Preview
FILED: ONEIDA COUNTY CLERK 01/22/2024 12:33 PM INDEX NO. EFCA2023-002808
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONEIDA
AMERICU CREDIT UNION,
AFFIDAVIT OF FACT OF
Plaintiff, ORIGINAL CREDITOR
vs.
Index No. EFCA2023-002808
JANETTE JONES,
Defendant.
STATE OF NEW YORK )
COUNTY OF ONEIDA ) ss.:
The undersigned, BRIAN WILLIAMS, being duly sworn, deposes and says:
1. I am the Loss Mitigation Specialist II for Plaintiff, and I have personal knowledge
of and access to Plaintiffs books and records (“Business Records”), including, but not limited to,
electronic records. I make this affidavit in support of Plaintiff s motion for default judgment and
attorneys’ fees.
2. I have personal knowledge of Plaintiffs procedures for creating and maintaining
its Business Records. All of the information contained herein is based upon Business Records
made and maintained in the ordinary course of Plaintiffs business at or near the time of the
events recorded.
3. I have reviewed the Business Records pertinent to the account of the above-
named defendant. The information contained herein is based on my review of those records.
REGARDING PLAINTIFF’S FIRST CAUSE OF ACTION-NOTE
4. As set forth in the Complaint, which is annexed to Plaintiffs motion papers as
Exhibit 1, on or about May 11, 2021, Plaintiff loaned Defendant the sum of $45,000.00, at the
per annum interest rate of 8.490% pursuant to a Loan and Security Agreements and Disclosure
Statement (Page 2) ("Note") executed by Defendant.
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5. Under the terms of the Note, Defendant was to make one hundred seventy-nine
(179) monthly payments in the amount of $444.42, and one (1) final payment in the amount of
$444.00, with the first payment being due on June 24, 2021. A copy of the Note is marked as
Exhibit A to Plaintiffs Complaint. A copy of Plaintiffs Complaint is annexed hereto as Exhibit
1.
6. Defendant defaulted under the terms, conditions, and provisions of the Note, by
failing to remit the installment of principal and interest due on March 24, 2023, and all
installments coming due thereafter. A complete copy of the account transaction history and
interest calculation worksheet is attached as Exhibit C to Plaintiffs Complaint. A copy of
Plaintiffs Complaint is annexed hereto as Exhibit 1.
7. As of September 25, 2023, Defendant owes Plaintiff the sum of $44,524.93,
which consists of the principal balance of $42,243.23, plus accrued interest of $2,161.70 and
late fees of $120.00, with respect to the indebtedness under the Note.
REGARDING PLAINTIFF’S SECOND CAUSE OF ACTION-VISA
8. As set forth in the Verified Complaint, which is annexed to Plaintiffs motion
papers as Exhibit 1, on or about May 14, 2021, Defendant entered into a VISA Signature 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.
9. Thereafter, Defendant periodically requested, and Plaintiff advanced, credit in the
amount up to the sum of $5,000.00, pursuant to the terms of the VISA Agreement.
10. Defendant defaulted under the terms, conditions, and provisions of the Visa
Agreement by failing to remit the minimum payment due on March 20, 2023, and all subsequent
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FILED: ONEIDA COUNTY CLERK 01/22/2024 12:33 PM INDEX NO. EFCA2023-002808
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024
payments, all of which remain unpaid. A copy of the VISA Credit Card Application with
Solicitation Disclosure and Consumer Credit Card Agreements and Disclosure, are collectively
marked and attached as Exhibit “C”; and applicable Credit Card Statements and Account
Worksheet are collectively marked as Exhibit “D”; to Plaintiff’s Complaint, which is annexed
hereto and made a part hereof as Exhibit 1,
11. 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
Agreements, applicable Credit Card Statements and Account Worksheet (Exhibits “C” and “D”).
This offer and acceptance was sufficient under New York Law to obligate Defendant to repay
the debt owed.
12. 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.
13. Defendant has not made any payments or received any credits since the default
date.
14. 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.
15. The contractual balance due as of August 7, 2023, is the sum of $4,351.42, which
consists of the principal balance of $3,913.87, plus combined accrued interest (at per annum rate
of 16.240%) and finance charges of $437.55, with respect to the indebtedness under the VISA
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Agreement. The interest rate for consumer debt pursuant to CPLR 5004 would apply to any
judgment granted herein.
16. The Complaint also included separate request for attorneys’ fees. The matter of
attorneys’ fees is specifically set forth in the Attorney’s Affirmation in support of this motion.
WHEREFORE, it is respectfully requested that this Court enter an Order granting this
motion, directing the Clerk of the Court to enter a judgment in favor of Plaintiff, AmeriCU
Credit Union, and against Defendant, Janette Jones, regarding the First Cause of Action (Note),
in the amount of $44,524.93, plus additional interest, on the principal balance of $42,243.23,
from September 26, 2023, at a per annum interest rate of 8.490%, until tire entry ofjudgment;
regarding the Second Cause of Action (VISA), in the amount of $4,351.42, plus additional
interest, on the principal balance of $3,913.87, from August 8, 2023, at a per annum interest rate
of 16.240%, until the entry of judgment; awarding Plaintiff reasonable attorneys' fees as set forth
in the Attorney's Affirmation; plus costs and disbursements of this action; and granting to
Plaintiff such other and further relief as the Court deems just and proper.
The above statements are true and correct to the best of my personal knowledge.
Dated: January 2024
AMERICU CREDIT UNION
By. Brian Williams
Loss Mitigation Specialist II
Sworn to before me this 12
day of January, 2024.
fate
Notary Public
REPuCCAMARiS BARtSH
Notary Public. State of Now York
Rea No. 01BA63W«54
Qualified k’ Onsiun County
Cortirnisaon tixpires am 542^ {G1739832.1} 12
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024
ATTORNEY CERTIFICATION
I, Jeffery T. Lottermoser, Jr., Esq., an attorney, hereby certify that to the best of my
knowledge, information and belief, formed after an inquiry reasonable ler the circumstances,
that the presentation of the within papers or the contentionsjEecein an •t frivolous within the
meaning of 22 NYCRR Section 130-1. 1(c). ( ] Zf
JEFF Y T. LOTTERMSER, JR., ESQ.
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ATTORNEY CERTIFICATION IN COMPLIANCE WITH 22 NYCRR 202.8-b
I, Jeffery T. Lottermoser, Jr., Esq., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby certify that this document complies with the word count
limit set forth in 22 NYCRR 202.8-b, because it contains 968 words excluding the caption and
signature block. The undersigned in certifying compliance relies upon the word count of the
word-processing system used to prepare the document.
DATED: January 22, 2024
JEFFERY T. LOTTERMOSER, JR., ESQ.
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Preview
FILED: ONEIDA COUNTY CLERK 01/22/2024 12:33 PM INDEX NO. EFCA2023-002808 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF ONEIDA AMERICU CREDIT UNION, AFFIDAVIT OF FACT OF Plaintiff, ORIGINAL CREDITOR vs. Index No. EFCA2023-002808 JANETTE JONES, Defendant. STATE OF NEW YORK ) COUNTY OF ONEIDA ) ss.: The undersigned, BRIAN WILLIAMS, being duly sworn, deposes and says: 1. I am the Loss Mitigation Specialist II for Plaintiff, and I have personal knowledge of and access to Plaintiffs books and records (“Business Records”), including, but not limited to, electronic records. I make this affidavit in support of Plaintiff s motion for default judgment and attorneys’ fees. 2. I have personal knowledge of Plaintiffs procedures for creating and maintaining its Business Records. All of the information contained herein is based upon Business Records made and maintained in the ordinary course of Plaintiffs business at or near the time of the events recorded. 3. I have reviewed the Business Records pertinent to the account of the above- named defendant. The information contained herein is based on my review of those records. REGARDING PLAINTIFF’S FIRST CAUSE OF ACTION-NOTE 4. As set forth in the Complaint, which is annexed to Plaintiffs motion papers as Exhibit 1, on or about May 11, 2021, Plaintiff loaned Defendant the sum of $45,000.00, at the per annum interest rate of 8.490% pursuant to a Loan and Security Agreements and Disclosure Statement (Page 2) ("Note") executed by Defendant. {G1739832.1} 9 1 of 6 FILED: ONEIDA COUNTY CLERK 01/22/2024 12:33 PM INDEX NO. EFCA2023-002808 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024 5. Under the terms of the Note, Defendant was to make one hundred seventy-nine (179) monthly payments in the amount of $444.42, and one (1) final payment in the amount of $444.00, with the first payment being due on June 24, 2021. A copy of the Note is marked as Exhibit A to Plaintiffs Complaint. A copy of Plaintiffs Complaint is annexed hereto as Exhibit 1. 6. Defendant defaulted under the terms, conditions, and provisions of the Note, by failing to remit the installment of principal and interest due on March 24, 2023, and all installments coming due thereafter. A complete copy of the account transaction history and interest calculation worksheet is attached as Exhibit C to Plaintiffs Complaint. A copy of Plaintiffs Complaint is annexed hereto as Exhibit 1. 7. As of September 25, 2023, Defendant owes Plaintiff the sum of $44,524.93, which consists of the principal balance of $42,243.23, plus accrued interest of $2,161.70 and late fees of $120.00, with respect to the indebtedness under the Note. REGARDING PLAINTIFF’S SECOND CAUSE OF ACTION-VISA 8. As set forth in the Verified Complaint, which is annexed to Plaintiffs motion papers as Exhibit 1, on or about May 14, 2021, Defendant entered into a VISA Signature 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. 9. Thereafter, Defendant periodically requested, and Plaintiff advanced, credit in the amount up to the sum of $5,000.00, pursuant to the terms of the VISA Agreement. 10. Defendant defaulted under the terms, conditions, and provisions of the Visa Agreement by failing to remit the minimum payment due on March 20, 2023, and all subsequent {G1739832.1} 10 2 of 6 FILED: ONEIDA COUNTY CLERK 01/22/2024 12:33 PM INDEX NO. EFCA2023-002808 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024 payments, all of which remain unpaid. A copy of the VISA Credit Card Application with Solicitation Disclosure and Consumer Credit Card Agreements and Disclosure, are collectively marked and attached as Exhibit “C”; and applicable Credit Card Statements and Account Worksheet are collectively marked as Exhibit “D”; to Plaintiff’s Complaint, which is annexed hereto and made a part hereof as Exhibit 1, 11. 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 Agreements, applicable Credit Card Statements and Account Worksheet (Exhibits “C” and “D”). This offer and acceptance was sufficient under New York Law to obligate Defendant to repay the debt owed. 12. 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. 13. Defendant has not made any payments or received any credits since the default date. 14. 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. 15. The contractual balance due as of August 7, 2023, is the sum of $4,351.42, which consists of the principal balance of $3,913.87, plus combined accrued interest (at per annum rate of 16.240%) and finance charges of $437.55, with respect to the indebtedness under the VISA {G1739832.1} 11 3 of 6 FILED: ONEIDA COUNTY CLERK 01/22/2024 12:33 PM INDEX NO. EFCA2023-002808 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024 Agreement. The interest rate for consumer debt pursuant to CPLR 5004 would apply to any judgment granted herein. 16. The Complaint also included separate request for attorneys’ fees. The matter of attorneys’ fees is specifically set forth in the Attorney’s Affirmation in support of this motion. WHEREFORE, it is respectfully requested that this Court enter an Order granting this motion, directing the Clerk of the Court to enter a judgment in favor of Plaintiff, AmeriCU Credit Union, and against Defendant, Janette Jones, regarding the First Cause of Action (Note), in the amount of $44,524.93, plus additional interest, on the principal balance of $42,243.23, from September 26, 2023, at a per annum interest rate of 8.490%, until tire entry ofjudgment; regarding the Second Cause of Action (VISA), in the amount of $4,351.42, plus additional interest, on the principal balance of $3,913.87, from August 8, 2023, at a per annum interest rate of 16.240%, until the entry of judgment; awarding Plaintiff reasonable attorneys' fees as set forth in the Attorney's Affirmation; plus costs and disbursements of this action; and granting to Plaintiff such other and further relief as the Court deems just and proper. The above statements are true and correct to the best of my personal knowledge. Dated: January 2024 AMERICU CREDIT UNION By. Brian Williams Loss Mitigation Specialist II Sworn to before me this 12 day of January, 2024. fate Notary Public REPuCCAMARiS BARtSH Notary Public. State of Now York Rea No. 01BA63W«54 Qualified k’ Onsiun County Cortirnisaon tixpires am 542^ {G1739832.1} 12 4 of 6 FILED: ONEIDA COUNTY CLERK 01/22/2024 12:33 PM INDEX NO. EFCA2023-002808 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024 ATTORNEY CERTIFICATION I, Jeffery T. Lottermoser, Jr., Esq., an attorney, hereby certify that to the best of my knowledge, information and belief, formed after an inquiry reasonable ler the circumstances, that the presentation of the within papers or the contentionsjEecein an •t frivolous within the meaning of 22 NYCRR Section 130-1. 1(c). ( ] Zf JEFF Y T. LOTTERMSER, JR., ESQ. {G1739832.1} 13 5 of 6 FILED: ONEIDA COUNTY CLERK 01/22/2024 12:33 PM INDEX NO. EFCA2023-002808 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/22/2024 ATTORNEY CERTIFICATION IN COMPLIANCE WITH 22 NYCRR 202.8-b I, Jeffery T. Lottermoser, Jr., Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby certify that this document complies with the word count limit set forth in 22 NYCRR 202.8-b, because it contains 968 words excluding the caption and signature block. The undersigned in certifying compliance relies upon the word count of the word-processing system used to prepare the document. DATED: January 22, 2024 JEFFERY T. LOTTERMOSER, JR., ESQ. {G1739832.1} 14 6 of 6