IN THE DISTRICT COURT IN AND FOR GRANT COUNTY STATE OF OKLAHOMA
Autovest, LLC,
)
)
Plaintiff, )
) Case No. CJ-20-4
vs. )
)
Benjamin Weber, )
)
Defendant(s). ) )
PETITION
COMES NOW the Plaintiff, Autovest, LLC, and for its cause of action against Benjamin Weber, would allege and state as follows:
JURISDICTION AND VENUE
1. Autovest, LLC, is a foreign limited liability company with its principal place of business located at 26261 Evergreen Road, Southfield, Michigan.
2. Defendant, Benjamin Weber, is an individual residing in GRANT County, State of Oklahoma.
3. The claim alleged herein arose out of a contractual agreement between the parties.
BREACH OF CONTRACT
4. Autovest, LLC re-alleges and incorporates by reference all allegations made in Paragraphs 1-3 as if fully stated herein.
5. On August 11, 2015, the Defendant executed a Retail Installment Sales Contract ("Contract") in the amount of $14,800.00 to purchase a JEEP COMMANDER VIN 1J8HH48K59C510003. (Attached hereto as Exhibit "A" is a true and correct copy of the Contract.)
The Retail Installment Sales Contract was subsequently assigned to Autovest, LLC, the current owner of the account. (Attached hereto as Exhibit “B” is a true and correct copy of the Assignment.)
6. To further secure payment on the contract the Defendant granted a security interest in the above referenced property.
7. The date of last payment on this account was on October 9, 2015 and no further payments were made thereafter. Because the Defendant defaulted on the contract the previous owner and holder of the contract repossessed and sold the above-described property.
8. The proceeds from the sale were not sufficient to pay the entire outstanding balance and as such, the Defendant remains liable for the deficiency balance as set forth herein.
9. Autovest, LLC is filing this action for breach of contract to recover the unpaid balance of $10,703.89, with interest thereon at the applicable post judgment statutory rate per annum from the date of judgment, plus costs and fees provided for by the terms of the Contract.
WHEREFORE premises considered, Autovest, LLC demands judgment against the Defendant for the remaining balance of $10,703.89, with interest thereon at the applicable post judgment statutory rate per annum from the date of judgment, plus costs and attorneys fees provided for by the terms of the Contract and any other relief this court deems just and proper.
Respectfully submitted,
Scott F. Lehman, OBA #15908
Troy J. McPherson, OBA #32071
Hunter M. Siex, OBA #33271
Latham, Steele, Lehman, Keele,
Ratcliff, Freije & Carter, P.C.
1515 E 71st Street, Suite 200
Tulsa, OK 74136
(918) 970-2099
Attorney for Autovest, LLC
RETAIL INSTALLMENT SALES CONTRACT - SIMPLE INTEREST
BUYER(S) NAME/ADDRESS: WEVER, BENJAMIN W
1569 N STATE ST
IAMONT, OK 74643
SELLER/SECURED PARTY: SONNY CANNON AUTO PLAZA
220 W Doolin Ave
Blackwell, OK 74631
DATE OF SALE: 08/11/15
DISCLOSURES
1. ANNUAL PERCENTAGE RATE: The cost of the credit as a yearly rate.
21.00%
2. FINANCE CHARGE: The dollar amount the credit will cost.
$ 7,724.00
3. AMOUNT FINANCED: The amount of credit provided to Buyer or on his behalf as itemized below.
$ 14,800.00
4. TOTAL OF PAYMENTS: The amount Buyer will have paid after Buyer has made all payments as scheduled.
$ 22,524.00
5. TOTAL SALES PRICE: The total cost of the purchase on credit, including Buyer's down payment.
$ 1,100.00
Net amount financed $ 21,424.00
PAYMENT SCHEDULE WILL BE:
NO. OF REGULAR PAYMENTS: 49
AMOUNT OF PAYMENTS:
Regular $ 450.48
Plus Final Payment $ 450.48
FREQUENCY OF PAYMENTS: Monthly
DUE DATE OF PAYMENTS:
First Payment 09/25/15
Final Payment 10/25/19
Prepayment: If Buyer pays off early, Buyer will not have to pay a penalty.
Late Charge: If a payment is late, Buyer will be charged a fee of $______ or 5% of the unpaid amount of the payment, whichever is greater.
See Retail Installment Sales Contract, Security Agreement and related contract documents for additional information about nonpayment, default, any required repayment in full before the scheduled date, and prepayment refunds and penalties.
SECURITY/COLATERAL:
Boxes checked apply to this transaction:
X The signer(s) of the Security Agreement are giving a security interest in the following property:
7009 JEEP COMMANDER 1JRH48K59C5100003
USED
Collateral securing other sales by Seller to Buyer also secures this Contract.
Assumption Policy: Someone buying Buyer’s house:
may, subject to certain conditions, be allowed to assume the remainder of the mortgage on the original terms.
cannot assume the remainder of the mortgage.
10.00 N/A
Fees paid in Cash by Buyer: Filing Fees $ __________ Non-Filing Insurance $ __________
ITEMIZATION OF AMOUNT FINANCED
$ 15,691.00 | CASH PRICE (including Accessories, Sales Tax, Service and Service Protection provided by Seller)
$ 1,100.00 | Cash Down Payment N/A
N/A | Manufacturer's Rebates N/A
N/A | Trade-in (disclosure) $ 0.00
N/A | Payoff Balance on Trade-in (if any). Paid to N/A
N/A | Net Allowance on Trade-in (Subtract Line 5 from line 4)
$ 1,100.00 | Total Cash Down and Net Trade (Add lines 2, 3 and 6. If amount is negative enter same positive amount on line 17)
$ 1,100.00 | Credit Life Insurance Premium (Enter amount from Line 17 for positive amounts; or enter "0" if line 17 is required)
$ 14,591.00 | Unpaid Balance of Cash Price (Subtract Line 8 from line 17)
7. Includes P.O.S. Charges on title #1. Certain sellers may require a percent or number designated with an asterisk.
8. N/A
9. N/A
10. N/A
11. N/A
12. N/A
$ N/A 11 Disability Insurance Premium to N/A
$ N/A 12 Other Insurance Premium to N/A
$ 10.00 13 Filing and Releasing Fees to Public Officials
$ 44/8 14 License, Title and Registration to
$ N/A 15 Service Contract to N/A
$ 109.20 16 Processing Fee
$ N/A 17 To N/A
$ N/A 18 To N/A
$ 709.00 19 Total Amounts Paid to Others on Behalf of Buyer (Add lines 10 through 18)
$ N/A 20 Less Prepaid Finance Charge.
$ 41,800 21 AMOUNT FINANCED (Add lines 9 and 19, less Prepaid Finance Charge entered on line 20)
If this Contract arises from a consumer credit sale of a used vehicle (as defined in Part 455 of Title 16 of the Code of Federal Regulations) then the information you see on the window form for this vehicle is part of this Contract. Information on the window form overrides any contrary provisions in the Contract of sale.
DISCLAIMER OF WARRANTIES
Seller's oral statements about the property described herein do not constitute warranties and shall not be relied upon by Buyer. To the extent permitted by law, Seller disclaims all express and implied warranties (including, without limitation, the implied warranties of MERCHANTABILITY and fitness for a particular purpose) with respect to the goods sold; provided, however, if a written warranty is provided to Buyer with this sale or Seller and Buyer enter into a service contract for the property within 90 days after this Contract, the implied warranties of MERCHANTABILITY and fitness for a particular purpose are not disclaimed but shall be limited in duration to the duration of the written warranty.
CREDITOR/ASSIGNEE
AFRICAN AUTO FINANCE, LLC
S 18TH CITY DRIVE, ALPHARETTA GA 30004
CHAMPAIGN, ILL, 61822
ADDITIONAL PROVISIONS ON REVERSE SIDE
COLLECTION COSTS: The Seller may charge and collect from the Buyer the maximum fee permitted by law for each return by a bank or other depository institution of a dishonored check, negotiable order of withdrawal or check draft issued to Seller in connection with this sale. This fee shall be in addition to all other fees, finance charges, fees and additional charges which the Seller may charge and collect. Buyer will not be entitled to any refund or rebate. Buyer agrees to pay the costs of enforcing the security interest, and to pay attorney fees, not to exceed 15% of the unpaid debt after default, if allowed by law at the time this Contract is signed.
BUYER(S) SIGNATURES
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.
I/We agree to terms of this Retail Installment Sales Contract, the Security Agreement, Disclosure Statement, and Payment Schedule, including Additional Provisions printed on reverse side hereof. I/We have received a completed copy of this form as of Date of Sale indicated above. If applicable, the window form is attached and is complete and correct.
X__________________________
X__________________________
X__________________________
EXHIBIT B
BILL OF SALE AND ASSIGNMENT
Pelican Auto Finance, LLC, a limited liability company formed under the laws of Delaware with an office at 5 Christy Dr., Suite 204, Chadds Ford, PA 19317 ("Seller") hereby absolutely sells, transfers, assigns, sets-over and conveys to Autovest, L.L.C. with an office at 26261 Evergreen Road, Suite 390, Southfield, MI 48076 ("Buyer") without recourse and without representations or warranties, express or implied, of any type, kind or nature except as set forth in the Agreement (hereinafter defined):
(a) all of Seller's right, title and interest in and to each of the Accounts identified in the Account Schedule attached hereto as Exhibit A (the "Accounts") and the other elements of the Account Packages (as defined in the Agreement), and
(b) all principal, interest or other proceeds of any kind with respect to the Accounts, but excluding any payments or other consideration received by or on behalf of Seller on or prior to May 15, 2017, with respect to the Accounts.
This Bill of Sale is being executed and delivered pursuant to and in accordance with the terms and provisions of that certain Purchase and Sale Agreement made and entered into by and between Seller and Buyer dated June 30, 2017 (the "Agreement"). The Accounts and Account Packages are defined and described in the Agreement and are being conveyed hereby subject to the terms, conditions and provisions set forth in the Agreement.
This Bill of Sale shall be governed by the laws of the State of Delaware without regard to the conflicts-of-laws rules thereof.
DATED: June 30, 2017
SELLER:
By: ____________________________
Name: Troy Cavallaro
Title: CEO
COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF DELAWARE )
On June 30, 2017 before me the undersigned officer, personally appeared Troy Cavallaro, who acknowledged him/herself to be the CEO of Pelican Auto Finance, LLC., an authorized signer and sealer of the foregoing instrument, and that he/she as such officer, being authorized so to do, acknowledged the execution of the same to be his/her free act and deed as such officer and the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand.
[signature] Helen Crane
Notary Public COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
HELEN CRANE
Notary Public
CHADDS FORD TOWNSHIP, DELAWARE COUNTY
My Commission Expires Jul 16, 2017
EXHIBIT E
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Pelican Auto Finance, LLC, a Delaware limited liability company, having its principal office at 5 Christy Dr., Suite 204, Chadds Ford, PA ("Seller"), with respect to those certain purchased Accounts, described in that certain Purchase and Sale Agreement dated June 30, 2017 (the "Agreement") between Seller and Autovest L.L.C., a Michigan limited liability company ("Buyer"), hereby names, constitutes and appoints Buyer, or any of its authorized agents, employees or representatives, its duly authorized attorney and agent with limited power and authority as it relates to the Accounts to (i) endorse checks and other negotiable instruments which may be received by Buyer; (ii) perfect, maintain, and release any security interests; (iii) transfer and obtain any titles, evidence of ownership or Account Documents; (iv) settle any insurance claims or litigation and apply for any insurance, warranty or sales tax refunds; (v) file any transfer of claim associated with a filed bankruptcy claim; (vi) transfer or release any judgment; (vii) file or execute any document related to the collection of the Accounts; and (viii) to perform any and all acts relating to the Accounts which the undersigned was entitled to do as the owner of said Accounts.
Notwithstanding the foregoing, however, the undersigned expressly withholds and excludes from this grant of power and authority to its Attorney-in-Fact the power to sign declarations on behalf of the undersigned, or to contractually bind the undersigned in any other respects, except those granted by this Limited Power of Attorney. Further, no right or authority is granted to the Attorney-in-Fact to substitute another attorney-in-fact in its place and stead under this Limited Power of Attorney or to sue in the name or on behalf of the undersigned. Any third party without actual notice may rely upon this power granted under this Limited Power of Attorney upon the exercise of such power by the Attorney-in-Fact named herein that all conditions precedent to such exercise of power have been satisfied and that this Limited Power of Attorney has not been revoked in its entirety or with respect to any particular receivable unless an instrument of revocation or exclusion has been executed and delivered to any such third party. This Limited Power of Attorney is not intended, nor shall it be construed, to (1) grant powers to the Attorney-in-Fact not specifically authorized herein or (2) impair any indemnification of the undersigned by the Attorney-in-Fact.
Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Agreement.
EXECUTED this 30th day of June, 2017,
Seller:
By:
Name: Troy Cavallaro
Title: CEO
COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF DELAWARE ) ss.
On June 30, 2017 before me the undersigned officer, personally appeared Troy Cavallaro, who acknowledged him/herself to be the CEO of Pelican Auto Finance, LLC., an authorized signer and sealer of the foregoing instrument, and that he/she as such officer, being authorized so to do, acknowledged the execution of the same to be his/her free act and deed as such officer and the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand.
[Signature]
Notary Public
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
HELEN CRANE
Notary Public
CHAIDS END TOWNSHIP, DELAWARE COUNTY
My Commission Expires Jul 16, 2017
ASSIGNMENT AGREEMENT
This Assignment is attached to and expressly made a part of that certain Motor Vehicle Retail Installment Contract ("Contract") dated 8/11/15 by and between:
Seller (Dealer): Sonny Cannon Auto Plaza Buyer(s): Benjamin Weber
It is expressly understood and agreed that Pelican Auto Finance, LLC ("PAF") is substituted each and every time where the name:
Sonny Cannon Auto Plaza appears on the Retail Installment Contract ("Contract") described herein. For value received, Seller hereby expressly sells, assigns, and transfers all of Seller's rights, title, and interest in the Contract, in all monies due and to become due there under, and in and to the vehicle and other property and security interests described therein, to PAF and/or its successors, assigns, subsidiaries, or affiliates. Additionally, all representations, warranties, indemnifications, guaranties and hold harmless provisions made by Seller specified in the Contract, and all other terms of the assignment contained therein, are hereby made in favor of PAF.
This Assignment specifically includes, but is not limited to, all rights, title, and interest of Seller in any insurance policies and other products (and the proceeds thereof) purchased, endorsed, or obtained by said Buyer(s) under the terms of the Contract. This Assignment specifically includes all rights, title, and interest of Seller in and to the vehicle including any property, collateral or security interest described or provided for in the Contract.
This Assignment, upon execution by Seller, shall assign Seller's rights in the Contract to PAF and not to any assignee(s) named in the Contract. This Assignment shall not be deemed to relieve Seller from any liability for the breach of any warranties, representations or agreements contained herein or in the Contract or in the Dealer Agreement between PAF and Dealer.
VIN#: 1J8HH481C59C510003
Year, Make, & Model: 2009 Jeep Commander
Seller-Dealership (please print): X Sonny Cannon Auto Plaza
Seller's Agent (please print): X Kylee
Agent's Signature: X
Title of Agent: X Sales
Date of Assignment: X 8/11/15
