IN THE DISTRICT COURT OF BRYAN COUNTY
STATE OF OKLAHOMA
NCB MANAGEMENT SERVICES, INC. )
Assignee of Fulton Ford )
)
Plaintiff,
vs. )
Case No.: CS-26-228
ERIC CUNNINGHAM )
Defendant.
PETITION ON DEFICIENCY
COMES NOW Plaintiff, NCB MANAGEMENT SERVICES, INC. Assignee of Fulton Ford, by and through its Attorneys, Berman & Rabin, P.A., and for its cause of action against Defendant, ERIC CUNNINGHAM ("Defendant"), states as follows:
1. NCB MANAGEMENT SERVICES, INC. Assignee of Fulton Ford is a legal entity organized pursuant to the law.
2. ERIC CUNNINGHAM is believed to reside in the County of BRYAN.
3. ERIC CUNNINGHAM executed and delivered to NCB MANAGEMENT SERVICES, INC. Assignee of Fulton Ford or Plaintiff's assignor, (collectively "Plaintiff"), a contract, a copy of which is attached hereto, made part hereof and marked "Exhibit A".
4. The Defendant breached the contract by failing to pay one or more of the payments when due and is in default.
5. After the Defendant's default, NCB MANAGEMENT SERVICES, INC. Assignee of Fulton Ford elected to declare the entire unpaid balance due, as provided in the contract.
6. After the default, the collateral identified in the contract was either repossessed or voluntarily surrendered to NCB MANAGEMENT SERVICES, INC. Assignee of Fulton Ford or Plaintiff's agent.
7. Thereafter, a notice of intended sale of the collateral was mailed to the Defendant, a copy of which is attached hereto, made part hereof and marked "Exhibit B".
8. Thereafter, the collateral was sold at public auction or private sale.
9. Each and every aspect of the disposition of the collateral was commercially reasonable because:
a. The collateral was sold at a regularly occurring sale of motor vehicles that was advertised.
b. The collateral was sold at a time during the day when one would normally expect a sale to occur.
c. The collateral was sold at a place where one would normally expect a sale to occur.
10. After sale of the collateral, a notice setting forth the surplus or deficiency was mailed to the Defendant, a copy of which is attached hereto, made part hereof and marked "Exhibit C".
11. Demand has been made upon the Defendant for payment thereof, but ERIC CUNNINGHAM has failed to pay NCB MANAGEMENT SERVICES, INC. Assignee of Fulton Ford, the balance due in the amount of $6,821.24. Plaintiff's affidavit of account is attached hereto marked as "Exhibit D".
WHEREFORE, Plaintiff, NCB MANAGEMENT SERVICES, INC. Assignee of Fulton Ford, prays for judgment against Defendant, ERIC CUNNINGHAM, for the sum of $6,821.24, plus interest on any judgment rendered by this Court at the contractual rate of 6% per annum from the date of judgment, for all Court costs, and for such other and further relief this Court deems equitable, just and proper.
In addition, pursuant to 40 O.S. Sec. 4-508(D), Plaintiff requests that, upon entry of judgment in favor of Plaintiff herein, an order be entered directing the Oklahoma Employment Security Commission to produce employment information of the Judgment Debtor from the records in their possession upon service of a certified copy of the Order within 120 days subsequent to the filing date of the Journal Entry of Judgment and Order.
Respectfully submitted,
BERMAN & RABIN, P.A.
[signature]
Crystal Griffin, OK #31460
PO Box 1382
Choctaw, OK 73020
(913) 649-1555
FAX (913) 652-9474
EMAIL:
[email protected]
ATTORNEY FOR PLAINTIFF
ATTORNEY LIEN CLAIMED
849805-FCL
RETAIL INSTALLMENT SALE CONTRACT
SAMPLE FINANCE CHARGE
Buyer’s Name and Address (Including County and Zip Code)
ERIC CUMMINS
Co-Buyer’s Name and Address (Including County and Zip Code)
N/A
Dealer/Dealer (Name and Address)
Fulton Ford Inc.
1328 S Business St
FULTON MO 63231
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 agreements on the front and back of this contract. You agree to pay the Seller—Creditors (hereinafter “we” or “us”) in this contract the Amount Financed and Finance Charge in U.S. funds 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>New/Used</th>
<th>Year</th>
<th>Make and Model</th>
<th>Operator</th>
<th>Vehicle Identification Number</th>
<th>Primary Use For Which Purchased</th>
</tr>
<tr>
<td>USED</td>
<td>2020</td>
<td>MITSUBISHI MIRAGE</td>
<td>33,292</td>
<td>H4L22A3N02LH04205</td>
<td>N/A</td>
</tr>
</table>
<table>
<tr>
<th>FEDERAL TRUTH-IN-LENDING DISCLOSURES</th>
<th></th>
<th></th>
<th></th>
<th></th>
<th></th>
<th></th>
<th></th>
<th></th>
<th></th>
</tr>
<tr>
<td>ANNUAL PERCENTAGE RATE</td>
<td></td>
<td colspan="7">The cost of your credit as a yearly rate.</td>
<td>26.2%</td>
</tr>
<tr>
<td>YOUR FINESOURCE CREDIT CARD RATE</td>
<td>$ 16,240.16</td>
<td colspan="7">The dollar amount of the amount you will pay each month to us or your bank.</td>
<td>$ 14,245.09</td>
</tr>
<tr>
<td>AMOUNT FUNDED</td>
<td colspan="2"></td>
<td colspan="7">The amount to be financed or the amount you want to borrow.</td>
<td>$ 30,602.16</td>
</tr>
<tr>
<td>TOTAL OF ALL OTHER FINANCING FEES OR CHARGES *</td>
<td colspan="2"></td>
<td colspan="7">Other fees or charges, such as administration or processing fees or charges.</td>
<td>$ 16,240.16</td>
</tr>
<tr>
<td>Total of Payments Due</td>
<td colspan="2"></td>
<td colspan="7">The total amount due to us or your bank over the terms of the agreement.</td>
<td>$ 32,102.16</td>
</tr>
<tr>
<td>Your Payment Schedule Will Be:</td>
<td colspan="2"></td>
<td colspan="7">( ) means an estimate</td>
<td></td>
</tr>
<tr>
<td>Number of Payments Due Each Month</td>
<td>72</td>
<td></td>
<td>Amount Paid Each Monthly Payment</td>
<td colspan="6">monthly beginning 11/3/2022</td>
<td></td>
</tr>
<tr>
<td>N/A</td>
<td>N/A</td>
<td></td>
<td>N/A</td>
<td colspan="6">N/A</td>
<td></td>
</tr>
</table>
Late Charge. If a payment is not received in full within 18 days after it is due, you will pay a late charge of 2% of the part of the payment that is late. If the payment due is $50 or less, the minimum late charge will be $5.00.
Prepayment. You may partly or wholly pay off your balance at any time without penalty.
Disclaimer. If you give us security interest in the vehicle being purchased, additional documents and agreements may be required. This contract contains important information about nonpayment, default, any required repayment in full before the scheduled date and security interest.
ITEMIZATION OF AMOUNT FINANCED
1 Cash Sale Price
Customer price (including manufacturer’s fee) N/A $ 13,995.00
An administrator fee is NOT AN OFFICIAL FEE AND IS NOT REQUIRED BY LAW. AN ADMINISTRATOR MEANS A PERSON WHO IS NOT A DEALER, SUPPLIER, OR EMPLOYEE OF THE DEALER OR SUPPLIER, WHO IS NOT INVOLVED IN THE SALE OR LEASING OF THE VEHICLE, WHO IS NOT INVOLVED IN THE PERFORMANCE OF ANY SERVICES RELATED TO THE SALE OR LEASING OF THE VEHICLE, AND WHO IS NOT INVOLVED IN THE PERFORMANCE OF ANY SERVICES RELATED TO THE PROVISION OF LEGAL, ACCOUNTING, OR FINANCIAL ADVICE. AN ADMINISTRATOR DOES NOT REPRESENT THE DEALER OR SUPPLIER.
Other N/A $ N/A
Other N/A $ N/A
Other N/A $ N/A
Total Cash Sale Price $ 14,995.00 (2)
2 Trade-in + Trade-in 2004 Jeep Grand Cherokee 1J4KX4851AC156964 (N/A) $ 1,080.00
Open Trade-In Adjustment $ N/A
Less Amount Owed to Seller $ N/A
Equivalently Trade-In
- Cash $ 360.00
- Other N/A $ N/A
- N/A $ N/A
Total Trade-In $ 1,300.00 (3)
Total Wholesale or Cash Sale Price (1 minus 2) $ 12,995.00 (2)
3 Other Charges Paid on Behalf of Buyer or Seller
(Select one part of these amounts)
- Cost of Optional Credit Insurance Life N/A $ N/A
Disability N/A $ N/A
Other Optional Insurance Paid to Insurance Company or Companies N/A $ N/A
4 Other Charges Paid on Behalf of Buyer or Seller
- Charges Paid Under Government Agreement N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- Government Fees Included in Cash Sale Price N/A $ N/A
- Government License Entry Registration Fees $ N/A
- State Sales Taxes $ 11.00
Other Charges (Enter item description and actual amount paid here.) N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
- N/A N/A $ N/A
Grand Total Amount Presented (Line 2 + Line 3 + Line 4) $ 14,562.00 (4)
Returned Check Charge. You agree to pay a charge of $.25 to $.25 if any check you give us for settlement or any electronic payment is unpaid.
OPTIONAL GAP CONTRACT. This optional contract (see attached contract) is not required to obtain credit and will not affect your protection against underinsured or uninsured motorists. See your gap contract for details on the terms and conditions. It is separate from this contract.
Payee:
N/A
This is a signature card. All entries made on this card become a part of your account and may be used by us in connection therewith.
NAME: ERIC CUMMINS Signature: EX. A Date: SIGNATURES: Buyer Signed X N/A Date: N/A Co-Buyer Signed X N/A Date: N/A
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 or creditor fails to deliver the vehicle without cause or if 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 THIS CONTRACT CAN BE CHANGED. This contract contains the entire agreement between you and us relating to this contract. Any change or an amendment must be in writing and we must sign it. No oral changes are binding. Buyer Signed X N/A Date: N/A
If any part of this contract is not valid, all other parts may still be valid. We may delay or retain this extending any of our rights under this contract without being late. For example, we may extend your term to pay without penalty unless we tell you what changes we will make.
See back for other important information.
Notice to the Buyer:
Do not sign this contract before you read it or if it contains any blank spaces. You are entitled to an exact copy of the contract you sign. Under the law you have the right to pay off in advance the full amount due and to obtain a partial refund of the finance charge if the time price differential.
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 take it and review it. You confirm that you received a completely filled-in copy when you signed it.
Buyer Signed X N/A Date: 9/21/2022 Co-Buyer Signed X N/A Date: N/A
Buyer Printed Name: ERIC CUMMINS Co-Buyer Printed Name: N/A
Print Name as it appears in Kelley Blue Book Vehicle Purchaser Print Name: N/A
Other names appearing on the title of the vehicle(s): N/A
Co-Buyers and Other Owners—A co-buyer is a person who is responsible for paying the entire debt. An owner is a person whose name is on the title to the vehicle but does not have to pay the debt. The other owner persons are the security interests in the vehicle given to us in this contract.
Other owner signs here X N/A Address: N/A
Seller agrees Fulton Ford, Inc. Date: 9/21/2022 X Signature: EX. A
Other seller signs are attached to this contract to MANDATORY CONSUMER USA INC Underwritten under the terms of Seller’s agreements with Insurer(s).
All assigned without recourse Assigned without limited recourse
ORIGINAL LIENHOLDER
OTHER IMPORTANT AGREEMENTS
1. FINANCE CHARGE AND PAYMENTS
a. How we figure Finance Charges. We will figure the Finance Charge on the Amount Financed at the Annual Percentage Rate on the unpaid part of the Amount Financed.
b. How we will apply payments. We may apply each payment you send us under this contract in any order we choose as the result of any agreement between us.
c. These late payments or early payments charges what you owe. We will add the Late fees, Fees, Charges, Amount of Payments, and Total Sale Price shown on the front of this statement if you make every payment on the day it is due. Your Finance Charge Total Sale Price shown here. Your Sale Price will be more if you pay late and less if you pay early. If you have a fixed payment larger than eventual fixed payment or, at our option, more or less payments of the same amount as your scheduled payment with a smaller final payment and a larger final payment, we will divide these charges before the final scheduled payment is due.
d. You may propose. You may propose and accept the unpaid part of the vehicle. Payment must be received by us if you do so, you must pay the earned and unpaid part of the Finance Charge and all other amounts due up to the date of your payment.
2. YOUR OTHER PROMISES TO US
a. If the vehicle is damaged, destroyed, or missing. You agree to pay us all of your under this contract even if the vehicle is damaged, destroyed, or missing.
b. Using this vehicle. You agree not remove the vehicle from our toll free area without our written permission. You agree not to expose the vehicle to misuse, neglect, or any abnormal condition. You agree to pay all repair bills, storage bills, taxes, fines, or charges on the vehicle and agree to repay the amount when we ask for it.
c. Security Interest
* You give us a security interest in:
* Your right to possession of goods not yet paid for;
* All money or goods received (proceeds) for the vehicle;
* All insurance, maintenance, service, or other contracts that relate to the vehicle;
* All proceeds from insurance, maintenance, service, or other contracts related to the vehicle. THIS INCLUDES ANY REFUNDS OF PREMIUMS OR OTHER REBATES.
This secure payment of all you owe on this contract. It also secures payment of any additional charges that may arise. Tell make sure the title shows our security interest ( lien ) in the vehicle. You will not allow any other security interest to be placed in the vehicle without written consent of us.
d. Insurance you must have on the vehicle.
You must maintain continuous insurance covering loss or damage to the vehicle for the term of this contract. You agree to name us on your insurance policy as an additional insured. Chapter laws. Underinsured vehicle laws. With evidence of the insurance coverage required by the contract, we may buy insurance at your expense to protect our interests. The insurance may include collision and protection against theft. The coverage that we may not pay, but only after providing us with evidence of the insurance coverage required by the contract. If we buy insurance for the vehicle, you will be responsible for payment of insurance premium, finance and insurance charges we may impose in connection with the placement of the insurance and for the actual cost of the insurance, plus any insurance settlement to reduce what we 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 have to pay a late payment charge or a late payment charge on the last payment. Accrual of a late payment or late charge does not excuse your late payment. Interest rates and late fees are subject to change. If you pay late, we may also take the steps described below.
* You may have to pay all you owe at once. If you break your promise, we may demand that you pay all you owe at once after we give you any notice the law requires.
* You do not make any payment when due; or
* You start proceeding to bankruptcy or one is started against you; or
* You provide us false or incomplete information during credit application; or
* You break any agreements in this contract; except that these agreements that are made in default may not significantly impair the process of payment, performance, or delivery of the vehicle.
The amount you will owe will be the unpaid part of the Amount Financed plus the earned and unpaid part of the Finance Charge and 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 COMMODITY OR RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
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.
c. You may have to pay collection costs. If we hire an attorney who is not our salaried employee to collect what you owe, we will pay his/her fee, costs, and expenses, including court costs, as the law allows. The maximum attorney's fee you will pay will be 15% of the amount you owe. You will also owe costs for collection, including service of process.
d. We may take the vehicle from you. If you default, we may take (repossess) the vehicle from you after we give you any notice the law requires. We will take the vehicle if you do so peacefully and the law allows. If your vehicle has an electronic tracking device installed or we find out that you may use the device to find the vehicle, it is safe from repossession, any accessories, equipment, and replacement parts will also be taken. We will sell the vehicle as soon as possible. We may store them for you. If you do not set for these items sold, we may deposit them as the safe storage.
f. How we will take back the vehicle. If we take it, we repossess the vehicle, you may pay it back (redeem). We will release you from all other rights to the vehicle, unless and until we sell the vehicle.
g. We will sell the vehicle if you do not get it back, if you do not pay us a satisfactory amount, or if we send you a written notice of sale before selling the vehicle.
h. We will apply the money from the sale (less above-mentioned costs) toward what you owe. Any remaining expenses we pay as a direct result of taking the vehicle, holding it, or selling it. For example, storage, advertising, and court costs the tax penalties are also allowed expenses. If any money left (surplus), we will pay it to you unless the next sale price and all other charges owed by you. If the sale is not enough to pay the amount you owe, you must pay the rest to us or provide equivalent. If you do not pay the rest within days, we may charge you interest at a rate not exceeding the highest lawful rate until you pay.
i. We may do about optional insurance, maintenance, service, or other contracts. The contract may contain details about optional insurance, maintenance, service, or other contracts. If we demand that you pay all you owe on this contract, you agree that we may claim benefits under these contracts if we can prove to obtain refunds of unwarranted charges to reduce what you owe. If the contract states that the warranty is void because it is conflicted, damaged, or stolen, we may maintain balance under these contracts and cancel them to obtain proceeds equal to the value of what you owe.
4. WARRANTIES/BUILDER DISCLAIMERS
Unless the Seller makes a written warranty, or enters into a service contract within 20 days from the date of this contract, the manufacturer provides the warranty or service on the vehicle, and there will be no implied warranties of merchantability or fitness for a particular purpose. This provision may affect everyone buying a vehicle that the vehicle manufacturer may provide.
5. USED CAR BUYERS GUIDE. The Information you see on the window form for this vehicle is part of this contract. These provisions in this contract override any contrary provisions in the contract of sale.
6. SERVICING AND COLLECTION CONTACTS
We will contact you in writing, by e-mail, or using prerecorded/vocalized voice messages, or text messages, and automatic telephone dialing system, as the law allows. We also reserve the right to send you a third party collection agency to any address or telephone number you provide us, even if the telephoning number is a cell phone number or the contact results in a charge to you.
7. APPLICABLE LAW
Federal law and the law of the state of Missouri apply to this contract.
This provision applies only if the vehicle will be used for personal, business or other non-commercial purposes.
Oral agreements or commitments to lend money, extend credit or to forbear from enforcing repayment of a debt owe by borrower(s) are not enforceable unless reduced to writing. To protect you (borrower(s)) and us (creditor) from misunderstanding or disagreement, any agreements made in the contract must be reduced to writing, which is the complete and exclusive statement of the agreement between us, except as we may later agree in writing to modify it.
This provision applies only if the vehicle is used for business or other non-commercial purposes.
Oral or unrecorded agreements or commitments to lend money, extend credit or to forbear from enforcing repayment of a debt owe by debtor(s) are not enforceable unless reduced to writing. Any oral agreement made in the contract must be reduced to writing, which is the complete and exclusive statement of the agreement between us, except as we may later agree in writing to modify it.
Sent Via First-Class Mail®
November 20, 2023
ERIC CUNNINGHAM
[REDACTED]
FULTON, MO [REDACTED]
NOTICE OF OUR PLAN TO SELL PROPERTY
Account Number: XXXXXXX6421
Contract Dated ("agreement"): 09/21/2022
Description of Collateral ("collateral"):
<table>
<tr>
<th>Year:</th>
<th>Make:</th>
<th>Model:</th>
<th>VIN:</th>
</tr>
<tr>
<td>2020</td>
<td>MITSUBIS</td>
<td>MIRAGE</td>
<td>ML32A3HJ2LH004225</td>
</tr>
</table>
Dear ERIC CUNNINGHAM:
This is formal notice that we have the collateral because you broke promises in our agreement.
We will sell the collateral at a private sale sometime after 12/05/2023. A sale could include a lease or license.
The money we get from the sale (after paying our costs) will reduce the amount you owe. If we get less money than you owe, you will still owe us the difference. If we get more money than you owe, you will get the extra money, unless we must pay it to someone else.
You can get the collateral back at any time before we sell it by paying us the full amount you owe (not just the past due payments), including our expenses. To learn the exact amount you must pay, call us at (888) 222-4227.
If you want us to explain to you in writing how we have figured the amount that you owe us, you may call us at (888) 222-4227 or write us at Santander Consumer USA, P.O. Box 961245, Fort Worth, TX 76161-1245 and request a written explanation. We will charge you $0.00 for the explanation if we sent you another written explanation of the amount you owe us within the last six (6) months.
If you need more information about the sale, call us at (888) 222-4227, Monday through Friday 7:00 AM to 7:00 PM Central Time, or write us at P.O. Box 961245, Fort Worth, TX 76161-1245.
We are sending this notice to the following other people who have an interest in the collateral or who owe money under your agreement:
If the collateral is a motor vehicle or trailer as defined under Missouri law, please note: if the vehicle is not redeemed, we will make an application for a repossessed title.
You are receiving this notice due to the legal requirements of the state where you originally signed the agreement and/or the state where you currently reside.
Explanation of Calculation of Surplus or Deficiency
Date: 04/09/2024
ERIC CUNNINGHAM
Re: Account No. 30000264564211000
Retail Installment Sale or Credit Sale Contract dated 09/21/2022 ("Agreement")
2020 // MITSUBISHI // Mirage // VIN ML32A3HJ2LH004225 ("Vehicle")
Dear ERIC CUNNINGHAM:
Please be advised that we disposed of the Vehicle on 03/21/2024. The proceeds of the sale have been applied as explained below. If you financed a premium for credit insurance under your Agreement, you may be entitled to a refund of any unearned portion of the premium.
1. Aggregate unpaid balance of Agreement as of 04/09/2024 $15,174.83
2. Rebate of unearned finance charges as of 04/09/2024, if any - $0.00
3. Accrued and unpaid late fees + $62.50
4. Net balance due (1 minus 2 plus 3) = $15,237.33
5. Gross proceeds from the sale of the Vehicle - $6,000.00
6. Subtotal after deducting proceeds of sale (4 minus 5) = $9,237.33
7. Costs of retaking the Vehicle + $415.00
8. Costs of storing the Vehicle + $0.00
9. Costs of preparing the Vehicle for sale + $0.00
10. Costs of selling the Vehicle + $461.50
11. Attorneys' fees and court costs + $0.00
12. Other costs: + $0.00
13. Total Costs (7 through 12) = $876.50
14. Credit: Rebate of unearned insurance premiums $0.00
15. Credit: + $0.00
16. Credit: + $0.00
17. Total Credits (14 through 16) = $0.00
18. Balance due/surplus after sale (6 plus or minus 13, plus or minus 17) = $10,113.83
