FILED: KINGS COUNTY CLERK 03/23/ :09 PM

Transcription

1 STATE OFNEWYORK SUPREME COURT COTINTY OF KINGS AUTOVEST, L.L.C., -against- CL\ÐE W. BAGOT, Plaintiff, Defendant. Index No.: /2012 AFFIDAVIT IN SUPPORT OF INQUEST ONPAPERS STATE OF MICHIGAN ) ) ss.: COUNTYOFOAKLAND ) Julie Allen-Rains, being duly swom, deposes and says that: 1. I am an officer, to wit: Legal Supervisor for the Plaintiff, Autovest, L.L.C. (hereinafter "Plaintiff '), in the above-captioned action. 2. The Plaintifl at all times mentioned, is and was a foreign Limited Liability Cotporation, duly authorized to conduct business in the State of New York and having aa office and place of business located in the city of Southfreld, county of oakland, and state of Michigan. 3. I make this Affidavit in Support of PlaintifP s Motion for Summary Judgment on its First and Second Causes of Action against the Defenda-nt, Clyde W. Ragot (hereinafter "Defendant"). 4. I make this Affidavit from personal knowledge and from knowledge derived from the books and records of Plaintiff regularly kept in its ordinary course of business, which records are under my direct supervision and control. 5. I am familiar with the facts and circumstances set forth in this Affidavit by reason of the examination of the books and records maintained by Plaintiff in the ordina y course of 1 of 7

2 business. 6. As part of my emplol'rnent with plaintiff, I have personal responsibility for the management of the account of Defendant, clyde w. Bagot (hereinafter "Defendant"). I am one of the custodians of the books, records and files of Plaintiff as they pertain to the obligations of the Defendant. 7. I have personally reviewed Plaintiffs books, records and files and, as to the following facts, I know them to be true based on my o\4'n knowledge and my review of Plaintiffls books, records and files. The books, records and files of Plaintiff are kept under my supervision. 8. The information contained in those books, records and files was recorded in the ordinary course of business at or about the time of the events, transactions or occurrences referenced in the records by persons with personal knowledge of the events, transactions or occurrences being recorded and with a business duty to accurately record such events, t ansactions or occulrences. 9. This Affidavit is in support of Plaintiffs request for entry of judgment against Defendant in the above-captioned action. 10. On or about May I, 2006, Defendant executed a Retail Installment Contract (hereinafter "contract"), wherein and whereby Defendant promised to pay to the order of Stadium Motors Inc. (hereinafter "Dealer") the Plaintiffs assignor, the sum Fifty-Five Thousand Eight Hundred ren and 80/100 ($55,810.80) Dollars, in sevenry-two (72) equal monthly installments Seven Hundred seventy-five and 15/100 ($775.15) Dollars each, commencing on June 15, 2006, and one (1) installment due on the same date of each successive month tlereafter until paid in full. Said contract was for the purchase of one (1) 2003 Lincoln Aviator (v.i.n. 2 of 7

3 5LMEU78H03ZJ2996 ) (hereinafter "vehicle"). A true a d original certified copy of rhe contract which has been notarized is attached hereto as Exhibit (.A" and made part hereof. 11. Defendant also granted a security interest in the Vehicle to the Dealer, pursuant to the terms of the Contract. 12. The contract was assigned by the Dealer to wells Fargo Auto Finance (hereinafter "The original creditor") pursuant to the Assignment of contract. A true and original certified copy of the Assignment of contract dated May l, 2006 which has been nota ized is annexed he eto as Exhibit..8" and made part hereof. 13. Thereafter, the contract was duly assigned by the original creditor to the Plaintiff herein for good arid valuable consideration, and the Plaintiff is now the owner and. holder of the Contract. True and original certified copies of the Assignment of Installment Contract and Bill of Sale and Assignment of Receivables Pursua t to Flow purchase Agreement which have been notarized a e arurexed hereto as Exhibit "crt and made part hereof. 14. Defendant was in default of his payment obligations to Plaintiff, pursuant to the terms and conditions of the contract, as a result of his failure to make payments when due and owing. 15. Based upon Defendant's failure to make payments when due and his subsequent failure to cure his default, The Original Creditor elected to declare the entire balance due and owing under the Contract. 16. The Original Creditor repossessed the Vehicle a d in accordance with applicable law, mailed to Defendant notice of its plan to sell property. A true and original certified copy of the "Notice of our Plan to Sell Property" dated August 9, 2008 which has been notarized is annexed hereto as Exhibit..Dt' and made part hereof. 3 of 7

4 I7. The Vehicle was liquidated at auction in a commercially reasonable manner in accordance with the provisions ofthe Uniform Commercial Code and Personal Property Law for the sum of Five Thousand rwo Hundred and 00/100 ($5,200.00) Dollars. The proceeds of the sale were credited to the balance due and owing from the Defendant. A true and original certified copy of the Deficiency Notice dated october 31, 2008 which has been notarized, constituting verification ofdebt is annexed hereto as Exhibit,,E" and made part hereof. 18. That the reasonable expenses of retaking, storing, and reselling the Vehicle as the private sale amounted to one Thousand rwenty-three and 98/100 ($1,023.99) Doliars. se Ex. E. 19. As of November 3, 2008, the Defendant was indebted to the Plaintiff in the sum of rwenty-nine Thousand rhree Hundred rhirry-five and 88/100 ($29,335.98) Dollars, with interest thereon as provided by the Contract at the annual rate of 13.65% per annum, exclusive of attomeys' fees and costs. However, the Plaintiff has elected to pursue the principal amount of Twenty-six thousand Six Hundred rwenty-five and 31/100 ($26,625.31) Dollars by waiving accrued interest prior to November 3,2008, plus interest thereon from November 3, Prior to the Court vacating the Judgment on January 5, 2015, the plaintiff received payments via income execution totaling one Thousand Eleven and 81/100 ($1,011.91) Dollars. 21. After crediting the Defendant with the aforementioned payments, the Defendant remains indebted to the Plaintiff in for the principal amount of rwenty-five Thousand six Hundred Thifeen and 50/100 ($25,613.50) Dollars ($26, $1, : $25,613.50). A true and accurate copy of the Payment Activity Report is annexed hereto as Exhibit..F,' and made part hereof. 4 of 7

5 22. That despite requests from the Plaintiff, the Defendant has not made any payments on said balance. 23. That the Contract contains Defendant's agreement to pay Plaintiff s attomeys' fees in the instant case, not to exceed l5vo of the unpaid balance of the Contract, and results in the amount due from Defenda t for PlaintifP s attomeys' fees in the amount of Two Thousand Eight Hundred Eighty and 00/100 ($2,880.00) Dollars, as well as costs and disbursement ofthis action which total seven Hundred Forty-Three and 00/100 ($743.00).,S Ex. A at para. entitled "Collection Costs." 24. An outline of the amounts demanded by Plaintiff herein are set forth in the Statement of Amount Due, attached hereto as Exhibit,,G" and made part here. 25. To date, the Defendant has not made any payments to the Plaintiff on the unpaid amounts due and owing under the Contract as reflected in the Statement of Amount Due. S e Ex. F. 26. Ln accordance with the above, the Plaintiff respectfully submits this affidavit. [Remainder ofpage intentionally left blank] 5 of 7

6 ë FILED: KINGS COUNTY CLERK 03/23/ :09 PM INDEX NO /2012 ; rii.l il.l tl fl :l WHEREFORE, on behalf of Plaintiff, Autovest, L.L.C., deponent respectfully requests that an order be made dismissing Defendant's Notice of Appearance and verified Answer, and directing judgment in favor of Plaintiff as demanded in its Summons with Notice and Verified complaint against Defendant, ctyde w. Bagot, in the amount of $25,613.50, plus interest thereon at the contractual rate of 13.65%o per annum ftom November 3, 2008, plus attomeys' fees in the amount of$1,320.00, costs a d disbursements of this action and for such other and further relief as the Court may deem just and proper. Dated: Southfield, Michigan },4arch /.2017 Swom to before me this /Z day ofmarch, of 7

7 CERTIFICATE OF CONFORMITY /lrcabnl t ool F 60"]lrols, an attorney at law of ihe State of, who resides in the State ot y'llchlêân and is fully acquainted with the laws of the State of l4rchbâl perlaining to the acknowledgment or proof of deeds of real property to be recorded therein, do hereby certify that I am duly qualified to make this certificate of conformity and hereby ceriify that the acknowledgment or proof upon the foregoing document was taken by, a Notary Public in the State of.* éhlâtla/, in the mannei proscribed by the laws of the State of l,lnhta / and conforms to the laws thereof in all respects. IN WITNESS WHEREOF, I have hereunto set my signature this / '7- dav or /(LP.C,/+, lo /Í '--- --/>-Ø Attorney at Law, State o'f /l'llêhß/4n/ 7 of 7