Motion for Child Support in Ally Bank v. Neal Wilkins, John Doe, Mary Roe| Trellis.Law

On August 15, 2018 a Motion-Secondary was filed involving a dispute between Ally Bank, and John Doe, Mary Roe, Neal Wilkins, for Commercial - Contract in the District Court of Orange County.

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FILED: ORANGE COUNTY CLERK 09/17/2018 01:41 PM INDEX NO. EF008635-2018
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 09/17/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
-------..----- X

Plaintiff,

-against- AFFIRMATION
Index #EF008635/2018
DOE"
NEAL WILKINS, "JOHN AND "MARY ROE",
Defendants.
---------------- ----------------X

This is not a consumer credit transaction subject to the Rules of Chief Admiñistrator set forth in

Section 202.27-(a) et seq.

ROBERT W. FINK, an attorñcy duly admitted to practice in the courts of the State

of New York, under the penalties of perjury, deposes and says:

1. I am attorney for plaintiff and I make this affirmation in support of Plaintiffs

application for an Order pursuant to CPLR 3215 judgment default agairst Defendant,
granting by

l* 2"d
Neal Wilkins (Wilkins) on the and causes of action, in the sum of $30,090.07 with finance

charges at the contract rate of 7.74% per aññüñi from 7/12/18, on the 3rd cause of action for

assessment of attorney's fees, and pursuant to CPLR 7102 on the 4th cause of action for possession

of a certaiñ 2015 Jaguar XF VIN No. SAJWJOFF4F8U52158, and for discontiñuance of the action

Doe" Roe"
against Defendants, "John and "Mary

2. This action was comnieñced by filing a summons and complaint with the County

Clerk, Exhibit "A", on 8/I5/18.

-Personal service was made upon Wilkins on 8/21/18. The affidavit of service of the

summons and complaint together with the Status Report Pursuant to Servicemembers Civil Relief

Act was filed with the County Clerk on 8/24/18.

-Plaintiff has no information regarding a place of business for Wilkins. The address for

. . .

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Wilkins was confirmed by a USPS FOIL search which was received on 8/11/18.

-Additional notice pursuant to CPLR 3215(f)(4)(ii) was made on Wilkins on 8/24/18.

"B"
-Annexed hereto and collectively marked Exhibit are copies of the affidavit of service

of the semmons and complaint, the Servicemembers Status Report, the affidavit of service of

additional notice and the USPO FOIL.

Doe" Roe"
-"John and "Mary have not been served.

3. That as set forth in the complaint, Wilkins entered into a contract (the contract) for

purchase of a 2015 Jaguar XF VIN No. SAJWJOFF4F8U52158 (the vehicle), allof which is more

fully set forth in a copy of the contract which is annexed to the complaint as Exhibit "A". That the

contract was assigned to Ally Financial Inc. (bottom of P 1 ofcontract) but that Ally Bank is the true

party in interest because Ally Financial Inc. acts as Ally Bank's collateral agent. Ally Financial Inc.

has a perfected security interest in the vehicle as shown on the Electronic Title Document, Exhibit

"B"
to the complaint.

FIRST CAUSE OF ACTION AGAINST DEFENDANT, WILKINS

4. The contract isdelinquent for the payment due on 2/26/18 or any payment thereafter.

That the net amount due on the contract, good through 7/12/18, is the sum of $30,090.07 with

finance charges at the contract rate of 7.74% per annum from 7/12/18, which sum remains due and

owing despite demand.

5. That due to the default, Wilkins is liable for the entire unpaid balance on the contract

(Remedies).

SECOND CAUSE OF ACTION AGAINST DEFENDANT WILKINS

6. That, upon information and belief, Wilkins has failed to maintain collision insurance

as required by the contract (Agreement to Provide Insurance).

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7. That due to the default, Wilkins isliable forthe entire unpaid balance on the contract.

8. That the net amount due on the contract, good through 7/12/18 is the sum of

$30,090.07 with finance charges at the contract rate of 7.74% per annum from 7/12/18, which sum

remains due and owing despite demand.

THIRD CAUSE OF ACTION AGAINST DEFENDANT WILKINS

9. That the contract (Defaul t)provides "...ifyou default you agree to pay attorney's fees

of 20% of the first $500 and 10% on any excess of the amount due and payable under this

Contract...". The attorney hired to bring this action is not a salaried employee of Ally.

10. Annexed hereto is a statement for services rendered by deposeñt. The hourly rate

charged to plaintiff is $200.00 which is lessthan the rate com.monly charged for matters of this type

in this area. However, deponent has a contractual arrangement with Plaintiff as set forth on the

Schedule of Services. That deponent prays that attomey's fees be set in the amount of $500.00.

11. I was admitted to practice in the State of New York in 1973. I am also admitted

to practice in the U.S. District Courts for the Southern and Eastern Districts of New York, and to

the District Court of Appeals for the Second Circuit.

FOURTH CAUSE OF ACTION AGAINST DEFENDANT WILKINS

12. That due to the default on the centract, Plaintiff isentitled to possession of the vehicic

(Remedies) and that the vehicle is being wrongfully held by defendant despite demand. No other

action to recover the vehicle has been commenced. The value of the vehicle is $22,475.00 based

upon the Scptcmber, 2018 NADA wholesale value. That no defense to the claim is known to

Plaintiff.

13. Section 9-601(a) of the Uniform Commercial Code provides that after default, a

secured party "may reduce a claim to judgment, foreclose, or otherwisc enforce the claim, security

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interest ...by any available judicial procedure...". Suing on the contractual obligation and for

possession of the collateral may be pursued simultaneously (UCC 9-601 (c) ). In Dinizio and Cook

v Duck Creek Marina at Three Mile Hard Ltd. 2002 NY Slip Op 30071(U), dog 9 A.D.3d 443,

defendarts purchased a marina and gave back 2 notes secured by 2 security agreements. The notes,

later amended, went into default resulting in acceleration of the outstanding balances. The Court

(1" 3rd
granted judgment on the accelerated balañees of the 2 notes and COunterClaimS) while

(2nd 44
simultaneously granting foreclosure ofthe 2 security interests COunterclaims)citingUCC

9-601(a) and (c) ),Pp 4&5. In Community Capital Bank v 'Til The Phat Lady Sings LLC, 6 Misc

3d 1009, (2005 NY Slip Op 50023(U)), 2 promissory notes were given and secured by fixtures and

equipment. Noting, inter alia,UCC 9-601(a)(1) and (c) the Court granted summary judgment on the

issue of liability on the notes without regard to the disposition or value of the collateral. In Christie's

Inc. v Davis, (SDNY 2002) 247 F. Supp. 2d 414, 419, plaintiff was attempting to collect on multiple

loans. The Court awarded judgment for the undisputed portion of the outstanding debt as well as

directing defendants to make the items of collateral available to plaintiff. The Court noted

plaintiff's rights under the note and UCC 9-601(a)(1) P 419. In Greystone v Equip. Fin. Corp. v

Motion Imaging, 210 NY Slip Op.50726 (U) the Court granted judgment for the sum due on the

contract and directed the defendants to turn over the collateral (P 12). Since a final judgment of

replevin is being sought and not preliminary relief, an undertaking is not required. G&S Ouality Inc.

V Bank of China, 233 AD 2d 215 (l"). However, ifthe Court determines that a bond is necessary,

one will be provided.

14. That plaintiff seeks an order of replevin awarding possession of the vehicle to

plaintiff and also providing as follows: That the said vehicle shall be turned over to Plaintiff within

10 days of receipt of a copy ofthe Court's Order, and that the said vehicle shall not be removed from

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itslocation, transferred, sold, pledged, assigned or otherwise disposed of or permitted to become

subject to a security interest or lien until further Order of the Court; that the Sheriff of any county

where the said vehicle is found shall seize the said vehicle, without delay, and that ifthe said vehicle

is not delivered to the Sheriff, he may break open, enter and search for the said vehicle; and that no

undertaking be required, and upon seizure and payment of the Sheriffs fees and expenses, be

immediately turned over to plaintiff without having to retain custody for 10 days and that the Sheriff

serve upon the person(s) from whom possession of the vehicle is seized a copy of the order of

seizure, the papers upon which the order was granted and the summons and complaint bearing the

index number and date of filing with the Clerk of the Court and that same need not be served upon

any other person.

2"4
WHEREFORE Plaintiff demands judgment against Defendant, Wilkins, on the 1 and

causes of action, in the sum of $30,090.07 with fiñance charges at the contract rate of 7.74% per

annum from 7/12/18, on the 3rd cause of action against said Defendant for assessment of attorney's

fees in the sum of $500.00, and pursuant to CPLR 7102 on the 4th cause of action against said

Defendant for possession of a certain 2015 Jaguar XF VIN No. SAJWJOFF4F8U52158, and

Doe"
discontinuance of the action against Defendents, "John and "Mary Roe".

Dated: Goshen, New York

b(yr \_1_,2018

RO RT . FINK

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SCHEDULE OF SERVICES

(1) Receipt and review of file,demand letterto customer,
postal search; .75

(2) Prepare summons and complaint and filewith County Clerk; 1.0

(3) Forward papers to process server; .2

(4) Review and file affidavits with Court, prepare and serve

additional notice of summons; .5

(5) Prepare, serve and fileapplication for default judgment; 1.5

3.95 hrs @ $200.00 pr hr $790.00

*
Pursuant to a flat fee arrangemeñt with Plaintiff, the total fees incurred are $500.00 as follows:

1 = $100.00
2-4= $200.00

5 = $200.00

$500.00

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
---------------
-------------X
ALLY BANK,
Plaintiff,

-against- AFFIDAVIT

Index #EF008635/2018
DOE"
NEAL WILKINS, "JOHN AND "MARY ROE",
Defendants.
------------ --------------X

STATE OF MINNESOTA )
SS.:

COUNTY OF RAMSEY )

CHONG VANG, being duly sworn, deposes and says:

1. ] am an Authorized Representative of the Plaintiff and make this affidavit based

upon PlaintitTs records and documents made and kept in the ordinary course of itsbusiness.

2. That plaintiff is a corporation authorized to do business in New York.

3. That Defendant Neal Wilkins, entered into a contract with Roman Chariot Auto Sales

for purchase of a 2015 Jaguar XF VIN No. SAJWJ0FF4F8U52158, allof which ismore fully

set forth on a copy of the contract anñêxed to the complaint as Exhibit "A".

4. That the contract was assigned to Ally Financial Inc. (bottom of P 1 ofcontract) but

that Bank is the true in interest because F al Inc.acts as Bank's collateral
Ally party Ally Ally

"B"
agent, Exhibit to the complaint.

5. That defendant is delinquent on the contract for failure to make the payment due

on 2/26/18, or any payment thereafter and collision insurance could not be verified.

6. That the amount due on the contract is the sum of $30,090.07 (good through

7/12/l 8) with finance charges at the cõñtract rate of 7.74% per annum from 7/12/18 which rernaiñs

due and owing despite demand.

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7. Iam familiar with how Plaintiff's records are made and the methodology upon which

the amount due iscalculated. Upon receipt of any payments by the process center, the payments are

entered into the system. Based upon that, a payoff quote can be generated, a copy of which is

annexed hereto and marked Exhibit "C".

The following is a breakdown of the amount due:

2015 Jaguar XF VIN No. SAJWJ0FF4F8US2158
OSB $29,172,63
Finance charges $ 782.59

Late charges $ 134.85
Amount Due: $30,090.07

8. That the value of the vehicle is $22,475 based upon the September, 2018 NADA

wholesale value. The vehicle has not been inspected.

9. That the vehicle has not been surrendered, despite dem d.

CHONG VANG

S rn to before e this

d 2018

Notary ubi

BLONG N1KKI VANG
Notary Public
State of Minnesota
My Commission Expires
January 31,2021

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Case Info

Judge

Maria S Vazquezdoles Track Judge’s New Case

Case No.

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Document Filed Date

September 17, 2018

Case Filing Date

August 15, 2018

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Motion-Secondary: Ally Bank v. Neal Wilkins, John Doe, Mary Roe

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