Preview
FILED: NIAGARA COUNTY CLERK 05/08/2024 04:11 PM INDEX NO. E183359/2024
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/08/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF NIAGARA
THE HUNTINGTON NATIONAL BANK,
Plaintiff, AFFIDAVIT IN SUPPORT OF
ORDER TO SHOW CAUSE
Vv.
Index No.
CAMERON TRANSPORT CORP., CAMERON
LIQUOR STORE LLC AND FAISEL HARUNA,
Defendants.
STATE OF MINNESOTA _ )
)
COUNTY OF HENNEPIN )
Bryan Punzel, being duly sworn, depose and say:
l. I am a financial Recovery Representative, Senior and employee of plaintiff The
Huntington National Bank (“Huntington” or “Plaintiff’), successor by merger to TCF National
Bank (“TCF”), and in such capacity, I have access to, and am one of the custodians of
Plaintiff's books, records, and files. It is Plaintiff's custom and practice to keep such records,
and such records are kept in the ordinary course of Plaintiff's business. The facts set forth in
this affidavit are based upon my review and examination of Plaintiff's books, records, and files,
including computer records, the agreement, which is the subject of this action, Defendant
Cameron Transport Corp.’s payment history with respect to the agreement, valuation of the
collateral which is the subject of this action, and call notes and correspondence between the
parties.
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2. I am also over eighteen years of age, and I am fully familiar with the facts and
proceedings heretofore had herein by reason of my review of Plaintiff's books, records and
files, including computer records as aforesaid.
3. I make this affidavit in support of the instant application seeking an order of
seizure with respect to the collateral which is the subject of this action.
A. The Subject of The Action
4. On September 9, 2019, Cameron Transport Corp. ("Cameron") executed an
Equipment Finance Agreement ("Agreement") with Plaintiff to purchase a 2019 Ford F550,
VIN: I FD0X5HTI KEE93888 with Jerr-Dan Wrecker, SIN 0230006I 33 together with all
attachments and accessories thereto (the "Vehicle" or "Collateral"). A copy of the
Agreement is attached as Exhibit A to the Verified Complaint dated May 8, 2024.
5. The Agreement was executed by Faisel Haruna ("Haruna") as President.
6. Plaintiff, through its merger with TCF, is the entity that owned and held the
Agreement on the date of default giving rise to this cause of action.
7. Under the terms of the Agreement, Cameron agreed to make 72 monthly
payments of $1,649.20, commencing on October 9, 20 I 9, and due on the 9111 day of each month
thereafter ("Payment").
8. Under the terms of the Agreement, Cameron granted Plaintiff a security interest in
the Collateral.
9. Plaintiff properly perfected its lien upon the Vehicle by recording its lien on the
cc11iftcate of title (the "Title").
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10... To further secure the Agreement, Cameron Liquor executed a Continuing
Guaranty (the “Cameron Liquor Guaranty”) dated August 8, 2018 whereby it unconditionally
and absolutely guaranteed the full and prompt payment and performance of the Agreement.
11. Furthermore, to secure the Agreement, Haruna also executed a Continuing
Guaranty (the “Haruna Guaranty” and together with the Cameron Liquor Guaranty, the
“Guarantees”) dated August 8, 2018 whereby it unconditionally and absolutely guaranteed the
full and prompt payment and performance of the Agreement.
12. Paragraph 10 of the Agreement provides that a failure to pay any Payment due
under the Agreement when due and where such failure continues for 10 days after notice by
Creditor shall be deemed an “Event of Default.”
13. Upon Cameron’s default, Plaintiff became entitled to the possession of the
Vehicle and the entire unpaid balance, plus all accrued and unpaid interest and any late charges,
fees and other unpaid amounts, plus a fee equal to 5% of the unamortized amount financed
became due and payable (“Default Payment”).
B. Cameron’s Bankruptcy and Discontinuance of the Automatic Stay
14. On August 7, 2020, Cameron filed a Chapter 11 Voluntary Bankruptcy Petition in
the U.S. Bankruptcy Court, Western District of New York, Bankruptcy Petition #: |-20-11032-
CLB.
15, On November 6, 2020, Plaintiff filed a proof of claim for the Default Payment
due in the amount of $95,653.60.
16. On September 3, 2021, Cameron filed its Chapter 11 Small Business Plan of
Reorganization.
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17. On October 29, 2021, Cameron filed a First Amended Plan of Reorganization
Dated October 28, 2021 (“Amended Plan’).
18. The Amended Plan allowed Plaintiff an unimpaired Secured Claim under the
Agreement in the amount of $95,653,60 to be paid over the life to the Amended Plan with
interest at the current Federal Prime Rate of 3.25%.
19. On January 31, 2022, Hon. Carl L. Bucki, United States Bankruptcy Judge issued
the order confirming the Amended Plan.
20. Pursuant to |! U.S.C. §1141 (d)(1) confirmation of the Amended Plan operated as
a discharge of the Cameron, subject to the obligation to Plaintiff under the Amended Plan.
21. Pursuant to 11 U.S.C. §362 (c)(2(C), the automatic stay was discontinued
following confirmation and discharge, thereby entitling Plaintiff to immediately enforce its
rights against Cameron upon default under the Agreement.
C. Cameron’s Default and Huntington’s Demand
22. Cameron made its last payment on June 10, 2023, in the amount of $1,629.20.
23. On February 21, 2024, Plaintiff demanded full payment of the outstanding
balance of the Agreement under the Defendants, jointly and severally, and made due demand
via Certified Mail of Cameron to deliver possession of the Vehicle.
24. Defendants failed to respond to the demands and failed to deliver possession of
the Vehicle.
25. The value of the Vehicle is $60,000.00 unseen and uninspected, and it was
determined by Plaintiff's review of publications concerning actual sales of similar collateral and
Plaintiff's professional estimate of the value of the Collateral.
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26. Cameron is wrongly holding the Vehicle. Based upon the terms of the Agreement
and Cameron’s default upon it, Plaintiff is entitled to possession of the Vehicle.
D. Commencement of Action of Replevin and Seizure of Vehicle
27. Plaintiff has commenced an action for Replevin by the filing of a Summons and
Complaint concurrent with this application for the relief requested herein.
28. | Upon information and belief, Cameron has no defense to this action that will
support the denial of an application for an Order of Seizure.
29. The Vehicle can be easily moved and secreted by the Defendants with relative
ease.
30. There is reasonable basis to believe that the Defendants intend to withhold and/or
secrete the Vehicle given that Defendants have defaulted under the Agreement and Guarantees
and have failed to respond to Plaintiff's demand that the Vehicle be turned over.
31. Given the aforementioned default, as well as the Defendants’ express
unwillingness to return the Vehicle to Plaintiff, there is legitimate and reasonable concern and
basis to believe that the Defendants intend to utilize whatever means necessary, including
without limitation the secreting of the Vehicle to deprive Plaintiff of its rights in and to the
Vehicle.
32. No defense to the within action or application is known to Plaintiff,
By reason of the forgoing, Plaintiff respectfully requests an order:
(1) prohibiting Defendants from removing, transferring, concealing, disposing
of, selling, pledging, and/or assigning the Vehicle;
(il) directing Defendants to advise Plaintiffof the location of the Vehicle;
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(iii) | compelling and ordering Defendants to turn over possession of the Vehicle
to Plaintiff;
(iv) pursuant to CPLR §7102, directing the Sheriff (or such similarly
authorized law enforcement official) of any county where the Vehicle is located to seize
the Vehicle, and if the Vehicle is not delivered to said Sheriff;
(v) permitting said Sheriff (or such similarly authorized law enforcement
official) to break open, enter, and search for the Vehicle at 2821 Pine Avenue, Niagara
Falls, New York 14301, 2556 Seneca Avenue, Niagara Falls, New York 14305 and/or
2901 Pine Avenue, Niagara Falls, New York 14301 and such other locations at which the
Vehicle may be located;
(vi) together with such other and further relief as the Court deems just and
proper.
WHEREFORE, Plaintiff respectfully requests that the within application be granted in
its entirety, together with such other and relief as the Court deems just and proper.
p— fd,
Bryan Punzel “|
Sworn to before me this
(7 day of May, 2024
/.
Lt
A
Nétary Public
RYAN J MAGLOU
GHLIN
NOTARY PUBLIC
MINNESOTA
My Commission Expire
s 01/31/2028
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Preview
FILED: NIAGARA COUNTY CLERK 05/08/2024 04:11 PM INDEX NO. E183359/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/08/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF NIAGARA THE HUNTINGTON NATIONAL BANK, Plaintiff, AFFIDAVIT IN SUPPORT OF ORDER TO SHOW CAUSE Vv. Index No. CAMERON TRANSPORT CORP., CAMERON LIQUOR STORE LLC AND FAISEL HARUNA, Defendants. STATE OF MINNESOTA _ ) ) COUNTY OF HENNEPIN ) Bryan Punzel, being duly sworn, depose and say: l. I am a financial Recovery Representative, Senior and employee of plaintiff The Huntington National Bank (“Huntington” or “Plaintiff’), successor by merger to TCF National Bank (“TCF”), and in such capacity, I have access to, and am one of the custodians of Plaintiff's books, records, and files. It is Plaintiff's custom and practice to keep such records, and such records are kept in the ordinary course of Plaintiff's business. The facts set forth in this affidavit are based upon my review and examination of Plaintiff's books, records, and files, including computer records, the agreement, which is the subject of this action, Defendant Cameron Transport Corp.’s payment history with respect to the agreement, valuation of the collateral which is the subject of this action, and call notes and correspondence between the parties. 1 of 6 FILED: NIAGARA COUNTY CLERK 05/08/2024 04:11 PM INDEX NO. E183359/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/08/2024 2. I am also over eighteen years of age, and I am fully familiar with the facts and proceedings heretofore had herein by reason of my review of Plaintiff's books, records and files, including computer records as aforesaid. 3. I make this affidavit in support of the instant application seeking an order of seizure with respect to the collateral which is the subject of this action. A. The Subject of The Action 4. On September 9, 2019, Cameron Transport Corp. ("Cameron") executed an Equipment Finance Agreement ("Agreement") with Plaintiff to purchase a 2019 Ford F550, VIN: I FD0X5HTI KEE93888 with Jerr-Dan Wrecker, SIN 0230006I 33 together with all attachments and accessories thereto (the "Vehicle" or "Collateral"). A copy of the Agreement is attached as Exhibit A to the Verified Complaint dated May 8, 2024. 5. The Agreement was executed by Faisel Haruna ("Haruna") as President. 6. Plaintiff, through its merger with TCF, is the entity that owned and held the Agreement on the date of default giving rise to this cause of action. 7. Under the terms of the Agreement, Cameron agreed to make 72 monthly payments of $1,649.20, commencing on October 9, 20 I 9, and due on the 9111 day of each month thereafter ("Payment"). 8. Under the terms of the Agreement, Cameron granted Plaintiff a security interest in the Collateral. 9. Plaintiff properly perfected its lien upon the Vehicle by recording its lien on the cc11iftcate of title (the "Title"). 2 of 6 FILED: NIAGARA COUNTY CLERK 05/08/2024 04:11 PM INDEX NO. E183359/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/08/2024 10... To further secure the Agreement, Cameron Liquor executed a Continuing Guaranty (the “Cameron Liquor Guaranty”) dated August 8, 2018 whereby it unconditionally and absolutely guaranteed the full and prompt payment and performance of the Agreement. 11. Furthermore, to secure the Agreement, Haruna also executed a Continuing Guaranty (the “Haruna Guaranty” and together with the Cameron Liquor Guaranty, the “Guarantees”) dated August 8, 2018 whereby it unconditionally and absolutely guaranteed the full and prompt payment and performance of the Agreement. 12. Paragraph 10 of the Agreement provides that a failure to pay any Payment due under the Agreement when due and where such failure continues for 10 days after notice by Creditor shall be deemed an “Event of Default.” 13. Upon Cameron’s default, Plaintiff became entitled to the possession of the Vehicle and the entire unpaid balance, plus all accrued and unpaid interest and any late charges, fees and other unpaid amounts, plus a fee equal to 5% of the unamortized amount financed became due and payable (“Default Payment”). B. Cameron’s Bankruptcy and Discontinuance of the Automatic Stay 14. On August 7, 2020, Cameron filed a Chapter 11 Voluntary Bankruptcy Petition in the U.S. Bankruptcy Court, Western District of New York, Bankruptcy Petition #: |-20-11032- CLB. 15, On November 6, 2020, Plaintiff filed a proof of claim for the Default Payment due in the amount of $95,653.60. 16. On September 3, 2021, Cameron filed its Chapter 11 Small Business Plan of Reorganization. 3 of 6 FILED: NIAGARA COUNTY CLERK 05/08/2024 04:11 PM INDEX NO. E183359/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/08/2024 17. On October 29, 2021, Cameron filed a First Amended Plan of Reorganization Dated October 28, 2021 (“Amended Plan’). 18. The Amended Plan allowed Plaintiff an unimpaired Secured Claim under the Agreement in the amount of $95,653,60 to be paid over the life to the Amended Plan with interest at the current Federal Prime Rate of 3.25%. 19. On January 31, 2022, Hon. Carl L. Bucki, United States Bankruptcy Judge issued the order confirming the Amended Plan. 20. Pursuant to |! U.S.C. §1141 (d)(1) confirmation of the Amended Plan operated as a discharge of the Cameron, subject to the obligation to Plaintiff under the Amended Plan. 21. Pursuant to 11 U.S.C. §362 (c)(2(C), the automatic stay was discontinued following confirmation and discharge, thereby entitling Plaintiff to immediately enforce its rights against Cameron upon default under the Agreement. C. Cameron’s Default and Huntington’s Demand 22. Cameron made its last payment on June 10, 2023, in the amount of $1,629.20. 23. On February 21, 2024, Plaintiff demanded full payment of the outstanding balance of the Agreement under the Defendants, jointly and severally, and made due demand via Certified Mail of Cameron to deliver possession of the Vehicle. 24. Defendants failed to respond to the demands and failed to deliver possession of the Vehicle. 25. The value of the Vehicle is $60,000.00 unseen and uninspected, and it was determined by Plaintiff's review of publications concerning actual sales of similar collateral and Plaintiff's professional estimate of the value of the Collateral. 4 of 6 FILED: NIAGARA COUNTY CLERK 05/08/2024 04:11 PM INDEX NO. E183359/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/08/2024 26. Cameron is wrongly holding the Vehicle. Based upon the terms of the Agreement and Cameron’s default upon it, Plaintiff is entitled to possession of the Vehicle. D. Commencement of Action of Replevin and Seizure of Vehicle 27. Plaintiff has commenced an action for Replevin by the filing of a Summons and Complaint concurrent with this application for the relief requested herein. 28. | Upon information and belief, Cameron has no defense to this action that will support the denial of an application for an Order of Seizure. 29. The Vehicle can be easily moved and secreted by the Defendants with relative ease. 30. There is reasonable basis to believe that the Defendants intend to withhold and/or secrete the Vehicle given that Defendants have defaulted under the Agreement and Guarantees and have failed to respond to Plaintiff's demand that the Vehicle be turned over. 31. Given the aforementioned default, as well as the Defendants’ express unwillingness to return the Vehicle to Plaintiff, there is legitimate and reasonable concern and basis to believe that the Defendants intend to utilize whatever means necessary, including without limitation the secreting of the Vehicle to deprive Plaintiff of its rights in and to the Vehicle. 32. No defense to the within action or application is known to Plaintiff, By reason of the forgoing, Plaintiff respectfully requests an order: (1) prohibiting Defendants from removing, transferring, concealing, disposing of, selling, pledging, and/or assigning the Vehicle; (il) directing Defendants to advise Plaintiffof the location of the Vehicle; 5 of 6 FILED: NIAGARA COUNTY CLERK 05/08/2024 04:11 PM INDEX NO. E183359/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/08/2024 (iii) | compelling and ordering Defendants to turn over possession of the Vehicle to Plaintiff; (iv) pursuant to CPLR §7102, directing the Sheriff (or such similarly authorized law enforcement official) of any county where the Vehicle is located to seize the Vehicle, and if the Vehicle is not delivered to said Sheriff; (v) permitting said Sheriff (or such similarly authorized law enforcement official) to break open, enter, and search for the Vehicle at 2821 Pine Avenue, Niagara Falls, New York 14301, 2556 Seneca Avenue, Niagara Falls, New York 14305 and/or 2901 Pine Avenue, Niagara Falls, New York 14301 and such other locations at which the Vehicle may be located; (vi) together with such other and further relief as the Court deems just and proper. WHEREFORE, Plaintiff respectfully requests that the within application be granted in its entirety, together with such other and relief as the Court deems just and proper. p— fd, Bryan Punzel “| Sworn to before me this (7 day of May, 2024 /. Lt A Nétary Public RYAN J MAGLOU GHLIN NOTARY PUBLIC MINNESOTA My Commission Expire s 01/31/2028 6 of 6