Preview
FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM INDEX NO. 001083-2019
NYSCEF DOC. NO. 6 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
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Index
INDEX #
NO.: 001083-2019
001083-2019
FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/10/2020
STATE OF NEW YORK
SUPREME COURT COUNTY OF LIVINGSTON
MARINER FINANCE, LLC Index 001083-2019
Plaintiff AFFIDAVIT
-vs-
SALLY A. WEED
Defendant(s)
.
STATE OF NEW YORK)
ss:
COUNTY OF MONROE)
William Erwin, being duly sworn, deposes and says:
1. I am the Branch Manager of Mariner Finance, LLC,
(hereinafter referred to as "Mariner"), the plaintiff herein,
licensed to do business under the laws of the State of New York and
am responsible for the collection of the amount which has given rise
to this action. I have been employed by Mariner Finance, LLC since
September, 2012, and have been the branch manager of the plaintiff
since February, 2014. I personally oversee the administration of
loans, from inception through recovery. Accordingly, if a loan is in
default, I personally review the contract, record of payments, and
default if that should occur. Accordingly, I am personally familiar
with the defendant's account which originated at my branch, and
which has defaulted. Moreover as branch manager, I have direct and
first hand knowledge of the office practice of record keeping, which
records are before the Court.
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2. From the books and records kept in the regular and
ordinary course of business by those employees of Mariner, under my
control, the following appears:
a) That on or about the 23rd day of July, 2019, the
defendant entered into a Note and Security Agreement with the
plaintiff whereby and in consideration of a loan of $2,925.38, the
defendant agreed, pursuant to the terms of said Note and Security
Agreement , to repay said loan, together with a finance charge, all
as set forth in the Note and Security Agreement, a copy of which is
attached hereto as Exhibit "C".
b) That after her payment of September 6, 2019, the
defendant ceased making her scheduled loan payments which gave rise
to the acceleration of her account with the plaintiff. That attached
"D"
hereto and made a part hereof as Exhibit is a copy of the record
of payments of the defendant's account, and loan payoff statement
showing an amount due as of December 4, 2019, of $3,063.49, the
amount sued for in the Complaint. The amount due as of that date
consists of a gross balance of $4,081.77, less unearned interest of
$1,018.28. Had the defendant paid off her account on December 4,
2019, her payoff balance would have been $2,901.10. Because her
account remains open, insurance premiums of $162.39 were manually
added back in to the payoff amount to arrive at $3,063.49 as shown
on the payoff statement.
c) Your deponent states that, as Branch Manager of the
plaintiff, I have personal knowledge of its business practices and
procedures, including the account of the defendant. The payoff
2
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statement and record of payments were generated by your deponent
from the computerized records of the plaintiff, and said payoff
statement and record of payments were made in the regular course of
business to generate said business records at that time in order to
establish the default and balance owed by the defendant to the
plaintiff as of December 4, 2019. Further your deponent certifies
that the loan agreement, payoff statement and record of payments
are true and accurate copies of the same kept by the plaintiff.
Based upon my review of plaintiff's business records, I have
personal knowledge of the facts set forth in this affidavit, and in
particular the defendant's account
3. As Branch Manager of the plaintiff, I am personally
familiar with the operation of the computer systems used by
plaintiff to record the financial transactions of its customers.
The plaintiff's system is commonly known as the Gold Point System
and is the computerized record system maintained by the plaintiff
for said purpose.
4. The business practice and procedure of the plaintiff was
and is, upon receipt of a payment from a customer, to have the
employee search for the customer's name in the system, and upon
recovery of the customer's designated account, to contemporaneously
enter the amount and the day of receipt of such payment.
Accordingly, the recordings of the payments, or the failure to
receive payments, were made by the plaintiff in the regular course
of plaintiff's business, and that it was the regular course of said
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business to enter such information into said respective system. The
recordings were made at or near the time of the events recorded.
5. To determine the payoff amount, and to determine the
record of payments by the defendant, your deponent entered
defendant's name, searched for defendant's account, and created the
aforesaid documents.
6. That the defendant is in default pursuant to the terms of
the loan agreement by failing to pay the installments due
thereunder, commencing with the October, 2019 due installment.
Accordingly, after borrowing $2,925.38, the defendant breached her
contract with the plaintiff after making only one payment.
7. That by reason of the aforesaid default of the defendant,
there is due and owing to the plaintiff by the defendant $3,063.49,
together with interest from December 4, 2019, at the rate of 24.99%
per annum, together with the costs and disbursements of this action.
8. I am informed that the defendant has interposed an answer
denying liability, which liability is established by the aforesaid
documentation. Moreover, each of the affirmative defenses presented
in the defendant's answer are conclusory and without merit.
Addressing the numbered affirmative defenses as presented in the
answer of the defendant, your deponent states:
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: As
stated, the documentary evidence presented has established the
obligation, the breach of contract, and the amount due.
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THIRD AFFIRMATIVE DEFENSE: Improper Charges: The contract only
establishes late charges of 5.00% for each late payment.
Accordingly, the plaintiff seeks only $11.62, which cannot be deemed
excessive.
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 her timely contractual payments pursuant to the
contract, the defendant would have satisfied her obligation.
Accordingly, there existed 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 her payments or caused
the defendant to default on her 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 her scheduled payments after receiving the
loan proceeds.
As to waiver, there is no evidence that the plaintiff waived
its right to accelerate the loan.
SEVENTH AFFIRMATIVE DEFENSE: Defendant did breach her duty or
obligation. As stated, the defendant simply ceased making payments
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after receiving the loan proceeds. Accordingly, the defendant
breached her obligation to repay the debt.
EIGHTH AFFIRMATIVE DEFENSE: Condition precedent. Under the
contract, 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 her October
2019 due installment. The plaintiff did not prevent the defendant
from meeting her 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: 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's cause of
action is not barred by usury. The plaintiff is a licensed lender of
the State of New York, and the interest rate of 24.99% per annum is
lawful in the State of New York. See the TWELFTH AFFIRMATIVE
DEFENSE.
ELEVENTH AFFIRMATIVE DEFENSE: Laches. As stated, the defendant
became in default when she failed to pay her October, 2019
installment. The plaintiff commenced this action on December 10,
2019, within 2 months of her default. Laches cannot apply.
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TWELFTH AFFIRMATIVE DEFENSE: Usury. I am informed that the
defendant 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.
THIRTEENTH: Lack of personal jurisdiction: I am informed that
the defendant was personally served pursuant to the Civil Practice
Law and Rules. Accordingly, jurisdiction has been had over the
defendant.
9. Accordingly, your deponent respectfully requests that this
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 24.99% per annum, together with the
costs and disbursements of this action.
William Erwin
worn to bef e me, the
day of Cbr , 2020
RICHARD THOMAS CHUN
NOTARY PUBUC, STATE OF NEW YORK
NO. 01SL6395437
QUAUFIED IN MONROE COUNTY
MY COMii.iRION FR . JULY
7
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Preview
FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM INDEX NO. 001083-2019 NYSCEF DOC. NO. 6 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 8 Index INDEX # NO.: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/10/2020 STATE OF NEW YORK SUPREME COURT COUNTY OF LIVINGSTON MARINER FINANCE, LLC Index 001083-2019 Plaintiff AFFIDAVIT -vs- SALLY A. WEED Defendant(s) . STATE OF NEW YORK) ss: COUNTY OF MONROE) William Erwin, being duly sworn, deposes and says: 1. I am the Branch Manager of Mariner Finance, LLC, (hereinafter referred to as "Mariner"), the plaintiff herein, licensed to do business under the laws of the State of New York and am responsible for the collection of the amount which has given rise to this action. I have been employed by Mariner Finance, LLC since September, 2012, and have been the branch manager of the plaintiff since February, 2014. I personally oversee the administration of loans, from inception through recovery. Accordingly, if a loan is in default, I personally review the contract, record of payments, and default if that should occur. Accordingly, I am personally familiar with the defendant's account which originated at my branch, and which has defaulted. Moreover as branch manager, I have direct and first hand knowledge of the office practice of record keeping, which records are before the Court. 2 of 8 Index INDEX #: NO. 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/10/2020 2. From the books and records kept in the regular and ordinary course of business by those employees of Mariner, under my control, the following appears: a) That on or about the 23rd day of July, 2019, the defendant entered into a Note and Security Agreement with the plaintiff whereby and in consideration of a loan of $2,925.38, the defendant agreed, pursuant to the terms of said Note and Security Agreement , to repay said loan, together with a finance charge, all as set forth in the Note and Security Agreement, a copy of which is attached hereto as Exhibit "C". b) That after her payment of September 6, 2019, the defendant ceased making her scheduled loan payments which gave rise to the acceleration of her account with the plaintiff. That attached "D" hereto and made a part hereof as Exhibit is a copy of the record of payments of the defendant's account, and loan payoff statement showing an amount due as of December 4, 2019, of $3,063.49, the amount sued for in the Complaint. The amount due as of that date consists of a gross balance of $4,081.77, less unearned interest of $1,018.28. Had the defendant paid off her account on December 4, 2019, her payoff balance would have been $2,901.10. Because her account remains open, insurance premiums of $162.39 were manually added back in to the payoff amount to arrive at $3,063.49 as shown on the payoff statement. c) Your deponent states that, as Branch Manager of the plaintiff, I have personal knowledge of its business practices and procedures, including the account of the defendant. The payoff 2 3 of 8 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/10/2020 statement and record of payments were generated by your deponent from the computerized records of the plaintiff, and said payoff statement and record of payments were made in the regular course of business to generate said business records at that time in order to establish the default and balance owed by the defendant to the plaintiff as of December 4, 2019. Further your deponent certifies that the loan agreement, payoff statement and record of payments are true and accurate copies of the same kept by the plaintiff. Based upon my review of plaintiff's business records, I have personal knowledge of the facts set forth in this affidavit, and in particular the defendant's account 3. As Branch Manager of the plaintiff, I am personally familiar with the operation of the computer systems used by plaintiff to record the financial transactions of its customers. The plaintiff's system is commonly known as the Gold Point System and is the computerized record system maintained by the plaintiff for said purpose. 4. The business practice and procedure of the plaintiff was and is, upon receipt of a payment from a customer, to have the employee search for the customer's name in the system, and upon recovery of the customer's designated account, to contemporaneously enter the amount and the day of receipt of such payment. Accordingly, the recordings of the payments, or the failure to receive payments, were made by the plaintiff in the regular course of plaintiff's business, and that it was the regular course of said 3 4 of 8 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/10/2020 business to enter such information into said respective system. The recordings were made at or near the time of the events recorded. 5. To determine the payoff amount, and to determine the record of payments by the defendant, your deponent entered defendant's name, searched for defendant's account, and created the aforesaid documents. 6. That the defendant is in default pursuant to the terms of the loan agreement by failing to pay the installments due thereunder, commencing with the October, 2019 due installment. Accordingly, after borrowing $2,925.38, the defendant breached her contract with the plaintiff after making only one payment. 7. That by reason of the aforesaid default of the defendant, there is due and owing to the plaintiff by the defendant $3,063.49, together with interest from December 4, 2019, at the rate of 24.99% per annum, together with the costs and disbursements of this action. 8. I am informed that the defendant has interposed an answer denying liability, which liability is established by the aforesaid documentation. Moreover, each of the affirmative defenses presented in the defendant's answer are conclusory and without merit. Addressing the numbered affirmative defenses as presented in the answer of the defendant, your deponent states: 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: As stated, the documentary evidence presented has established the obligation, the breach of contract, and the amount due. 4 5 of 8 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/10/2020 THIRD AFFIRMATIVE DEFENSE: Improper Charges: The contract only establishes late charges of 5.00% for each late payment. Accordingly, the plaintiff seeks only $11.62, which cannot be deemed excessive. 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 her timely contractual payments pursuant to the contract, the defendant would have satisfied her obligation. Accordingly, there existed 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 her payments or caused the defendant to default on her 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 her scheduled payments after receiving the loan proceeds. As to waiver, there is no evidence that the plaintiff waived its right to accelerate the loan. SEVENTH AFFIRMATIVE DEFENSE: Defendant did breach her duty or obligation. As stated, the defendant simply ceased making payments 5 6 of 8 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/10/2020 after receiving the loan proceeds. Accordingly, the defendant breached her obligation to repay the debt. EIGHTH AFFIRMATIVE DEFENSE: Condition precedent. Under the contract, 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 her October 2019 due installment. The plaintiff did not prevent the defendant from meeting her 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: 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's cause of action is not barred by usury. The plaintiff is a licensed lender of the State of New York, and the interest rate of 24.99% per annum is lawful in the State of New York. See the TWELFTH AFFIRMATIVE DEFENSE. ELEVENTH AFFIRMATIVE DEFENSE: Laches. As stated, the defendant became in default when she failed to pay her October, 2019 installment. The plaintiff commenced this action on December 10, 2019, within 2 months of her default. Laches cannot apply. 6 7 of 8 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 02/10/2020 10:53 AM NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/10/2020 TWELFTH AFFIRMATIVE DEFENSE: Usury. I am informed that the defendant 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. THIRTEENTH: Lack of personal jurisdiction: I am informed that the defendant was personally served pursuant to the Civil Practice Law and Rules. Accordingly, jurisdiction has been had over the defendant. 9. Accordingly, your deponent respectfully requests that this 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 24.99% per annum, together with the costs and disbursements of this action. William Erwin worn to bef e me, the day of Cbr , 2020 RICHARD THOMAS CHUN NOTARY PUBUC, STATE OF NEW YORK NO. 01SL6395437 QUAUFIED IN MONROE COUNTY MY COMii.iRION FR . JULY 7 8 of 8