CLOVER COMMERCIAL CORP v. WILSON (2020)

ORDERED that the order is modified by striking so much thereof which provided “As Plaintiff has not established a right to possession of the subject vehicle[, it] shall be returned to the defendant, forthwith”; as so modified, the order is affirmed, without costs.

In or about October 2017, plaintiff commenced this action for a money judgment, and alleged in its complaint that defendant had breached an installment contract for the purchase of a vehicle which plaintiff repossessed in April 2018. Following service of her answer, which did not contain a counterclaim, defendant, representing herself, moved for an order to “Stay Seizure of the Automobile,” which motion is deemed a motion to stay plaintiff from selling defendant's vehicle. Plaintiff opposed the motion. Defendant then retained counsel and, in reply, argued that she also sought injunctive relief, i.e., the return of her vehicle. The Civil Court, by order entered September 20, 2018, granted defendant's motion, stating as follows:

“On the record before this court, plaintiff has failed to prove that it is the assignee of the underlying retail installment agreement and therefore has failed to establish that it had the right to repossess the vehicle.

Accordingly, defendant's motion is granted. As Plaintiff has not established a right to possession of the subject vehicle[, it] shall be returned to the defendant, forthwith.”

Contrary to plaintiff's argument that the Civil Court improperly considered the standing argument which was raised by defendant's attorney for the first time in reply, it is noted that defendant raised this argument in her moving papers when she stated that “I do not have a business relationship with [plaintiff],” which statement is substantially similar to the statement defendant made in her answer, to wit, that “I do not have a business relationship with Plaintiff. (Plaintiff lacks standing.).” In support of her motion, defendant stated that she has a good defense because her vehicle “was taken wrongfully & without judgment,” and she has a reasonable excuse because she “ha[s] no contract or/and business relation with Clover regarding a loan/debt.” Plaintiff argued that the vehicle was collateral and that a party with a security interest has the absolute right to take possession of the collateral upon the debtor's default without first providing notice to the debtor and without judicial process (see UCC 9-609; Abele Tractor & Equip. Co., Inc. v Schaeffer, 167 AD3d 1256 [2018]). Plaintiff's papers do not conclusively establish that it had a security interest in defendant's vehicle. Plaintiff asserted that defendant had entered into an installment contract with Queens Auto Mall for the purchase of a vehicle and that it was the assignee of defendant's loan. However, the installment contract, which plaintiff submitted in opposition to the motion, states that Queens Auto Mall had assigned its interest in defendant's loan to Santander Consumer USA, Inc. (Santander). Although plaintiff submitted an undated assignment by Queens Auto Mall which allegedly assigned its interest in the loan to plaintiff, there is no explanation as to how Queens Auto Mall could assign an interest which it had already assigned to Santander.

In view of the foregoing, the papers plaintiff submitted in opposition to defendant's motion failed to conclusively establish that it had standing to commence this action, notwithstanding that plaintiff submitted a copy of a notice of recorded lien from the Department of Motor Vehicles which lists plaintiff as the lienholder of defendant's vehicle. Consequently, the Civil Court properly granted defendant's motion staying plaintiff from selling defendant's vehicle. However, in addition to granting a stay, the Civil Court also directed plaintiff to return the vehicle to defendant. Since no cause of action has been asserted seeking the return of a chattel (see CCA 202; see also CCA 209), the Civil Court was without jurisdiction to grant the injunctive relief and order the return of the vehicle.

Accordingly, the order is modified by striking so much thereof which provided “As Plaintiff has not established a right to possession of the subject vehicle[, it] shall be returned to the defendant, forthwith.”

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.