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Vw Credit, Inc., Doing Business As Audi v. Barbara Robertson and Howard Robertson

May 2, 2011

VW CREDIT, INC., DOING BUSINESS AS AUDI FINANCIAL SERVICES, DOING BUSINESS AS BENTLEY FINANCIAL SERVICES, PLAINTIFF,
v.
BARBARA ROBERTSON AND HOWARD ROBERTSON, DEFENDANTS.



The opinion of the court was delivered by: Hurley, District Judge:

MEMORANDUM & ORDER

Plaintiff VW Credit, Inc., doing business as Audi Financial Services and Bentley Financial Services ("Plaintiff" or "VW Credit") commenced this replevin action against pro se defendants Barbara and Howard Robertson (collectively, "Defendants" or "the Robertsons"), seeking to take possession of one used 2007 Bentley Continental GT convertible. Plaintiff also asserts causes of action for conversion and unjust enrichment. By Order to Show Cause filed on October 4, 2010, Plaintiff seeks a Temporary Restraining Order and Order of Seizure of Property pursuant to Federal Rule of Civil Procedure 64. For the reasons set forth below, Plaintiff's application is denied.

BACKGROUND

The Contract Between Plaintiff and LaMotte

On or about October 22, 2009, non-party Donna Mendes-LaMotte ("LaMotte"), a resident of New Jersey, purchased a used 2007 Bentley Continental GT convertible bearing vehicle identification number ("VIN") SCBDR33W57C044516 (the "Vehicle") from non-party seller Champion Motor Group ("Champion"). (Compl. ¶ 5.) In conjunction with her purchase of the Vehicle, LaMotte executed a contract (the "Contract") in favor of Champion. According to the Contract, the total purchase price of the Vehicle was $142,857.50. (Id. ¶ 6.) LaMotte made a down payment of $13,000, which left an unpaid balance of $129,857.50. (Id.) The unpaid balance, plus associated fees, resulted in a total financed amount of $130,432.50. (Id.) The Contract required LaMotte to make sixty monthly payments, each in the amount of $2,551.45, beginning on November 21, 2009. (Id.) LaMotte's compliance with her payment obligations under the Contract was secured by the Vehicle. (Compl., Ex. A at 2 ("You give us a security interest in [t]he [V]ehicle and all parts or goods installed in it."); Aff. of Brad Malm, dated Sept. 30, 2010 ("Malm Aff.") ¶ 6.) On the same day the Contract was executed, Champion assigned all of its rights under the Contract to Bentley Financial Services, a division of Plaintiff. (Compl. ¶ 7.)

The Contract contains, inter alia, a provision pursuant to which LaMotte agreed not to "sell, rent, lease, or transfer any interest in the [Vehicle] or this contract without [Plaintiff's] written permission." (Compl. Ex. A at 2.) The Contract also states that in the event of a default by LaMotte, Plaintiff "may take (repossess) the [Vehicle] from [LaMotte] if . . . the law allows it." (Id.)

The Certificate of Title

The Vehicle is listed on a certificate of title, issued from the State of New Jersey and dated November 24, 2009 (the "Certificate of Title"). (Compl., Ex. B.) The Certificate of Title identified LaMotte as the titled owner of the Vehicle and Bentley Financial Services as a lienholder. (Id.)

Defendants Take Possession of the Vehicle

Defendants assert that during the time period in question, they "were in the market for a 2005 Bentley Continental GT, which sells in the low $60,000.00 range." (State Compl. ¶ 3.)*fn1

Defendants contend that non-party Paul Silva ("Silva") told them that he "and his business partners," non-parties Michael Sender ("Sender") and Bentley of Long Island, could sell the Robertsons a 2007 Bentley Continental GTC for $68,500.00. (Id.) On September 28, 2009, the Robertsons test drove and inspected a used 2007 Bentley Continental GTC, VIN # SCBDR33WX7C04931 (the "Test Drive Vehicle"), which Silva and Sender brought to their residence. (Id. ¶ 4.) According to Defendants, Sender represented himself as an employee of Bentley of Long Island. (Id.) Sender drove the Test Drive Vehicle to the Robertsons' house and demonstrated the car's various features. (Id.) The Robertsons assert that "Sender's involvement" -- presumably, as an employee of Bentley of Long Island -- "legitimized the deal." (Id.) In addition, Defendants describe Silva as a "friend of the family for over thirty years," who previously sold the Robertsons a 1994 Jaguar convertible, and sold other vehicles to the Robertsons' family and friends without incident. (Defs.' Nov. 9, 2010 Letter at 1.) Accordingly, Defendants tendered $25,000.00 to Silva as a down payment towards the Test Drive Vehicle's $68,500.00 purchase price. (State Compl. ¶ 3.) Three days later, on October 1, 2009, Defendants tendered the remaining $43,500.00 to Silva. (Id. ¶ 5.)

On October 27, 2009 Silva informed the Robertsons that the Test Drive Vehicle "had mechanical problems." (Id. ¶ 6.) Accordingly, Silva delivered the Vehicle -- which was the subject of the Contract between LaMotte and Plaintiff, as described above -- to the Robertsons instead of the Test Drive Vehicle. (Id.) According to Defendants, the "N.Y.S. in-transit permit [for the Vehicle] originated from the dealership of [ ] Bentley of Long Island." (Id.) The Robertsons admit that they "were never issued title" to the Vehicle and, indeed, have not been able to obtain title to date. (Id.; see also Ans. ¶ 7.) They contend, however, that Silva told them "that the title was at the DMV in Long Island City" and that "Silva claimed that he had tax credits that were being applied, thereby exempting the [Robertsons] of the tax liability." (State Compl. ¶ 7.) Subsequently, the Robertsons made "numerous" attempts to obtain title to the Vehicle, which were ultimately unsuccessful. (Id. ¶ 8.)

Defendants allege that LaMotte "utilized her credit to purchase four cars and authorized her cousin (Paul Silva) to sell or flip the cars for a profit on her behalf. The Defendants purchased [the Vehicle] and were never informed that a lien existed." (Ans. ¶ 5.)

LaMotte's Alleged Default Under the Contract

Plaintiff contends that, in violation of the Contract, the Vehicle was "improperly (i) sold, rented, leased, or transferred without the written consent of [Plaintiff] to the Robertsons and/or (ii) exposed . . . to misuse, seizure, confiscation, or involuntary transfer to the Robertsons. (Malm Aff. ¶ 14.) Plaintiff further contends that LaMotte has "failed to make payments as promised under the Contract and is in default of her obligations and indebtedness owed under the Contract to VW Credit, as of September 28, 2010, in an amount exceeding $128,000.00." (Id. ¶ 15.)

Plaintiff's Attempts to Perfect its Security Interest in the Vehicle

Plaintiff asserts that on the same day the Robertsons took possession of the Vehicle, October 27, 2009, Plaintiff "provid[ed] various documents to its agent for titling with the Motor Vehicle Commission of the State of New Jersey." (Pl.'s Nov. 22, 2010 Letter at 2.) These documents are described in detail, infra. Plaintiff claims that it "perfected its first priority security interest/lien in, to, and against the [ ] Vehicle by recording its lien on the certificate of title for the [ ] Vehicle with the Motor Vehicle Commission for the State of New Jersey." (Pl.'s Nov. 3, 2010 Letter at 1.) Ever since Defendants took ...


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