IN THE DISTRICT COURT OF MCCURTAIN COUNTY
STATE OF OKLAHOMA
Ally Bank
vs.
Albert D Reid,
COURT CLERK'S OFFICE
County of McCurtain, State of Oklahoma
FILED
Plaintiff,
vs.
Albert D Reid,
Defendant.
FEB 2 1 2020
VICKI JUSTUS, Court Clerk
By__________________________
Deputy
No. CJ-20-15
PETITION FOR INDEBTEDNESS
COMES NOW Plaintiff, by and through its undersigned attorneys who hereby enter their appearance herein, and for its cause of action against Defendant alleges and states as follows:
1. Defendant executed a contract with Plaintiff relating to the purchase of collateral with the account number XXXXXXXX2871. Defendants defaulted on the obligations required under the contract. After all due credits were applied to the indebtedness owed by Defendant, there remained a balance due.
2. Defendant remains indebted to Plaintiff in the amount of $10,959.07 , inclusive of credits, adjustments, interest, and fees, if applicable. An Affidavit of Account and/or contract is attached hereto and incorporated by reference.
WHEREFORE, Plaintiff prays for Judgment against Defendant in the sum of $10,959.07, 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
David Mueller,#18783
Harley L. Homjak, #019736
Neil Cooley, #033080
Peggy S. Horinek, #010344
Tracy Cotts Reed, #013577
LOVE, BEAL & NIXON, P.C.
Attorney for Plaintiff
P.O. Box 32738
Oklahoma City, OK 73123
Telephone: 405/720-0565
Fax: 405/720-9570
E-Mail:
[email protected]
ALLY BANK,
Plaintiff,
vs.
ALBERT D REID,
Defendant
AFFIDAVIT AS TO AMOUNTS DUE AND OWING
AND MILITARY SERVICE OF DEFENDANT(S)
STATE OF TEXAS
COUNTY OF DENTON
BEFORE ME this day personally appeared _______Kelecta Johnson_____ (Affiant) who first being duly sworn (or affirmed), deposes on personal knowledge and says:
1. Affiant is over 18 years old and competent to make this affidavit. Affiant is authorized to execute this affidavit on behalf of the Plaintiff as an employee of Plaintiff.
2. The account that is the subject of the above-styled action ("Account") relates to credit given to and owed by Defendant to Plaintiff pursuant to and in accordance with an agreement for the purchase or lease (as applicable) of a motor vehicle. Attached as Exhibit 1 is a true and correct copy of such agreement.
3. Plaintiff maintains the records for the Account in the ordinary course of its business. As part of Affiant's job responsibilities, Affiant has access to business records related to the Account. Affiant, as a custodian of the attached business records for the Plaintiff, makes this affidavit based on his/her personal knowledge of the manner and method by which the Plaintiff creates and maintains the attached business records. Such business records were made at or near the time by, or from information transmitted by, a person with knowledge, kept in the course of regularly conducted business activity and it was the regular practice of Plaintiff to make such business records.
4. Defendant failed to pay the amounts due on the Account. Attached as Exhibit 2 is a true and correct copy of the notification mailed to Defendant regarding the remaining
obligation under the Account as of the date of such notification. Attached as Exhibit 3 is a true and correct copy of certain business records of the Plaintiff which reflect that as of the date of this affidavit, the outstanding balance justly owed to Plaintiff by Defendant, exclusive of all set-offs and just grounds of defense, is $10,959.07. The outstanding balance justly owed includes any and all payments, credits, rebates, adjustments and charges posted to the Account after the date of Exhibit 2. The outstanding balance justly owed equals the amount in the “Total Outstanding Balance” field less any court costs, service of process fees or other legal costs incurred by Plaintiff in the instant action but not yet awarded by the Court. Such legal costs, if any, will be identified as an entry or entries with a “Description” of “Legal Costs” on the attached Exhibit 3.
5. Affiant reviewed certain business records of the Plaintiff to determine whether the Defendant is in military service. Such business records do not indicate that the Defendant is in military service. In addition, Plaintiff obtained a certificate as to military service of the Defendant from the Defense Manpower Data Center (DMDC). Attached as Exhibit 4 is/are true and correct copy(ies) of the DMDC certificate(s). Based upon the foregoing, Affiant states that Defendant is not in military service.
FURTHER AFFIANT SAYETH NOT.
______________________________
Kelecia Johnson
Kelecia Johnson
Portfolio Coordinator
The foregoing instrument was sworn to (or affirmed) and subscribed before me this 19 day of November, 2019, by Kelecia Johnson (Affiant) who (X) is personally known to me or ( ) produced ____________________________ as identification.
Type/Print Name Here: Sarah Grayson-Witt
NOTARY PUBLIC, State of Texas
EXHIBIT 1 REDACTED
OTHER TERMS AND CONDITIONS
1. FINANCE CHARGES AND PAYMENTS.
2. HOW WE CALCULATE THE FINANCE CHARGE. We compute the Finance Charge using the daily periodic rate method as defined in 15 U.S.C. §1601 et seq. It's based on the outstanding balance. The daily period rate equals the annual percentage rate (APR) divided by 365 (or 366 in leap years). The number of days between two dates determines the number of days used in calculating your Finance Charge. For example, if the APR is 18%, the daily periodic rate is approximately 0.049% (18% / 365). The number of days between the date you received your last payment and today’s date will determine how much of a day’s interest is added to your balance. The amount owed is the sum of all payments made plus all charges for which finance charges apply.
HOW YOUR MONTHLY PAYMENT IS COMPUTED:
a. PRINCIPAL. The principal is the amount of money you owe us now, before any interest or fees are added.
b. INTEREST. Interest is the cost of borrowing money. It is calculated daily based on the unpaid balance. The interest rate is fixed throughout the term of the loan.
c. FEES. Fees include any charges such as origination fees, insurance premiums, or other charges that we may charge you on your account.
d. OTHER CHARGES. Other charges may include late payment charges, returned check fees, or other charges we may assess for violations of the terms of the contract.
HOW YOUR REMAINING PRINCIPAL DETERMINES WHAT YOU MUST PAY NEXT:
We base the Finance Charge, Total of Payments, and Total Amount Owed on your remaining unpaid principal. You’ll see these amounts change as you pay down the principal, and the amount due each month will decrease accordingly. If you fail to pay the minimum amount due by the due date, the amount charged to your next statement may increase because additional interest will be charged on the unpaid balance. If you make scheduled payments early, your Finance Charge will be reduced. If you reduce your scheduled payments, your Finance Charge will increase.
TRANSFER OF RIGHTS:
We may transfer this contract to another person. That person will have all our rights under the contract.
SPECIAL PROVISIONS FOR BALLOON PAYMENT CONTRACTS:
If this contract is a balloon payment contract, we may extend the term of this contract to reduce the monthly payments. You must agree to this change in writing. If you do not agree, we may refuse to extend the term. If we extend the term, the payments will be higher than the current payments. If you default after the extension period, we may sell the vehicle without notice or repossession. Any proceeds may not be enough to pay off the loan. If the proceeds are not enough to pay off the loan, you will still owe the difference. If we sell the vehicle without notice, we may use the proceeds to pay taxes, liens, and other charges against the vehicle. If the vehicle is sold at auction, we may keep up to half of the proceeds to pay for storage, transportation, and other expenses. If more than half of the proceeds are not enough to pay off the loan, you will still owe the difference.
YOUR OTHER PROMISES TO US
USE AND TRANSFER OF THE VEHICLE: You will not sell or transfer the vehicle without our written consent. If you breach this promise, we may demand full payment of the contract and take possession of the vehicle.
GUARANTIES: You will not breach any warranty, guarantee, or other promise made by us. If you do, we may demand full payment of the contract and take possession of the vehicle.
CARE OF THE VEHICLE: You agree to keep the vehicle in clean condition and protect it from theft, vandalism, and damage. You will not permit anyone else to drive the vehicle without our written permission. If you do, we may demand full payment of the contract and take possession of the vehicle.
CANCELLATION: You cannot cancel this contract unless your vehicle is subject to a lease agreement. Under federal law, you can cancel this contract if the vehicle is subject to a lease agreement and you have not yet taken possession of the vehicle. If you cancel the contract, you must return the vehicle within ten days and pay any charges we incur in returning the vehicle.
INSTALLMENT SALES CONTRACTS: Contracts for the sale of goods such as automobiles may require separate contracts for the sale of the vehicle, any insurance policies required by law or by the seller, and any financing arrangements. If we sell the vehicle to another person, we may assign the contract for the sale of the vehicle, the contract for the sale of any insurance policy, and the contract for the financing arrangement. If we assign the contracts, the new owner may have rights under the contract.
ACCIDENTS, COLLISIONS, OR DAMAGE TO THE VEHICLE: If the vehicle is involved in an accident, collision, or other damage, you must notify us immediately. We may demand full payment of the contract and take possession of the vehicle. If the vehicle is damaged, we may request an appraisal. If the vehicle is totaled, we may demand full payment of the contract and take possession of the vehicle.
GUARANTIES: You agree to abide by the warranties, guarantee, or other promises made by us. If you breach any of these, we may demand full payment of the contract and take possession of the vehicle.
LEGAL LIMITATIONS ON OUR RIGHTS:
If we don’t enforce our rights every time, we can still enforce them later. This doesn’t mean we’ve given up any rights or that you don’t have to pay interest charges or fees. If we decide to sue you for breach of contract, we may be forced to pay other fees or costs to defend ourselves even if we win.
BILL OF SALE/RELEASES OF WARRANTIES:
Unless the seller makes a written warranty in addition to the contract, the manufacturer’s warranty is void. If a third party makes a warranty, the manufacturer’s warranty is void. If the vehicle is not registered as a new vehicle, the manufacturer’s warranty is void.
FINANCIAL RECOVERY PROGRAM AND SERVICE CONTRACT CHARGES:
If we get a return on insurance or service contract claims, we may use the proceeds to repay part of the loan. If so, we will subtract it from what you owe. Once all the proceeds from our end are paid, any remaining balance will be paid to you.
OTHER Charges AND MECHANICAL PROBLEMS AND SERVICE CONTRACT CHARGES:
If we get a return on insurance or service contract claims, we may use the proceeds to repay part of the loan. If so, we will subtract it from what you owe. Once all the proceeds from our end are paid, any remaining balance will be paid to you.
APPLICATION OF CREDIT: Any credit that reduces your debt faster than your payments in necessary order when they are due, under this contract is invalid under law. The amount of the credit and all interest, charges or markup on the credit must be specified in your statement of your payments.
IF YOU PAY LESS THAN YOUR DUE AMOUNTS:
LATE CHARGE: You will pay a late fee if your payments are late.
DEFAULT: You will be in default if:
- You do not make your payment when it is due.
- Your credit card expires or otherwise information on a credit card is incorrect.
- You stop making payments for any reason.
- You breach any of your promises in this agreement.
- We decide to take action against you for breach of any of our rights under this contract.
OUR RIGHT TO DEMAND FULL PAYMENT IN FULL: If you default, or if we demand that you repay the entire amount of the money we’ve lent you, any proceeds we get from selling the vehicle or repossession, or any other proceeds, we can demand full repayment of all that you owe us, whether we actually get any of those funds or not. If we demand full repayment of all that you owe us, we are demanding a refund of money that was lent to you, and we are demanding that you pay back anything owed to us.
REPOSSESSION: If you default, we may repossess the vehicle by any means permitted by law, including seizing the vehicle with a mechanical device, or agree that we may use that device to take control of the vehicle. If the vehicle is not in the vehicle, we may cause the vehicle to be sold at auction or by private sale, and we may retain any proceeds. If you don’t want us to sell the vehicle, we must notify us within 30 days. If we sell or otherwise dispose of the vehicle, we will give you notice that we have disposed of the vehicle and any proceeds. If you don’t notify us of your objection, we may dispose of the vehicle as described above.
RIGHT TO ACCOMMODATE: If we take your vehicle, we will let you have reasonable opportunity to pay in full. If you do not pay in full, we will sell or otherwise dispose of your vehicle, and we will try to get the vehicle back, as described above. If we sell the vehicle, we will give you notice that the vehicle has been sold and any proceeds, and we will give you an opportunity to pay in full. If you don’t pay in full, we will not give you an opportunity to pay in full until the vehicle has been sold.
DISPOSITION OF THE VEHICLE: If you don’t pay in full within thirty days, we will sell or otherwise dispose of the vehicle. If we sell the vehicle, we will give you notice that the vehicle has been sold and any proceeds, and we will give you an opportunity to pay in full. If you don’t pay in full, we will not give you an opportunity to pay in full until the vehicle has been sold.
COLLECTION COSTS: If we hire an attorney who is not our employee to collect the contract, we may add the attorney’s fees and court costs to the contract price. If you lose in court, you may be responsible for paying all the attorney’s fees and court costs. If you don’t pay in full, we may report the non-payment to one or more credit agencies. If you do not pay in full, we will give you an opportunity to pay in full.
CHANGES IN CONTRACTS: If you want to change this contract, you must write to us. If you change the contract, you must meet the same requirements as if you had signed the contract originally.
INTEGRATION AND SEPARABILITY CLAUSE:
This contract contains the entire agreement between you and us regarding the terms of the loan. All previous agreements, representations, and warranties are superseded by this contract. You agree that this contract cannot be changed orally, except by a written signed amendment signed by both parties.
LEGAL LIMITATIONS ON OUR RIGHTS:
If we don’t enforce our rights every time, we can still enforce them later. This doesn’t mean we’ve given up any rights or that you don’t have to pay interest charges or fees. If we decide to sue you for breach of contract, we may be forced to pay other fees or costs to defend ourselves even if we win.
BILL OF SALE/RELEASES OF WARRANTIES:
Unless the seller makes a written warranty in addition to the contract, the manufacturer’s warranty is void. If a third party makes a warranty, the manufacturer’s warranty is void. If the vehicle is not registered as a new vehicle, the manufacturer’s warranty is void.
FINANCIAL RECOVERY PROGRAM AND SERVICE CONTRACT CHARGES:
If we get a return on insurance or service contract claims, we may use the proceeds to repay part of the loan. If so, we will subtract it from what you owe. Once all the proceeds from our end are paid, any remaining balance will be paid to you.
OTHER CHARGES AND MECHANICAL PROBLEMS AND SERVICE CONTRACT CHARGES:
If we get a return on insurance or service contract claims, we may use the proceeds to repay part of the loan. If so, we will subtract it from what you owe. Once all the proceeds from our end are paid, any remaining balance will be paid to you.
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 REMEDED IF THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREBY.
THE PROVISION APPLIES TO THIS CONTRACT ONLY IF THE VEHICLE FINANCED IN THE CONTRACT WAS PURCHASED FOR PERSONAL, FAMILY, OR HOUSEHOLD USE.
EXHIBIT 1
ally
P.O. Box 380901
Bloomington, MN 55438-0901
(800) 241-0172
ALBERT D REID
237 BAYBERRY RD
BROKEN BOW, OK 747286296
December 15, 2017
How We Calculated Your Surplus or Deficiency
Subject: Account Number[REDACTED]2871
Your 2013 CHEV SILVERADO, VIN 3GCPKSE77DG354061, was sold on November 30, 2017. We have also exercised our right to require payment of the full amount owed (the accelerated balance, not just the past due payments). As of the date of this letter, the amount you still owe us under the terms of your contract is $10,959.07. This amount was calculated as follows:
Unpaid (accelerated) balance before subtracting money from sale $ 33,489.32
This amount was calculated as of December 15, 2017
Money from sale
Unpaid balance minus money from sale - 23,200.00
$ 10,289.32
Known expenses of taking, holding, preparing for sale, processing, and selling vehicle, attorney fees, and other legal expenses:
Repossessing & transporting $ 527.25
Storage & reconditioning 27.50
Selling costs 50.00
Title & registration fees 65.00
Attorney fees and legal expenses the law permits 0.00
Total expenses + 669.75
Known credits:
Rebate of unearned insurance premiums $ 0.00
Extended service contract refunds 0.00
Insurance and service contract claims 0.00
Total credits - 0.00
Deficiency/(surplus) $ 10,959.07
The amount of any deficiency/surplus shown above may change because of future additional credits, rebates, or charges. Any deficiency shown above may also change because of additional interest accruing after the date of this letter.
EXHIBIT 2
REDACTED
For more information about this transaction or to make payment arrangements, you may call us at the telephone number at the top of this letter or write us at the address at the top of this letter.
Sincerely,
Ally Financial
EXHIBIT 3
REDACTED
Department of Defense Manpower Data Center
Status Report
Pursuant to Servicemembers Civil Relief Act
SSN: XXX-XX-2609
Birth Date:
Last Name: REID
First Name: ALBERT
Middle Name: D
Status As Of: Nov-19-2019
Certificate ID: NSV973HVVDL0SOS
On Active Duty On Active Duty Status Date
<table>
<tr>
<th>Active Duty Start Date</th>
<th>Active Duty End Date</th>
<th>Status</th>
<th>Service Component</th>
</tr>
<tr>
<td>NA</td>
<td>NA</td>
<td>No</td>
<td>NA</td>
</tr>
</table>
This response reflects the individuals' active duty status based on the Active Duty Status Date
Left Active Duty Within 367 Days of Active Duty Status Date
<table>
<tr>
<th>Active Duty Start Date</th>
<th>Active Duty End Date</th>
<th>Status</th>
<th>Service Component</th>
</tr>
<tr>
<td>NA</td>
<td>NA</td>
<td>No</td>
<td>NA</td>
</tr>
</table>
This response reflects where the individual left active duty status within 367 days preceding the Active Duty Status Date
The Member or His/Her Unit Was Notified of a Future Call-Up to Active Duty on Active Duty Status Date
<table>
<tr>
<th>Order Notification Start Date</th>
<th>Order Notification End Date</th>
<th>Status</th>
<th>Service Component</th>
</tr>
<tr>
<td>NA</td>
<td>NA</td>
<td>No</td>
<td>NA</td>
</tr>
</table>
This response reflects whether the individual or his/her unit has received early notification to report for active duty
Upon searching the data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the status of the individual on the active duty status date as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty.
[signature]
Michael V. Sorrento
Michael V. Sorrento, Director
Department of Defense - Manpower Data Center
400 Gigling Rd.
Seaside, CA 93955
EXHIBIT 4
The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense (DoD) that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems.
The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act (50 USC App. ? 501 et seq, as amended) (SCRA) (formerly known as the Soldiers' and Sailors' Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the individual is currently on active duty" responses, and has experienced only a small error rate. In the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual was on active duty for the active duty status date, or is otherwise entitled to the protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service. Service contact information can be found on the SCRA website's FAQ page (Q33) via this URL: https://scra.dmdc.osd.mil/faq.xhtml#Q33. If you have evidence the person was on active duty for the active duty status date and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked against you. See 50 USC App. ? 521(c).
This response reflects the following information: (1) The individual's Active Duty status on the Active Duty Status Date (2) Whether the individual left Active Duty status within 367 days preceding the Active Duty Status Date (3) Whether the individual or his/her unit received early notification to report for active duty on the Active Duty Status Date.
More information on "Active Duty Status"
Active duty status as reported in this certificate is defined in accordance with 10 USC ? 101(d)(1). Prior to 2010 only some of the active duty periods less than 30 consecutive days in length were available. In the case of a member of the National Guard, this includes service under a call to active service authorized by the President or the Secretary of Defense under 32 USC ? 502(f) for purposes of responding to a national emergency declared by the President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the unit they support. This includes Navy Training and Administration of the Reserves (TARs), Marine Corps Active Reserve (ARs) and Coast Guard Reserve Program Administrator (RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S. Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps).
Coverage Under the SCRA is Broader in Some Cases
Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods. Title 32 periods of Active Duty are not covered by SCRA, as defined in accordance with 10 USC ? 101(d)(1).
Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service. Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of the SCRA extend beyond the last dates of active duty.
Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA are protected
WARNING: This certificate was provided based on a last name, SSN/date of birth, and active duty status date provided by the requester. Providing erroneous information will cause an erroneous certificate to be provided.
