TD Auto Finance, LLC v. Cheyenne S Delk

IN THE DISTRICT COURT OF GRADY COUNTY, STATE OF OKLAHOMA TD AUTO FINANCE, LLC Plaintiff, -vs- CHEYENNE S DELK Defendant. Case No. CJ-2020-58 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 GRADY 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 JOHNSONS OF CHICKASHA, 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 her 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 $13876.26. 9. Interest at the state rate of 6.75% per annum from the date of Judgment until 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 CHEYENNE S DELK is not in the Armed Forces for the United States, verified on 10/23/2019 via the U.S. Department of Defense website. WHEREFORE, Plaintiff prays for Judgment against Defendant in the amount of: Amount claimed: $13876.26; Interest: Interest at the rate of 6.75% per annum from the date of Judgment until paid; Reasonable attorney’s fees; 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 Jason P. Gubbins P.O. Box 10110 Columbia, Missouri (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. AFFIDAVIT ***[Retail]*** I, Terrence Mack, 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 Loan Specialist for TD Auto Finance LLC; 2. I have knowledge of account number xxxxxx0167 and records related to a certain retail installment contract (the “Contract”) between CHEYENNE S DELK and JOHNSONS OF CHICKASHA, 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 $13,876.26. STATE OF Florida ) COUNTY OF Dade ) ss In witness whereof I have hereunto subscribed my name and affixed my official seal this 14 day of August , 2019 My Commission Expires: ELIZABETH A. BOTELER MY COMMISSION # FF 949872 EXPIRES: April 7, 2020 Bonded Thru Notary Public Underwriters Notary Public WWW# 040106321 RETAIL INSTALLMENT SALE CONTRACT SIMPLE FINANCE CHARGE Dealer Number: ____________________________ Contact Number: ____________________________ Buyer Name and Address (including County and Zip Code): ________________________________ Co-Buyer Name and Address (including County and Zip Code): ____________________________ City/Town, State, ZIP: ____________________________ JOHNSONS OF CHICKASHA, INC. 3121 S 4TH ST PO BOX 498 CHICKASHA, OK 73020 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 on the front and back of this contract. You are free to pay the entire amount in cash (enter amount here) before closing the transaction, and you should do so unless you have carefully read the portions marked 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/Odemo</th> <th>Year</th> <th>Make and Model</th> <th>Odometer</th> <th>Vehicles Identification Number</th> <th>Primary Use For Which Purchased</th> </tr> <tr> <td></td> <td>2011</td> <td>DODGE DURANGO</td> <td>75,396</td> <td>70460</td> <td>Personal, family or household unless otherwise indicated below</td> </tr> </table> <table> <tr> <th>ANNUAL PERCENTAGE RATE</th> <th>FINANCE CHARGES</th> <th>AMOUNT OF CREDIT</th> <th>TOTAL OF PRINCIPALS AND INTEREST</th> <th>TOTAL SALES PRICE</th> </tr> <tr> <td>6.79%</td> <td>$5,566.75</td> <td>$23,415.75</td> <td>$29,182.81</td> <td>$29,182.81</td> </tr> </table> Your Payment Schedule Will Be: <table> <tr> <th>Number of Payments</th> <th>Amount of Payments</th> <th>When Payments Are Due</th> </tr> <tr> <td>75</td> <td>392.21</td> <td>Monthly beginning 06/21/2016</td> </tr> </table> Or As Follows: <table> <tr> <th>ITEMIZATION OF AMOUNT FINANCED</th> <th colspan="3">Amount</th> </tr> <tr> <td>1. Cash Price (including taxes)</td> <td colspan="2">N/A</td> <td>17,649.68</td> </tr> <tr> <td>2. Total Downpayment</td> <td>2512</td> <td>ALTUR</td> <td>6,690.00</td> </tr> <tr> <td>Gross Trade-In Allowance</td> <td colspan="2"></td> <td>-3,990.00</td> </tr> <tr> <td>Less Pay Off Mode By Seller</td> <td colspan="2"></td> <td>-3,990.00</td> </tr> <tr> <td>Cash Rebate</td> <td colspan="2"></td> <td>-</td> </tr> <tr> <td>(If total downpayment is negative enter "0" and see 4) below</td> <td colspan="2"></td> <td>0</td> </tr> <tr> <td>Unpaid Balance of Cash Price (1 minus 2)</td> <td colspan="2"></td> <td>17,649.68</td> </tr> <tr> <td>Other Charges Including Amount Paid by Others on Your Behalf (Enter other paid charges and amounts)</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>A. Cost Of Optional Credit Insurance Fees or Insurance</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Liability</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Occupancy</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Vendors Single Interest Insurance</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Paid to Insurance Carrier</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Other Optional Insurance Paid to Insurance Carrier or Certificate</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Optional Gap Contract</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Uninsured/Underinsured</td> <td colspan="2"></td> <td>598.69</td> </tr> <tr> <td>Uninsured/Underinsured Paid to Government Agencies</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>State Uninsured/Underinsured</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Other Government Fees (Uninsured/Underinsured)</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Government Certificate of Title Fees</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>Other Charges (Enter must identify who is paid and describe charges)</td> <td colspan="2"></td> <td>N/A</td> </tr> <tr> <td>1. <b>CHRYSLER</b></td> <td>For Prior Charge or Lease Balance</td> <td></td> <td>3,096.00</td> </tr> <tr> <td></td> <td>For Service Contract/CRP</td> <td></td> <td>3,685.00</td> </tr> <tr> <td>2. <b>UNIV</b></td> <td>N/A</td> <td></td> <td>N/A</td> </tr> <tr> <td>9/11</td> <td>N/A</td> <td></td> <td>N/A</td> </tr> <tr> <td>10/1</td> <td>N/A</td> <td></td> <td>N/A</td> </tr> <tr> <td>10/1</td> <td>N/A</td> <td></td> <td>N/A</td> </tr> <tr> <td>11/1</td> <td>N/A</td> <td></td> <td>N/A</td> </tr> <tr> <td>9/1</td> <td>N/A</td> <td></td> <td>N/A</td> </tr> <tr> <td>11/1</td> <td>N/A</td> <td></td> <td>N/A</td> </tr> <tr> <td>Total Other Charges and Amounts Paid by Others on Your Behalf</td> <td colspan="2"></td> <td>6,780.00</td> </tr> <tr> <td>6. Amount Financed (2 + 4)</td> <td colspan="2"></td> <td>23,415.75</td> </tr> </table> VENDOR'S SINGLE INTEREST INSURANCE (N/A insurance): If the preceding box is checked, the Carrier requires VB insurance for the better care of the vehicle than otherwise would be provided. VB insurance is not required if the Carrier has a satisfactory record of protecting your interest in the vehicle. VB insurance protects your interest in the vehicle through the entire term of the contract. VB insurance is required if you have an option to purchase or if you have a leasehold interest in the vehicle at the end of the term of the agreement. VB insurance is required if the vehicle is subject to sale or repossession under the terms of the agreement. VB insurance is subject to a fee assessed against the Buyer. OPTION: [ ] You pay no finance charge if the Amount Financed, Item 5, is paid in full on or before N/R Date: ____________, Year: ____________. N/R SELLER'S INITIALS: ____________________________ [ ] OPTIONAL GAP CONTRACT: A gap contract (that covers losses caused by fire or theft) 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 limitations it provides. It is a part of this contract. Item _______ N/A UNIV., UNDERWRITERS, Agent or Step Contract I want to buy a gap contract. Buyer Signs X ____________________________ NO COOLING OFF PERIOD State law does not provide for a "cooling off" or cancellation period for this sale. After you sign this contract, you may only cancel it if all seller agrees or for legal cause. You must cancel this contract simply because you change your mind. This notice also applies to loans under installment sales. 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: The contract contains the entire agreement between you and us relating to the contract. Any change to this contract must be in writing and we must agree if we have charges or binding. Buyer Signs X ____________________________ Co-Buyer Signs X ____________________________ If any part of this contract is not valid, all other parts remain valid. We may delay or refund any refund or action we take based upon this contract without losing this right. For example, we may extend the time for making some payments without extending the time for making others. See your or seller's topographical agreement. NOTICE TO REAL 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 completed filled-in copy when you signed it. Buyer Signs X ____________________________ Date ________/_____/______ Co-Buyer Signs X ____________________________ Date ________/_____/______ Co-owner and Other Owners - A co-owner is a person who is responsible for paying the entire debt. An owner other is a person whose name is on the title but does not have to pay the debt. The other owner signs to the security interest in the vehicle given to us in this contract. Other owner signatures: OF-C HICKASHA, INC. Date: 9/26/2016 Seller Signs X ____________________________ Date ________/_____/______ Seller's Signature ____________________________ Title ____________________________ Seller assigned in interest in this contract (Assigned under the terms of Seller's agreement(s) with Assigned) JOHNSONS OF CHICKASHA, INC. 3121 S 4TH ST PO BOX 498 CHICKASHA, OK 73020 Ilaw Fort No. 983-KR-814 us imgrants service OTHER IMPORTANT AGREEMENTS 1. FINANCE CHARGE AND PAYMENTS: a. We will CHARGE you a finance charge for financing this vehicle and the finance charges are part of the Amount Financed, as described on your Statement of Account. b. You may pay by cash, check, or other payment method at any time prior to the due date of your finance charges. If you do not make full payment on the due date, we may add late charges to the amount owed. c. If you fail to make payments, we reserve the right to assess any finance charges, late charges, or other fees as described on your Statement of Account. d. If you fail to make any payment, whether or not late, we may assess a finance charge on the unpaid amount, plus interest at a rate set forth in your agreement, plus late charges, and any other fees as described on your Statement of Account. 2. YOUR OTHER PROMISES TO US a. If the vehicle is damaged, destroyed, or missing, you promise us that you will return it to us under this contract. b. Using the vehicle. You agree not to remove the vehicle from the U.S. or Canada, or to sell, rent, lease, or transfer title to the vehicle without our written permission. If you do so without our written permission, you agree to compensate us for any losses, expenses, or damages we suffer because of such unauthorized use. c. Security. You give us a security interest in: - All the proceeds we receive from the sale of 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 sale of insurance, and any proceeds received from the sale of the vehicle. This secures payment of all you owe us under this contract. It also secures your other agreements in this contract. If you miss any payments, we may revoke our security interest in the vehicle. We may not revoke our security interest if you have paid all amounts owed to us under this contract. d. Insurance. If you do not carry insurance covering loss of or damage to the vehicle, you must select one of the following: - You agree to have physical damage insurance covering loss of or damage to the vehicle for the term of this contract, which must include full coverage and collision, or - You agree to buy additional insurance, which may be either bodily injury liability or comprehensive coverage, or - You agree to buy the insurance yourself, within 30 days after delivery, and to notify us in writing. If you do not comply with these requirements, we may charge you an additional insurance premium equal to the cost of the insurance required plus any applicable sales tax or fees. e. What happens if retained insurance, maintenance, service, or other contract charges. If we retain any such charges after the contract expires, you agree that we may subtract the amount from what you owe us. 3. IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES a. If you pay late or break your other promises, we may take the following actions: - If you pay late, we may take the following actions: - Assess late charges, if you do not pay on time; - Assess interest, if you do not pay on time; - Assess finance charges, if you do not pay on time; - Assess any fees or charges as described in your agreement; - Assess any fees or charges as described in your agreement; - If you fail to make any payment, whether or not late, we may assess a finance charge on the unpaid amount, plus interest at a rate set forth in your agreement, plus late charges, and any other fees as described on your Statement of Account. 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 provisions above apply 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. Form No. 523-QE 8/14 DATE 09/11/2017 ACCOUNT NO. MAKE/MODEL OF VEHICLE 2011 CHEVROLET CAMARO BUYER'S NAME AND ADDRESS CO-BUYER'S NAME AND ADDRESS CHEYENNE S DELK 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. $ 21,338 09 (2) Gross disposition proceeds. $ 6,600 00 (3) Secured obligation after deducting amount in item (2). $ 14,738 09 (4) Repossession, storage, preparation and disposition expenses, including legal fees related to the current disposition of the vehicle, if any $ 660 58 (5) Other credits or rebates such as insurance refunds, extended warranty or service contract refunds, or post-repossession payments $ 1,522 41 (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.) $ 13,876 26 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 551080 Jacksonville, FL. 32255-1080 1-866-251-9400 TD Auto Finance PO Box 551080 Jacksonville, FL 32255 TD Auto Finance NOTICE AFTER REPOSSESSION OR VOLUNTARY SURRENDER NAME AND ADDRESS (BUYER 1) CHEYENNE S DELK 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 YEAR 2011 MAKE CHEVROLET MODEL CAMARO VEHICLE IDENTIFICATION NUMBER 0460 NOTICE OF SALE: Your vehicle will be offered for sale, at a private sale beginning on August 2, 2017, 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: CHEYENNE S DELK 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. You may be required to provide proof of insurance, employment information and three references. <table> <tr> <th>PAST DUE PAYMENTS</th> <td>$778 60</td> </tr> <tr> <th>PLUS LATE CHARGES AND OTHER COSTS</th> <td>$49 00</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>$1,017.60</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. You may be required to provide proof of insurance, employment information and three references. <table> <tr> <th>UNPAID PRINCIPAL BALANCE</th> <td>$20,943.84</td> </tr> <tr> <th>PLUS LATE CHARGES AND OTHER COSTS</th> <td>$49.00</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 07/18/2017</th> <td>$359.88</td> </tr> <tr> <th>SUBTOTAL OF CHARGES</th> <td>$21,542.72</td> </tr> <tr> <th>LESS REFUNDS OF INSURANCE PREMISUMS</th> <td></td> </tr> <tr> <th>GAP</th> <td>$530 81</td> </tr> <tr> <th>SUBTOTAL OF REFUNDS DEDUCTED</th> <td>($530 81)</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> <th>$21,011.91</th> </tr> </table> Your vehicle will not be sold until the date shown in the Notice of Sale section on Page 1, at the earliest. AFTER THAT DATE, BUT BEFORE YOUR VEHICLE IS ACTUALLY SOLD, YOU CAN STILL PAY THE FULL AMOUNT YOU OWE ON YOUR CONTRACT TO GET YOUR VEHICLE BACK. 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. MAKE PAYMENT TO: TD Auto Finance PO Box 551080, Jacksonville, FL 32255 PHONE NUMBER 866-659-1173 DATE NOTICE MAILED: 07/18/2017 MAIL TYPE: [X] First Class Mail ☐ Certified Mail