Facsimile: (405) 848-9101 ATTORNEYS FOR PLAINTIFF THIS IS A COMMUNICATION FROM A DEBT COLLECTOR. VERIFICATION STATE OF OKLAHOMA ) COUNTY OF OKLAHOMA ) ss. I, Tammy Warren, of lawful age, being first duly sworn, on this 24th day of October, 2024, depose and say: That I am an employee of the Plaintiff in the above-referenced cause; that I have read the above and foregoing Petition and have personal knowledge thereof; that I know the contents thereof and that the statements therein made are true and correct to the best of my knowledge and belief. I state under penalty of perjury under the laws of Oklahoma that the foregoing is true and correct. TAMMY WARREN RETAIL INSTALLMENT SALE CONTRACT SIMPLE FINANCE CHARGE Buyer Name and Address (Including County and Zip Code) NOAH SCRAPPER N/A Cell: N/A Email: N/A Co-Buyer Name and Address (Including County and Zip Code) N/A Cell: N/A Email: N/A Seller-Creditor (Name and Address) BATTISON HONDA 8700 N.W. Expressway Oklahoma City, OK 73162 You, the Buyer (and Co-Buyer, if any), may buy the vehicle below for cash or on credit. By signing this contract, you choose to buy the vehicle on credit under the agreements in 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</th> <th>Year</th> <th>Make and Model</th> <th>Odometer</th> <th>Vehicle Identification Number</th> <th>Primary Use For Which Purchased</th> </tr> <tr> <td>USED</td> <td>2020</td> <td>VOLKSWAGEN JETTA</td> <td>28,510</td> <td>3VWCB7BUXLM044523</td> <td>Personal, family, or household unless otherwise indicated below<br>☐ business<br>☐ agricultural ☐ N/A</td> </tr> </table> FEDERAL TRUTH-IN-LENDING DISCLOSURES <table> <tr> <th>ANNUAL PERCENTAGE RATE</th> <th>FINANCE CHARGE</th> <th>Amount Financed</th> <th>Total of Payments</th> <th>Total Sale Price</th> </tr> <tr> <td>The cost of your credit as a yearly rate.</td> <td>The dollar amount the credit will cost you.</td> <td>The amount of credit provided to you or on your behalf.</td> <td>The amount you will have paid after you have made all payments as scheduled.</td> <td>The total cost of your purchase on credit, including your down payment of $1,000.00 is $34,336.00</td> </tr> <tr> <td>14.99%</td> <td>$11,569.75</td> <td>$21,766.25</td> <td>$33,336.00</td> <td></td> </tr> </table> Your Payment Schedule Will Be: (e) means an estimate <table> <tr> <th>Number of Payments</th> <th>Amount of Payments</th> <th>When Payments Are Due</th> </tr> <tr> <td>72</td> <td>$463.00</td> <td>MONTHLY beginning 04/07/2024</td> </tr> <tr> <td>N/A</td> <td>N/A</td> <td>N/A</td> </tr> </table> Late Charge. If payment is not received in full within 10 days after it is due, you will pay a late charge of $31.00 or 5% of the part of the payment that is late, whichever is greater. Prepayment. If you pay 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 including information about nonpayment, default, any required repayment in full before the scheduled date and security interest. 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 ventanilla para este vehículo forma parte del presente contrato. La información del formulario de la ventanilla deja sin efecto toda disposición en contrario contenida en el contrato de venta. 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 of fitness for a particular purpose. This provision does not affect any warranties covering the vehicle that the vehicle manufacturer may provide. ☐ VENDOR’S SINGLE INTEREST INSURANCE (VSI insurance): If the preceding box is checked, the Creditor requires VSI insurance for the initial term of the contract to protect the Creditor for loss or damage to the vehicle (collision, fire, theft, concealment, skip). VSI insurance is for the Creditor’s sole protection. This insurance does not protect your interest in the vehicle. You may choose the insurance company through which the VSI insurance is obtained. If you elect to purchase VSI insurance through the Creditor, the cost of this insurance is $_________ N/A ________ and is also shown in Item 4B of the Itemization of Amount Financed. The coverage is for the initial term of the 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 this contract. ITEMIZATION OF AMOUNT FINANCED 1 Cash Price (including $ _______ sales/excise tax) $ 18,957.25 (1) 2 Total Downpayment = Trade-in N/A (Year) (Make) (Model) Gross Trade-In Allowance $ N/A Less Pay Off Made By Seller to N/A $ N/A Equals Net Trade In $ N/A + Cash $ 1,000.00 + Other N/A $ N/A + Other N/A $ N/A + Other N/A $ N/A (If total downpayment is negative, enter "0" and see 4I below) $ 1,000.00 (2) 3 Unpaid Balance of Cash Price (1 minus 2) $ 17,957.25 (3) 4 Other Charges Including Amounts Paid to Others on Your Behalf (Seller may keep part of these amounts): A Cost of Optional Credit Insurance Paid to Insurance Company or Companies. Life $ Disability $ N/A B Vendor's Single Interest Insurance Paid to Insurance Company $ N/A C Other Optional Insurance Paid to Insurance Company or Companies $ N/A D Optional Gap Contract $ 800.00 E Official Fees Paid to Government Agencies to N/A for N/A $ N/A to N/A for N/A $ N/A to N/A for N/A $ N/A F Government Taxes Not Included in Cash Price $ N/A G Government License and/or Registration Fees N/A LICENSE AND/OR REGISTRATION FEES $ 10.00 H Government Certificate of Title Fees $ N/A I Other Charges (Seller must identify who is paid and describe purpose.) to N/A for Prior Credit or Lease Balance $ N/A to BATTSION HONDA for DOCUMENT FEE $ 499.00 to ASI - PREMIER for SERVICE CONTRACT $ 2,500.00 to N/A for N/A $ N/A to N/A for N/A $ N/A to N/A for N/A $ N/A to NSD for N/A $ N/A to NSD for N/A $ N/A to NSD for N/A $ N/A to NSD for N/A $ N/A to NSD for N/A $ N/A to NSD for N/A $ N/A Total Other Charges and Amounts Paid to Others on Your Behalf $ 3,809.00 (4) 5 Amount Financed (3 + 4) $ 21,766.25 (5) OPTION: □ You pay no finance charge if the Amount Financed, item 5, is paid in full on or before N/A , Year N/A . SELLER'S INITIALS N/A OPTIONAL GAP CONTRACT. A gap contract (debt cancellation contract) is not required to obtain credit and will not be provided unless you sign below and agree to pay the extra charge. If you choose to buy a gap contract, the charge is shown in Item 4D of the Itemization of Amount Financed. See your gap contract for details on the terms and conditions it provides. It is a part of this contract. Term 72 Mos. GAPWISE Name of Gap Contract I want to buy a gap contract. Buyer Signs X Noah Scryer Returned Check Charge: You agree to pay a charge of $ 25.00 if any check you give us is dishonored. Insurance. You may buy the physical damage insurance this contract requires from anyone you choose who is acceptable to us. You may also provide the physical damage insurance through an existing policy owned or controlled by you that is acceptable to us. You are not required to buy any other insurance to obtain credit unless the box indicating Vendor's Single Interest Insurance is required is checked on page 1 of this contract. If any insurance is checked below, policies or certificates from the named insurance companies will describe the terms and conditions. Check the Insurance you want and sign below: Optional Credit Insurance [ ] Credit Life: [ ] Buyer [ ] Co-Buyer [ ] Both [ ] Credit Disability: [ ] Buyer [ ] Co-Buyer [ ] Both Premium: Credit Life $ N/A Credit Disability $ N/A Insurance Company Name N/A Home Office Address N/A Credit life insurance and credit disability insurance are not required to obtain credit. Your decision to buy or not buy credit life insurance and credit disability insurance will not be a factor in the credit approval process. They will not be provided unless you sign and agree to pay the extra cost. If you choose this insurance, the cost is shown in Item 4A of the Itemization of Amount Financed. Credit life insurance is based on your original payment schedule. This insurance may not pay all you owe on this contract if you make late payments. Credit disability insurance does not cover any increase in your payment or in the number of payments. Coverage for credit life insurance and credit disability insurance ends on the original due date for the last payment unless a different term for the insurance is shown below. Other Optional Insurance [ ] N/A Type of Insurance N/A Premium $ ________ Term N/A Insurance Company Name N/A Home Office Address N/A [ ] N/A Type of Insurance N/A Premium $ ________ Term N/A Insurance Company Name N/A Home Office Address N/A Other optional insurance is not required to obtain credit. Your decision to buy or not buy other optional insurance will not be a factor in the credit approval process. It will not be provided unless you sign and agree to pay the extra cost. I want the insurance checked above. X N/A N/A Buyer Signature Date X N/A N/A Co-Buyer Signature Date THIS INSURANCE DOES NOT INCLUDE INSURANCE ON YOUR LIABILITY FOR BODILY INJURY OR PROPERTY DAMAGE CAUSED TO OTHERS. WITHOUT SUCH INSURANCE YOU MAY NOT OPERATE THIS VEHICLE ON PUBLIC HIGHWAYS. OTHER IMPORTANT AGREEMENTS 1. 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 as the law allows. c. How late payments or early payments change what you must pay. We based the Finance Charge, Total of Payments, and Total Sale Price shown on page 1 of this contract on the assumption that you will make every payment 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. Changes may take the form of a larger or smaller final payment or, at our option, more or fewer payments of the same amount as your scheduled payment with a smaller final payment. We will send you a notice telling you about these changes 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 up to 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, family or household use, you have the right to refinance the balloon payment when due 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 the U.S. or Canada, or to sell, rent, lease, or transfer any interest in the vehicle or this contract without our written permission. You agree not to expose the vehicle to misuse, seizure, confiscation, or involuntary transfer. If we pay any repair bills, storage bills, taxes, fines, or charges on the vehicle, you agree to repay the 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 • All proceeds from insurance, maintenance, service, or other contracts we finance for you. This includes any refunds of premiums or charges from the contracts. This secures payment of all you owe on this contract. It also secures your other agreements in this contract. You will make sure 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 this contract. The insurance must cover our interest in the vehicle. You agree to name us on your insurance policy as loss payee. 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 either buy insurance that covers your interest and our interest in the vehicle, or buy insurance that covers only our interest. 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 for the insurance and a finance charge computed at the Annual Percentage Rate shown on page 1 of this contract. If the vehicle is 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. 3. IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES a. You may owe late charges. You will pay a late charge on each late payment as shown on page 1 of this contract. Acceptance of a late payment does not excuse your late payment or mean that you may keep making late payments. 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 (default), we may demand that you pay all you owe on this contract at once. Default means: • You do not pay any payment on time; • You give false, incomplete, or misleading information during credit application; • You start a proceeding in bankruptcy or one is started against you or your property; or • You break any agreements 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, you will pay the attorney's fee and court costs the law permits. The maximum 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 if we do so peacefully and if the law allows it. If your vehicle has an electronic tracking device (such as GPS), you agree that 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. If you do not ask for these items back, we may dispose of them as the law allows. e. How you can get the vehicle back if we take it. If we repossess the vehicle, you may pay to get it back (redeem). We will tell you how much to pay to redeem. Your right to redeem ends when we sell the vehicle. f. 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. 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, if the law permits, are also allowed expenses. If any money is left (surplus), we will pay it to you unless the law requires us to pay it to someone else. If money from the sale 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 lawful rate until you pay. g. What we may do about optional insurance, maintenance, service, or other contracts. This 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, you agree that we may claim benefits under these contracts and cancel them 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. SERVICING AND COLLECTION CONTACTS In consideration of our extension of credit to you, you agree to provide us your contact information for our servicing and collection purposes. You agree that we may use this information to contact you in writing, by e-mail, or using prerecorded/artificial voice messages, text messages, and automatic telephone dialing 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 number you provide us, even if the telephone number is a cell phone number or the contact results in a charge to you. You agree to allow our agents and service providers to contact you as agreed above. You agree that you will, within a reasonable time, notify us of any change in your contact information. 5. APPLICABLE LAW Federal law and the law of the state of Oklahoma apply to this contract. 6. NEGATIVE CREDIT REPORT NOTICE We may report information about your account to credit bureaus. Late payments, missed payments, or other defaults on your account may be reflected in your credit report. The Annual Percentage Rate may be negotiable with the Seller. The Seller may assign this contract and retain its right to receive a part of the Finance Charge. HOW THIS CONTRACT CAN BE CHANGED. This contract contains the entire agreement between you and us relating to this contract. Any change to this contract must be in writing and we must sign it. No oral changes are binding. Buyer Signs X Noah Scraper Co-Buyer Signs X N/A If any part of this contract is not valid, all other parts stay valid. We may delay or refrain from enforcing any of our rights under this contract without losing them. For example, we may extend the time for making some payments without extending the time for making others. See the rest of this contract for other important agreements. NOTICE TO RETAIL BUYER: Do not sign this contract in blank. You are entitled to a copy of the contract at the time you sign. Keep it to protect your legal rights. You agree to the terms of this contract. You confirm that before you signed this contract, we gave it to you, and you were free to take it and review it. You confirm that you received a completely filled-in copy when you signed it. Buyer Signs X Noah Scraper Date 02/22/2024 Co-Buyer Signs X N/A Date N/A Buyer Printed Name NOAH SCRAPER Co-Buyer Printed Name N/A If the "business" use box is checked in "Primary Use for Which Purchased": Print Name N/A Title N/A Co-Buyers and Other Owners — A co-buyer is a person who is responsible for paying the entire debt. An other owner is a person whose name is on the title to the vehicle but does not have to pay the debt. The other owner agrees to the security interest in the vehicle given to us in this contract. Other owner signs here X N/A Address ____________________________ N/A Seller signs BATTISON HONDA Date 02/22/2024 By X Title F&I MNGR Seller assigns its interest in this contract to COMMUNICATION FEDERAL CREDIT UNION (Assignee) under the terms of Seller's agreement(s) with Assignee. ☐ Assigned with recourse ☒ Assigned without recourse ☐ Assigned with limited recourse Seller BATTISON HONDA By X Title FINANCE MANAGER