Counter Claim/Counter Petition (Fee) - TD's Petition in Intervention July 23, 2024 (2024)

On February 06, 2023 aCounter Claim/Counter Petition (Fee) - TD's Petition in Interventionwas filedinvolving a dispute betweenRodriguez, Feliza M,andProgressive County Mutual Insurance Co.,for Injury or Damage - Other (OCA)in the District Court of Hidalgo County.

 
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 Electronically Submitted 7/23/2024 12:18 PM Hidalgo County Clerk Accepted by: Sarah Sanchez Cause No. CL-23-0551-E FELIZA M. RODRIGUEZ § IN THE COUNTY COURT Plaintiff, § § § VS. § § PROGRESSIVE COUNTY MUTUAL § AT LAW INSURANCE COMPANY § Defendant, § § VS. § § TD BANK, N.A., SUCCESSOR BY MERGER § TO TD AUTO FINANCE, LLC, § Intervenor. § HIDALGO COUNTY, TEXAS TD BANK, N.A., SUCCESSOR BY MERGER TO TD AUTO FINANCE, LLC’S PETITION IN INTERVENTION RELATING TO FELIZA M. RODRIGUEZ’S ORIGINAL PETITIONTO THE HONORABLE JUDGE OF SAID COURT: NOW COMES TD Bank, N.A., Successor by Merger to TD Auto Finance LLC ("TD Auto"),and files its Petition in Intervention Relating to Feliza M. Rodriguez’ (“Rodriguez”) Original Petitionpursuant to Tex. R. Civ. P. 60, and for cause of action TD Auto would respectfully show the Courtthe following: I. PARTIES & JURISDICTION 1. Intervenor TD Auto is duly authorized to transact business in the State of Texas,with its principal place of business located at 1701 Route 70 East, Cherry Hill, NJ 08034. 2. Plaintiff Feliza M. Rodriguez (“Rodriguez”) has already appeared in this dispute whor*sides in Hidalgo County, Texas. 3. Defendant Progressive County Mutual Insurance Company (“Progressive”) is adomestic insurance carrier operating in the State of Texas who has already appeared in this cause.TD AUTO’S PETITION IN INTERVENTION PAGE 1 Electronically Submitted 7/23/2024 12:18 PM Hidalgo County Clerk Accepted by: Sarah Sanchez 4. This Court has jurisdiction over this dispute because the amount in controversyexceeds the minimum jurisdictional requirements of the Court, and the monetary and other reliefsought is within the jurisdictional limits of this Court. II. FACTS A. BACKGROUND FACTS: 5. On or about September 30, 2020, TD Auto and Maria Solis (“Solis”) executed aMotor Vehicle Installment Sales Contract (the "Agreement") pursuant to which Bert OgdenChevrolet, Inc. sold the Vehicle to Solis, and Plaintiff, as Lender and assignee of Seller, financedthe purchase of the following described Vehicle (hereinafter, the "Vehicle"): Quantity Vehicle Description VIN Number 1 2021 Chevrolet Tahoe 1GNSKPKD9MR156672A true and correct copy of the Agreement and Assignment is attached hereto and incorporated byreference for all purposes as Exhibit "A." 6. Financing was provided to Solis under the terms of the Agreement for the above-referenced Vehicle. The total consideration contracted to be paid by Solis under the Agreementwas to be paid in seventy-five (75) consecutive monthly payments, each in the amount of$1,266.29, until the Vehicle was paid in full. 7. Pursuant to the Agreement, Solis granted a security interest in the Vehicle to the TDAuto. TD Auto duly perfected its security interest in the Vehicle by notating its lien on the certificateof title for the Vehicle. Accordingly, TD Auto has a first priority perfected security interest in theVehicle. A true and correct copy of the Certificate of Title notating TD Auto's first priority perfectedsecurity interest is attached and incorporate by reference for all purposes as Exhibit "B."TD AUTO’S PETITION IN INTERVENTION PAGE 2 Electronically Submitted 7/23/2024 12:18 PM Hidalgo County Clerk Accepted by: Sarah Sanchez 8. TD Auto fully performed its obligations under the Agreement. All conditionsprecedent to TD Auto’s recovery of judgment have been performed, have occurred, or have beenwaived. 9. Solis defaulted on her obligations owed under the Agreement. After the application ofall lawful offsets and credits, $90,332.39 is currently due and owing under the Agreement. 10. Following the purchase of the Vehicle, upon information and belief, the Vehiclewas being used solely by Rodriguez. 11. On February 7, 2021, the Vehicle was allegedly stolen from Rodriguez’ possession,for which the police were notified and Rodriguez filed a claim with Progressive to recover for thestolen Vehicle under the terms of her policy. 12. On or about February 6, 2023, Solis filed its original petition against Progressive inthe Hidalgo County Court, thereby creating Cause No. CL-23-0551-E, styled Feliza M. Rodriguezv. Progressive County Mutual Insurance Company. TD Auto, as secured party with an interest inany insurance proceeds now files this, its Petition in Intervention. III. STANDARD FOR PETITION IN INTERVENTION 13. There is no pre-judgment deadline for intervention.1 Texas courts recognize an“expansive” intervention doctrine in which a plea in intervention may be untimely only if it is“filed after judgment,” though even post-judgment interventions are permissible in somecirc*mstances.2 Further, any party may intervene [in a case] by filing a pleading, subject to beingstricken out by the court for sufficient cause on the motion of any party.3 An intervenor is notrequired to secure a court’s permission to intervene in a cause of action or establish standing.4 An1 Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008).2 Texas v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015).3 TEX. R. CIV. P. 60.4 Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).TD AUTO’S PETITION IN INTERVENTION PAGE 3 Electronically Submitted 7/23/2024 12:18 PM Hidalgo County Clerk Accepted by: Sarah Sanchezintervenor need only show a justiciable interest in a pending suit to intervene in the suit as a matterof right.5 A party has a justiciable interest in a lawsuit, and thus a right to intervene, when hisinterests will be affected by the litigation.6 More specifically, to satisfy the "justiciable interest"requirement, an intervenor must show that he could have brought all or part of the pending suit inhis own name.7 Finally, the interest asserted by the intervenor may be legal or equitable.8 IV. PETITION IN INTERVENTION 14. In the present case, TD Auto is entitled to intervene in the matter betweenRodriguez and Progressive, as TD Auto holds a perfected security interest in the Vehicle at issuein this matter. A party need only (1) file the intervention in a timely manner, (2) demonstrate thatthe party has a justiciable interest in the pending suit – i.e. that the party can demonstrate that itcould have brought all or part of the pending suit in its own name.9 15. Here, the Court's docket makes it clear that a final judgment has not been entered.10Further, TD Auto undeniably holds a justiciable interest as a judgment creditor of Solis, thepurchaser of the Vehicle. 16. TD Auto is entitled to collect the following damages: a. $90,332.39 with pre-judgment interest thereon at the contractual rate of 24.00% per annum; b. Post-judgment interest at the rate of 8.50% from entry of Judgement; c. Reasonable and necessary attorney's fees with post-judgment interest5 In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008).6 Jabri v. Alsayyed, 145 S.W.3d 660, 672 (Tex. App.—Houston [14th Dist.] 2004, no pet.).7 Triple P.G. Sands Development, LLC v. Del Pino, 649 S.W.3d 682, 699 (Tex. Ct. App. Houst. [1 st], 2022).8 Guar. Fed. Sav. Bank, 793 S.W.2d at 657.9 Naylor, 466 S.W.3d at 788; Alsayyed, 145 S.W.3d at 672; Del Pino, 649 S.W.3d at 699.10 Pursuant to Tex. R. Evid. §201, TD Bank asks that the Court take judicial notice of its own docket and allevidence thereon for purposes of these proceedings.TD AUTO’S PETITION IN INTERVENTION PAGE 4 Electronically Submitted 7/23/2024 12:18 PM Hidalgo County Clerk Accepted by: Sarah Sanchez thereon at 8.50%; and d. Costs of Court. 17. As of the date of this filing, no amount of the above damages has been paid. As aresult, TD Auto has a right to intervene in this matter and recover its damages. V. PRAYER WHEREFORE, PREMISES CONSIDERED, TD Auto prays that upon final hearing hereof,TD Auto be awarded by virtue of this Petition in Intervention the full amount of the damages andsuch other relief, special or general, at law or in equity to which TD Auto may show itself justlyentitled. Respectfully Submitted, PADFIELD & STOUT, L.L.P. 100 Throckmorton Street, Suite 700 Fort Worth, Texas 76102 817-338-1616 phone 817-338-1610 fax /s/ Caleb M. Terrell Mark W. Stout State Bar I.D. # 24008096 mstout@padfieldstout.com Caleb M. Terrell State Bar I.D. # 24131706 cterrell@padfieldstout.com Attorneys for TD AutoTD AUTO’S PETITION IN INTERVENTION PAGE 5 Electronically Submitted EXHIBIT "A" 7/23/2024 12:18 PM Hidalgo County Clerk Accepted by: Sarah Sanchez ‘ . #; 956-581-1111 Dealer Name: Bert Ogden Chevrolet Cadillac 3:33:22 956581471,~ . INSTRUCTIONS: You may appl for credit in your name alum. who ornol you are manied. $1! Ease In Icate whether you mugplyln? fur Individual Credit D Join! Credit D Community Property State Buslness D l Icallon 2 fur and relying on your own income ar asset and noi the Income or assets o! an ar person as the basis o! rspaymemof I‘ihyou a ere aéftawmn ueque . mums com agdslelghwakname on on (3) D If you are appbylng forloinl oredlt wllh anoihsr person, complete sections A and B. We mend to apply {orjoim ctedit. Appllunl Co-Aopllmnl ' ll mmamed andlivoina oommun’ ro e shuts mans? complain Sedion A about yoursefl and Section B abom yourspousa. Yuu must sign this appliuu'on. Your spouse muglous‘ this a Hutton onl If sine Msgsplo EenayCo- Inn , pk. Name _ ‘ Rm _ 7; Ian . ‘ Lasl First Name Middle Inmal Suclal Security Numbet ‘ Blrih Data SOLIS MARIA l 451-77-0231 _03I03/1 986 Addicts Apt”! Sulle# P.O. Box Rural Route Ctly State le 301 Home Phone E MILITARY RD Cell Phone Resldemial Status 1 Time SULLIVAN CITY TX 78595 at Address (956)458-1797 m Homeowner DRenl D Famlly D Omar flY3,_Mns, RenUMtg.Pnu.$ 0.00 E-Mait Address Drivafs Ucanse No. Driven”: License Shh Tima l! Previous Address __Yrs. __Mos. LPrevious Full Address (If less than 2 years) Apt fl I Suils # P.O. Box Rural Roma City Stale le Employer Nama Employmenl Type AMAZ|NG LASH smmo E EmpIuyed D Unemployed D Ssll-empioysd D Mllnary D Retired D Sludenl D Other ISaIary Sdary Type Occupaflon Leng‘h of Employmani Work Phone Numhar ' 8500 > D Weakly D BI-Woekty m Monthly D Annually STYLIST £Y5._Mos. (956)247-4093 Name ‘ Previous Employer Previous Employment Type D Employed U Unemplayed D SeH-amployad U Military D Retired D studem D 0W ‘Prevms Oocupallon Length of Employment Prevbus Work Phone Number Yrs. Mos. Allmn childw- »- emlwlmmmnndnnbumuhdlf - dunumunhWL-lldmdh r Otharinmmsmmly) Suumoromenncoma a_y Shawln’u‘h‘ ty" ' pl'loais‘onlnb‘eij‘fam ix r x‘wlk ' ~ Comments U AGREEMENT The words 'wa.‘ "us." "our' and 'ours' as used below refer to us, the dealer. and ta the flnandal lnslltutlon(s) selected to receive your application. You understand and agree that you are applying f0: credll by providing the informatlon tommplate and submit this credit appllcatlom. We may keep mis application and any other appllcatlon submitted to us and information about you whenmr or not the application is approved. You cenify that the information on the application and In any other applicaflon submltted to us, ls uue and complete. You understand that false statements may subject you ta cdmlnal penalties. The words ”you." ’your" and "yours" mean each person submitting lhls applicauon. You authorize Us lo submit this applic'alion and any other application submitted in connection wllh the proposed transaction tn the financial instituflons disclosed to you by us the dealers; In addition. in accordance im the Fair Credlt Raponing Act, you authorize lhat such financlal Institutions may submit your applications to other financial institutions tor the purpose of t_ulfllllng your requem to apply for credit. Thls application wlll be raviewed by the dealer and such financial lnstltutlons. You agree that we may obtain a consumer credit report periodically from ans or more consumer reporting agencies (credit bureaus) in connection with the proposed transaction and any update, renewal. refinancing. modlfication or extension of that transacflon. You also agree that we or any alflllate of curs may obtain one or more consumer credit reports an you at any time during the lerrn of your financing” If you ask. you wlll be told whether a credit repon was and If so. the name and address of any credit bureau fmm which we or our affiliate obtained your credit report You agree that the dealer and the iaequested. nandal instituflnns may verify your employment. pay. assets and debts, and that anyone receian a copy 01 this is authorized Io provide such dealer and manual institutions with such infonnafion. You further auchorlze me dealer and ma financial institutions to gather whamver credit and employment history each conslders necessary and appropriate in evaluaflng lhls appllcatlon and any other applicatlonsrsubmitted in oonnactlon with the proposed transaction. You understand that we will rely on the lniormatlon in this credit applicatlon in making cur decision. The dealer and the financial lnstltutions may monitor and record telephone calls regarding your account for quality assurance, compliance. tralning. or similar purposes. You consent lo receive aumdlaled. prerecorded and artificial voice calls and text messages tor servicing and collectlan purposes from us at the telephone number(s) provided In thls credlt appllcatlon, Including any cell phone numbers. The consent applies (o the dealer, who i5 he originating creditor in (his jansaction. as well as any aasignee who may purchase your credit contract. You agree mat this consent applies regardless of whether you agree lo receive Felemarkeflnglsales calls and text messages as provided below. You consent to rocolve autodlalod, pre-racordod and artlflclal voice telamarkatlng and sales calls and text messa es lrom or on behalf of dealor or any financing sour“ to whlch dealer asslgns my contract) at tho following number(s) (956M 5-1797 Includlng any ca phone numbers. You understand that thls consent ls n'ot a conditlon of purchase or cmdll. Vou op! In You do not opt In Signature of Applicant for election above: Your dealer will inform you of the name and address of the financlng sources to which this application shall be sent. [3; .4: 5v ggsgfiqgngm‘qu;9§gnfiv‘ HA ‘SWESW‘LLP‘fiWFWS‘PPl-‘c‘mFace 1 0'3o 2011 Dealsmack. inc. AI rum mowed. 01 em Puma m 09/30/2112:: 17:42 Electronically Submitted MOTOR VEHICLE RETAIL INHALLMENT SALES OONTRACT — SIJPLE FINANCE CHARGE Dub: um» 7(WITH ARBI'I'MTION Comma Mum Pmlo") 4 7/23/2024 12:18 PM Hidalgo County Clerk Accepted by: Sarah Sanchezmauvaaw;#——vmum milk 'L u/Acm 2wnu auy-mmumasw'ovwrrm swims mmman-mrmsmmummmuum mm. sulu. mm hamPlousim nv: me man mice me was menus tam mm" Mow. comm. 'rmal Pm". ho W By wnivu mi: as youcmmmr pum- m- comm mailman to q.- m rdmmm mm ohm. comm: wu um w s mm Hem m whicx on Samm- m mi Yuu x: m. Anwn nngnm. rims. chm. mu mm man. payments u p-y u. 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