Preview
Filed
12 March 26 A11:55
Gary Fitzsimmons
District Clerk
No. DC-11-07366 Dallas District
SANTANDER CONSUMER USA, INC. IN THE DISTRICT COURT
doing business as HSBC
VS. DALLAS COUNTY, TEXAS
VICKIE E. MESHACK 162nd JUDICIAL DISTRICT
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
COMES NOW, SANTANDER CONSUMER USA, INC. doing business as HSBC, Plaintiff
herein ("Plaintiff"), and files this Motion for Summary Judgment against VICKIE E. MESHACK,
Defendant herein ("Debtor"), and would show unto the Court as follows:
I
There is no genuine issue as to any material fact in Plaintiff's cause of action of breach of
contract against Debtor; therefore, Plaintiff is entitled to judgment as a matter of law pursuant to
Tex. R. Civ. P. 166a(c). Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). To carry its burden,
Plaintiff must prove all elements of its cause of action for breach of contract, which are (1) the
existence ofa valid contract; (2) that the plaintiff performed or tendered performance; (3) that the
defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach.
Southwell v. University of the Incarnate Word, 974 S.W.2d 351, 354-55 (Tex. App.-San Antonio
1998, pet. denied).
Il.
Plaintiff is Entitled to Summary Judgment
In support of its Motion for Final Summary Judgment, Plaintiff would offer competent
summary judgment evidence that:
1 Debtor has failed to deny the execution of the Retail Installment Contract with
security agreement contained therein ("Contract"), upon which Plaintiff's pleading
is founded, and therefore, same shall be received in evidence as fully proved pursuant
to Texas Rules of Civil Procedure 93(7);
Debtor has failed to plead any affirmative defense to the claims contained in
Plaintiff's petition; and
Plaintiff's claim against Debtor is true and just, and due, and after all offsets,
payments, and credits have been allowed, Debtor owes Plaintiff the sum of
$32,274.23.
Attached hereto is the Affidavit of SERGIO PADILLA, an employee of Plaintiff (hereinafter
referred to as the "Plaintiff's Affidavit") which Plaintiff would offer as competent summary judgment
evidence in support of its motion herein. The facts contained in the Plaintiff's Affidavit are based
on his personal knowledge of the Debtor's account with Plaintiff and his personal knowledge of the
records of Plaintiff.
Also attached hereto are true and correct copies of Plaintiff's Requests for Admissions
Directed to Debtor and Debtor’s response which Plaintiff would offer as further competent summary
judgment evidence in support of its motion herein. In the Response to the Request for Admissions,
Debtor admitted the following:
REQUEST NO. 1: You are an individual residing, employed or conducting business in
Dallas County, Texas.
REQUEST NO. 2: On or about December 31, 2007, you executed in Dallas County,
Texas a Retail Installment Contract ("Contract") where you purchased
from TXVT LTD doing business as Trophy Nissan ("Seller") a 2008
Nissan Armada bearing Vehicle Identification Number
SN1BA08D78N621792 ("Vehicle").
REQUEST NO. 3: A true and correct copy of the Contract is attached hereto marked as
Exhibit "A".
Plaintiff's Motion for Summary Judgment page 2
REQUEST NO. 6: The value of the Vehicle is not more than $30,275.00.
REQUEST NO. 7: Plaintiff has accelerated the maturity date of the indebtedness.
REQUEST NO. 13: You have not been in any military service of the United States of
America at any time during the period from December 31, 2007 to the
time of your response.
I.
Debtor has admitted all substantive, material facts as alleged in Plaintiff's Petition, save the
amount of indebtedness after application of all lawful payments, credits, offsets and allowances,
proof of which is provided by the Plaintiff's Affidavit attached hereto.
Plaintiff's summary judgment evidence demonstrates that on or about December 31, 2007,
Debtor executed a Retail Installment Contract (“Contract”) where Debtor purchased from TXVT
LTD doing business as Trophy Nissan ("Seller") a 2008 Nissan Armada bearing Vehicle
Identification Number 5N1 BA08D78N621792 ("Vehicle").
Pursuant to the terms of the Contract, Debtor promised to pay the sum of $39,355.40, plus
interest at the Contract rate of 8.99% per annum, in seventy-two payments of $711.82, with the first
monthly installment payment due February 14, 2008. The Contract expressly reserved to Seller and
its assigns a right of possession and a security interest in the Vehicle until all payments called for had
been made. True and correct copies of the Contract and Texas Certificate of Title evidencing
perfection of Plaintiff's purchase money security interest in the Vehicle are attached hereto marked
as Exhibits “A” and “B.”
After accepting the Contract and prior to default by Debtor, Seller assigned the Contract to
Plaintiff. Plaintiff is now the owner and holder of the Contract and is entitled to receive payment
thereon.
Plaintiff's Motion for Summary Judgment
page 3
Debtor made some payments under the terms of the Contract but thereafter defaulted and
failed and refused to make the payments due thereafter. Upon filing suit, Plaintiff filed an
Application for Writ of Sequestration, which was granted. The Writ of Sequestration was attempted
to be levied; however, the Vehicle was not recovered. Plaintiff held, and continues to hold, a
perfected, first-priority purchase money security interest in the Vehicle and is in possession of the
original Texas Certificate of Title.
The Plaintiff's Affidavit shows that all conditions precedent to Plaintiff's right to judgment
as alleged herein have occurred or have been performed and, although the Debtor became bound and
is obligated to pay Plaintiff such sum of money due and owing on the Contract, Debtor failed and
refused, and continues to fail and refuse, to pay such amount.
The Plaintiff's Affidavit further demonstrates that Plaintiff's claim is founded upon a written
Contract for a liquidated money demand and founded on business dealings between Plaintiff and the
Debtor, of which a systematic record has been maintained. Plaintiff's claim is just and true; it is due;
and after all just and lawful offsets, payments, credits and application of net sale proceeds have been
allowed, Debtor owes Plaintiff the sum of $32,274.23, this amount being the sum of $31,078.38 in
unpaid principle balance, $946.72 in accrued and unpaid interest, and $249.13 in accrued and unpaid
late fees.
Iv.
Pre and Post-Judgment Interest
Pre-Judgment Interest. Plaintiffis entitled to pre-judgment interest at the rate specified in
the Contract of 8.99% per annum on the sum of money due and payable to Plaintiff for its breach of
contract damages for which Plaintiff now sues.
Plaintiff's Motion for Summary Judgment page 4
Post-Judgment Interest. Plaintiffis further entitled to post-judgment interest on its breach
of contract damages at a rate equal to the lesser of the Contract rate or eighteen percent (18%) per
annum from the date of judgment until paid. Tex. Fin. Code Ann. §304.002. Plaintiff is further
entitled to post-judgment interest on any award of attorneys’ fees through the date of judgment herein
at the maximum lawful rate. Tex. Fin. Code Ann. §304.003(c). No award of post-judgment interest
is requested on any award of appellate attorneys’ fees. Protechnics Int'l v. Tru-Tag Systems, Inc.,843
S.W.2d 734 (Tex. App. - Houston [14th Dist] 1992, no writ).
Vv
Attorney's Fee:
In further support of its Motion, Plaintiff refers to the affidavit of R. Lee Turbyfill attached
hereto, a duly licensed and practicing attorney and member of the State Bar of Texas, which offers
competent summary judgment evidence of the reasonable and necessary attorney's fees incurred by
Plaintiff in prosecuting its cause of action against the Debtor. Plaintiff is entitled to an award of
attorneys’ fees against Debtor under the express provisions of the Contract.
WHEREFORE, PREMISES CONSIDERED, SANTANDER CONSUMER USA, INC.
doing business as HSBC, Plaintiff and Movant herein, moves this Court to grant this Motion for
Summary Judgment and enter final judgment:
1 That Plaintiff have and recover of and from Defendant VICKIE E. MESHACK, the
sum of $32,274.23 together with post judgment interest at the Contract rate of 8.99%
per annum from the date of judgment until paid; and further,
That Plaintiff's security interest in and right to possession of the vehicle described
as one 2008 Nissan Armada bearing Vehicle Identification Number
5N1BA08D78N621792 are established as valid and subsisting, that Plaintiff has the
right to immediate possession to the Vehicle; and that Plaintiff be allowed to
foreclose its security interest in the Vehicle
Plaintiff's Motion for Summary Judgment page 5
That Plaintiff have and recover of and from Defendant VICKIE E. MESHACK the
sum of $2,714.95 in attorney's fees together with post judgment interest at the legal
rate of 5.00% per annum from the date of judgment until paid; and further,
That all sureties on any sequestration or injunction bond filed by Plaintiff
be
discharged; and further,
That all costs of court be taxed to Defendant VICKIE E. MESHACK, and further,
For such other and further relief which the Court shall deem just and proper.
Respectfully submitted,
DEVLIN, NAYLOR & TURBYFILL, P.L.L.C.
DONALD L. TURB ILL
State Bar of Texas # 20296380
DEBORAH C. S. RIHERD
State Bar of Texas # 24038904
VICKI W. HART
State Bar of Texas # 24046037
R. LEE TURBYFILL
State Bar of Texas # 24075191
4801 Woodway, Suite 420-West
Houston, Texas 77056-1805
(713) 622-8338 [TELEPHONE]
(713) 586-7053 [FACSIMILE]
dturbyfill@dntlaw.com [E-MAIL]
ATTORNEYS FOR PLAINTIFF
SANTANDER CONSUMER USA, INC.
doing business as HSBC
Plaintiff's Motion for Summary Judgment page 6
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a true and correct copy of the above and forgoing
instrument was served ontl low listed party, via certified mail, return receipt requested, and via
first class mail, on this day of March, 2012, as follows:
VICKIE E. MESHACK
2600 Cresthaven
Mesquite, Dallas County, Texas 75149
tik
VICKI W. HART
Wet—
Plaintiffs Motion for Summary Judgment page 7
No. DC-11-07366
SANTANDER CONSUMER USA, INC. IN THE DISTRICT COURT
doing business as HSBC
vs. DALLAS COUNTY, TEXAS
VICKIE E. MESHACK 162nd JUDICIAL DISTRICT
AFFIDAVIT IN SUPPORT OF
PLAINTIFF'S MOTION FOR FINAL SUMMARY JUDGMENT
STATE OF TEXAS §
§
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared Affiant, who being
by me first duly sworn, upon oath deposed and stated as follows:
"My name is SERGIO PADILLA. I am of sound mind, over the age of 21 years,
capable of making this affidavit, and personally acquainted with the facts stated
herein.
"Tam an employee of SANTANDER CONSUMER USA, INC. doing business as
HSBC ("Plaintiff") with actual possession of the permanent business records of
Plaintiff and with personal knowledge of all matters concerning the retail installment
contract ("Contract") executed by VICKIE E. MESHACK ("Debtor") on December
31, 2007 and Plaintiff's security interest in a vehicle described as a 2008 Nissan
Armada, bearing vehicle identification number 5N1BA08D78N621792 ("Vehicle"),
relating to Plaintiff's account number XXXX781. I have knowledge of the facts and
circumstances contained in this affidavit as a result of my employment with Plaintiff
and by virtue of my review of the corporate records of Plaintiff.
"I am the custodian of records of Plaintiff. Attached hereto are three (3) pages of
records from Plaintiff. These records are kept by Plaintiff in the regular course of
business, and it was the regular course of business for an employee or representative
with knowledge of the act, event, condition, opinion or diagnosis recorded, to make
the records or to transmit the information thereof to be included in such record; and
the record was made at or near the time of the event or reasonably thereafter. The
records attached hereto are the exact duplicates of the originals. Attached hereto,
marked as Exhibits “A” and “B,” respectively, are true and correct copies of the
Contract and the Texas Certificate of Title.
"Thave personal knowledge of the facts and circumstances contained in this affidavit
as a result of my employment with Plaintiff and by virtue of my review of the
corporate records of Plaintiff. The corporate records of Plaintiff are available to me
in the routine course of my employment by Plaintiff as an Assistant Vice President
in Plaintiff's Tarrant County, Texas offices. In the ordinary course of business, I
would review records that are routinely maintained on accounts in debtors’ names on
promissory notes, personal loan agreements and on retail installment contracts
assigned by motor vehicle dealers to Plaintiff. The facts stated herein are based upon
my review of the business records maintained by Plaintiff on Debtor's account.
"Plaintiff has retained the law firm of Devlin, Naylor & Turbyfill, P.L.L.C. to
represent the company in this matter.
"On or about December 31, 2007, Debtor executed the Contract in Dallas County,
Texas, where Debtor purchased the Vehicle from TXVT LTD doing business as
Trophy Nissan ("Seller").
"Debtor promised to pay the sum of $39,355.40, plus interest at the Contract rate of
8.99% per annum, in seventy-two (72) monthly payments of $711.82, with the first
monthly installment payment due February 14, 2008. The Contract expressly
reserved to Seller and its assigns a right of possession and a security interest in the
Vehicle until all payments called for had been made. True and correct copies of the
Contract and Texas Certificate of Title, evidencing perfection of Plaintiff's purchase
money security interest in the Vehicle are attached hereto marked as Exhibits "A" and
"B."
"After accepting the Contract and prior to default by Debtor, Seller assigned the
Contract to Plaintiff. Plaintiff became the owner and holder of the Contract and is
entitled to receive payment thereon. The Contract provided that time was of the
essence, and that, in the event of default in the payment, or any other default by
Debtor, then Seller or its assignee shall have the right to declare all amounts due and
payable, repossess the Vehicle, and retain all payments made prior to repossession,
with Debtor remaining liable for any deficiency.
"At all times material and relevant to this cause of action, Plaintiff held, and
continues to hold, a perfected, first-priority purchase money security interest in the
Vehicle and is in possession of the original Texas Certificate of Title issued in the
name of the Debtor.
“Debtor made some payments under the Contract, but thereafter defaulted and failed
or refused to make payments due thereafter.
Affidavit in Support of Plaintiffs
Motion for Final Summary Judgment Page 2
“Plaintiff made a written demand for all past-due installment payments and has given
notice of its intent to accelerate all payments due under the Contract; however,
payment was not received as demanded. Plaintiff has accelerated the maturity date
of the Contract.
"Upon filing suit, Plaintiff filed an Application for Writ of Sequestration, which was
granted. The Writ of Sequestration was attempted to be levied; however, the Vehicle
was not recovered.
“Plaintiff's claim is just and true, and it is due, and after all just and lawful offsets,
payments, credits and application of net sale proceeds have been allowed, Debtor
owes Plaintiff the sum of $32,274.23 which is the sum of $31,078.38 in unpaid
principle balance, $946.72 in accrued and unpaid interest, and $249.13 in accrued
and unpaid late fees. These amounts do not include attorney's fees or court costs.
Pre-judgment interest continues to accrue on the unpaid principal balance at the
Contract rate of interest of 8.99%. Pursuant to the Contract, Plaintiff is further
entitled to recover from Debtor its attorneys fees incurred in this litigation.
"T have read the above affidavit and every statement contained herein is within my
personal knowledge and is true and correct."
FURTHER, AFFIANT SAYETH NOT.
SANTANDER CONSUMER USA, INC. /]
doing business as a
22
7 ==
By: —
SERGIO PADILLA
SUBSCRIBED AND SWORN TO before me bySPRGIO PADILLA on this_ 20 day
of Are , 2012. 7
N
(OTARY PUBLIC in and for the
STATE OF TEXAS
My Commission Expires:
G[ oj bers SHAMIRA N. CARTER
Notary Public, State of Texas
My Commission Expires
“ib i September 01, 2015
Affidavit in Support of Plaintiff's
Motion for Final Summary Judgment Page 3
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Filed 12 March 26 A11:55 Gary Fitzsimmons District Clerk No. DC-11-07366 Dallas District SANTANDER CONSUMER USA, INC. IN THE DISTRICT COURT doing business as HSBC VS. DALLAS COUNTY, TEXAS VICKIE E. MESHACK 162nd JUDICIAL DISTRICT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT COMES NOW, SANTANDER CONSUMER USA, INC. doing business as HSBC, Plaintiff herein ("Plaintiff"), and files this Motion for Summary Judgment against VICKIE E. MESHACK, Defendant herein ("Debtor"), and would show unto the Court as follows: I There is no genuine issue as to any material fact in Plaintiff's cause of action of breach of contract against Debtor; therefore, Plaintiff is entitled to judgment as a matter of law pursuant to Tex. R. Civ. P. 166a(c). Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). To carry its burden, Plaintiff must prove all elements of its cause of action for breach of contract, which are (1) the existence ofa valid contract; (2) that the plaintiff performed or tendered performance; (3) that the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach. Southwell v. University of the Incarnate Word, 974 S.W.2d 351, 354-55 (Tex. App.-San Antonio 1998, pet. denied). Il. Plaintiff is Entitled to Summary Judgment In support of its Motion for Final Summary Judgment, Plaintiff would offer competent summary judgment evidence that: 1 Debtor has failed to deny the execution of the Retail Installment Contract with security agreement contained therein ("Contract"), upon which Plaintiff's pleading is founded, and therefore, same shall be received in evidence as fully proved pursuant to Texas Rules of Civil Procedure 93(7); Debtor has failed to plead any affirmative defense to the claims contained in Plaintiff's petition; and Plaintiff's claim against Debtor is true and just, and due, and after all offsets, payments, and credits have been allowed, Debtor owes Plaintiff the sum of $32,274.23. Attached hereto is the Affidavit of SERGIO PADILLA, an employee of Plaintiff (hereinafter referred to as the "Plaintiff's Affidavit") which Plaintiff would offer as competent summary judgment evidence in support of its motion herein. The facts contained in the Plaintiff's Affidavit are based on his personal knowledge of the Debtor's account with Plaintiff and his personal knowledge of the records of Plaintiff. Also attached hereto are true and correct copies of Plaintiff's Requests for Admissions Directed to Debtor and Debtor’s response which Plaintiff would offer as further competent summary judgment evidence in support of its motion herein. In the Response to the Request for Admissions, Debtor admitted the following: REQUEST NO. 1: You are an individual residing, employed or conducting business in Dallas County, Texas. REQUEST NO. 2: On or about December 31, 2007, you executed in Dallas County, Texas a Retail Installment Contract ("Contract") where you purchased from TXVT LTD doing business as Trophy Nissan ("Seller") a 2008 Nissan Armada bearing Vehicle Identification Number SN1BA08D78N621792 ("Vehicle"). REQUEST NO. 3: A true and correct copy of the Contract is attached hereto marked as Exhibit "A". Plaintiff's Motion for Summary Judgment page 2 REQUEST NO. 6: The value of the Vehicle is not more than $30,275.00. REQUEST NO. 7: Plaintiff has accelerated the maturity date of the indebtedness. REQUEST NO. 13: You have not been in any military service of the United States of America at any time during the period from December 31, 2007 to the time of your response. I. Debtor has admitted all substantive, material facts as alleged in Plaintiff's Petition, save the amount of indebtedness after application of all lawful payments, credits, offsets and allowances, proof of which is provided by the Plaintiff's Affidavit attached hereto. Plaintiff's summary judgment evidence demonstrates that on or about December 31, 2007, Debtor executed a Retail Installment Contract (“Contract”) where Debtor purchased from TXVT LTD doing business as Trophy Nissan ("Seller") a 2008 Nissan Armada bearing Vehicle Identification Number 5N1 BA08D78N621792 ("Vehicle"). Pursuant to the terms of the Contract, Debtor promised to pay the sum of $39,355.40, plus interest at the Contract rate of 8.99% per annum, in seventy-two payments of $711.82, with the first monthly installment payment due February 14, 2008. The Contract expressly reserved to Seller and its assigns a right of possession and a security interest in the Vehicle until all payments called for had been made. True and correct copies of the Contract and Texas Certificate of Title evidencing perfection of Plaintiff's purchase money security interest in the Vehicle are attached hereto marked as Exhibits “A” and “B.” After accepting the Contract and prior to default by Debtor, Seller assigned the Contract to Plaintiff. Plaintiff is now the owner and holder of the Contract and is entitled to receive payment thereon. Plaintiff's Motion for Summary Judgment page 3 Debtor made some payments under the terms of the Contract but thereafter defaulted and failed and refused to make the payments due thereafter. Upon filing suit, Plaintiff filed an Application for Writ of Sequestration, which was granted. The Writ of Sequestration was attempted to be levied; however, the Vehicle was not recovered. Plaintiff held, and continues to hold, a perfected, first-priority purchase money security interest in the Vehicle and is in possession of the original Texas Certificate of Title. The Plaintiff's Affidavit shows that all conditions precedent to Plaintiff's right to judgment as alleged herein have occurred or have been performed and, although the Debtor became bound and is obligated to pay Plaintiff such sum of money due and owing on the Contract, Debtor failed and refused, and continues to fail and refuse, to pay such amount. The Plaintiff's Affidavit further demonstrates that Plaintiff's claim is founded upon a written Contract for a liquidated money demand and founded on business dealings between Plaintiff and the Debtor, of which a systematic record has been maintained. Plaintiff's claim is just and true; it is due; and after all just and lawful offsets, payments, credits and application of net sale proceeds have been allowed, Debtor owes Plaintiff the sum of $32,274.23, this amount being the sum of $31,078.38 in unpaid principle balance, $946.72 in accrued and unpaid interest, and $249.13 in accrued and unpaid late fees. Iv. Pre and Post-Judgment Interest Pre-Judgment Interest. Plaintiffis entitled to pre-judgment interest at the rate specified in the Contract of 8.99% per annum on the sum of money due and payable to Plaintiff for its breach of contract damages for which Plaintiff now sues. Plaintiff's Motion for Summary Judgment page 4 Post-Judgment Interest. Plaintiffis further entitled to post-judgment interest on its breach of contract damages at a rate equal to the lesser of the Contract rate or eighteen percent (18%) per annum from the date of judgment until paid. Tex. Fin. Code Ann. §304.002. Plaintiff is further entitled to post-judgment interest on any award of attorneys’ fees through the date of judgment herein at the maximum lawful rate. Tex. Fin. Code Ann. §304.003(c). No award of post-judgment interest is requested on any award of appellate attorneys’ fees. Protechnics Int'l v. Tru-Tag Systems, Inc.,843 S.W.2d 734 (Tex. App. - Houston [14th Dist] 1992, no writ). Vv Attorney's Fee: In further support of its Motion, Plaintiff refers to the affidavit of R. Lee Turbyfill attached hereto, a duly licensed and practicing attorney and member of the State Bar of Texas, which offers competent summary judgment evidence of the reasonable and necessary attorney's fees incurred by Plaintiff in prosecuting its cause of action against the Debtor. Plaintiff is entitled to an award of attorneys’ fees against Debtor under the express provisions of the Contract. WHEREFORE, PREMISES CONSIDERED, SANTANDER CONSUMER USA, INC. doing business as HSBC, Plaintiff and Movant herein, moves this Court to grant this Motion for Summary Judgment and enter final judgment: 1 That Plaintiff have and recover of and from Defendant VICKIE E. MESHACK, the sum of $32,274.23 together with post judgment interest at the Contract rate of 8.99% per annum from the date of judgment until paid; and further, That Plaintiff's security interest in and right to possession of the vehicle described as one 2008 Nissan Armada bearing Vehicle Identification Number 5N1BA08D78N621792 are established as valid and subsisting, that Plaintiff has the right to immediate possession to the Vehicle; and that Plaintiff be allowed to foreclose its security interest in the Vehicle Plaintiff's Motion for Summary Judgment page 5 That Plaintiff have and recover of and from Defendant VICKIE E. MESHACK the sum of $2,714.95 in attorney's fees together with post judgment interest at the legal rate of 5.00% per annum from the date of judgment until paid; and further, That all sureties on any sequestration or injunction bond filed by Plaintiff be discharged; and further, That all costs of court be taxed to Defendant VICKIE E. MESHACK, and further, For such other and further relief which the Court shall deem just and proper. Respectfully submitted, DEVLIN, NAYLOR & TURBYFILL, P.L.L.C. DONALD L. TURB ILL State Bar of Texas # 20296380 DEBORAH C. S. RIHERD State Bar of Texas # 24038904 VICKI W. HART State Bar of Texas # 24046037 R. LEE TURBYFILL State Bar of Texas # 24075191 4801 Woodway, Suite 420-West Houston, Texas 77056-1805 (713) 622-8338 [TELEPHONE] (713) 586-7053 [FACSIMILE] dturbyfill@dntlaw.com [E-MAIL] ATTORNEYS FOR PLAINTIFF SANTANDER CONSUMER USA, INC. doing business as HSBC Plaintiff's Motion for Summary Judgment page 6 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the above and forgoing instrument was served ontl low listed party, via certified mail, return receipt requested, and via first class mail, on this day of March, 2012, as follows: VICKIE E. MESHACK 2600 Cresthaven Mesquite, Dallas County, Texas 75149 tik VICKI W. HART Wet— Plaintiffs Motion for Summary Judgment page 7 No. DC-11-07366 SANTANDER CONSUMER USA, INC. IN THE DISTRICT COURT doing business as HSBC vs. DALLAS COUNTY, TEXAS VICKIE E. MESHACK 162nd JUDICIAL DISTRICT AFFIDAVIT IN SUPPORT OF PLAINTIFF'S MOTION FOR FINAL SUMMARY JUDGMENT STATE OF TEXAS § § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Affiant, who being by me first duly sworn, upon oath deposed and stated as follows: "My name is SERGIO PADILLA. I am of sound mind, over the age of 21 years, capable of making this affidavit, and personally acquainted with the facts stated herein. "Tam an employee of SANTANDER CONSUMER USA, INC. doing business as HSBC ("Plaintiff") with actual possession of the permanent business records of Plaintiff and with personal knowledge of all matters concerning the retail installment contract ("Contract") executed by VICKIE E. MESHACK ("Debtor") on December 31, 2007 and Plaintiff's security interest in a vehicle described as a 2008 Nissan Armada, bearing vehicle identification number 5N1BA08D78N621792 ("Vehicle"), relating to Plaintiff's account number XXXX781. I have knowledge of the facts and circumstances contained in this affidavit as a result of my employment with Plaintiff and by virtue of my review of the corporate records of Plaintiff. "I am the custodian of records of Plaintiff. Attached hereto are three (3) pages of records from Plaintiff. These records are kept by Plaintiff in the regular course of business, and it was the regular course of business for an employee or representative with knowledge of the act, event, condition, opinion or diagnosis recorded, to make the records or to transmit the information thereof to be included in such record; and the record was made at or near the time of the event or reasonably thereafter. The records attached hereto are the exact duplicates of the originals. Attached hereto, marked as Exhibits “A” and “B,” respectively, are true and correct copies of the Contract and the Texas Certificate of Title. "Thave personal knowledge of the facts and circumstances contained in this affidavit as a result of my employment with Plaintiff and by virtue of my review of the corporate records of Plaintiff. The corporate records of Plaintiff are available to me in the routine course of my employment by Plaintiff as an Assistant Vice President in Plaintiff's Tarrant County, Texas offices. In the ordinary course of business, I would review records that are routinely maintained on accounts in debtors’ names on promissory notes, personal loan agreements and on retail installment contracts assigned by motor vehicle dealers to Plaintiff. The facts stated herein are based upon my review of the business records maintained by Plaintiff on Debtor's account. "Plaintiff has retained the law firm of Devlin, Naylor & Turbyfill, P.L.L.C. to represent the company in this matter. "On or about December 31, 2007, Debtor executed the Contract in Dallas County, Texas, where Debtor purchased the Vehicle from TXVT LTD doing business as Trophy Nissan ("Seller"). "Debtor promised to pay the sum of $39,355.40, plus interest at the Contract rate of 8.99% per annum, in seventy-two (72) monthly payments of $711.82, with the first monthly installment payment due February 14, 2008. The Contract expressly reserved to Seller and its assigns a right of possession and a security interest in the Vehicle until all payments called for had been made. True and correct copies of the Contract and Texas Certificate of Title, evidencing perfection of Plaintiff's purchase money security interest in the Vehicle are attached hereto marked as Exhibits "A" and "B." "After accepting the Contract and prior to default by Debtor, Seller assigned the Contract to Plaintiff. Plaintiff became the owner and holder of the Contract and is entitled to receive payment thereon. The Contract provided that time was of the essence, and that, in the event of default in the payment, or any other default by Debtor, then Seller or its assignee shall have the right to declare all amounts due and payable, repossess the Vehicle, and retain all payments made prior to repossession, with Debtor remaining liable for any deficiency. "At all times material and relevant to this cause of action, Plaintiff held, and continues to hold, a perfected, first-priority purchase money security interest in the Vehicle and is in possession of the original Texas Certificate of Title issued in the name of the Debtor. “Debtor made some payments under the Contract, but thereafter defaulted and failed or refused to make payments due thereafter. Affidavit in Support of Plaintiffs Motion for Final Summary Judgment Page 2 “Plaintiff made a written demand for all past-due installment payments and has given notice of its intent to accelerate all payments due under the Contract; however, payment was not received as demanded. Plaintiff has accelerated the maturity date of the Contract. "Upon filing suit, Plaintiff filed an Application for Writ of Sequestration, which was granted. The Writ of Sequestration was attempted to be levied; however, the Vehicle was not recovered. “Plaintiff's claim is just and true, and it is due, and after all just and lawful offsets, payments, credits and application of net sale proceeds have been allowed, Debtor owes Plaintiff the sum of $32,274.23 which is the sum of $31,078.38 in unpaid principle balance, $946.72 in accrued and unpaid interest, and $249.13 in accrued and unpaid late fees. These amounts do not include attorney's fees or court costs. Pre-judgment interest continues to accrue on the unpaid principal balance at the Contract rate of interest of 8.99%. Pursuant to the Contract, Plaintiff is further entitled to recover from Debtor its attorneys fees incurred in this litigation. "T have read the above affidavit and every statement contained herein is within my personal knowledge and is true and correct." FURTHER, AFFIANT SAYETH NOT. SANTANDER CONSUMER USA, INC. /] doing business as a 22 7 == By: — SERGIO PADILLA SUBSCRIBED AND SWORN TO before me bySPRGIO PADILLA on this_ 20 day of Are , 2012. 7 N (OTARY PUBLIC in and for the STATE OF TEXAS My Commission Expires: G[ oj bers SHAMIRA N. CARTER Notary Public, State of Texas My Commission Expires “ib i September 01, 2015 Affidavit in Support of Plaintiff's Motion for Final Summary Judgment Page 3 i moron venous MPLE RETAILINSTALLMEN. FINANCE CHARGE A CONTPAEn y04644 Dassen. 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OF CONTA AGT RECEIPT: VOU AGREE TO Vile TERNS Oi THs CONTRACT Ano WeSDES PYAND Tr i revene iMTAAYBtIEFORE YOU SIGNED Tis CONTRACT OFETTTHIS C; ACT(OOUWEREFREETO} LUG ETOTAKEI ARBITRAT ION CLA ONio USE FEYOU AC KNOWLEDGE 1aT YOU HAVE READ BOTH THe REVERSE BIDE BEFORE SIGNING BELOW. yer Sore fay 72007 C>Beree Sona Sona porte [pesto 0 tens aed ee ‘festa oad m etm Sats pa porn le nt bo ena nents al SeacomA CEnorws Tanah hens neeomae FSB -L FF 00kOnitooue THONI- 0 ieW eee Tiswe 1 Raa as ma cn Sav opmaluape n (Ea 0 Tine ita PLAINTIFF’S Bo maneSS eetre pefament ramen, Soa Sin oe ee OMG LeHHOLOER, i3 EXHIBIT A ven Ten at Coxon | ' :runceNOW cmc NO, WE POISEyeas THE MUN PedCLNGEiy9 YosFda + devwien smu "mcs tio see commer Faes age ‘OMRRES ‘bhlB Im paste po a vem Ges anaes vn vty ten sa pa son At Fees ep be vse ud eb al + itord te ‘PacexnON oFnbsCHER as po = rahe a area yotpgnerh Jpn wate mento Seb hs ietaicstauger ants x Aeanevn unto suwone aa op yer wateret ale iby pepe bs et Tana Troon oR on te sea UTECuEaE pe einen (HOW LAE GA ALY Pao ani wa oD Wun tH, - Sea tea nF Poet Oa,cael bi el Pye | 1. 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B49 ae AGTUAL. HTLEAGE ‘ Benge nero ete TREE Wn wn eer Un ETT Dia relyOth be aBea Gave Tet oF ee tat DABS LEH wrep paren 12F31L/20NF HSBC aprainimsl gst a oy PO 50x SAN DIE} a?9E P2177 LES REE Dace Led sO ura PPR UENTEEMED spy CsRER Lt aU fo ovens “]A1G HeeeR lor Tar vaTDY ore x PETG MERE Oni WHRTEIS RAUB WURDE THE DNA fh Tec ARNE UA. aigirs wr >za el ia seap nly rr nomen 5m ta MSs onan an ee AETOVE AL Tre eb sowie ave Sonne Sig ervoxin GF mi be i Fenaen= ‘fonenyaAT, ‘Bin a oawenmurhi i BURL ens soar" ini ones ee rons RA ysgsot YO NGT segePT Ine RUHR EFitaling ALTEODON)A MaXLATIOR