Automotive Finance Corporation v. DZ Motors, Llc et al

BRIEF in Opposition

D.N.J.January 21, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ____________________________________ AUTOMOTIVE FINANCE CORPORATION Plaintiff, Civil Action No. 3:16-cv-07955-MAS-DEA vs. DZ MOTORS, LLC; A TO Z AUTO CONNECTION, INC.; DMITRIY CIVIL ACTION ZHOLOBOV; ELENA V. ZHOLOBOV; RARITAN BAY FEDERAL CREDIT UNION; JOHN DOES 1 to 100 Defendant(s). Motion Returnable: February 6, 2017 ___________________________________ PLAINTIFF AUTOMOTIVE FINANCE CORPORATION BRIEF IN OPPOSITION TO DEFENDANT UNITED TELETECH FEDERAL CREDIT UNION MOTION TO DISMISS DONNA L. THOMPSON Attorney for Plaintiff PHYSICAL ADDRESS: 1442 Lakewood Road Manasquan, NJ 08736 SEND ALL MAIL: PO Box 679 Allenwood, NJ 08724 732-292-3000 Phone 732-292-3004 Fax donna.thompson@dlthompsonlaw.com Dated: January 21, 2017 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 1 of 14 PageID: 296 TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………… 3 PRELIMINARY STATEMENT………………………………………….. 4 LEGAL ARGUMENT I. Standard of Review: Rule 12(b)(6)……………………… 6 II. Standard of Review: Rule 9(b)…….…………………… 8 III. Plaintiff’s First Amended Complaint complies with both Rule 12(b)(6) and Rule 9(b)………………………… 9 IV. As a matter of law, Plaintiff holds a superior lien on the Porsche which defeats the recorded lien of United Teletech Federal Credit Union……………………..……….. 12 CONCLUSION……………………………………………………………... 14 2 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 2 of 14 PageID: 297 TABLE OF AUTHORITIES Cases Adams v. City National Bank and Trust Company of Norman, 565 P.2d 26 (1977)…………....12 Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939 (3d Cir.1985) ........................................ 6 Ashcroft v. Iqbal,556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ..................................... 7 Bartholomew v. Fischl, 782 F.2d 1148 (3d Cir.1986) .................................................................... 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). ............ 7 Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ................................................. 6 Craftmatic Sec. Litig. v. Kraftsow, 890 F.2d 628 (3d Cir.1989) ..................................................... 8 District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1078 (D.C.Cir.1984)…………………..6 Glassman v. Computervision Corp., 90 F.3d 617 (1st Cir.1996))………………………………...8 G.M.A.C. v. Keil, 176 N.W.2d 837 (Iowa 1970)…………………………………………………13 Graves v. Lowery, 117 F.3d 723 (3d Cir.1997) .............................................................................. 6 Holder v. City of Allentown, 987 F.2d 188 (3d Cir.1993) .............................................................. 6 In re Burlington Coat Factory Litig., 114 F.3d 1410 (3d Cir.1997)………………………………8 Jackson Nat'l Life Ins. Co. v. Ligator, 949 F.Supp. 200 (S.D.N.Y.1996) ...................................... 9 Mills v. Polar Molecular Corp., 12 F.3d 1170 (2d Cir.1993) ......................................................... 8 Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 29, 494 (D.N.J. 1999)………….14 Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) .................................... 6 Phillips v. County of Allegheny,515 F.3d 224 (3d Cir.2008) .......................................................... 7 Quinones v. Szorc, 771 F.2d 289 (7th Cir.1985) ............................................................................ 6 Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). ....................................... 6 Strange v. Nationwide Mut. Ins. Co., 867 F.Supp. 1209 (E.D.Pa.1994) ........................................ 8 Unger v. National Residents Matching Program, 928 F.2d 1392 (3d Cir.1991) ........................... 6 Statutes N.J. Stat. Ann. § 12A:1-201 .......................................................................................................... 11 Rules Rule 12(b)(6) ................................................................................................................................... 6 Rule 9(b) ......................................................................................................................................... 8 3 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 3 of 14 PageID: 298 PRELIMINARY STATEMENT Plaintiff Automotive Finance Corporation (“AFC”) is an Indiana Corporation in the business of providing, inter alia, floor plan financing for used automotive dealers and leasing/rental companies. Defendant DZ Motors, LLC entered into a financing arrangement, whereby AFC financed inventory (purchase of motor vehicles) offered for sale to the general public at their retail location. Under the terms of the financing agreement, AFC was a secured creditor with priority rights to the motor vehicles as collateral for the loans. A to Z Auto Connections, Inc. (believed to be defunct) and Dmitriy Zholobov guaranteed the obligations of DZ Motors, LLC. Through a complex tangled web of forgeries, fraud, and deceit, the employees, owners, managers and other associates of DZ Motors, LLC managed to defraud AFC, numerous consumers, and other lending institutions (some who are parties to this action) out of millions of dollars. As the frauds unraveled, the retail location of the dealership shut down in or about October of 2016, leaving dozens of individual consumers stranded who had paid for cars that they never received title to. A number of banks that had financed vehicles to consumers were left without titles to secure their consumer loans. Purchase money security interest creditor AFC was left unable to locate several million dollars’ worth of collateral, leading to the filing of this suit. As set forth at number 7 to the First Amended Complaint, supported by Exhibit I to the First Amended Complaint, at the time of the filing of the First Amended Complaint there were sixty five “missing” high end luxury vehicles with brands like Mercedes Benz, Porsche, Bentley, and BMW, all financed by AFC and secured with a purchase money security interest, that have simply disappeared. AFC has repossessed and liquidated what collateral it has found for recovery, and is conducting an ongoing internal investigation trying to locate other collateral. Currently pending before the Court is a motion to an Order to Show Cause to compel replevin of numerous vehicles 4 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 4 of 14 PageID: 299 believed to still be in possession of Defendants. The internal investigation being conducted by AFC is attempting to unravel how DZ Motors, LLC and its employees and representatives managed to perpetrate such a colossal fraud in the face of numerous safeguards put in place by AFC to prevent fraud. These safeguards included continual on-site auditors who view and inspect the collateral vehicles, and constant monitoring of the account by experienced lending professionals trained to spot improprieties which could be signs of potential to dealer fraud. Pertinent to this motion is the allegations in the First Count of the Complaint seeking Replevin as it pertains to a certain 2015 Porsche 911 for which title was transferred to individuals Rossi Collantes and Shiel R. Patel on or about September 28, 2016. Plaintiff held a security interest in the Porsche with a balance of $59,081.45 as of December 28, 2016. As the dealership was in the process of being closed down, with all available remaining collateral being seized by the secured creditors, the Porsche disappeared from the lot and the title was transferred without payment to the secured creditor. Investigation revealed the title was transferred to “Rossi Collantes” which is apparently the proper legal name for dealership employee “Alex Collantes.” As the transfer was not a bona fide arms- length transaction in the ordinary course of business, AFC’s security interest remains a priority lien and is superior to the later filed lien of United Teletech Federal Credit Union. 5 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 5 of 14 PageID: 300 LEGAL ARGUMENT I. Standard of Review: Rule 12(b)(6) A motion to dismiss, pursuant to Federal of Civil Procedure 12(b)(6), may be granted only if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993); Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986). The Court may not dismiss the complaint unless plaintiff can prove no set of facts which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Graves v. Lowery, 117 F.3d 723, 726 (3d Cir.1997); Unger v. National Residents Matching Program, 928 F.2d 1392, 1395 (3d Cir.1991); Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir.1985). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In setting forth a valid claim, a party is required only to plead "a short plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8(a). To withstand a motion to dismiss, "a plaintiff is not required to provide evidence of or prove the truthfulness of his complaint." Quinones v. Szorc, 771 F.2d 289, 291 n. 3 (7th Cir.1985). The court, however, is not required to accept conclusory allegations. See Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Thus, the complaint "must set forth sufficient information to suggest that there is some recognized legal theory upon which relief may be granted." District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1078 (D.C.Cir.1984). 6 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 6 of 14 PageID: 301 The Supreme Court clarified the Rule 12(b)(6) standard in two cases: Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The decisions in those cases abrogated the rule established in Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief." In contrast, Bell Atlantic, 550 U.S. at 545, 127 S.Ct. 1955, held that "[f]actual allegations must be enough to raise a right to relief above the speculative level." Thus, the assertions in the complaint must be enough to "state a claim to relief that is plausible on its face," Id. at 570, 127 S.Ct. 1955, meaning that the facts alleged "allow[] the court to draw the reasonable inference that the defendant is liable for the conduct alleged." Iqbal, 129 S.Ct. at 1949; see also, Phillips v. County of Allegheny,515 F.3d 224, 234-35 (3d Cir.2008) (In order to survive a motion to dismiss, the factual allegations in a complaint must "raise a reasonable expectation that discovery will reveal evidence of the necessary element," thereby justifying the advancement of "the case beyond the pleadings to the next stage of litigation."). When assessing the sufficiency of a complaint, the Court must distinguish factual contentions - which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted - from "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 129 S.Ct. at 1949. Although for the purposes of a motion to dismiss the Court must assume the veracity of the facts asserted in the complaint, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950. Thus, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. 7 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 7 of 14 PageID: 302 When a claim is dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), leave to amend and reassert that claim is ordinarily granted. In re Burlington Coat Factory Litig., 114 F.3d 1410, 1434 (3d Cir.1997). A claim may be dismissed with prejudice, however, if amending the complaint would be futile. Id. "Futile," as used in this context, means that the complaint could not be amended to state a legally-cognizable claim. Id. (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.1996)). II. Standard of Review: Rule 9(b) Rule 9(b) of the Federal Rules of Civil Procedure requires that all allegations of fraud state the circumstances constituting the fraud "with particularity." The requirements of Rule 9(b) may be satisfied if the complaint describes the circumstances of the alleged fraud with precise allegations of date, time, or place. See Craftmatic Sec. Litig. v. Kraftsow, 890 F.2d 628, 645 (3d Cir.1989) (citing Seville,742 F.2d at 791). Alternatively, plaintiffs must use some means of "injecting precision and some measure of substantiation into their allegations of fraud." Seville, 742 F.2d at 791; see also Saporito, 843 F.2d at 675 (Rule 9(b) requires "detailed allegations" of fraud). Pleadings containing collectivized allegations against "defendants" do not suffice. " Rule 9(b) is not satisfied where the complaint vaguely attributes the alleged fraudulent statements to `defendants'." Eli Lilly, 23 F.Supp.2d at 492 (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). A plaintiff must plead fraud with particularity with respect to each defendant, thereby informing each defendant of the nature of its alleged participation in the fraud. See, e.g., Seville, 742 F.2d at 791; Strange v. Nationwide Mut. Ins. Co., 867 F.Supp. 1209, 1220 (E.D.Pa.1994)(complaint alleging that defendants' agents made fraudulent representations did not 8 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 8 of 14 PageID: 303 satisfy particularity requirements of Rule 9(b)); see also Jackson Nat'l Life Ins. Co. v. Ligator, 949 F.Supp. 200, 208 (S.D.N.Y.1996) (branding the plaintiffs' failure to distinguish among the "Litigator Defendants" as an egregious example of prohibited "group pleading" under Rule 9(b)). III. Plaintiff’s First Amended Complaint complies with both Rule 12(b)(6) and Rule 9(b) Clearly the First Amended Complaint, with Exhibits A to I, satisfies the pleading standards under Rule 12(b)(6). The First Amended Complaint contains a clear recitation of the financing arrangement between AFC and DZ Motors, LLC, with copies of all of the signed documentation. The known parties are identified by names and their roles, and the unknown parties are identified as John Does 1-70 (unknown consumers) and John Does 71 to 100 (unknown individuals conspiring to defraud Plaintiff). The Defaults under the Promissory Note and Security Agreement are recited, with specific reference to the pertinent paragraphs in the Note. The prior repossession of eight-two vehicles is recited, and the specifics of sixty five missing vehicles are detailed in Paragraph 7. The complaint is detailed, supported with the appropriate exhibits, and certainly sufficient to put Defendant United Teletech Federal Credit Union on notice of why they are being sued. The First Amended Complaint also complies with the more stringent pleading standards of Rule 9(b). The frauds as currently known, subject to further discovery, are very clearly articulated: 11. On or about September 28, 2016 title to a certain 2015 Porsche 911 VIN WP0AA2A9XFS106818 was transferred from DZ Motors, LLC to individuals Rossi Collantes and Shiel R. Patel. United Teletech FCU is listed on the current title as a lienholder on said 2015 Porsche 911. On information and belief, this transfer was not in the ordinary course and the purchase money security interest of Plaintiff is superior 9 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 9 of 14 PageID: 304 to that of Rossi Collantes, Shiel R. Patel, and United Teletech FCU. Paragraph 11 gives the date of the fraud (September 28, 2016), the players: DZ Motors, LLC. Rossi Collantes, Shiel R. Patel, and United Teletech FCU, the specific vehicle identification number of the car at issue, and exactly what these players did: transferred title to a 2015 Porsche, which was secured collateral under AFC’s Note, to Rossi Collantes and Shiel R. Patel, to fraudulently secure financing from United Teletech FCU which was not in the ordinary course of business. The allegations of Paragraph 11 of the complaint are crystal clear. Plaintiffs have informally requested copies of the loan application, note, supporting documentation, etc. from United Teletech Federal Credit Union which request has been ignored. Plaintiff is in the process of serving formal discovery for these documents, and intends to depose the employees of United Teletech Federal Credit Union to ascertain the circumstances surrounding the transfer of title with a lien in favor of United Teletech Federal Credit Union on AFC’s collateral. As previously indicated, Plaintiff believes the proofs will show the transfer was not in the ordinary course, entitling Plaintiff to priority possession of the Porsche for repossession purposes under its written Note and Security Agreement with DZ Motors, LLC. IV. As a matter of law, Plaintiff holds a superior lien on the Porsche which defeats the recorded lien of United Teletech Federal Credit Union. As an initial matter, counsel for United Teletech Federal Credit Union does not represent Rossi Collantes and Shiel R. Patel and has inappropriately requested relief on their behalf. Rossi Collantes and Shiel R. Patel are represented by attorney Michael B. Campagna, Esq. Mr. Campagna filed an Answer on their behalf on January 4, 2017. The moving papers of United Teletech Federal Credit Union request the Court to sua sponte dismiss the claims against them. 10 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 10 of 14 PageID: 305 As previously indicated, Paragraph 11 of the First Amended Complaint, under the “Facts Common to All Parties” states: 11. On or about September 28, 2016 title to a certain 2015 Porsche 911 VIN WP0AA2A9XFS106818 was transferred from DZ Motors, LLC to individuals Rossi Collantes and Shiel R. Patel. United Teletech FCU is listed on the current title as a lienholder on said 2015 Porsche 911. On information and belief, this transfer was not in the ordinary course and the purchase money security interest of Plaintiff is superior to that of Rossi Collantes, Shiel R. Patel, and United Teletech FCU. The Answer filed on behalf of Rossi Collantes and Shiel R. Patel by Mr. Campagna states: 11. As these allegations, do not pertain to these Defendants they make no answer. It is unknown as to why Mr. Campagna’s Answer claims the allegations of Paragraph 11 do not pertain to his clients as clearly they do, their names are specifically listed; however, Mr. Campagna is entitled to litigate his case as he sees fit and it will be left to him to litigate whether the allegation pertains to Mr. Collantes and Mr. Patel, his clients. As to Paragraph 7 of the First Amended Complaint, seeking Replevin of the Porsche, the filed Answer of these Defendants (Collantes and Patel) states: 7. Plaintiff is not entitled to replevin, as defendants are purchasers in the normal course of business. N.J.S.A. 12A:1-201. General Definitions provide: (9)"Buyer in ordinary course of business" means a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale to the person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller's own usual or customary practices. A person that sells oil, gas, or other minerals at the wellhead or minehead is a person in the business of selling goods of that kind. A buyer in ordinary course of business may buy for cash, by exchange of other property, or on secured or unsecured credit, and may acquire goods or documents of title under a preexisting contract for sale. Only a buyer that takes possession of the goods or has a right to recover the 11 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 11 of 14 PageID: 306 goods from the seller under Chapter 2 may be a buyer in ordinary course of business. "Buyer in ordinary course of business" does not include a person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money debt. Defendants Collantes and Patel dispute the allegation they were not buyers in the ordinary course. It is Plaintiff’s position that as a matter of law, Rossi Collantes was not a buyer in the ordinary course. For purposes of priority under the UCC, as a salesperson employed by the dealership, Mr. Collantes was an agent and the same entity as the dealership DZ Motors, LLC who created the security interest with AFC. The Supreme Court of Oklahoma addressed a similar priority dispute under the UCC in Adams v. City National Bank and Trust Company of Norman, 565 P.2d 26 (1977). In Adams, the same as here, the dealer transferred title on an automobile to one of his salespeople who obtained bank financing, noting on the application for financing that he was a car salesman. Id. at 28. The car remained on the lot for sale, and the priority dispute arose when a third party purchased the automobile from the dealership and the bank attempted to replevin the automobile from the buyer when the bank loan was not paid. The Supreme Court of Oklahoma held that the car salesman who created the security interest was an agent of the dealership and thus the same entity, defeating the bank’s security interest in favor of a buyer in the ordinary course. Id. at 31. Similar to this situation, if the dealership remained open and had an opportunity to sell the Porsche to a buyer in the ordinary course, the liens of both AFC and United Teletech Federal Credit Union would be eliminated by a buyer in the ordinary course from the dealership. The dealership was closed down before there was an opportunity to transfer to a buyer in the ordinary course. Rossi Collantes as a salesperson of DZ Motors, LLC was not a buyer in the ordinary course; he was an agent and the “same entity” as DZ 12 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 12 of 14 PageID: 307 Motors, LLC under the UCC. See, also, G.M.A.C. v. Keil, 176 N.W.2d 837 (Iowa 1970) for a similar situation concerning transfer to the President of a car dealership. Accordingly, as a matter of law, the purchase money security interest of AFC is superior to the lien of United Teletech Federal Credit Union and AFC is entitled to replevin of the Porsche and removal of the United Teletech Federal Credit Union lien from the title. Counsel for United Teletech Federal Credit Union brings this motion to dismiss the First Amended Complaint not only on behalf of his client; most unusually he brings it on behalf of other defendants he does not represent who have filed an Answer which deny the allegations. Mr. Collantes and Mr. Patel are represented parties that have filed an Answer claiming “defendants are purchasers in the normal course of business.” Plaintiff intends to prove that they were not buyers in the ordinary course. United Teletech Federal Credit Union is named as a defendant because their lien will be defeated if Plaintiff successfully proves that Defendants Rossi Collantes and Shiel R. Patel were not buyers in the ordinary course under the UCC by virtue of Rossi Collantes employment at the dealership that created the security interest with AFC. Counsel sites no authority for his proposal that this Court should not only dismiss the First Amended Complaint against his client, but should also dismiss against co-defendants represented by separate counsel. The legal authority cited refers to frivolous litigation; there is no allegation that Plaintiff’s First Amended Complaint is frivolous, the allegation by United Teletech Federal Credit Union is the claims are insufficient to establish a cognizable replevin cause of action. United Teletech Federal Credit Union is an interested party in the litigation between AFC and Rossi Collantes and Shiel R. Patel. If Plaintiff is successful against these Defendants, they will recover the Porsche and wipe out the lien of United Teletech Federal Credit Union. It seems most unusual that United Teletech Federal Credit Union would not want to stay in this litigation in order 13 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 13 of 14 PageID: 308 to protect their own interest in the Porsche, but counsel is certainly entitled to represent his client as he sees fit. If this Court rules the First Amended Complaint fails to state a cause of action as to any of the Defendants, request is made to allow Plaintiff to file a Second Amended Complaint setting forth its claims and allegations in further detail. CONCLUSION Plaintiff’s First Amended Complaint complies with Rules 12(b)(6) and 9(b). Plaintiff’s motion should be denied. In the event for any reason the Court is dissatisfied with the particularity of the pleadings, the appropriate recourse is for the Court to allow the filing of a Second Amended Complaint. See, e.g., Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 29, 494 (D.N.J. 1999). Accordingly, Plaintiff requests leave to file a Second Amended Complaint in the event the Court determines the First Amended Complaint does not comport with the requirements of Rule 12(b)(6) and Rule 9(b). Thank you. Dated: January 21, 2017 /s/ Donna L. Thompson ____________________________ DONNA L. THOMPSON Attorney for Plaintiff PHYSICAL ADDRESS: 1442 Lakewood Road Manasquan, NJ 08736 SEND ALL MAIL: PO Box 679 Allenwood, NJ 08724 732-292-3000 Phone 732-292-3004 Fax donna.thompson@dlthompsonlaw.com 14 Case 3:16-cv-07955-MAS-DEA Document 28 Filed 01/21/17 Page 14 of 14 PageID: 309 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DL THOMPSON LAW, PC Donna L. Thompson, Esq. (030231994) PO Box 679 Allenwood, NJ 08720 donna.thompson@dlthompsonlaw.com 732-292-3000 telephone 732-292-3004 fax UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ____________________________________ AUTOMOTIVE FINANCE CORPORATION Plaintiff, vs. DZ MOTORS, LLC; A TO Z AUTO CONNECTION, INC.; DMITRIY CIVIL ACTION ZHOLOBOV; ELENA V. ZHOLOBOV; RARITAN BAY FEDERAL CREDIT 3:16-cv-07955-MAS-DEA UNION; ROSSI COLLANTES; SHIEL R. PATEL; UNITED TELETECH FCU; JOHN DOES 1 to 100 Defendant(s). AFFIDAVIT OF SERVICE ___________________________________ On behalf of Plaintiff Automotive Finance Corporation, on January 21, 2017 I served the Brief in Opposition to Defendant United Teletech Federal Credit Union’s Motion to Dismiss on all parties via electronic filing. Dated: January 21, 2017 /s/ Donna L. Thompson ____________________________ DONNA L. THOMPSON Attorney for Plaintiff PHYSICAL ADDRESS: 1442 Lakewood Road Manasquan, NJ 08736 SEND ALL MAIL: PO Box 679 Allenwood, NJ 08724 732-292-3000 Phone 732-292-3004 Fax donna.thompson@dlthompsonlaw.com Case 3:16-cv-07955-MAS-DEA Document 28-1 Filed 01/21/17 Page 1 of 1 PageID: 310