25-41323-0ZC6 007
IN THE DISTRICT COURT OF TULSA COUNTY
STATE OF OKLAHOMA
ALLY BANK,
Plaintiff,
vs.
BROOKLYN ESPINOSA
and
JIMMY T ESPINOSA,
Defendants.
No.
PETITION FOR INDEBTEDNESS
COMES NOW the Plaintiff, by and through its undersigned attorneys who hereby enter their appearance herein, and for its cause of action against Defendants allege and state as follows:
1. Defendants executed a contract with Plaintiff relating to the purchase of collateral with the account number XXXXXXXX4977. The contract granted to Plaintiff a security interest in the collateral. Defendants defaulted on the obligations required under the contract. After all due credits were applied to the indebtedness owed by Defendants, there remained a balance due.
2. Defendants remain indebted to Plaintiff in the amount of $13,522.54, inclusive of credits, adjustments, interest, and fees, if applicable.
WHEREFORE, Plaintiff prays for Judgment against the Defendants in the sum of $13,522.54, with interest at the statutory rate from the date of judgment, all court costs and a reasonable attorney's fee, and for such other and further relief as this Court may deem equitable, just and proper.
William L. Nixon, Jr., #012804
Harley L. Homjak, #019736
Peggy S. Horinek, #010344
Jenifer A. Gani, #021876
Alexander M. Hall, #33900
Mariah S. Ellicott, #36309
Mingmei "Elaine" Pok, #36236
LOVE, BEAL & NIXON, P.C.
Attorney for Plaintiff
P.O. Box 32738
Oklahoma City, OK 73123
Telephone: 405-720-0565
E-Mail:
[email protected]
RETAIL INSTALLMENT SALE CONTRACT – SIMPLE FINANCE CHARGE (WITH ARBITRATION PROVISION)
Buyer/Retail Address (Including County and Zip Code)
BROOKLYN M ESPINOSA
9608 S 75TH E AVE # 8209
TULSA, OK 74133 TULSA
Co-Buyer Name and Address (Including County and Zip Code)
JIMMY T ESPINOSA
9608 S 76TH E AVE # 8209
TULSA, OK 74133 TULSA
Seller/Co-seller (Name and Address)
BILL KNIGHT LINCOLN VOLVO
4111 South Memorial
Tulsa, OK 74146
You, the Buyer (and Co-Buyer, if any), may buy the vehicle below for cash or on credit. By signing this contract, you choose to buy the vehicle on credit under the agreement on the reverse side of this contract. You agree to pay the Seller/Creditor (sometimes "we" or "us" in this contract) the amount stated on the Reverse Side of this Contract. Your payments will be made according to the payment schedule below. We will figure your finance charge on a daily basis. The Truth-In-Lending Disclosures below are part of this contract.
<table>
<tr>
<th>Year</th>
<th>Make and Model</th>
<th>Odometer</th>
<th>Vehicle Identification Number</th>
<th>Primary Use For Which Purchased</th>
</tr>
<tr>
<td>NEW</td>
<td>VOLVO XC40</td>
<td>9</td>
<td>YV4162UKRXX450157</td>
<td>N/A</td>
</tr>
</table>
FEDERAL TRUTH-IN-LENDING DISCLOSURES
ANNUAL PERCENTAGE RATE
The annual percentage rate on your credit as a yearly rate
6.99% $11,161.32 $48,369.00 $59,530.32
Your Payment Schedule Will Be:
<table>
<tr>
<th>Frequency of Payment</th>
<th>Amount of Payment</th>
<th>When Payments Are Due</th>
</tr>
<tr>
<td>72</td>
<td>$826.81 MONTHLY</td>
<td>beginning 01/05/2021</td>
</tr>
<tr>
<td>N/A</td>
<td>N/A</td>
<td></td>
</tr>
<tr>
<td>N/A</td>
<td>N/A</td>
<td></td>
</tr>
</table>
Late Charge: If payment is not received in full within 10 days after it is due, you will pay a late charge of either $25.00 or 3% of the part of the payment that is due, whichever is greater.
Prepayment: You may pay your balance owed to pay off your credit obligation early.
Security Interest: You are giving a security interest in the vehicle being purchased.
Additional Information: See this contract for more information including information about nonpayment, default, any required repayment in full before the scheduled date and security interest.
FINANCING OF AMOUNT FINANCED
1 Cash Paid (including taxes) N/A sales/excise tax $4,610.00 (a)
2 Total Downpayment N/A
3 Trade-in Amount (Year) N/A (model) N/A
Great Trade-in Allowance N/A N/A
Less Pay Off Value By Seller N/A N/A
Equals Net Trade In N/A N/A
+ Cash REBATE N/A $1,000.00
- Other N/A N/A
- Other N/A N/A
[If trade off amount is negative, enter “0” and see 4 below] $4,710.00 (a)
4 Other Charges Including Amounts Paid On Your Behalf N/A $4,710.00 (a)
(Seller may vary per these amounts)
A Cost of Optional Credit Insurance Paid to Insurance Company or Companies N/A N/A
Life N/A N/A
Carriage N/A N/A
Work’s Single Interest Insurance Paid to Insurance Company N/A N/A
Other Optional Insurance Paid to Insurance Companies or Companies N/A N/A
D Optional Gas Contract N/A N/A
E Office Fees Paid to Settlement Agents N/A N/A
F Government Taxes Included in Cash Price N/A N/A
G Government Licenses and Registration Fees N/A N/A
LICENSE AND/OR REG. FEES $10.00
H Government Certificate of Title Fees N/A N/A
I Other Charges (Seller must identify who is paid and describe purpose) N/A N/A
(a) Prior to payment of Balance $4,710.00
b BILL KNIGHT LINCOLN VOLVO $249.00
c VOLVO INCREASING SERVICE CONTRACT $4,500.00
d N/A N/A
e N/A N/A
f N/A N/A
g N/A N/A
h N/A N/A
i N/A N/A
j N/A N/A
k N/A N/A
l N/A N/A
m N/A N/A
n N/A N/A
o N/A N/A
p N/A N/A
Total Other Charges and Amounts Paid to Others on Your Behalf $4,759.00q
Total Amount Financed (3 + 4) $48,369.00
OWNERS SINGLE INTEREST INSURANCE (VS insurance): If the preceding box is checked, the Creditor requires VS insurance for the credit term to be extended to protect the Creditor for loss or damage to the vehicle (theft, fire, fire, accident). This VS insurance is for the Creditor's sole protection. This insurance does not protect your interest in the vehicle. You may obtain the information concerning the annual cost of the VS insurance by checking with the Creditor or other insurance company at the time of application for credit. Any insurer issuing VS insurance reserves its right to subrogate against the Buyer.
OPTION: You pay no finance charge if the amount financed, item 5, is paid in full on or before .N/A__________. Year/N/A . SELLER'S INITIALS .N/A.
OPTIONAL GAP CONTRACT: A gap contract (title cancellation contract) is not required to obtain credit and will not be provided unless you sign below and agree to pay the extra charges. If you choose to buy a gap contract, the charges are shown in line 42 of the statement of Amount Financed. See your gap contract for details on the terms and conditions it provides. It is a part of this contract.
Term N/A Male N/A Name of Gap Contract N/A
Agreement to Arbitrate: By signing below, you agree that, pursuant to the Arbitration Provision on the reverse side of this contract, you or we may elect to resolve any dispute by neutral binding arbitration and not by litigation in court. See the Arbitration Provision for additional information concerning the agreement to arbitrate.
Buyer Sign__________________________ Date 11/21/2020
Brooklyn Espinosa
Buyer Printed Name BROOKLYN M ESPINOSA
Co-Buyer Printed Name JIMMY T ESPINOSA
Co-Buyer Signature ____________________________
Date 11/21/2020
NO COOLING OFF PERIOD
State law does not provide for a "cooling off" or cancellation period for this sale. After you sign this contract, you may only cancel it if the Seller fails to deliver or performs substantially less than promised; otherwise, you cannot cancel this contract simply because you change your mind. This notice does not apply to home solicitation sales.
The Annual Percentage Rate may be negotiable with the Seller. The Seller may assign this contract and retain its right to receive a part of the Finance Charge.
HOW THE CONTRACT CAN BE CHANGED: This contract contains key agreements between you and us relating to this contract. Any change to this contract must be in writing and signed by both parties to this contract. See the Arbitration Provision for additional information regarding this agreement to arbitrate.
NOTICE TO RETAIL BUYER: Do not sign this contract in blank. You are entitled to a copy of the contract at the time you sign. Keep it to protect your legal rights.
You agree to the terms of this contract. You confirm that before you signed this contract, we gave it to you, and you were free to read it and review it. You acknowledge that you have read both sides of this contract, including the arbitration provision on the reverse side, before signing below. You confirm that you received a completely filled-in copy when you signed it.
Buyer Sign X Brooklyn Espinosa Date 11/21/2020
Brooklyn Espinosa
Buyer Printed Name BROOKLYN M ESPINOSA
Co-Buyer Printed Name JIMMY T ESPINOSA
Co-Buyer Signature ____________________________
Date 11/21/2020
Insurance: You may buy the physical damage insurance that the Creditor requires (see below) from anyone you choose that provides insurance or automatically from the Creditor. You may purchase a comprehensive or collision policy covering the vehicle. By signing this contract, you are agreeing that the Seller is not required to buy any other insurance to obtain credit unless the Seller's Single Interest Insurance is requested above.
If any insurance is checked below, policies or certificates of insurance or insurance companies that describe the terms and conditions.
Check the insurance you want and sign below:
Optional Credit Insurance
Credit Life Buyer Co-Buyer Both N/A
Cash Disability Buyer Co-Buyer Both N/A
Credit Disability N/A N/A N/A
Insurance Company Name N/A N/A N/A
Home Office Address N/A N/A N/A
Other Optional Insurance
Type of Insurance N/A N/A
Premium $ N/A N/A
Insurance Company Name N/A
Home Office Address N/A
Other optional insurance is not required to obtain credit. Your decision to buy or not buy other optional insurance will not be a factor in the credit approval process. It will not be provided if you sign and agree to pay the extra cost.
I want the insurance checked above.
X N/A Date
X N/A Signed
Co-Buyer Signature ____________________________
Date ________________
THIS INSURANCE DOES NOT INCLUDE INSURANCE ON YOUR LIABILITY FOR BODILY INJURY OR PROPERTY DAMAGE CAUSED TO OTHERS. WITHOUT SUCH INSURANCE YOU MAY NOT OPERATE THIS VEHICLE ON PUBLIC HIGHWAYS.
Returned Check Charge: You agree to pay a charge of $25.00 if any check you give us is dishonored.
If the business uses a box name for Which Purchaser: Print Name N/A Title N/A
Co-Buyers and Other Owners - a co-buyer is a person who is responsible for paying the entire debt and an other owner is a person whose name is on the title to the vehicle but does not have a formal loan from this lender. You can agree to the secured status of the vehicle given to the credit contract.
Other owners sign ___________________________________________ Address ______________________ Title ______________________
Seller assigns no interest in the contract to ALLY FINANCIAL Assigned under terms of Seller's agreement with Assignee ______ Assigned with limited recourse ____________
By Seller ____________________________ Date ______________________ Title ______________________
BILL KNIGHT LINCOLN VOLVO
OTHER IMPORTANT AGREEMENTS
1. FINANCE CHARGE AND PAYMENTS
a. How we calculate your Finance Charge. We will figure the Finance Charge on a daily basis at the Annual Percentage Rate on the unpaid part of the Amount Financed.
b. How we apply payments. We will apply each payment to the unpaid part of the finance charge, to the unpaid part of the Amount Financed and to other amounts you owe under this contract in any order we choose as described below.
c. How late payments or early payments change what you owe. Your scheduled payments, Annual Percentage Rate of Payments, and Total Sales Price shown on the front of the assumption that you will make every payment on the day it is due. If you make a partial payment, the next scheduled "Total Sales Price will be more if you pay late and less if you pay early. Changes may take the form of larger or smaller final payments, or of several smaller monthly payments. We use the same amount as your scheduled payment with a smaller final payment. We will send you a notice telling you about these changes before they become effective and once a month thereafter.
d. You may prepay. You may prepay all or part of the unpaid part of the Amount Financed at any time without penalty. If you do prepay, we will credit any prepayment toward your Finance Charge and all other amounts due up to the date of your payment.
e. Your right to refinance a balloon payment. A balloon payment is a scheduled payment that is more than twice as large as the average of your earlier scheduled payments. If you are using the vehicle primarily for personal, family, or household use, you have the right to refinance the balloon payment when due without penalty. The terms of the refinanced loan cannot be worse than those stated in the contract. This provision does not apply if we adjusted your payment schedule to your seasonal or irregular income.
2. YOUR OTHER PROMISE TO US
a. If your vehicle is damaged, destroyed, or missing. You agree to pay us all you owe under the contract even if the vehicle is damaged, destroyed, or missing.
b. Usages that void your warranty. If you remove the vehicle from the U.S. or Canada, or to sell, rent, lease, or transfer any interest in the vehicle or this contract without our written permission, your warranty is void. This also applies if you assign, negotiate, or encumber title; if you pay any repair bills, storage bills, taxes fines, or charges on the vehicle, without our written consent; or if you repay the amount when we ask it.
c. Security Interest.
You give us a security interest in:
• The vehicle and all goods put out on it;
• All money or goods received (proceeds) for the vehicle;
• All insurance, maintenance, service, or other contracts we permit you to hold;
• All proceeds from insurance, maintenance, service, or other contracts we finance for you. This includes any required minimum premium as set by the insurer.
This secures payment of all you owe on this contract. It also secures your other agreements in this contract. You will not allow anyone to have a security interest in the vehicle without our written permission.
d. Insurance.
You agree to have physical damage insurance covering loss or damage during any period or the term of the contract. The insurance must cover our interest in the vehicle. You agree to name us on your insurance policy as an additional insured or loss payee. If you do not have this insurance, we may refuse to buy physical damage insurance or we may give you either buy insurance policy or pay a higher cost of financing the vehicle, or buy insurance that covers only our interest. If we buy either type of insurance, we will tell you which type and how much it costs, including the difference between the new product and the price charged for the same coverage at the Annual Percentage Rate shown on the front of the contract. We will charge you extra if you agree. We may deny our any insurance settlement refund you owe or repair the vehicle.
e. What happens to returned insurance, maintenance, service, or other contract charges. If we get a refund of insurance, maintenance, service, or other contract charges, you agree that we may subtract the refund from what you owe.
3. IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES
a. You may owe late charges. You will pay a late charge on each late payment as shown on the front. Acceptance of a late payment will not end the default. Late payment or payment that you may keep making late payments.
If you pay late, we may also take the steps described below.
b. Your breach of promise. If you fail to keep your promise (default), we may demand that you pay all you owe on this contract at once. Default means:
• Your breach of any agreement or covenant;
• You give false, incomplete, or misleading information during credit applications;
• You have a garnishment, bankruptcy or one is started against you or your property; or
• You break any agreements in this contract.
The amount you owe is all the unpaid part of the Amount Financed plus the earned and unpaid part of the Finance Charge plus any late charges, and any amounts due because you defaulted.
NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOREHEREUNDER.
The preceding NOTICE applies only to goods or services obtained primarily for personal, family, or household use. In all other cases, Buyer will not assert against any subsequent holder or assignee of this contract any claims or defenses the Buyer (debtor) may have against the Seller, or against the manufacturer of the vehicle or equipment obtained under this contract.
ARBITRATION PROVISION
PLEASE REVIEW - IMPORTANT - AFFECTS YOUR LEGAL RIGHTS
1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.
2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY COLLECTIVE ACTION INDIVIDUAL ARBITRATION.
3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to this transaction or the subject matter hereof (including but not limited to any claim based on breach of contract or tort, or involving any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral binding arbitration and not by a court action. If federal law provides that a claim or dispute is not subject to binding arbitration, this Arbitration Provision shall not apply to such claim or dispute, but shall be arbitrated by a single arbitrator on an individual basis and not as a class action. You may request the American Arbitration Association (www.adr.org) or any other organization to conduct the arbitration subject to our approval. You may get a copy of the rules of an arbitration organization by contacting the organization or visiting its website.
Arbitrators shall be attorneys or retired judges and shall be selected pursuant to applicable rules. The arbitrator shall apply governing substantive and procedural law, except to the extent that determining the arbitrability of a claim or dispute or governing the forum in which hearing should be conducted in the federal district in which you reside unless the Seller-Creditor is a party to the claim or dispute, in which case the hearing will be held in the federal district where this contract was executed. We will pay your filing, administration, service or case management fees and your arbitrator or hearing fee up to a maximum of $500 per side per claim or dispute. We will pay your fees and expenses only if an arbitrator finds that any of your claims is frivolous under applicable law. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. If the chosen arbitration organization's rules conflict with the Arbitration Provision, then the provision of this Arbitration Provision shall control. Any entry under this Arbitration Provision shall be governed by the Federal Arbitration Act (9 U.S.C. et seq.) and not by any state law concerning arbitration. Any award by the arbitrator shall be in writing and will be final and binding on all parties, subject to any limited right to appeal under the Federal Arbitration Act.
You and we hereby give up the right to seek a small claims court for disputes or claims within that court's jurisdiction, unless such actions are transferred, removed or appealed to a different court. Neither you nor we have the right to arbitrate by using self-help remedies, such as repossession, or by filing an action to recover the vehicle, to recover a deficiency balance, or for individual injunctive relief. Any court having jurisdiction may enter judgment on the arbitrator's award. The Arbitration Provision shall survive any termination, payoff or transfer of the loan or sale of the vehicle. The Arbitration Provision shall be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this Arbitration Provision shall be unenforceable.
