New City Funding Corp. v. Foster, 2022-50343

CourtNew York City Court
Writing for the CourtHON. LYNDON D. WILLIAMS CITY JUDGE OF MOUNT VERNON
PartiesNew City Funding Corp., Plaintiff, v. Tammy P. Foster, Defendant.
Decision Date03 May 2022
Docket Number2022-50343,Index 0162-20

New City Funding Corp., Plaintiff,
v.

Tammy P. Foster, Defendant.

No. 2022-50343

Index No. 0162-20

City Court of Mount Vernon

May 3, 2022


Unpublished Opinion

Lacy Katzen, LLP Attorney for Plaintiff

Tammy P. Foster Defendant pro se

HON. LYNDON D. WILLIAMS CITY JUDGE OF MOUNT VERNON

In this action seeking to recover the alleged unpaid balance due for a retail installment contract the plaintiff moves for summary judgment. The defendant submitted an answer to the complaint and filed a one page opposition to the instant motion. Plaintiff filed a reply and an affidavit in further support in response to defendant's allegations in her opposition.

In support of the motion, the plaintiff has submitted the affidavit of Alisson Mendoza, the Collection Manager of the plaintiff. Ms. Mendoza asserts in her affidavit that she has access to the records of New City Funding Corp. and that her knowledge of the underlying facts is based upon her review of plaintiff's records kept in the regular course of business. Ms. Mendoza affirms that on April 8, 2017 the defendant entered into a retail installment contract for the purchase of a used vehicle pursuant to which defendant was obligated to repay an auto loan by making thirty-six (36) monthly installment payments of $306.05, inclusive of interest at a rate of $24.95%, after making a down payment of $3, 083.00, for a total contract price of $10, 296.00. Each monthly payment was to be made on the 8th of each month with the first payment to be made starting on May 8, 2017. The contract further provides for a late charge of 5% of any payment made more than ten (10) days after the due date. A copy of the retail installment contract signed by the defendant is attached to the plaintiff's moving papers as Exhibit "A". Ms. Mendoza further affirms that following the entry of the contract and "it became apparent that the defendant would not or could continue making payments", plaintiff repossessed the vehicle. [1] Defendant made her last payment of $300.00 on January 8, 2018. A copy of the defendant's payment history is attached as Exhibit "B". Ms. Mendoza affirms that defendant was notified of the repossession and sale as well as advised of her rights to redeem or reinstate the subject vehicle. A copy of the notice sent to defendant regarding the repossession and sale are attached to plaintiff's moving papers as Exhibit "C". The notice is dated February 13, 2018 and states that the vehicle will be sold on or after February 23, 2018. Notably, there are no affirmations regarding the mailing of the notice, specifically the date on which is was mailed. The defendant failed to redeem or reinstate the vehicle and plaintiff then sold the vehicle at a commercial auction for $1, 060.00. After the vehicle was sold at the auction a copy of a Notice of Sale dated June 25, 2019 was mailed to the defendant advising her that a balance of $5, 603.32 remained due and owing to plaintiff on the retail installment contract. A copy of the Notice of Sale is attached to plaintiff's moving papers as Exhibit "E". Ms. Mendoza states that the defendant made four (4) payments to plaintiff after the date on which the vehicle was sold at auction. A copy of the plaintiff's Repossession Balance Ledger, attached as Exhibit "F" to plaintiff's moving papers, shows that four payments totaling $175.00 were made by the defendant, with the last payment being made on December 11, 2018. Ms. Mendoza affirms that the amount sought by way of the instant motion was calculated by taking the gross obligation owed by defendant at the time of the default and crediting that balance with the amount plaintiff received for the vehicle at auction coupled with all applicable credits to defendant's account, including the amount of the total payments made by the defendant prior to her default and after the auction sale of the vehicle. Plaintiff waived the costs and fees it incurred in...

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