Autovest, L.L.C. v. Reshina Weatherly

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

AUTOVEST, L.L.C, )
)
Plaintiff, )
)
v. ) C.A. No. CPU4-18-001993
)
RESHINA WEATHERLY, )
)
Defendant. )
Submitted: Novernber 27, 2018
Decided: March 21, 2019
Patrick Scanlon, Esq. Reshina Weatherly
Attorney at Law Defendant
206 NE Front Street, Suite 101 122 Ruth Street
Milford, DE 19963 Wilmington, DE 19805
Atlorneyfor Plal'ml'ff Pro Se

DECISION AFTER TRIAL

SMALLS, C.J.

FACTUAL AND PROCEDURAL HISTORY

This is a consumer debt action brought on April 17, 2018, by Autovest L.L.C.,
(“Plaintiff”) against Reshina Weatherly (“Defendant”) alleging that Defendant failed to
make required payments for a financed automobile. Plaintiff demands judgment in the
amount of $6,478.59, pre~ and post-judgment interest at the legal rate, attorney’s fees and
costs.

On June 12, 2018, Defendant filed an Answer denying the allegation involving the
debt which resulted from a purchase of a 2007 Dodge Charger. Defendant argues the
“Company, Teej ay Enterprises, (“Teej ay”) gave her a new vehicle when the engine blew
up in the 2007 Dodge Charger.” Defendant avers she signed paperwork relieving her of
responsibility for the 2007 Dodge Charger because they “sold her a lemon.” Lastly,
Defendant argues Teej ay is responsible for the judgmentl

On July 2, 2018, Plaintiff filed a pretrial worksheet attaching repossession
documents and a bill of sale. On July 10, 2018, the case was referred to mediation which
was unsuccessful

These matters proceeded to trial on November 27, 2018. Plaintiff called its first
witness, Defendant Reshina Weatherly, who testified that she purchased a 2007 Dodge
Charger from Teej ay that malfunctioned shortly following the purchase. When she took
the car back to Teejay, she was given a another vehicle, with a new contract.2 Further,

Defendant testified that when she returned the 2007 Dodge Charger to Teejay, she signed

' Defendant did not file any cross claims.
2 Defendant did not admit any documents into evidence.

1

a new contract for the new vehicle. Defendant testified her assumption was that since she
returned the 2007 Dodge Charger, there was no need to continue paying the amounts
required under the prior contract and the payments for the replacement vehicle were
being directly withdrawn from her account. Further, Defendant testified she did not file
an answer in response to the request for production because she did not receive the
documents. However, she failed to provide the “new contract” from Teejay for the new
vehicle. Defendant testified that she contacted Pelican Auto Finance, LLC. (“Pelican”)
when she received the lawsuit documents and informed them she returned the 2007
Dodge Charger to Teej ay. Defendant claims that Teejay gave her paperwork stating
Teej ay would be responsible for the 2007 Dodge Charger loan, though she failed to
provide any documentation at trial of this agreement Additionally, Defendant testified
when the engine blew up, she told Pelican that she had left the 2007 Dodge Charger with
Teejay.

Plaintiff introduced into evidence notice of repossession that was mailed to
Defendant regarding the private sale of the 2007 Dodge Charger.3 Defendant testified
she never received this notice of repossession Defendant stated she resides in
Philadelphia and the address on the repossession document is an old Delaware address.

Plaintiff called as its second witness their operations manager, Julie Allen
(“Allen”), who testified she was the custodian of the business records. Plaintiff

introduced into evidence Defendants signed Retail Installment Contract and Security

3 Plaintiff’s Exhibl`l 2.

Agreement with Teejay and Pelican.4 Allen further testified as to Plaintiff’ s Exhz'bit 3 ;
the Explanation of Deficiency.5 Plaintiff s Exhibz`l 3 indicate an unpaid balance for the
2007 Dodge Charger in the amount of` $7,868.59. Allen testified her records indicate the
2007 Dodge Charger being abandoned at Teejay’s shop, and subsequently repossessed
and sold at auction. From the repossession sale of the vehicle, there is a credit in the
amount of$l,390.00, which leaves a deficiency balance of $6,478.59. Further, Allen
testified there is no record that either Teejay or Defendant paid this deficiency balance.
In addition, there were no documents received that relieved Defendant from the debt.

Lastly, Plaintiff introduced the Autovest Loan Comment Report detailing any
communications and transactions between Plaintiff and Defendant.6 Defendant objected
that she never contacted Pelican and disagrees with any communications made to
Plaintiff. Allen testified that when Pelican contacted Teejay, they told Pelican the vehicle
was in their shop, it was abandoned, and they had made no repairs.

DISCUSSION

During a trial, the Court sits as the trier of fact, therefore, it is the Court’s
responsibility to assess the credibility of the witnesses and, where there is a conflict in the
testimony, to reconcile these conflicts, “if reasonably possible[,] so as to make one
harmonious story.”7 In doing so, the Court takes into consideration the demeanor of the

witnesses, their apparent fairness in giving their testimony, their opportunities in hearing

4 Plaintiff"s Exhibl't 1.

5 Defendant objected to this Exhibit which was admitted with reservation.

6 Plaintiff`s Exhibit 4.

7 Nat'l Grange Mut. Ins. C0. v. Nelson F. Davl`s, Jr., et. al., 2000 WL 33275030, at *4 (Del. Com. Pl. Feb.
9, 2000).

and knowing the facts about which they testified, and any bias or interest they may have
concerning the nature of the case.8 In civil cases, the Plaintiff bears the burden to prove
each element of its claim by a preponderance of the evidence.9 The party on which the
greater weight of the evidence is found is the side on which the preponderance of the
evidence exists.m

Plaintiff in these proceedings seeks a deficiency balance on an automobile
financing agreement which is subject to Article 9 in Title 6 of the Delaware Code. As
Such, it is a consumer action and subject to the provisions of Administrative Directive
No. 2012-2. The Directive requires that, “the caption shall include a sufficient
description of the original creditor to reasonably enable the defendant to identify the
account, along with the name of the plaintiff . .”" In these proceedings, the documents
indicate Pelican is the original creditor which requires Plaintiff to state their name in the
case caption. Although the original creditor and proof of ownership of the account is set
out in an affidavit attached to the Plaintist complaint, there is no indication in the case
caption. Under the Directive, such failure subjects the proceedings to dismissal in the
discretion ofthe Court.12

Additionally, Plaintiff’s claim for payment of the debt is based upon the

documents admitted into the record which show a debt to Pelican though this action is

8 See Slate v. Westfall, 2008 WL 2855030, at *3 (Del. Com. Pl. Apr. 22, 2008).

9 See Reynolds v. Reynola's, 237 A.2d 708, 7ll (De|. 1967).

10 lar

" Administrative Directive No. 2012-2; Pleading Requirements for Complaints in Consumer Debt
Collection, see h1lns:!."etjiurts,delaware.govfcommonp|casi'agcncy!docs!.¢\020l2-2.\){11`.

'2 Id. See also Klinedinst v. CACH, LLC, No. CV Sl3A-07-004, 2014 WL 606629, at *3 (Del. Super. Ct.
Jan. 10, 2014); (The affidavit fails to name the original creditor or set forth the chain of title for the loan).

4

brought by Autovest, LLC. There is no document which shows a transfer of the debt to
Autovest. The proffered evidence includes contractual documents from Pelican, signed
by the Defendant, but fail to include direct evidence of a debt transfer. Further, there is
no document admitted into the record that reveal Autovest as a purchaser in due course of
the debt. This Court has previously held that “a plaintiff must offer specific proof
showing the assignment or sale of the account at issue.”13 In Hanby, this Court held that
when there is no document introduced to establish that there was a sale or assignment to
the entity which brings the claim, there is insufficient documentations present to establish
a chain of title. 14 The proffered evidence would require the Court to make the inference
that the contractual debt Defendant agreed to pay was transferred from Pelican to
Autovest.

When a creditor sues on a debt to which they were not the original lender, the
creditor must establish at trial that they own the debt if they have not provided a bill of
sale in the body of the complaint. Here, the pretrial worksheet dated July 2, 2018,
Plaintiff states the original creditor was Pelican Auto Finance, LLC to which Plaintiff
purchased the account on June 30, 2017. This bill of sale and assignment is attached to
the pretrial worksheet but was not presented at trial. Therefore, there is no evidence in

the record to establish the chain of title in the debt and thus, prove its claim.

13 Ml`dland Fundl`ng LLC v. Grczves, No. NlSA-01-008 Al\/[L, 2016 WL 1590999, at *4 (Del. Super. Ct.
Apr. 7, 2016); See Kll`nedinst v. CACH, LLC, 2015 WL 3429941, at *3-4 (Del.Super. May 22, 2015);
Midland Fundl`ng, LLC v. Hcmby, No. CIV.A. CPU4-14001135, 2015 WL 738060, at *5 (Del. Com. Pl.
Feb. 23, 2015).

14 Hcmby, 2015 WL 738060, at *5.

Lastly, Plaintiff failed to comply with the repossession notice requirements under
the provisions of Title 6 Uniform Commercial Code, Article 9. Such provisions provide;
“after default, a secured party may sell, lease, license, or otherwise dispose of any or all
of the collateral in its present condition or following any commercially reasonable
preparation or processing.”'5 “Every aspect of a disposition of collateral, including the
method, manner, time, place, and other terms, must be commercially reasonable.”16

Under the Revised Article 9, the secured party is required to “make a showing that
it conducted the resale of repossessed non-consumer collateral in a 'commercially
reasonable' fashion, in order to be able to recover any alleged deficiency judgment from
debtors.”l7 “A secured party that disposes of collateral under Sectz`on 9-6]0, shall send to
the persons . . . a reasonable authenticated notification of disposition.” Section 9-613(1)
provides that the contents of the notice of disposition are sufficient if it: (A) describes the
debtor and the secured party; (B) describes the collateral that is the subject of the
intended disposition; (C) states the method of intended disposition; (D) states that the
debtor is entitled to an accounting of the unpaid indebtedness and states the charge, if
any, for an accounting; and (E) states the time and place of a public disposition or the
time after which any other disposition is to be made. When a notice lacks any
information under subsection (1), the sufficiency of the notice becomes a question of fact

for the Court to determine.”'8

'5 6 Del. C. § 9-610(a).

'° 6 Del. C. § 9-610(b).

'7 USA Fl`nancl`al Services, LLC v. Young's Funeral Home, Inc., 2010 WL 3002063, at *3 (Del. Com. Pl.
Jun. 24, 2010) (internal citations omitted).

18 Id.

Here, the Defendant was sent a letter advising her that her vehicle was repossessed
on July 28, 2015 and that Pelican will sell the vehicle at a public sale “sometime after
August 13, 2015.” This notice is insufficient as it fails to specify the date, time and place
of the sale.

CONCLUSION
Based on the forgoing, Plaintiff has failed to establish the right to collect on the

debt against the Defendant. Accordingly, judgment is entered for Defendant. All parties

/MM

gfcx J. /Smalls,
ghief Judge

are to pay their own costs.

IT IS SO ORDERED.