Preview
FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM INDEX NO. 001083-2019
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020
Mary F. Strickland , County Clerk
Livingston County Government Center
6 Court Street, Room 201
fl A ÏÏ Geneseo, New York 14454
182' ~
(585) 243-7010 Fax (585) 243-7928
Livingston County Clerk Recording Page
Received From: Return To:
ROBERT BRIAN GITLIN ROBERT BRIAN GITLIN
Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR
AFFIRMATION IN SUPPORT OF MOTION
Plaintiff Defendant
MARINER FINANCE, LLC WEED SALLY A.
Recorded Information:
State of New York
Index #: 001083-2019
County of Livingston
EFiling through NYSCEF
Livingston County Clerk
This sheet constitutesthe Clerk's endomement required by section 319 of the Real Property Law ofthe State ofNew York
AKB
Do Not
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INDEX # : 001083-2019
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FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM
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STATE OF NEW YORK
SUPREME COURT COUNTY OF Livingston
MARINER FINANCE, LLC Index #001083-2019
Plaintiff AFFIRMATION
-vs-
SALLY A. WEED
Defendant(s)
Robert B. Gitlin, Esq., the undersigned, an attorney admitted
to practice in the Courts of this State, states under penalty of
perjury:
1. That I am the attorney for the Plaintiff, and make this
affirmation in support of a Motion for Summary Judgment against the
Defendant, Sally A. Weed.
2. That on December 10, 2019, an action for breach of
contract by the defendant was commenced by the filing of a summons
and complaint. Thereafter on January 17, 2020, service of the
Summons and Complaint was made upon the defendant by personal
service. That attached hereto is a copy of the Summons and
Complaint and the affidavit of service, made a part hereof and
marked Exhibit "A".
3. That your affirmant received an answer by the defendant's
attorney, Law Offices of Robert S. Gitmeid & Assoc., PLLC, a copy
of which is attached hereto as Exhibit "B". The answer consists of
a general denial, and fourteen (14) affirmative defenses.
4. The plaintiff, by it's Branch Manager, William Erwin,
pursuant to his affidavit is submitting herewith proof of the
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defendant's contract with the plaintiff, the defendant's default of
the contract with the plaintiff, and that there is due and owing to
the plaintiff by the defendant, the sum of $3,063.49, together with
interest from December 4, 2019, at the rate of 24.99% per annum,
all as set forth in the computer generated payoff statement,
payment history of defendant, and the Note and Security Agreement.
6. To the best of my knowledge, information and belief,
there is no defense to the cause of action stated in the Complaint,
and Summary Judgment against the defendant is appropriate and just.
7. Moreover, each of the affirmative defenses presented in
the defendant's answer is conclusory and without merit. Addressing
the numbered affirmative defenses as presented in the answer of the
defendant, your affirmant states as follows:
FIRST AFFIRMATIVE DEFENSE: Failure to state a cause of action:
The complaint properly alleges a cause of action for breach of
contract by establishing the contract, the breach of the contract
by the defendant, and the damages sought thereby.
SECOND AFFIRMATIVE DEFENSE Verification of the debt: The
plaintiff's manager has presented the documentary evidence
establishing the obligation, the breach of contract, and the amount
due.
THIRD AFFIRMATIVE DEFENSE: Improper Charges: The contract
establishes late charges of 5.00% for each late payment.
Accordingly, the plaintiff seeks only $11.62, which cannot be
deemed excessive. Moreover, the 5.00% late charge is specifically
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authorized by the New York State Banking Law 351 (1) (b) (I) which
states:
"In the event of default of more than ten days in the payment of any scheduled installment,
the licensee may charge and collect a default charge not exceeding five percent of the installment
in default".
FOURTH AFFIRMATIVE DEFENSE: Impossibility of performance:
The contract calls for payments of $116.29 per month for 35
months. If the defendant had not ceased making payments, and
continued making the defendant's timely contractual payments
pursuant to the terms of the contract, the defendant would have
satisfied the defendant's obligation. Accordingly, there exists
no impossibility of performance.
FIFTH AFFIRMATIVE DEFENSE -Statute of Limitation
The complaint is not time barred. The defendant
executed the contract on July 23, 2019, defaulted thereon and the
action arises within the 6 year Statute of Limitation.
SIXTH AFFIRMATIVE DEFENSE: Estoppel, unclean hands & waiver
As to estoppel, there is no evidence that the defendant
detrimentally relied upon any act of the plaintiff, that would
have otherwise prevented the defendant from making the
defendant's payments or caused the defendant to default on the
defendant's obligation with the plaintiff.
As to unclean hands, there is no evidence that the
plaintiff has acted with unclean hands. On the contrary, it is
the defendant who simply ceased making the defendant's scheduled
payments after receiving the loan proceeds.
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As to waiver, there is no evidence that the plaintiff waived
its right to accelerate the loan.
SEVENTH AFFIRMATIVE DEFENSE: Defendant did not breach her
duty or obligation. As stated, the defendant simply ceased making
payments after receiving the loan proceeds. The defendant made
one payment, and defaulted. Accordingly, the defendant breached
her obligation to repay the debt.
EIGHTH AFFIRMATIVE DEFENSE: Condition precedent. Under the
contract, Exhibit C", upon default, the plaintiff was not
required to perform any condition precedent prior to commencement
of the action. The plaintiff was permitted to accelerate the debt
only upon the defendant's breach, which has been substantiated.
NINTH AFFIRMATIVE DEFENSE: Failure to mitigate. The
documentation presented establishes that the defendant became in
default under the defendant's contract with the plaintiff when
the defendant failed to pay installments, commencing with the
defendant's October, 2019 due installment. The plaintiff did not
prevent the defendant from meeting the defendant's obligation.
Therefore there was no duty on the part of the plaintiff to
mitigate the damages caused by the defendant.
TENTH AFFIRMATIVE DEFENSE: Violation of Federal & State
Statutes: It should be readily apparent that the plaintiff is the
creditor, and not a debt collector. The Federal Fair Debt
Collection Act is not applicable to the plaintiff.
The plaintiff is the creditor and is not a debt collector as
that term is defined under the Federal Fair Debt Collections
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Practice Act, and therefore cannot be said to have violated the
same.
collector"
15 U.S.C. § 1692a(6) (A) states: The term "debt
means any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects
or attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another. Notwithstanding the
exclusion provided by clause (F) of the last sentence of this
paragraph, the term includes any creditor who, in the process of
collecting his own debts, uses any name other than his own which
would indicate that a third person is collecting or attempting to
collect such debts. For the purpose of section 1692f(6) of this
title, such term also includes any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the enforcement of
interests. The term does not include - officer
security (A) any
or employee of a creditor while, in the name of the creditor,
collecting debts for such creditor;
The defense of alleged violations of the Federal Fair Debt
Collection Practice Act is without merit and insufficient to
defeat the plaintiff's motion for summary judgment. Moreover, the
loan and the interest charged are within the limits permitted by
law. The documentation presented sets forth the terms and
conditions under the contract. The alleged illegality defense,
presumably usury, is equally without merit. The plaintiff is a
licensed lender in the State of New York. Attached hereto as
"E"
Exhibit is the printout of the New York State Department of
Financial Services, evidencing that the plaintiff is a duly
Licensed Lender, and pursuant to Sections 340 and 351(1) of the
New York Banking Law and Section 190.40 of the New York State
Penal Law, the contractual rate of 24.99% per annum is the
permitted rate. See Beneficial New York v. Stewart (25 Misc. 3d
797) and the New York State Department of Financial Services
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Banking Interpretation attached hereto. See the TWELFTH
AFFIRMATIVE DEFENSE.
ELEVENTH AFFIRMATIVE DEFENSE: Laches. As stated, the
defendant became in default when the defendant failed to pay the
October installment. The plaintiff commenced this action on
December 10, 2019, within 2 months of the defendant's default.
Laches cannot apply.
TWELFTH AFFIRMATIVE DEFENSE: Usury. The defendant has raised
an affirmative defense of usury. The plaintiff is a licensed
lender, and as per exhibit E, the contract interest rate of
24.99% per annum is authorized by the State of New York
Department of Financial Services.
The defendant makes the conclusory argument that the
contract should be unenforceable, because the contract calls for
an interest rate of 24.99% per annum. The defendant however
ignores the statutory authority of Section 351 of the New York
State Banking Law which allows the plaintiff, a duly Licensed New
York Lender to make a loan of less than $25,000.00 with interest
up to 25.00% per annum.
In Beneficial New York v. Stewart 25 Misc. 3d 797, the court
reviewed the statutory authority of a licensed lender to charge a
25.00% per annum interest rate. Just as in the instant case, the
defendant simply stopped making payments. Instead, the defendant
attempted to escape liability by raising the usury defense. The
Court in granting the plaintiff summary judgment ruled as
follows:
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"To support this proposition, plaintiff refers us
to a 1999 Bankruptcy Court case, In re Watkins (240 BR
668, 622 [ED NY 1999]). The Watkins court, interpreting
New York law, explained: "As a licensed lender, the
Defendant is authorized to make loans of up to $25,000
at interest rates as agreed to by the borrower and the
lender. By virtue of Section 340 of the Licensed Lender
Law, the Defendant is not subject to the statutory
limits on the rates of interest that may be charged
pursuant to Section 5-501 of the New York General
Obligations Law ('General Obligations Law') and Section
190.40 of the New York Penal Law. Section 351 of the
Licensed Lender Law specifically provides that only
interest on amounts loaned in excess of $25,000 is
subject to the maximum rates permitted by General Page
799 Obligations Law § 5-501. However, the Licensed
Lender Law does subject licensed lenders to stringent
restrictions, such as limiting the type of security they
can take and prohibiting them from charging examination
fees, service fees, brokerage commissions or any other
expenses, fees or bonuses not specifically authorized by
statute."
the (Id.) According to the Watkins court,
"[t]he purpose of allowing licensed lenders . . . to
charge borrowers any rate agreed upon for loans under
$25,000 is to make credit available to high risk
borrowers who would otherwise have no access to legal
credit services. For this reason the New York.
legislature has, for 100 years, allowed licensed lenders
to make small personal loans at interest rates far in
excess of those set forth in the civil and criminal
s tatutes " "
usury . ( Id. )
THIRTEENTH AFFIRMATIVE DEFENSE: Lack of personal
jurisdiction: Pursuant to the affidavit of service, the
defendant was personally served . Accordingly, jurisdiction
has been had over the defendant.
8. The general denial and the conclusory affirmative
defenses are without merit. By reason of the aforesaid , I
request that the Court grant summary judgment in favor of the
plaintiff, and against the defendant in the sum of $3, 063.49,
together with interest from December 4, 2019, at the rate of
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24.99% per annum, together with the costs and disbursements
of this action.
February 7, 2020
Robert B. Gitlin, Esq.
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Preview
FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM INDEX NO. 001083-2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 Mary F. Strickland , County Clerk Livingston County Government Center 6 Court Street, Room 201 fl A ÏÏ Geneseo, New York 14454 182' ~ (585) 243-7010 Fax (585) 243-7928 Livingston County Clerk Recording Page Received From: Return To: ROBERT BRIAN GITLIN ROBERT BRIAN GITLIN Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR AFFIRMATION IN SUPPORT OF MOTION Plaintiff Defendant MARINER FINANCE, LLC WEED SALLY A. Recorded Information: State of New York Index #: 001083-2019 County of Livingston EFiling through NYSCEF Livingston County Clerk This sheet constitutesthe Clerk's endomement required by section 319 of the Real Property Law ofthe State ofNew York AKB Do Not 1 ofDetach 9 Index INDEX # : 001083-2019 NO. 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 STATE OF NEW YORK SUPREME COURT COUNTY OF Livingston MARINER FINANCE, LLC Index #001083-2019 Plaintiff AFFIRMATION -vs- SALLY A. WEED Defendant(s) Robert B. Gitlin, Esq., the undersigned, an attorney admitted to practice in the Courts of this State, states under penalty of perjury: 1. That I am the attorney for the Plaintiff, and make this affirmation in support of a Motion for Summary Judgment against the Defendant, Sally A. Weed. 2. That on December 10, 2019, an action for breach of contract by the defendant was commenced by the filing of a summons and complaint. Thereafter on January 17, 2020, service of the Summons and Complaint was made upon the defendant by personal service. That attached hereto is a copy of the Summons and Complaint and the affidavit of service, made a part hereof and marked Exhibit "A". 3. That your affirmant received an answer by the defendant's attorney, Law Offices of Robert S. Gitmeid & Assoc., PLLC, a copy of which is attached hereto as Exhibit "B". The answer consists of a general denial, and fourteen (14) affirmative defenses. 4. The plaintiff, by it's Branch Manager, William Erwin, pursuant to his affidavit is submitting herewith proof of the 2 of 9 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM INDEXIndex NO. #: 001083-2019 001083-2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 defendant's contract with the plaintiff, the defendant's default of the contract with the plaintiff, and that there is due and owing to the plaintiff by the defendant, the sum of $3,063.49, together with interest from December 4, 2019, at the rate of 24.99% per annum, all as set forth in the computer generated payoff statement, payment history of defendant, and the Note and Security Agreement. 6. To the best of my knowledge, information and belief, there is no defense to the cause of action stated in the Complaint, and Summary Judgment against the defendant is appropriate and just. 7. Moreover, each of the affirmative defenses presented in the defendant's answer is conclusory and without merit. Addressing the numbered affirmative defenses as presented in the answer of the defendant, your affirmant states as follows: FIRST AFFIRMATIVE DEFENSE: Failure to state a cause of action: The complaint properly alleges a cause of action for breach of contract by establishing the contract, the breach of the contract by the defendant, and the damages sought thereby. SECOND AFFIRMATIVE DEFENSE Verification of the debt: The plaintiff's manager has presented the documentary evidence establishing the obligation, the breach of contract, and the amount due. THIRD AFFIRMATIVE DEFENSE: Improper Charges: The contract establishes late charges of 5.00% for each late payment. Accordingly, the plaintiff seeks only $11.62, which cannot be deemed excessive. Moreover, the 5.00% late charge is specifically 2 3 of 9 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 authorized by the New York State Banking Law 351 (1) (b) (I) which states: "In the event of default of more than ten days in the payment of any scheduled installment, the licensee may charge and collect a default charge not exceeding five percent of the installment in default". FOURTH AFFIRMATIVE DEFENSE: Impossibility of performance: The contract calls for payments of $116.29 per month for 35 months. If the defendant had not ceased making payments, and continued making the defendant's timely contractual payments pursuant to the terms of the contract, the defendant would have satisfied the defendant's obligation. Accordingly, there exists no impossibility of performance. FIFTH AFFIRMATIVE DEFENSE -Statute of Limitation The complaint is not time barred. The defendant executed the contract on July 23, 2019, defaulted thereon and the action arises within the 6 year Statute of Limitation. SIXTH AFFIRMATIVE DEFENSE: Estoppel, unclean hands & waiver As to estoppel, there is no evidence that the defendant detrimentally relied upon any act of the plaintiff, that would have otherwise prevented the defendant from making the defendant's payments or caused the defendant to default on the defendant's obligation with the plaintiff. As to unclean hands, there is no evidence that the plaintiff has acted with unclean hands. On the contrary, it is the defendant who simply ceased making the defendant's scheduled payments after receiving the loan proceeds. 3 4 of 9 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM INDEXIndex NO. #: 001083-2019 001083-2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 As to waiver, there is no evidence that the plaintiff waived its right to accelerate the loan. SEVENTH AFFIRMATIVE DEFENSE: Defendant did not breach her duty or obligation. As stated, the defendant simply ceased making payments after receiving the loan proceeds. The defendant made one payment, and defaulted. Accordingly, the defendant breached her obligation to repay the debt. EIGHTH AFFIRMATIVE DEFENSE: Condition precedent. Under the contract, Exhibit C", upon default, the plaintiff was not required to perform any condition precedent prior to commencement of the action. The plaintiff was permitted to accelerate the debt only upon the defendant's breach, which has been substantiated. NINTH AFFIRMATIVE DEFENSE: Failure to mitigate. The documentation presented establishes that the defendant became in default under the defendant's contract with the plaintiff when the defendant failed to pay installments, commencing with the defendant's October, 2019 due installment. The plaintiff did not prevent the defendant from meeting the defendant's obligation. Therefore there was no duty on the part of the plaintiff to mitigate the damages caused by the defendant. TENTH AFFIRMATIVE DEFENSE: Violation of Federal & State Statutes: It should be readily apparent that the plaintiff is the creditor, and not a debt collector. The Federal Fair Debt Collection Act is not applicable to the plaintiff. The plaintiff is the creditor and is not a debt collector as that term is defined under the Federal Fair Debt Collections 4 5 of 9 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 Practice Act, and therefore cannot be said to have violated the same. collector" 15 U.S.C. § 1692a(6) (A) states: The term "debt means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of interests. The term does not include - officer security (A) any or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; The defense of alleged violations of the Federal Fair Debt Collection Practice Act is without merit and insufficient to defeat the plaintiff's motion for summary judgment. Moreover, the loan and the interest charged are within the limits permitted by law. The documentation presented sets forth the terms and conditions under the contract. The alleged illegality defense, presumably usury, is equally without merit. The plaintiff is a licensed lender in the State of New York. Attached hereto as "E" Exhibit is the printout of the New York State Department of Financial Services, evidencing that the plaintiff is a duly Licensed Lender, and pursuant to Sections 340 and 351(1) of the New York Banking Law and Section 190.40 of the New York State Penal Law, the contractual rate of 24.99% per annum is the permitted rate. See Beneficial New York v. Stewart (25 Misc. 3d 797) and the New York State Department of Financial Services 5 6 of 9 INDEXIndex NO. #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 Banking Interpretation attached hereto. See the TWELFTH AFFIRMATIVE DEFENSE. ELEVENTH AFFIRMATIVE DEFENSE: Laches. As stated, the defendant became in default when the defendant failed to pay the October installment. The plaintiff commenced this action on December 10, 2019, within 2 months of the defendant's default. Laches cannot apply. TWELFTH AFFIRMATIVE DEFENSE: Usury. The defendant has raised an affirmative defense of usury. The plaintiff is a licensed lender, and as per exhibit E, the contract interest rate of 24.99% per annum is authorized by the State of New York Department of Financial Services. The defendant makes the conclusory argument that the contract should be unenforceable, because the contract calls for an interest rate of 24.99% per annum. The defendant however ignores the statutory authority of Section 351 of the New York State Banking Law which allows the plaintiff, a duly Licensed New York Lender to make a loan of less than $25,000.00 with interest up to 25.00% per annum. In Beneficial New York v. Stewart 25 Misc. 3d 797, the court reviewed the statutory authority of a licensed lender to charge a 25.00% per annum interest rate. Just as in the instant case, the defendant simply stopped making payments. Instead, the defendant attempted to escape liability by raising the usury defense. The Court in granting the plaintiff summary judgment ruled as follows: 6 7 of 9 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 "To support this proposition, plaintiff refers us to a 1999 Bankruptcy Court case, In re Watkins (240 BR 668, 622 [ED NY 1999]). The Watkins court, interpreting New York law, explained: "As a licensed lender, the Defendant is authorized to make loans of up to $25,000 at interest rates as agreed to by the borrower and the lender. By virtue of Section 340 of the Licensed Lender Law, the Defendant is not subject to the statutory limits on the rates of interest that may be charged pursuant to Section 5-501 of the New York General Obligations Law ('General Obligations Law') and Section 190.40 of the New York Penal Law. Section 351 of the Licensed Lender Law specifically provides that only interest on amounts loaned in excess of $25,000 is subject to the maximum rates permitted by General Page 799 Obligations Law § 5-501. However, the Licensed Lender Law does subject licensed lenders to stringent restrictions, such as limiting the type of security they can take and prohibiting them from charging examination fees, service fees, brokerage commissions or any other expenses, fees or bonuses not specifically authorized by statute." the (Id.) According to the Watkins court, "[t]he purpose of allowing licensed lenders . . . to charge borrowers any rate agreed upon for loans under $25,000 is to make credit available to high risk borrowers who would otherwise have no access to legal credit services. For this reason the New York. legislature has, for 100 years, allowed licensed lenders to make small personal loans at interest rates far in excess of those set forth in the civil and criminal s tatutes " " usury . ( Id. ) THIRTEENTH AFFIRMATIVE DEFENSE: Lack of personal jurisdiction: Pursuant to the affidavit of service, the defendant was personally served . Accordingly, jurisdiction has been had over the defendant. 8. The general denial and the conclusory affirmative defenses are without merit. By reason of the aforesaid , I request that the Court grant summary judgment in favor of the plaintiff, and against the defendant in the sum of $3, 063.49, together with interest from December 4, 2019, at the rate of 7 8 of 9 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM INDEXIndex NO. #: 001083-2019 001083-2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/10/2020 24.99% per annum, together with the costs and disbursements of this action. February 7, 2020 Robert B. Gitlin, Esq. 8 9 of 9