Preview
FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONEIDA
AMERICU CREDIT UNION,
Plaintiff, VERIFIED COMPLAINT
vs. Index No.
ZACHARY HERNANDEZ,
Defendant.
Plaintiff, as and for its Verified Complaint and by its attorneys, Getnick Livingston
Atkinson & Priore, LLP, alleges as follows:
PARTIES AND JURISDICTION
1. Plaintiff now and at all times hereinafter mentioned is a State Chartered Credit
Union, having its usual place of business at 1916 Black River Road, Rome, New York 13440.
2. Upon information and belief, the Defendant's residence is 2326 Ironwood Pass
Drive, Missouri City, Texas, 77459.
3. Venue is proper in the Supreme Court, County of Oneida, based upon the location
where the underlying credit transaction occurred.
AS AND FOR A FIRST CAUSE OF ACTION-NOTE
4. Plaintiff incorporates the allegations set forth in the foregoing paragraphs as if set
forth fully herein.
5. On or about September 10, 2021, Plaintiff loaned Defendant the sum of $79,500.00,
at the per annum interest rate of 7.740% pursuant to a Loan and Security Agreements and
Disclosure Statement (Page 2) ("Note") executed by Defendant. A copy of the Note is marked as
"A"
Exhibit and annexed hereto and made a part hereof.
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FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023
6. Under the terms of the Note, Defendant was to make one hundred forty-three (143)
monthly payments in the amount of $852.07, and one (1) final payment in the amount of $851.27,
with the first payment being due on October 25, 2021.
7. Defendant defaulted under the terms, conditions, and provisions of the Note by
failing to remit the installment of principal and interest due on January 25, 2023, and all
installments coming due thereafter. A complete copy of the Account Transaction Summary and
"B"
Payoff Statement relative to the Note are collectively marked as Exhibit and annexed hereto
and made a part hereof.
8. As of July 31, 2023, Defendant owes Plaintiff the sum of $78,274.39, which
consists of the principal balance of $76,372.09, plus accrued interest of $1,862.30, and late fees of
$40.00, with respect to the indebtedness under the Note.
9. Demand for payment has been duly made by Plaintiff and refused by Defendant.
10. Pursuant to the terms of the Note, and based upon the foregoing default, Defendant
is liable for the full outstanding debt thereunder. Plaintiff is thus entitled to and requests a judgment
on the First Cause of Action in the amount of $78,274.39, plus accrued interest on the principal
balance of $76,372.09, from August 1, 2023, at a per annum interest rate of 7.740%. The interest
rate for consumer debt pursuant to CPLR 5004 would apply to any judgment granted herein.
AS AND FOR A SECOND CAUSE OF ACTION -VISA AGREEMENT
1 1. On or about September 28, 2021, Defendant entered into a VISA Credit Card
Agreement ("VISA Agreement"), whereby AmeriCU Credit Union agreed to extend credit to
Defendant, and Defendant agreed to repay such extensions of credit in accordance with the terms,
conditions, and provisions of the VISA Agreement. A copy of the VISA Credit Card Application
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FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023
with Solicitation Disclosure and Consumer Credit Card Agreements are attached collectively as
Exhibit "C".
12. Thereafter, Defendant periodically requested, and AmeriCU Credit Union
advanced, credit in the total amount of $10,000.00, pursuant to the terms of the VISA Agreement.
13. Defendant defaulted under the terms, conditions, and provisions of the VISA
Agreement by failing to remit the minimum payment due on June 20, 2023, and all subsequent
payments, all of which remain unpaid. A copy of the Credit Card Statements and Account
"D"
Worksheet are collectively marked as Exhibit and are annexed hereto and made a part hereof.
14. Plaintiff is the original holder of VISA Agreement and it has not been sold or
assigned to any third party. Plaintiff extended an offer of credit to Defendant, by issuing a credit
card, and Defendant accepted the offer of credit by using the credit card, as documented in the
annexed VISA Credit Card Application with Solicitation Disclosure and Consumer Credit Card
"C"
Agreements, applicable Credit Card Statements and Account Worksheet (Exhibits and "D").
This offer and acceptance was sufficient under New York Law to obligate Defendant to repay the
debt owed.
15. Defendant, is in default under the terms of the VISA Agreement and demand for
payment has been duly made by Plaintiff and refused by Defendant.
16. Defendant has not made any payments or received any credits since the default
date.
17. Pursuant to the terms of the VISA Agreement, and based upon the foregoing
default, Defendant is liable for the full outstanding debt thereunder. Demand for payment has been
duly made by Plaintiff and refused by Defendant.
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FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023
18. The contractual balance due as of July 18, 2023, is the sum of $5,980.90, which
consists of the principal balance of $5,732.79, plus combined accrued interest (at per annum rate
of 15.990%) and finance charges of $248.11, with respect to the indebtedness under the VISA
Agreement. The interest rate for consumer debt pursuant to CPLR 5004 would apply to any
judgment granted herein.
AS AND FOR A THIRD CAUSE OF ACTION - ATTORNEYS' FEES & COSTS
19. Plaintiff incorporates the allegations set forth in the foregoing paragraphs as if set
forth fully herein.
20. Pursuant to the terms of the Note and Visa Agreement, Defendant, if in default,
attorneys'
agreed to pay collection costs, including reasonable fees and costs, with respect to the
prosecution of this action, as specifically set forth on Page 2 of the Note and Page 4 of the Visa
Costs"
Agreement, in a paragraph entitled "Collections which is attached hereto and made a part
hereof:
Note: "...You agree to pay all costs of collecting the amount you owe under this
fees..."
Agreement, including court costs and reasonable attorney
Visa Agreement: "...you are liable for any reasonable attorney's fees We incur,
plus the costs and expenses of any legal action, as further disclosed on this
law."
Agreement, or to the extent allowed by
attorneys'
21. Accordingly, Plaintiff is entitled to and requests an award of reasonable
fees and costs in connection with this action.
WHEREFORE, plaintiff prays for Judgment against Defendant, Zachary
Hernandez, as follows:
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FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023
a. For the First Cause of Action (Note), in the amount of $78,274.39, plus
additional interest, on the principal balance of $76,372.09, from August 1,
2023, at a per annum interest rate of 7.740%;
b. For the Second Cause of Action (Visa), in the amount of $5,980.90, plus
additional interest, on the principal balance of $5,732.79, from July 19,
2023, at a per annum interest rate of 15.990%;
attorneys'
c. granting reasonable fees, costs, and disbursements of this action;
and
d. granting such other and further relief as to the Court deems just and proper.
DATED: GCf to , 2023
GETNICK LIVINGSTON
ATK & PR O , LLP
Jef ry T. Lotter ser, Jr., Esq.
ttorneys for Plaintiff
Office and P.O. Address:
258 Genesee Street, Suite 401
Utica, New York 13502
Telephone (315) 797-9261
Pursuant to the Fair Debt Collection Practice Act, this document is an attempt to collect a
debt and any information obtained will be used for that purpose.
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FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023
VERIFICATION:
STATE OF NEW YORK )
) ss.:
COUNTY OF ONEIDA )
Francis M. Liuzzi, being duly sworn, deposes and says that deponent is the Loss Mitigation
Manager of AmeriCU Credit Union, the plaintiff named in the within action; that deponent has
read the foregoing Summons and Complaint and knows the contents thereof; and that the same is
true to deponents own knowledge, except as to the matters therein stated to be alleged on
information and belief, and as to those matters deponent believes it to be true. This verification is
made by deponent because AmeriCU Credit Union is a State Chartered Credit Union. The grounds
of deponents belief as to all matters not stated upon deponents knowledge are as follows: Books
and records of AmeriCU Credit Union.
DATED: i ð0 , 2023
AMERICU CREDIT UNION
Francis M. Linzzi
Loss Mitigation Manager
Sworn to before me, this
day of /Voopho , 2023.
BRIAN R. WILLIAMS
Notary Public, State of New York
Pubhe Reg. # 01Wl6261256
Notary
Qualined in Oneida County
My Commission Expires May 7,20
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Preview
FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF ONEIDA AMERICU CREDIT UNION, Plaintiff, VERIFIED COMPLAINT vs. Index No. ZACHARY HERNANDEZ, Defendant. Plaintiff, as and for its Verified Complaint and by its attorneys, Getnick Livingston Atkinson & Priore, LLP, alleges as follows: PARTIES AND JURISDICTION 1. Plaintiff now and at all times hereinafter mentioned is a State Chartered Credit Union, having its usual place of business at 1916 Black River Road, Rome, New York 13440. 2. Upon information and belief, the Defendant's residence is 2326 Ironwood Pass Drive, Missouri City, Texas, 77459. 3. Venue is proper in the Supreme Court, County of Oneida, based upon the location where the underlying credit transaction occurred. AS AND FOR A FIRST CAUSE OF ACTION-NOTE 4. Plaintiff incorporates the allegations set forth in the foregoing paragraphs as if set forth fully herein. 5. On or about September 10, 2021, Plaintiff loaned Defendant the sum of $79,500.00, at the per annum interest rate of 7.740% pursuant to a Loan and Security Agreements and Disclosure Statement (Page 2) ("Note") executed by Defendant. A copy of the Note is marked as "A" Exhibit and annexed hereto and made a part hereof. {G1668143.1} 1 of 6 FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023 6. Under the terms of the Note, Defendant was to make one hundred forty-three (143) monthly payments in the amount of $852.07, and one (1) final payment in the amount of $851.27, with the first payment being due on October 25, 2021. 7. Defendant defaulted under the terms, conditions, and provisions of the Note by failing to remit the installment of principal and interest due on January 25, 2023, and all installments coming due thereafter. A complete copy of the Account Transaction Summary and "B" Payoff Statement relative to the Note are collectively marked as Exhibit and annexed hereto and made a part hereof. 8. As of July 31, 2023, Defendant owes Plaintiff the sum of $78,274.39, which consists of the principal balance of $76,372.09, plus accrued interest of $1,862.30, and late fees of $40.00, with respect to the indebtedness under the Note. 9. Demand for payment has been duly made by Plaintiff and refused by Defendant. 10. Pursuant to the terms of the Note, and based upon the foregoing default, Defendant is liable for the full outstanding debt thereunder. Plaintiff is thus entitled to and requests a judgment on the First Cause of Action in the amount of $78,274.39, plus accrued interest on the principal balance of $76,372.09, from August 1, 2023, at a per annum interest rate of 7.740%. The interest rate for consumer debt pursuant to CPLR 5004 would apply to any judgment granted herein. AS AND FOR A SECOND CAUSE OF ACTION -VISA AGREEMENT 1 1. On or about September 28, 2021, Defendant entered into a VISA Credit Card Agreement ("VISA Agreement"), whereby AmeriCU Credit Union agreed to extend credit to Defendant, and Defendant agreed to repay such extensions of credit in accordance with the terms, conditions, and provisions of the VISA Agreement. A copy of the VISA Credit Card Application {G1668143.1} 2 of 6 FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023 with Solicitation Disclosure and Consumer Credit Card Agreements are attached collectively as Exhibit "C". 12. Thereafter, Defendant periodically requested, and AmeriCU Credit Union advanced, credit in the total amount of $10,000.00, pursuant to the terms of the VISA Agreement. 13. Defendant defaulted under the terms, conditions, and provisions of the VISA Agreement by failing to remit the minimum payment due on June 20, 2023, and all subsequent payments, all of which remain unpaid. A copy of the Credit Card Statements and Account "D" Worksheet are collectively marked as Exhibit and are annexed hereto and made a part hereof. 14. Plaintiff is the original holder of VISA Agreement and it has not been sold or assigned to any third party. Plaintiff extended an offer of credit to Defendant, by issuing a credit card, and Defendant accepted the offer of credit by using the credit card, as documented in the annexed VISA Credit Card Application with Solicitation Disclosure and Consumer Credit Card "C" Agreements, applicable Credit Card Statements and Account Worksheet (Exhibits and "D"). This offer and acceptance was sufficient under New York Law to obligate Defendant to repay the debt owed. 15. Defendant, is in default under the terms of the VISA Agreement and demand for payment has been duly made by Plaintiff and refused by Defendant. 16. Defendant has not made any payments or received any credits since the default date. 17. Pursuant to the terms of the VISA Agreement, and based upon the foregoing default, Defendant is liable for the full outstanding debt thereunder. Demand for payment has been duly made by Plaintiff and refused by Defendant. {G1668143.1} 3 of 6 FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023 18. The contractual balance due as of July 18, 2023, is the sum of $5,980.90, which consists of the principal balance of $5,732.79, plus combined accrued interest (at per annum rate of 15.990%) and finance charges of $248.11, with respect to the indebtedness under the VISA Agreement. The interest rate for consumer debt pursuant to CPLR 5004 would apply to any judgment granted herein. AS AND FOR A THIRD CAUSE OF ACTION - ATTORNEYS' FEES & COSTS 19. Plaintiff incorporates the allegations set forth in the foregoing paragraphs as if set forth fully herein. 20. Pursuant to the terms of the Note and Visa Agreement, Defendant, if in default, attorneys' agreed to pay collection costs, including reasonable fees and costs, with respect to the prosecution of this action, as specifically set forth on Page 2 of the Note and Page 4 of the Visa Costs" Agreement, in a paragraph entitled "Collections which is attached hereto and made a part hereof: Note: "...You agree to pay all costs of collecting the amount you owe under this fees..." Agreement, including court costs and reasonable attorney Visa Agreement: "...you are liable for any reasonable attorney's fees We incur, plus the costs and expenses of any legal action, as further disclosed on this law." Agreement, or to the extent allowed by attorneys' 21. Accordingly, Plaintiff is entitled to and requests an award of reasonable fees and costs in connection with this action. WHEREFORE, plaintiff prays for Judgment against Defendant, Zachary Hernandez, as follows: {G1668143.1} 4 of 6 FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023 a. For the First Cause of Action (Note), in the amount of $78,274.39, plus additional interest, on the principal balance of $76,372.09, from August 1, 2023, at a per annum interest rate of 7.740%; b. For the Second Cause of Action (Visa), in the amount of $5,980.90, plus additional interest, on the principal balance of $5,732.79, from July 19, 2023, at a per annum interest rate of 15.990%; attorneys' c. granting reasonable fees, costs, and disbursements of this action; and d. granting such other and further relief as to the Court deems just and proper. DATED: GCf to , 2023 GETNICK LIVINGSTON ATK & PR O , LLP Jef ry T. Lotter ser, Jr., Esq. ttorneys for Plaintiff Office and P.O. Address: 258 Genesee Street, Suite 401 Utica, New York 13502 Telephone (315) 797-9261 Pursuant to the Fair Debt Collection Practice Act, this document is an attempt to collect a debt and any information obtained will be used for that purpose. {G1668143.1} 5 of 6 FILED: ONEIDA COUNTY CLERK 12/04/2023 04:03 PM INDEX NO. EFCA2023-003129 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/04/2023 VERIFICATION: STATE OF NEW YORK ) ) ss.: COUNTY OF ONEIDA ) Francis M. Liuzzi, being duly sworn, deposes and says that deponent is the Loss Mitigation Manager of AmeriCU Credit Union, the plaintiff named in the within action; that deponent has read the foregoing Summons and Complaint and knows the contents thereof; and that the same is true to deponents own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters deponent believes it to be true. This verification is made by deponent because AmeriCU Credit Union is a State Chartered Credit Union. The grounds of deponents belief as to all matters not stated upon deponents knowledge are as follows: Books and records of AmeriCU Credit Union. DATED: i ð0 , 2023 AMERICU CREDIT UNION Francis M. Linzzi Loss Mitigation Manager Sworn to before me, this day of /Voopho , 2023. BRIAN R. WILLIAMS Notary Public, State of New York Pubhe Reg. # 01Wl6261256 Notary Qualined in Oneida County My Commission Expires May 7,20 {G1668143.1} 6 of 6