FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 20163142 HONORABLE EDWARD D. RUBIN, DISTRICT
McGlothen The McGlothen Law Firm, LLC COUNSEL FOR APPELLANT:
Perry W. Myles
Michael L. Lancaster Eaton Group Attorneys, LLC COUNSEL FOR
APPELLEE: TD Auto Finance, LLC
composed of Sylvia R. Cooks, Elizabeth A. Pickett, and
Jonathan W. Perry, Judges.
JONATHAN W. PERRY JUDGE
an appeal from a summary judgment in a proceeding for a
deficiency judgment, in which the trial court granted
judgment to the plaintiff-creditor. We affirm.
AND PROCEDURAL HISTORY
17, 2012, Prevailing Church and Perry W. Myles
("Myles") bought a used 2007 Mercedes-Benz S-Class
automobile from DZ Motors and entered into a retail
installment sales contract for the purchase price, $40,
864.00.Contemporaneous with the execution of the
retail installment sales contract, DZ Motors assigned its
interest in the auto loan contract to TD Auto Finance, LLC
("TDAF"). Although monthly payments were made for
the first thirteen months, payments then stopped.
payment stopped, TDAF repossessed the vehicle and notified
Prevailing Church at P.O. Box 391481, Solon, OH 44139 and
Myles at 411 Dulles Drive, Lafayette, LA 70506 of the
upcoming sale of the vehicle. Thereafter, TDAF notified
Prevailing Church and Myles in writing that after applying
the proceeds from the sale of the vehicle, a deficiency
balance of $25, 133.40 remained.
18, 2015, TDAF, through its attorney, sent a demand letter to
Myles for the unpaid balance together with accrued interest.
After receiving no response, TDAF filed its petition on June
13, 2016, against Myles for the deficiency balance. On March
22, 2017, Myles, assisted by counsel, filed an answer and
interposed a declinatory exception of insufficiency of
service of process.
TDAF's petition was a request for admission of fact
regarding whether Myles had contracted for the purchase of
the vehicle, whether the outstanding balance was correctly
stated in the petition, and whether he had been notified of
the sale of the vehicle and the proceeds raised from the sale
as well as the amount of the deficiency. Myles denied the
requests for admission of facts as written.
TDAF filed a request for genuineness of documents and a
request for the production of documents from Myles, asking
him to admit or deny the genuineness of the attached
application and loan agreement, the deficiency balance, and
the detailed transaction history. TDAF further requested
Myles to produce any documents that would indicate his
disagreement with the loan agreement, the deficiency balance,
and any document that would dispute the detailed financial
transaction history. In response, Myles admitted he signed
documents with Hunt, that he did not deny the deficiency
balance or the transaction history report, that he was
notified after the sale of the vehicle, and that he had no
other evidence to present. Nonetheless, Myles asserted in his
response to TDAF's request that "[a]t the time of
the sale there was no disclosure that this vehicle had
received [severe water damage; therefore] this sale is
illegal and immediately terminated."
also submitted note interrogatories and surrender
interrogatories. In response to the note interrogatories,
Myles answered that he had no record of payment by him to
reduce the deficiency balance; no funds had been advanced to
him; he had no record to reflect any payments or credits; and
he had never met to sign anything with this company.
response to TDAF's surrender interrogatories, Myles
answered under private signature, but not under oath, that no
one sent him notice of abandonment or surrender of the
vehicle; at the time of the contracts he was unemployed; he
had earlier agreed to sign "in this process" but
his circumstances changed; and when the vehicle was
confiscated he was not given the opportunity to do anything.
February 25, 2019, after the trial court denied the
declinatory exception Myles filed in conjunction with his
answer, TDAF moved for summary judgment.TDAF offered the
record and summary judgment attachments, as well as
Myles's admission regarding the signing of the loan
filed a memorandum in opposition to the motion for summary
judgment, attaching his affidavit and, inter alia, a flood
report, his credit application, the credit application of his
co-buyer, and the retail installment contract. Subsequently,
TDAF filed a reply memorandum, attaching numerous ...