On November 22, 2019 a
Motion-Secondary
was filed
involving a dispute between
First National Bank Of Omaha, A Subsidiary Of First National Of Nebraska, Inc.,
and
Stacey J Mark,
for Other Matters - Consumer Credit (Non-Card) Transaction
in the District Court of Livingston County.
Preview
FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM INDEX NO. 001041-2019
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020
Mary F. Strickland , County Clerk
Livingston County Government Center
6 Court Street, Room 201
Geneseo, New York 14454
(585) 243-7010 ~ Fax (585) 243-7928
Livingston County Clerk Recording Page
Received From: Return To:
MARK H. STEIN MARK H. STEIN
600 BAUSCH & LOMB PLACE 600 BAUSCH & LOMB PLACE
ROCHESTER, NY 14692 ROCHESTER, NY 14692
Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR
AFFIRMATION IN SUPPORT
Plaintiff Defendant
FIRST NATIONAL BANK OF OMAHA, A MARK STACEY J
SUBSIDIARY OF FIRST NATIONAL OF
NEBRASKA, INC.
Recorded Information:
State of New York
Index #: 001041-2019 County of Livingston
EFiling through NYSCEF
Livingston County Clerk
This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York
AKB
Do Not1 ofDetach
6
Index # : 001041-2013
FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM INDEX NO. 001041-2019
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020
SUPREME COURT
STATE OF NEW YORK COUNTY OF UVINGSTON
FIRST NATIONAL BANK OF OMAHA,
A SUBSIDIARY OF FIRST NATIONAL
OF NEBRASKA, INC.
Plaintiff, AFFIDAVIT IN SUPPORT OF
vs. PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT
STACEY J.MARK, Index No. 001041/2019
Defendant.
t-Ñ Eef ‰¶3, being duly sworn, deposes and says the following under penalties of perjury:
1. I am a Recovery Representative of Plaintiff(hereinafter sometimes referredto as
the "Bank") and Iam fully familiar with the facts and circ1!mstances of thismatter. I am making
this Affidavit in support of Plaintiff'sMotion for Sumniary Judgment based on Plaintiff s books
and records made, obtained and retained in Plaintiff'sregular and ordinary course of business
and which itwas Plaintiff's regular and ordinary course of business to make, obtain and retain
and which were made at orabout the time of the events and transactionsrecorded.
2. As part of my training for my present position with the Bank, Bank personnel
explained the records kept by the Bank, who at the Bank creates those records, how records are
created, what records are retained by the Bank, the computerized record keeping system
maintained by the Bank, the processes followed in creating and sending the required monthly
statements to customers, the processes for as instantaneously as possible recording payments and
customers'
credits to the acccuats, the periodic updating and renewal of loan agreerñents, the
processes followed by the Bank to make the Bank's processes as error free as possible and the
records made if an account six .. t is retumed as undclivered. In addition, Bank pcesanad
2 of 6
Index
INDEX #:
NO.001041-2019
001041-2019
FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020
continually monitor and test the Bank's record keeping systems to assure the highest levelof
systems'
perfennance as well as attempt to improve those accuracy and efficiency. I have
personally observed allpersonal loan processes in operation. I am familiar with the Bank's
internal rules for all phases of personal loan operations. I am familiar with such records and
procedures not only from training furnished by the Bank, but also my daily experience in
asessing and reviewing the Bank records, particularly consumer loan related records, including
electronic records. I have years of experience as a recovery representative for the Bank using
Bank records.
3. This action arises out of Defendant applying for and on April 9, 2018 receiving a
loan of $13,132.00 from the Bank which paid off one obligâtion and having an account nurnber
ending in XXXXXXXXXXXX8468. A copy of the loan approval and loan disclosure is
annexed as Exhibit A.
4. The loan terms included the repaysñêñt of the loan amount in 59 insta!!ments at
$270.94 per month with interest at a rateis8.74% per annum.
5. Defendant made payments then defaulted by failing to pay stated emonnts when
due. Copies of the loan account statements from the due date of October 2018 through the "Now
Due"
Stateinent, kept in the ordinary course of business and cvidencing all account-related
activities for the time periods set forth therein and showing the amount due of $11,672.61 are
annexed hereto as Exhibit B. The statements are Bank docu-ncats in a format created to control,
manage and setforth current account informaties and corroborates the amount due.
6. The Bank's computerized record keeping system creates a monthly statement of
account for each customer based on the transactions associated with the loan account. The
computer is progouuned to direct and control printing; calculating each payment on account;
2
3 of 6
index W: UU1U41-zulu
FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM INDEX NO. 001041-2019
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020
interest; addressing the statement to the customer; printing the proper postage on the envelope;
inserting the statement intoa window envelope with proper return address; sealing the envelope;
and verifying the process is complete. The sealed envelopes are delivered in bulk to the US
Postal Service. Returned envelopes are inspected for the reasons for the return. Change of
address notifications provided by the Postal Service are used to update the account mailing
address along with change notices given by customers using the form of notice included on each
account statement or notice of changes received from other reliable sources. Each regular
monthly statement is sent to and only to the address believed on the basis of all information
available to the Bank to be the customer's current mailing address. My review of the Bank's
records of returned mailings disclosed no statcinest sent by the Bank to Defendant was retumed
as undeliverable.
7. No part of said sum has been paid despite due dcñiand in the form of monthly
statements sent to Defendant.
8. On numerous occasions prior to the commencement of this action, Plaintiff
resdcred statements of said claim to Defendant which Defendant accepted and retaiñêdwithout
objection.
9. The Bank also maintains records of objections thatcustomers make to statemcñts
of account. My review of the Bank's records discloses thatneither Defendant nor anyone acting
on Defendant's behalf objected to any statement of account.
10. The business records of the Plaintiff do not indicate any unresolved dispute prior
to suitregarding the amount due, the charges incurred therein or the monthly statements.
11. The Bank has been the holder and owner of the account with Defendant at all
times since the inception of the account.
3
4 of 6
Index
INDEX #:
NO.001041-2019
001041-2019
FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020
12. The Bank at alltimes in issue has been a national bank operating under the laws
and regulations of the United States applicable to national banks. The Bank's headqua ters at all
times in issue have been in Omaha, Nebraska.
WHEREFORE, Plaintiffrespectfully requests the Court grant its motion for sumrnary
judgment against Defendant for the sum of S11,672.61, plus the costs and disbursements of this
action, together with such other and further relief as the Court deems just and proper.
Sworn to before me this
day of llWJLh , 2
otary Public
GENERALNO Stateof Nebraska
GENETTA L ANDERSON
MyComm.Exp.
February22, 2020
e-a
5 of 6
Index
INDEX #:
NO. 001041-2019
001041-2019
FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020
CERTIFICATE OF CONFORMITY FOR NOTARY
I, , an attorney-at-law admitted to practicein the State of
Nebraska affirm under penalty of perjury that Iam fully familiar with the laws of thisstate
pendining to oaths and acknowledgements. I do hereby certifythat I am duly qualified to make
this certificateof conformity and that the acknowledgement set forth on the annexed affidavit
taken b notary public in the State of Nebraska conforms to
the la r taking oaths and acknowledgements in the State of Nebraska.
Dated:
A rney at Law, State f Nebraska
6 of 6
Document Filed Date
June 03, 2020
Case Filing Date
November 22, 2019
Category
Other Matters - Consumer Credit (Non-Card) Transaction
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM INDEX NO. 001041-2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020 Mary F. Strickland , County Clerk Livingston County Government Center 6 Court Street, Room 201 Geneseo, New York 14454 (585) 243-7010 ~ Fax (585) 243-7928 Livingston County Clerk Recording Page Received From: Return To: MARK H. STEIN MARK H. STEIN 600 BAUSCH & LOMB PLACE 600 BAUSCH & LOMB PLACE ROCHESTER, NY 14692 ROCHESTER, NY 14692 Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR AFFIRMATION IN SUPPORT Plaintiff Defendant FIRST NATIONAL BANK OF OMAHA, A MARK STACEY J SUBSIDIARY OF FIRST NATIONAL OF NEBRASKA, INC. Recorded Information: State of New York Index #: 001041-2019 County of Livingston EFiling through NYSCEF Livingston County Clerk This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York AKB Do Not1 ofDetach 6 Index # : 001041-2013 FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM INDEX NO. 001041-2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020 SUPREME COURT STATE OF NEW YORK COUNTY OF UVINGSTON FIRST NATIONAL BANK OF OMAHA, A SUBSIDIARY OF FIRST NATIONAL OF NEBRASKA, INC. Plaintiff, AFFIDAVIT IN SUPPORT OF vs. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT STACEY J.MARK, Index No. 001041/2019 Defendant. t-Ñ Eef ‰¶3, being duly sworn, deposes and says the following under penalties of perjury: 1. I am a Recovery Representative of Plaintiff(hereinafter sometimes referredto as the "Bank") and Iam fully familiar with the facts and circ1!mstances of thismatter. I am making this Affidavit in support of Plaintiff'sMotion for Sumniary Judgment based on Plaintiff s books and records made, obtained and retained in Plaintiff'sregular and ordinary course of business and which itwas Plaintiff's regular and ordinary course of business to make, obtain and retain and which were made at orabout the time of the events and transactionsrecorded. 2. As part of my training for my present position with the Bank, Bank personnel explained the records kept by the Bank, who at the Bank creates those records, how records are created, what records are retained by the Bank, the computerized record keeping system maintained by the Bank, the processes followed in creating and sending the required monthly statements to customers, the processes for as instantaneously as possible recording payments and customers' credits to the acccuats, the periodic updating and renewal of loan agreerñents, the processes followed by the Bank to make the Bank's processes as error free as possible and the records made if an account six .. t is retumed as undclivered. In addition, Bank pcesanad 2 of 6 Index INDEX #: NO.001041-2019 001041-2019 FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020 continually monitor and test the Bank's record keeping systems to assure the highest levelof systems' perfennance as well as attempt to improve those accuracy and efficiency. I have personally observed allpersonal loan processes in operation. I am familiar with the Bank's internal rules for all phases of personal loan operations. I am familiar with such records and procedures not only from training furnished by the Bank, but also my daily experience in asessing and reviewing the Bank records, particularly consumer loan related records, including electronic records. I have years of experience as a recovery representative for the Bank using Bank records. 3. This action arises out of Defendant applying for and on April 9, 2018 receiving a loan of $13,132.00 from the Bank which paid off one obligâtion and having an account nurnber ending in XXXXXXXXXXXX8468. A copy of the loan approval and loan disclosure is annexed as Exhibit A. 4. The loan terms included the repaysñêñt of the loan amount in 59 insta!!ments at $270.94 per month with interest at a rateis8.74% per annum. 5. Defendant made payments then defaulted by failing to pay stated emonnts when due. Copies of the loan account statements from the due date of October 2018 through the "Now Due" Stateinent, kept in the ordinary course of business and cvidencing all account-related activities for the time periods set forth therein and showing the amount due of $11,672.61 are annexed hereto as Exhibit B. The statements are Bank docu-ncats in a format created to control, manage and setforth current account informaties and corroborates the amount due. 6. The Bank's computerized record keeping system creates a monthly statement of account for each customer based on the transactions associated with the loan account. The computer is progouuned to direct and control printing; calculating each payment on account; 2 3 of 6 index W: UU1U41-zulu FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM INDEX NO. 001041-2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020 interest; addressing the statement to the customer; printing the proper postage on the envelope; inserting the statement intoa window envelope with proper return address; sealing the envelope; and verifying the process is complete. The sealed envelopes are delivered in bulk to the US Postal Service. Returned envelopes are inspected for the reasons for the return. Change of address notifications provided by the Postal Service are used to update the account mailing address along with change notices given by customers using the form of notice included on each account statement or notice of changes received from other reliable sources. Each regular monthly statement is sent to and only to the address believed on the basis of all information available to the Bank to be the customer's current mailing address. My review of the Bank's records of returned mailings disclosed no statcinest sent by the Bank to Defendant was retumed as undeliverable. 7. No part of said sum has been paid despite due dcñiand in the form of monthly statements sent to Defendant. 8. On numerous occasions prior to the commencement of this action, Plaintiff resdcred statements of said claim to Defendant which Defendant accepted and retaiñêdwithout objection. 9. The Bank also maintains records of objections thatcustomers make to statemcñts of account. My review of the Bank's records discloses thatneither Defendant nor anyone acting on Defendant's behalf objected to any statement of account. 10. The business records of the Plaintiff do not indicate any unresolved dispute prior to suitregarding the amount due, the charges incurred therein or the monthly statements. 11. The Bank has been the holder and owner of the account with Defendant at all times since the inception of the account. 3 4 of 6 Index INDEX #: NO.001041-2019 001041-2019 FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020 12. The Bank at alltimes in issue has been a national bank operating under the laws and regulations of the United States applicable to national banks. The Bank's headqua ters at all times in issue have been in Omaha, Nebraska. WHEREFORE, Plaintiffrespectfully requests the Court grant its motion for sumrnary judgment against Defendant for the sum of S11,672.61, plus the costs and disbursements of this action, together with such other and further relief as the Court deems just and proper. Sworn to before me this day of llWJLh , 2 otary Public GENERALNO Stateof Nebraska GENETTA L ANDERSON MyComm.Exp. February22, 2020 e-a 5 of 6 Index INDEX #: NO. 001041-2019 001041-2019 FILED: LIVINGSTON COUNTY CLERK 06/03/2020 04:13 PM NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/03/2020 CERTIFICATE OF CONFORMITY FOR NOTARY I, , an attorney-at-law admitted to practicein the State of Nebraska affirm under penalty of perjury that Iam fully familiar with the laws of thisstate pendining to oaths and acknowledgements. I do hereby certifythat I am duly qualified to make this certificateof conformity and that the acknowledgement set forth on the annexed affidavit taken b notary public in the State of Nebraska conforms to the la r taking oaths and acknowledgements in the State of Nebraska. Dated: A rney at Law, State f Nebraska 6 of 6