IN THE STATE OF MISSOURI JACKSON COUNTY SIXTEENTH CIRCUIT COURT AT INDEPENDENCE

Transcription

1 IN THE STATE OF MISSOURI JACKSON COUNTY SIXTEENTH CIRCUIT COURT AT INDEPENDENCE SAMUEL K. LIPARI, Plaintiff, v. CHAPEL RIDGE MUL TIF AMIL Y LLC, et al., Defendants. Case No CV38273 Division 15 MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANT TROPPITO & MILLER, LLC TO DISMISS PLAINTIFF'S AMENDED PETITION COMES NOW, Defendant Troppito & Miller, LLC, and in support of its Motion to Dismiss Plaintiffs Amended Petition states as follows: INTRODUCTION The "facts" which can be gleaned from Plaintiffs Amended Petition which relate to the Defendant law firm of Troppito & Miller, LLC are only recognizable by reference to Exhibit 50 attached to the Amended Petition which contains, among other things, a Petition In Replevin and On Contract filed in the Circuit Court of Jackson County, Missouri, Associate Circuit in Independence, Case No CV29828, and Exhibits A and B attached thereto. We have attached these pleadings and an Affidavit of Dennis Smith filed in that case. These documents define the nature of the legal work performed by the law firm on behalf of its client, Wachovia Dealer Services. It is this legal work that Plaintiff Lipari claims as the basis of the various causes of action which he purports to plead in his Amended Petition. His claims against Defendant Troppito & Miller, LLC should be dismissed for failure to state a claim pursuant to Missouri Supreme Court Rule 55.27(g(2.

2 ARGUMENT The Standards and Legal Arguments made by counsel for Defendant Swanson Midgley LLC are adopted by this Defendant in support of its Motion to Dismiss. WHEREFORE, for the above and foregoing reasons, and each of them, Defendant Troppito & Miller, LLC prays that this Court issue its Order dismissing Plaintiffs Amended Petition against this Defendant, and for such other relief as the Court deems just and proper. Respectfully submitted, DEACY & DEACY, LLP Spencer J. Brown, # Main Street, Suite 1900 Kansas City, MO Telephone: ( Facsimile: ( ATTORNEYS FOR DEFENDANT TROPPITO & MILLER, LLC 2

3 CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of February, 2010, a copy of the foregoing was sent to Plaintiff Samuel K. Lipari by and also served by U.S. Mail, postage prepaid, and properly addressed to the following: Samuel K. Lipari 803 S. Lake Drive Independence, MO address:saml@medicaisupplychain.com PLAINTIFF PRO SE James C. Morrow, Esq. Abagail 1. Pierpoint, Esq. Morrow, Willnauer & Klosterman, 1.1.C. Executive Hills East, Building A Holmes, Suite 300 Kansas City, MO Telephone: ( Fax: ( jmoltmy_@mwklaw&q_l11 apicqx?int@mwklaw.com ATTORNEYS FOR DEFENDNATS SWANSON MIDGLEY LLC, CHRISTOPHER BARHORST, and HOLL Y 1. FISCHER John K. Power Michael S. Hargens Husch Blackwell Sanders, LLP 1200 Main St., Suite 2300 Kansas City, MO ( John.powcr@husch.com Michael.hargens@husch.com ATTORNEYS FOR GENERAL ELECTRIC COMPANY, GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORA non And GE TRANSPORTATION SYSTEMS GLOBAL SIGNALING, LLC 3

4 Jonathan I. Gleklen Arnold & Porter, LLC th St. N.W. Washington, D.C JOIJ~lbcan.glenklcn(cl{ap_911~r.com ATTORNEY FOR JEFFREY R. IMMEL T Chapel Ridge Multifamily, 3460 NE Akin Blvd. Lee's Summit, MO DEFENDANT LLC Regus Management Group, LLC Dallas Parkway, Ste Addison, TX c/o SCS Lawyers Incorporating Service, In~. 150 S. Perry St. Montgomery, AL DEFENDANT Lianne Zellmer Regus 2300 Main St., Suite 900 Kansas City, MO ( Lianne.zellmer@regus.com DEFENDANT Wells Fargo 420 Montgomery St. San Francisco, CA DEFENDANT Wachovia Dealer Services, Inc W. no" St., Suite 100 Overland Park, KS DEFENDANT ATTORNEYS FOR DEFENDANT TROPPITO & MILLER, LLC 4

5 r"l-' 01/12/201002:37 PM IN THE CIRCUIT COURT OF THE JACKSON COUNTY, MISSOURI ASSOCIATE CIRCUIT WACHOVIA DEALER SERVICES, INC West lloth Street, Suite 100 Overland Park, Kansas 66210, vs. Plaintiff, SAMUEL K. LIPARI 3520 NE Akin Blvd., Apt 918 Lees Summit, MO Defendant. STATE OF KANSAS AFFIDAVIT trl~ il I.t: => C \ :;1 C (1J J OJ "'0'1 ",\~*. p Case No..t ~;, l:~ (Q.I -:! SS. COUNTY OF JOHNSON.~ { ~.MI>~L~n~ J, [J c '-, after being duly sworn upon my oath, do state as follows: _ 0 '-. (,Q :t'j. or U ::x.., rt'i (fc " 0 N 7.:~ ('lj, ~: ~~* :x " ~ :: ::t.. ~ 0,.2.~c; ;;::c: N 0 Ut rt1 '" "r,' 1. I am all agent for Plaintiff Wachovia Dealer Services, Inc.f!k/a WFS Financial, Inc. ("Plaintiff' in the above-captioned matter and am authorized to make this affidavit. The following facts are based on my personal knowledge and a review of the business records of Plaintiff kept in the normal and ordinary course of business. 2. That all allegations contained in Plaintiffs Petition are true and accurate and all Exhibits attached thereto are true and accurate copies of the original documents to the best of my knowledge and belief 3. That the Retail Installment Agreement attached to {he Petition as Exhibit A is a true and accurate copy and was purchased for value by Plaintiff 3. That under the terms of the Agreement Plaintiff is entitled to the immediate, exclusive possession of the personal property described in its Petition, to-wit:

6 01/12/201002:37 PM 2004 Audi A8, VIN WAUML44E84N (hereinafter "the Vehicle", together with all attachments thereto and equipment thereon upon default by Defendant Samuel L. Lipari ("Defendant". 4. That the Vehicle is being detained unlawfully in Jackson. County,Missouri by Defendant and that Defendant refuses to payor return the Vehicle to Plaintiff. 5. That the Vehicle is of the reasonable fair market value of$18, That the Vehicle has not been seized under any process, execution or atrachment against the property of Plaintiff. 7. That Plaintiff will be in danger of losing the Vehicle unless it is taken out of the possession of the Defendant or otherwise secured. Defendant has refused to return the Vehicle without a court order. 8. That as of September 16, 2009, there is a outstanding balance on Defendant's account of $30, with continuing interest thereafter at the contractual rate of 18.99%. 9. On information and belief, Defendant is not presently an active duty member of the United States Armed Forces. FURTHER AFFIANT SAITH NAUGHT. Signature: \\'.\.~ Printed Name: Ltf4\( ~(_L,( I._' Affiant 3 Subscri bed and sworn. pp+'(1tnl:2tv-:--,2009. to before me this day of

7 01112/201002:37 PM IN THE CIRCUIT COURT OF THE JACKSON COUNTY, MISSOUIU ASSOCIATE CIRCUIT AT INDEPENDENCE WACHOVIADEALER SERVICES t INC West UOth Streett Suite 100 Overland Park, Kansas 66210, vs. SAMUEL K. 'LIPARI 3520 NE Akin m-s., Apt 918 l..ees Summit, MO ~ CV Plaintiff t Case No...:... _ '".,.. r..,.j I' Defendant, r.'" PETITION IN REPIJEVIN AND ON CONTRACT COUNT COMES NOW Plaintiff, Wachovia Dealer Services, Inc. flkla WFS Financial, Inc. ("Plaintiff', and for Count r of its cause of action against Defendant Samuel K. Lipari ("Defendant", states as follows: I 0 c; p' ;.0.,( C/' ;Ar,." i.lc ', =C:.- co n5 :":::1 c-.:: ~..., ~... - o~.. (... '. ~'~? I'V 0'\ r~':~~:; 1. Plaintiff a corporation duly organized and existing according to Jaw and authorized to transact business within the State of Missouri. 2. Defendant is a resident of Jackson County, Missouri. 3.0n January 30, 2008, Defendant entered into a Retail Installment Agreement ("Agreement" with Jay Wolfe Acura to purchase a 2004 Audi A8, VIN WAUML44E84N (the "Vehicle". A copy of the Agreement is attached hereto as Exhibit A and incorporated herein by reference. 4. Plaintiff was assigned all rights to this Agreement for value received.

8 01/12/201002:37 PM -, 5. Under the terms of the Agreement, Defendant agreed to pay monthly installments of $755.84, beginning March 15, Defendant has failed to pay as agreed. The total amount of principal and interest owing as of September 16, 2009 is $30, Under the terms on the Agreement, upon default, Plaintiff is entitled to the inunediate and exclusive possession of the Vehicle together with all attachments thereto and equipment thereon. 7. Demand for payment or return of the Vehicle has been made upon Defendant, but Defendant has refused to pay, and the Vehicle is being wrongfully detained by Defendant or others in Jackson County, Missouri. 8. The Vehicle is of the reasonable fair market value of $18, By reason of the wrongful detention of its personal property, Plaintiff has been damaged by way of depreciation, costs and expenses, all in connection herewith, the extent of which is not known to Plaintiff at this time. 10. The Vehicle has not been seized under any process, execution 0]' attachment against the property of Plaintiff. I I. Plaintiff will be in danger of losing the Vehicle unless immediate possession is obtained or the Vehicle is otherwise secured. WHEREFORE, Plaintiff Wachovia Dealer Services, Inc. prays for an order of this COUIt directing the immediate delivery of the 2004 Audi A8, VIN WAUML44E84N together with all attachments thereto and equipment thereon to Plaintiff, and for judgment against Defendant for possession of said personal property, and, in the event said personal property cannot be delivered to Plaintiff, for judgment in

9 01/12/201002:37 PM the sum of $18,800.00, with interest thereon at the legal rate, and for damages for detention in such sum or sums as may have accrued by the hearing hereof; for its costs and expenses incurred herein, and for such other and further relief as the court may deem just. COUNT II COMES NOW Plaintiff, and for Count II of its cause of action against Defendant, states: 12. Plaintiff hereby incorporates paragraphs 1 through 11 of Count 1 as though fully set forth herein. 13. Upon default by Defendant, Plaintiff sent a written Notice of Right to Cure on July 24, 2009 giving Defendant the statutory period to cure. A copy of said. Second Notice of Right to Cure is attached hereto as Exhibit B and is incorporated herein by this reference. Defendant has failed to cure the default. 14. Upon default by Defendant, Plaintiff is entitled to accelerate the entire principal balance under the terms of the Agreement. The total amount due as of September 16,2009 is $30, The Agreement provides for interest at the rate of 18.99% per annum on the continuing balance. 16. The Agreement provides for reasonable attorneys fees that have accrued and continue to accrue in this matter. 17. Upon information and belief, Defendant is not presently an active duty member of the United States AImed Forces. WHEREFORE, Plaintiff Wachovia Dealer Sen/ices, Inc. prays for judgment on Count n against Defendant in the amount of $30,961.99, plus continuing interest from

10 01/12/201002:37 PM and after September J 6, 2009 at the rate of 18.99%, for reasonable attorneys fees, for its costs and expenses incurred herein, and for such further relief as the court deems just. Respectfully submitted, By: 11 IV v I' - I v L \I.< --- "C07~ ~-~ Nicholas L. Ackerman, of Counsel MO # 508 Wahmt Street Kansas City, MO 64 I06 (T ; (F nla@.troppitomillel'.com ATTORNEYS FOR PLAINTIFF

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12 01112/201002:37 09/16/2009 PM lidoa4/004 wed 13:07 -I.1..[...j.,..- l~jj THE INFOR~\~TlON f R THIS VEHiCLE is... _ nail orl ijlfvlfiloow MAY PRnI'ISIOIlS'IN THE I i I./ I oj ~., " "_'.' _ ~, -.',... J. ~"'" "",,"4~~~

13 01112/201002:37 PM 09/16/2009 WED 13:07 FAX 1ll002/004 II WADHOVIA...' DEALER SERVICES PO BOX ::l534 SANTA ANA, CA '5343 rirst:notlce.dr CONSUMER'S RIGHT TO CURE >'.< :;,,::::..:... '.... "... ~..,'.",.,. '. '..'...,", ' SAMUEL K LIPARI 3520 NE AKIN BLVD #918 LEES SUMMIT MO 64064"7910 Account Number -0<.58.; '7'-'1.0<;5"-'97'-- -- _ Brief Identification of Credit Transaction: Doscrlpllon of Credit Transaction AUTO LOAN SIS59.1B is the AMOUNT NOW DUE. i.13l2009 is tile LAST DA Y FOR PA YMBNT, (20 days (rom the date this letter is mailed You are late in making your payment(sj. If you pay the AMOUNT NOW DUE (above} by the LAST DATE for PAYMENT [above], you may continue with the contract as Uwugh you were not late. Jfyou do not pay by thai date, we may exercise our rights under the Jaw. If you voluntarily surrender possession of Iho following specliled collateral, you could still owe additional money after the money received from the sale oflhe collaterel is deducted from the total amount you owe. Description of Collateral 2001 AUOJ A8 V8 Creditor \0 whith payment is to be made: Naltlo Address. WACHOVIA DEALER SERVICES p.0.box.2s34.l _..... _ _ ,.-. SANTA ANA, CA92?9~ Please contact Wachovia Dealer Services, Inc. altha address or telephone number listed above if you have IIny questions. NOTICE: If you are- entitled to protection under the United St&ttlilankruplcy Code (It U.s.C. U l6!; 5~1 rc~~rdlng lilt subjeci m,uer of thl8 notice, tbe: following applies II yow THJS COMMUNlCAI'ION IS NOT AN ATIEMPT TO COLLEcr, ASSESS, OR RECOVelt " CLAIM IN VlOLATlON OF TltE BANKRUPTCY CODl! AND IS MADE POR INfORMATIONAL PURPOSES ONLY.... EXHiBiT 1 {j-