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TD Auto Finance, LLC v. Myles

Court of Appeals of Louisiana, Third Circuit

January 15, 2020



          Terry 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

          Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Jonathan W. Perry, Judges.


         This is 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.


         On July 17, 2012, Prevailing Church[1] 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.[2]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.

         After 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.

         On June 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.

         Accompanying 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.

         Later, 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.[3] 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."

         TDAF 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.

         In 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.

         On February 25, 2019, after the trial court denied the declinatory exception Myles filed in conjunction with his answer, TDAF moved for summary judgment.[4]TDAF offered the record and summary judgment attachments, as well as Myles's admission regarding the signing of the loan documents.

         Myles 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 ...

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