Preview
FILED: NASSAU COUNTY CLERK 08/23/2016 04:20 PM INDEX NO. 608444/2015
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/23/2016
STATE OF NEW YORK
SUPREME COURT COUNTY OF NASSAU
UNITED AUTO CREDIT CORPORATION,
Plaintiff, AFFIRMATION
vs. Index No. 608444/2015
PAOLA K. MATOS,
Defendant.
MARY M. CONNORS, ESQ., affirms the following under penalty of perjury:
1. I am Senior Counsel to the law firm of Harris Beach PLLC, attorneys for the
Plaintiff in this action, and have been duly licensed and admitted to practice law in the Courts of
this state. I am familiar with the facts and circumstances hereinafter recited:
2. I make this Affidavit in Support of Plaintiffs Motion for Summary Judgment
pursuant to CPLR 3212, against Defendant Paola K. Matos.
3. This action was commenced on December 31, 2015 and Defendant was served
with a copy of the Summons and Complaint in accordance with CPLR 308(1). Copies of the
Summons and Complaint and Affidavit of Service are annexed hereto as Exhibit "A".
4. Upon information and belief, the basis of which is the Affidavit of Rick Blunt
annexed hereto as Exhibit "B", this action was commenced to recover the balance due Plaintiff
under a Retail Installment Auto Contract (the "Contract"), under which payments have not been
made although duly demanded. Plaintiff is seeking to recover the remainder of the balance due
and owing after applying the proceeds from the surrender/repossession and sale of the vehicle
that served as security under the loan. Defendant entered into the Contract with Tri-Star Motor
on August 7, 2013 for the purchase of a 2004 Acura TL and the Contract was assigned in and by
HARRIS BEACH
ATTORNEYS AT LAW
1 of 5
its terms to Plaintiff, the financing agency. Plaintiff is the owner of the Contract. A copy of the
Contract with Assignment is annexed hereto as Exhibit "C".
5. Defendant served a pro se Answer on or about February 1, 2016. A copy of the
Answer is annexed hereto as Exhibit "D".
6. The Answer served by Defendant states that service was improper, that she does
not owe the amount claimed to be due, that the car was not sold properly and she was not given
the right amount of credit for the repossession sale.
7. As stated in the Affidavit of Rick Blunt, annexed hereto as Exhibit "B", Plaintiff
is seeking to recover the deficiency balance due following repossession and sale of the vehicle
that served as security under the loan. Defendant was in default under the terms of the Contract
by failing to make the payments as promised under the contract and Plaintiff exercised its rights
under the Contract in repossessing its collateral and selling the same.
8. Upon information and belief, the basis of which is the Affidavit of Rick Blunt
annexed hereto as Exhibit "B", Plaintiff notified Defendant of the Repossession and Sale in
accordance with Article 9 of the Uniform Commercial Code on January 7, 2014. Plaintiff
notified Defendant of the repossession and date of the sale, her right to redeem the vehicle, the
sale and the deficiency balance (see, Notices attached as part of Exhibit "E").
9. U.C.C. §9-615 (former section 9-504) authorizes a secured creditor to liquidate
the security and apply the proceeds to the unpaid balance of the debt. The debtor is responsible
for the remaining deficiency. A secured creditor who has liquidated its security is entitled to
maintain an action for a deficiency judgment provided that notice of the sale was given to the
debtor as required by law and that the sale was commercially reasonable. (Security Trust Co. of
Rochester v. Thomas, 59 AD2d 242, 247 [4th Dept. 1977]; see also, Telemark v. LaVigne, 124
HARRIS BEACH 2
ATTORNEYS AT LAW
2 of 5
AD2d 1055 [4th Dept. 1986]; and Kohler v. Ford Motor Credit Co., 93 AD2d 205 [3d Dept.
1983]).
10. UCC §9-627 (former section 9-507[2]) provides that a disposition of collateral is
commercially reasonable if the secured party either sells it in the usual manner in any recognized
market or if the collateral is sold at the price current in the market at the time of the sale or if it
was otherwise sold in conformity with reasonable commercial practices among dealers in the
type of property sold.
11. Upon information and belief, the basis of which is the Affidavit of Rick Blunt
annexed hereto as Exhibit "B", disposal of the vehicle that served as security under this Contract
was obtained by private auto auction. The auction was held at Adesa Long Island on March 28,
2014. The vehicle was sold to the highest bidder, for $5.600.00. As stated in Rick Blunt's
Affidavit, the sale of the repossessed vehicle by private auto auction is in conformity with the
reasonable commercial practices of lenders disposing of motor vehicles that serve as security
under loans.
12. Upon information and belief, the basis of which is the Affidavit of Rick Blunt
annexed hereto as Exhibit "B", Plaintiff notified Defendant of the Repossession and Sale of the
vehicle in accordance with Article 9 of the Uniform Commercial Code. Plaintiff was not the
buyer and the sale, including the value received, was in all respects commercially reasonable and
in full compliance with UCC, Article 9. Copies of all notices, which were sent to the Defendant
by Plaintiff, are annexed hereto as part of Exhibit "E".
13. As stated in the Affidavit of Rick Blunt annexed hereto as Exhibit "B", and as
demonstrated by the Repossession documents annexed hereto as Exhibit "E" and the payment
history annexed hereto as Exhibit "F", Defendant was given full credit for the proceeds realized
from the sale of the vehicle. After giving Defendant credit for the sale proceeds, and adding in
HARRIS BEACH 3
ATTORNEYS AT LAW
3 of 5
repossession expenses, there was a deficiency of $7,788.07 (which included accrued interest of
$1,330.72 through January 6, 2014). Accordingly, the balance due to Plaintiff is $7,788.07 plus
interest at 24.99% on the principal sum of $6,457.35 ($7,788.07 less the accrued interest of
$1,330.72) from January 6, 2014. The Contract clearly states that Defendant was responsible for
any deficiency remaining following repossession and sale.
14. Defendant states as an affirmative defense that she was not given the proper
amount of credit from the sale and the vehicle was not sold properly. As demonstrated by the
annexed affidavit of Rick Blunt, credit from the sale of the vehicle was applied to the
outstanding balance. The amount received from the sale was $5,600.00. While the average
value of the car was estimated to be higher, there was an estimate of $2,200.00 in damage to the
vehicle. In addition, the vehicle was sold in a commercially reasonable manner.
15. Defendant claims that service of the Summons and Complaint was improper.
Having raised this as a defense in the Answer and failing to move to dismiss on the ground
within sixty (60) days after service of the Answer, Defendant has waived any claim regarding
improper service (CPLR 3211[e]).
16. Defendant has failed to raise any meritorious defense to this action.
17. Based on the foregoing and upon the Affidavit of Rick Blunt and all Exhibits
annexed hereto, it is clear that Defendant defaulted under the terms of the Contract, that Plaintiff
complied with all its obligations in repossessing and selling the vehicle that served as security
under the Contract and, accordingly, Plaintiff is entitled to judgment for the balance due and
remaining under the Contract as a matter of law.
18. By reason of the foregoing, Plaintiff respectfully requests that summary judgment
be granted in favor of the Plaintiff against the Defendant Paola K. Matos in the amount of
$7,788.07 plus interest on the sum of $6,457.35 at the contract rate of 24.99% from January 6,
HARRIS BEACH 4
ATTORNEYS AT LAW
4 of 5
2014, costs and disbursements of this action and for such other and further relief as the Court
may deem just and proper.
Dated: June jY, 2016
Mary 4 onnors, Esq.
130430 2830275v1
HARRIS BEACH 5
ATTORNEYS AT LAW
5 of 5
Preview
FILED: NASSAU COUNTY CLERK 08/23/2016 04:20 PM INDEX NO. 608444/2015 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/23/2016 STATE OF NEW YORK SUPREME COURT COUNTY OF NASSAU UNITED AUTO CREDIT CORPORATION, Plaintiff, AFFIRMATION vs. Index No. 608444/2015 PAOLA K. MATOS, Defendant. MARY M. CONNORS, ESQ., affirms the following under penalty of perjury: 1. I am Senior Counsel to the law firm of Harris Beach PLLC, attorneys for the Plaintiff in this action, and have been duly licensed and admitted to practice law in the Courts of this state. I am familiar with the facts and circumstances hereinafter recited: 2. I make this Affidavit in Support of Plaintiffs Motion for Summary Judgment pursuant to CPLR 3212, against Defendant Paola K. Matos. 3. This action was commenced on December 31, 2015 and Defendant was served with a copy of the Summons and Complaint in accordance with CPLR 308(1). Copies of the Summons and Complaint and Affidavit of Service are annexed hereto as Exhibit "A". 4. Upon information and belief, the basis of which is the Affidavit of Rick Blunt annexed hereto as Exhibit "B", this action was commenced to recover the balance due Plaintiff under a Retail Installment Auto Contract (the "Contract"), under which payments have not been made although duly demanded. Plaintiff is seeking to recover the remainder of the balance due and owing after applying the proceeds from the surrender/repossession and sale of the vehicle that served as security under the loan. Defendant entered into the Contract with Tri-Star Motor on August 7, 2013 for the purchase of a 2004 Acura TL and the Contract was assigned in and by HARRIS BEACH ATTORNEYS AT LAW 1 of 5 its terms to Plaintiff, the financing agency. Plaintiff is the owner of the Contract. A copy of the Contract with Assignment is annexed hereto as Exhibit "C". 5. Defendant served a pro se Answer on or about February 1, 2016. A copy of the Answer is annexed hereto as Exhibit "D". 6. The Answer served by Defendant states that service was improper, that she does not owe the amount claimed to be due, that the car was not sold properly and she was not given the right amount of credit for the repossession sale. 7. As stated in the Affidavit of Rick Blunt, annexed hereto as Exhibit "B", Plaintiff is seeking to recover the deficiency balance due following repossession and sale of the vehicle that served as security under the loan. Defendant was in default under the terms of the Contract by failing to make the payments as promised under the contract and Plaintiff exercised its rights under the Contract in repossessing its collateral and selling the same. 8. Upon information and belief, the basis of which is the Affidavit of Rick Blunt annexed hereto as Exhibit "B", Plaintiff notified Defendant of the Repossession and Sale in accordance with Article 9 of the Uniform Commercial Code on January 7, 2014. Plaintiff notified Defendant of the repossession and date of the sale, her right to redeem the vehicle, the sale and the deficiency balance (see, Notices attached as part of Exhibit "E"). 9. U.C.C. §9-615 (former section 9-504) authorizes a secured creditor to liquidate the security and apply the proceeds to the unpaid balance of the debt. The debtor is responsible for the remaining deficiency. A secured creditor who has liquidated its security is entitled to maintain an action for a deficiency judgment provided that notice of the sale was given to the debtor as required by law and that the sale was commercially reasonable. (Security Trust Co. of Rochester v. Thomas, 59 AD2d 242, 247 [4th Dept. 1977]; see also, Telemark v. LaVigne, 124 HARRIS BEACH 2 ATTORNEYS AT LAW 2 of 5 AD2d 1055 [4th Dept. 1986]; and Kohler v. Ford Motor Credit Co., 93 AD2d 205 [3d Dept. 1983]). 10. UCC §9-627 (former section 9-507[2]) provides that a disposition of collateral is commercially reasonable if the secured party either sells it in the usual manner in any recognized market or if the collateral is sold at the price current in the market at the time of the sale or if it was otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold. 11. Upon information and belief, the basis of which is the Affidavit of Rick Blunt annexed hereto as Exhibit "B", disposal of the vehicle that served as security under this Contract was obtained by private auto auction. The auction was held at Adesa Long Island on March 28, 2014. The vehicle was sold to the highest bidder, for $5.600.00. As stated in Rick Blunt's Affidavit, the sale of the repossessed vehicle by private auto auction is in conformity with the reasonable commercial practices of lenders disposing of motor vehicles that serve as security under loans. 12. Upon information and belief, the basis of which is the Affidavit of Rick Blunt annexed hereto as Exhibit "B", Plaintiff notified Defendant of the Repossession and Sale of the vehicle in accordance with Article 9 of the Uniform Commercial Code. Plaintiff was not the buyer and the sale, including the value received, was in all respects commercially reasonable and in full compliance with UCC, Article 9. Copies of all notices, which were sent to the Defendant by Plaintiff, are annexed hereto as part of Exhibit "E". 13. As stated in the Affidavit of Rick Blunt annexed hereto as Exhibit "B", and as demonstrated by the Repossession documents annexed hereto as Exhibit "E" and the payment history annexed hereto as Exhibit "F", Defendant was given full credit for the proceeds realized from the sale of the vehicle. After giving Defendant credit for the sale proceeds, and adding in HARRIS BEACH 3 ATTORNEYS AT LAW 3 of 5 repossession expenses, there was a deficiency of $7,788.07 (which included accrued interest of $1,330.72 through January 6, 2014). Accordingly, the balance due to Plaintiff is $7,788.07 plus interest at 24.99% on the principal sum of $6,457.35 ($7,788.07 less the accrued interest of $1,330.72) from January 6, 2014. The Contract clearly states that Defendant was responsible for any deficiency remaining following repossession and sale. 14. Defendant states as an affirmative defense that she was not given the proper amount of credit from the sale and the vehicle was not sold properly. As demonstrated by the annexed affidavit of Rick Blunt, credit from the sale of the vehicle was applied to the outstanding balance. The amount received from the sale was $5,600.00. While the average value of the car was estimated to be higher, there was an estimate of $2,200.00 in damage to the vehicle. In addition, the vehicle was sold in a commercially reasonable manner. 15. Defendant claims that service of the Summons and Complaint was improper. Having raised this as a defense in the Answer and failing to move to dismiss on the ground within sixty (60) days after service of the Answer, Defendant has waived any claim regarding improper service (CPLR 3211[e]). 16. Defendant has failed to raise any meritorious defense to this action. 17. Based on the foregoing and upon the Affidavit of Rick Blunt and all Exhibits annexed hereto, it is clear that Defendant defaulted under the terms of the Contract, that Plaintiff complied with all its obligations in repossessing and selling the vehicle that served as security under the Contract and, accordingly, Plaintiff is entitled to judgment for the balance due and remaining under the Contract as a matter of law. 18. By reason of the foregoing, Plaintiff respectfully requests that summary judgment be granted in favor of the Plaintiff against the Defendant Paola K. Matos in the amount of $7,788.07 plus interest on the sum of $6,457.35 at the contract rate of 24.99% from January 6, HARRIS BEACH 4 ATTORNEYS AT LAW 4 of 5 2014, costs and disbursements of this action and for such other and further relief as the Court may deem just and proper. Dated: June jY, 2016 Mary 4 onnors, Esq. 130430 2830275v1 HARRIS BEACH 5 ATTORNEYS AT LAW 5 of 5