Buy And Sale African-american

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IN THE SUPERIOR COURT OF CHATTAHOOCHEE COUNTY STATE OF GEORGIA JAMES R. THOMAS, JR. and SABRINA R. THOMAS, Plaintiffs, CIVIL ACTION FILE v. NO. 11-CV-154 KIA AUTO SPORT OF COLUMBUS, INC. and SUNTRUST BANK,

JUDGE LUMSFORD

Defendants. SUNTRUST BANK'S STATEMENT OF MATERIAL FACTS AS TO WHICH NO GENUINE ISSUE REMAINS FOR TRIAL COMES NOW, SUNTRUST BANK, a Georgia banking corporation ("SunTrust Bank" or "SunTrust"), a named Defendant in the above-captioned civil action and Movant herein, by and through its undersigned counsel, and, pursuant to O.C.G.A. § 911-56 and Uniform Superior Court Rule 6.5, files this Statement of Undisputed Material Facts in support of its Cross Motion for Summary Judgment and for a Bill of Peace Against Plaintiffs (the "Motion"), respectfully showing this honorable Court as follows: STATEMENT OF UNDISPUTED MATERIAL FACTS 1. In the course of purchasing a vehicle from KIA Autosport of Columbus, Inc. ("KIA" or "Kia") on September 30, 2009, Plaintiffs James R. Thomas, Jr. ("Mr. Thomas") and Sabrina R. Thomas ("Mrs. Thomas") (collectively, "Mr. and Mrs. Thomas" or the "Thomases") each signed a "Vehicle Buyer's Order," an "Applicant's

Credit Statement," and a "Retail Installment Agreement" (hereinafter, the "Contract"). (Compl., ¶9). 2. True and correct copies of the "Vehicle Buyer's Order," "Applicant's Credit Statement," and the "Retail Installment Agreement" are attached hereto as Exhibit 1, Exhibit 2, and Exhibit 3, respectively, and incorporated by reference herein. 3. In completing the paperwork to purchase the vehicle, the Thomases freely provided Kia their names, their respective Social Security numbers, their respective driver's license numbers and birth dates, as well as their occupations and salary or other source of income. (Compl., T119 and 10; see also Ex. 1 and Ex. 2 hereto). 4. Additionally, the Thomases signed a separate document entitled "Arbitration Agreement." 5. Kia subsequently submitted the Thomases' credit information to, inter alia, SunTrust Bank to secure financing for the vehicle. 6. The Thomases drove the vehicle home.

7. SunTrust Bank received the signed Retail Installment Agreement [the Contract], dated September 30, 2009 and executed by James R. Thomas, Jr. and Sabrina R. Thomas, from Kia on October 8, 2009. (Ex. 3). 8. Following approval, the Thomases set the retail loan up for automatic payments using SunTrust's automatic payment system and paid as agreed through July 2010. 9. A true and correct copy of the "Authorization to Charge SunTrust Account for Auto Loan Payment" executed by Mr. Thomas and Mrs. Thomas and dated November 9, 2009 is attached hereto as Exhibit 4 and incorporated herein by reference. 10. The Thomases' August 2010 payment was received by SunTrust but returned, as the deposit account from which the payment was drafted had been closed. 11. Plaintiffs subsequently requested to voluntarily return the vehicle and, ultimately, to rescind the loan. 12. Because the loan was delinquent and no payments had been made since July 2010, SunTrust was forced to repossess the vehicle on October 13, 2010.

13. Plaintiffs were notified of SunTrust Bank's intention to sell the automobile at auction, and the vehicle was subsequently sold at auction on November 4, 2010. 14. Plaintiffs filed this lawsuit on December 2, 2011..

This 5th day of January, 2018. Respectfully submitted,

MONICA K. GILROY Georgia Bar No. 427520 KENT E. ALTOM Georgia Bar No. 014054 Attorneys for SunTrust Bank 3780 Mansell Road, Suite 140 Alpharetta, Georgia 30022 Tel: (678) 280-1922 Fax: (678) 280-1923 Email: [email protected] [email protected]

4

TO

0 ((6‘) OEM NO. 15061 Sales Person

VEHICLE BUYER'S ORDER BUYER

liKr ROOSEVEL

711011AS JR

Cl..)-BL.07ER

181 0 B Columb(MUA9gF (706) 562-0400 • Fax: (706) 562-0419 www.kiaautosport.com Date on:

DRIVERS LICENSE NO.

DATE OF BIRTH

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'AS IS The only warranties applying to this vehicle are those offered by TRADE-IN ALLOWANCE the manufacturer. The selling dealer expressly disclaims alt warranting, 01 V1 4.1,'12, either expressed or implied, including any implied warrantioa of reetri. 4h74%."''''P'`?'41M11.6&.'''." fr. 0.,,,a.,,..„ : 'LA, PCASH4OIFfEREIIICErf chantabillty or Bowes tor i particular purpose. and neither assumes or eq:-a.- v..a.64.; • .4.:-..... T. l'T.. ' authorizes any other person to assume for it any liability in connection with the gala of this vehicle. Buyer *het not be entitled. to recover from SETTLEMENT & CLOSING FEES the sailing dealer any consequential damages, to property, damages for tteOeet.redoetos.enetehetaieht pewhheemere awe mit of use. logo of limo, toes of profits, or income, or any other Incidental damages. The BOW( hereby acknowtedegaa that the Dealer hag made AMOUNT TAXABLE available -Warranty Pre-Sale Information" as disclosed in the Warranty Birders pastrami to the Magnuson-Moss Warranty Act. X

loss

SALES TAX

TRADE-IN MAKE

YEAR VIN A

MILES

LEINHOLOSit

PAYOFF

EXTENDED SERVICE PLAN ' 14Macatla.11ysighziliq»-Tp a „.. , 1101 it•I it ." e 44.: ^ ' -..- itATEITAIYPRICE . it , ,



ACCOUNT 0

BALANCE YEAR

SECOND TRADE-IN MAKE

YIN a

MILES

EF IR-FiNITE fl

PAYOFF

MODEL

OWED

,1

ON TRADE-IN

shawl payorl information is subject to verification at a later data Any error Or incorrect information tecieved as to the idle or OaVefi • amount will be the responsibility of the buyer.

1 39(', 50

,t1312 42 3114.47

I

1 I

N/A

I

ON DELIVERY

300p. 00

ACCOUN I The

?.7843.95

318515.47

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399 I 95

I N/A

TOTAL AMOUNT OWED

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27453.00

iti.00 13.00

TITLE, TAG & OFFICIALTV ., .q.C.

MODEL

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30+,00

FACTORY REBATE via......s.tsvai.mtediarerieutmea,vawnsy.$1,apetto,r p&IIIPAID BA LARICELDFXASHIP RICEr41

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• • Title S Tag Foos are estimate-any excess will be refunded by Dealer when registration Is delivered, any shortage must bo paid by Buyor(s) when registration is delivored. This charge includes the official State Fee for MOTOR VEFIICI It WARRANTY ENFORCEMENT ACT. Waste Tire toad Battery and Now Wheels Impact Iga.lost title services 550.00- Refundable it litlo produced within 3 business days. Buyer's Initials ) . An odometer milago statement is required Information contained on a separate disclosure statement. Buyer by hisiber execution of this Order certifies II-Mittel she is to years of ago or older and acknowledges that haistin has read Its terms and conditions, and has received a hue copy of this order upon delivery. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE BREACH THEREOF SHALL BE SETTLED BY ARBITRATION IN NORTH FLORIDA IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND JUDGEMENT UPON THE AWARD RENDERED BY THE ARBITRATION(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. On a cash transaction this offer Is not valid unless signed and accepted by Dealer. On a credit transaction the Buyor(s) oder is not accepted and the transaction is not consummated until (e) approved in writing by Dealer and a responsible Bank or Finance Company and (61 all disclosures required by Federal Consumer Credit Protection Act (Truth In tending Ad) have been given and (c) Buyer(s) and Deafer have signed an installment Sale Contract. The annual percentage rare (APR) for the installment sale of an automobile may he negotiated with thp Dealership, and the Dealership may receive some portion of the finance charge or receive other compensation for providing financing. Buyer's Initials I HEREBY AGREE TO ALL TERMS AND CONDITIONSS

EXHIBIT

1

Buyer's Signature



-‘' •

'

ACCEPTED BY DEALER'S REPRESENTATIVE

2

co-Buyera Signature ;

ii t

6 02Z OV S TOT 6C;

DEALER NAME

DEALER FAX NUMBER

DEALER TELEPHONE NUMBER

KIA AUTOSPORT OF COLUMBUS

706 - 562 - 0419

706 - 562 - 0400

APPLICANT'S CREDIT STATEMENT Check Appropriate Box

0 Individual Credit Joint Credit

0 If you are applying for individual credit in your name and relying on your own income or assets and not the income or assets of another personas the basis for repayment of the credit requested, complete only Section A.

E If you are applying for joint credit with another person, complete sections A and B. We intend to apply for joint credit

0 Community Property State

0Business Application

Applicant

Co-Applicant

• If you are married and live In a community propoerty state, please complete Section A about yourself and Section B about your spouse. You must sign this application. Your spouse must sign this application only if s/he wishes to be a Co-Applicant.

A. Applicant's Personal Credit Information

1111111111101D

JAMES

SOCIAL SECURITY NUMBER or (TAX ID)

THOMAS

FIRST NAME OR BUSINESS NAME

MI LAST NAME

DRIVER'S LICENSE #

EMAIL ADDRESS

1941. 706 - 989 -

05 /

12

DATE OF BIRTH (MWDDNYYY ) HOME PHONE #

401

CELL PHONE 4 (See below)

DRIVER'S LICENSE STATE

1 Hos Homeowner

TIME AT ADDRESS

HOUSING STATUS

GA HWY 137 HW APT/SUITE #

CURRENT STREET # AND NAME

PO BOX #

CUSSETA

GA

31805

235

CITY

STATE

ZIP CODE

MTG PYMT OR RENT

APT/SUITE #

PREVIOUS STREET a AND NAME

CITY

STATE

PO BOX #

RURAL ROUTE

YRS MOS TIME AT ADDRESS

ZIP CODE

onalM111111111t

Retired

EMPLOYED BY or TYPE OF BUSINESS (if business application)

EMPLOYMENT STATUS

BUSINESS PHONE #

TIME EMPLOYED

3 YRS 5

RURAL ROUTE

MOS

OCCUPATION

2464

Monthly

SALARY

SALARY TYPE YRS

MOS

TIME EMPLOYED PREVIOUS EMPLOYMENT (If V I IIIII1 11111

11111 1 Ell 11111 .

•510 0000 61 00 299244

11111 0111 11111 III 11111 11111 1111111111 11111 1111111111 1111 IIII

OCCUPATION 1.111111111111111111111111

Alimony, child support, or se OTHER INCOME (MONTHLY)

Ned as a basis for repaying this obligation. SOURCE OF OTHER INCOME

By providing my cell phone number, I give my prior express consent to receive calls and text messages from the creditor or its third party debt collector at that number, Including calls and messages made by using an autodialer or prerecorded message.

EXHIBIT

Printed on 10107/2009 at 10:07 AM

• ; • - , 4-6

O VI

B. Co-Applicant's Personal Credit Information SABRINA 252278437,



SOCIAL SECURITY NUMBER Or (TAX ID)

I-4

THOMAS

FIRST NAME OR BUSINESS NAME

MI LAST NAME

Q

N ▪

EMAIL ADDRESS

DRIVER'S LICENSE #

05 / 25 / 191" V06 - 989 -

12

DATE OF BIRTH (MM/DD/YYYY )

401

HOME PHONE #

CELL PHONE # (See below)

yRS

1

MQS

DRIVERS LICENSE STATE

Family

TIME AT ADDRESS HOUSING STATUS

GA HWY 137 HW APT/SUITE #

CURRENT STREET # AND NAME

PO BOX #

CIISSETA

GA

31805

0

CITY

STATE

ZIP CODE

MTG PYMT OR RENT

APT/SUITE #

PO BOX #

PREVIOUS STREET # AND NAME

CITY

STATE

ZIP CODE

Employed EMPLOYED BY or TYPE OF BUSINESS (if business application)

111111111116

EMPLOYMENT STATUS

RURAL ROUTE

RURAL ROUTE

YRS MOS TIME AT ADDRESS

diMan0

OCCUPATION

02 YRS 1 mos

2760

Monthly

BUSINESS PHONE #

TIME EMPLOYED

SALARY

SALARY TYPE

PREVIOUS EMPLOYMENT (if [ass than 2 yrs at current)

EMPLOYMENT STATUS

BUSINESS PHONE #

YRS

MOS

TIME EMPLOYED

Spouse OCCUPATION

RELATIONSHIP

Alimony, child support, or separate maintenance income need not be revealed if you do not wish to have it considered as a basis for repaying this obligation.

OTHER INCOME (MONTHLY)

SOURCE OF OTHER INCOME

ADDITIONAL COMMENTS

By providing my cell phone number, I give my prior express consent to receive calls and text messages from the creditor or its third party debt collector at that number includin calls and messa es made b usin a an autodlaler or • rerecorded messa e.

Printed on 10/07/2009 at 10:07 AM

TEZ.017 5T 3T 60 I

AGREEMENT The words 'you,` "your" and 'yours' mean each person submitting this application. The words "we," 'us,. *our' and "ours' as used below refer to uS, the dealer, and to the financial institution(s) selected to receive your application. You authorize us to submit this application and any other application submitted in connection with the proposed transaction to the financial institutions disclosed to you by us the dealers. This application will be reviewed by such financial institutions on behalf of themselves and us the dealer. In addition, in accordance with the Fair Credit Reporting Act, you authorize that such financial institutions may submit your applications to other financial institutions. You agree that we may obtain a consumer credit report periodically from one or more consumer reporting agencies (credit bureaus) in connection with the proposed transaction and any update, renewal, refinancing, modification or extension of that transaction. You also agree that we or any affiliate of ours may obtain one or more consumer credit reports on you at any time whatsoever. If you ask, you will be told whether a credit report was requested, and if so, the name and address of any credit bureau from which we or our affiliate obtained your credit report. You agree that we may verify your employment, pay, assets and debts, and that anyone receiving a copy of this is authorized to provide us with such information. You further authorize us to gather whatever credit and employment history we consider necessary and appropriate in evaluating this application and any other applications submitted in connection with the proposed transaction. We may keep this application and any other application submitted to us and information about you whether or not the application is approved. You certify that the information on the application and in any other application submitted to us, is true and complete. You understand that false statements may subject you to criminal penalties.

FEDERAL NOTICES IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver's license or other identifying documents.

STATE NOTICES California Residents: An applicant, if married, may apply for a separate account. Ohio Residents: Ohio laws against discrimination require that all creditors make credit equally available to all creditworthy customers and that credit reporting agencies maintain separate credit histories on each individual upon request. The Ohio Civil Rights Commission administers compliance with this law. New Hampshire Residents: If this is an application for balloon financing, you are entitled to receive, upon request, a written estimate of the monthly payment amount that would be required to refinance the balloon payment at the time such payment is due based on the creditor's current refinancing programs. New York Residents: In connection with your application for credit, we may request a consumer report which contains information on your credit worthiness, credit standing, personal characteristics and general reputation. II we grant you credit, we or our loan servicer may order additional consumer reports in connection with any .update, renewal or extension of the credit. If you ask us, we will tell you whether we obtained a consumer report and if we did, we will tell you the name and address of the consumer reporting agency that gave us the report. Vermont Residents: By signing below you authorize us and our employees or agents to obtain and verify information about you (including one or more credit reports, information about your employment and banking and credit relationships) that we may deem necessary or appropriate in evaluating your loan application. If your application is approved and the loan is made, you also authorize us, and our employees and agents, to obtain additional credit reports and other information about you in connection with reviewing the account, increasing the available credit on the account (if applicable), taking collection on the account, or for any other legitimate purpose. Married Wisconsin Residents: Wisconsin law provides that no provision of any marital property agreement, or unilateral statement, or court order applied to marital property will adversely affect a creditor's interests unless, prior to the time that the credit is granted, the creditor is furnished with a copy of the agreement, statement or decree, or has actual knowledge of the adverse provision. It you are making this application individually, and not jointly with your spouse, the full name and current address of your spouse must be properly disclosed in the co-applicant section of this application.

This application may ha $ubmitted to the 100owing financial insetutions Name(s) and Address(es)]

.

-, By IGNING BELOW, YOU CERTIFY THAT-Y(7y ilAVEREAD AND AGREE TO THE TERMS AND DISCLOSURESON,TNE THREE PAGESOF THIS

APPLICANT'S SIGNATURE COPYRIGHT (C) 2007 1,EALEFITRACK, INC. ALL RIGHTS RESERVED.

DATE

CO. APPUCANTS SIGNATURE

DA

0 Seller

O RETAIL INSTALLMENT CONTRACT AND SECURITY AGREEMENT

1-4

yer

KIA AUTOSPORT OF COLUMBUS INC 1801 BOX ROAD COLUMBUS GA 31907 "We" and "es" mean the Seller above, its

B

giATkNPORStribLTASTHOMAS

JR

401 GA BUY 139 PO BOX 252 CUSSETA GA 31805

Na, ' Date 09/30/2009 "You" and "your mean each Buyer above, and 0 successors and assigns. guarantor, jointly and individually. NSALE: You agree to purchase tram us, on a time basis, subject to the terms and conditions of this contract and security agreemen vt (Contract). the Motor Vehicle (Vehicle and services described below. The Vehicle is sold in its present condition, together with the usua Naecessories and attachments. Description of Motor Vehicle Purchased

Year Make Model

2009 K IA SORENTO

VIN KN D311735795891980 Lie. No/Year lJtNew 0 Used

Other:

Description at Trade-In SECURITY: To secure your payment and performance under the terms of this Contract, you give us a security interest in the Vehicle, all accessions, attachments, accessories, and equipment placed In or on the Vehicle, together called Properly, and proceeds of the Property. You also assign to us and give us a security interest in proceeds and premium refunds of any insurance and service contracts purchased with this Contract. PROMISE TO PAY AND PAYMENT TERMS: You promise to pay us the principal amount of $ 26645,47 plus finance chal egeccming on the unpaid balance at the rate of 7 . 65 % per year from today's date until maturity. Finance charges accrue on a day basis. After maturity, or after you default and we demand payment, we will earn finance charges an the unpaid balance at 7 . 65 % per year. You agree to pay this Contract according to the payment schedule and late charge provisions shown In the TRUTH IN LENDING DISCLOSURES. You also agree to pay any additional amounts according to the terms and conditions of this Contract. ODITIONAL FINANCE CHARGE: You agree to pay an additional, nonrefundable finance charge of $ N/A that will be id in cash. 0 added to the Cash Price. 0 paid proportionally with each payment. N/A it you pay this Contract in lull 0 MINIMUM FINANCE CHARGE: You agree to pay a minimum finance charge of $ before we have earned that much In finance charges. DOWN PAYMENT: You also agree to pay, or apply to the Cash Price, on or before today's date, any cash, rebate and net trade-In value described in the ITEMIZATION OF AMOUNT FINANCED. 0 You agree to make deferred payments as part of the cash down payment as reflected in your Payment Schedule. TRUTH IN LENDING DISCLOSURES AMOUNT FINANCED TOTAL OF PAYMENTS TOTAL SALE PRICE ANNUAL FINANCE The amount of credit The amount you will have The total cost of your purchase on PERCENTAGE RATE CHARGE provided to you or on paid whet, you have made crecit, inducing your down payment of The cost of your credit as The dotter amount the your behalf, all scheduled payments. $ 6000,00 a yearly rate. credit will cost you. 7.65 $ 6771.17 $ 26645,47 33416.64 $ 39416,64 $ Payment Schedule Your payment schedule will be Number el Payments Amount of Payments When Payments Are Due 11 464.12 MONTHLY BEGINNING: 11/15/2009

Wa

Security: You are giving a security interest in the Motor Vehicle purchased. Late Charge: If all or any portion of a payment is not paid within 10 days of its due date, you will be charged a late charge of the lesser of 5% of the unpaid amount of the payment due or $50. Prepayment: it you pay MI this Contract early, you 0 may g will not have to pay a Minimum Finance Charge. 0 If you pay off this Contract early, you will not be entitled to a refund of part el the Additional Finance Charge. Contract Provisions: You can see the terms of this Contract for any additional Information about nonpayment, default, any required repayment before the scheduled data, and prepayment refunds and penalties. CREDIT INSURANCE: Credit lite, credit disability (accident and ITEMIZATION OF AMOUNT FINANCED health), and any other insurance coverage quoted below, are not 1392.50 )$ 28842,50 , required to obtain credit and we will not provide them unless you sign Vehicle Price (incl. sales taAAS and agree to pay the additional premium. It you want such insurance, Service Contract, Paid ten' " 'r" " ' $ 2631'U2 we will obtain it for you lit you quality for coverage). We are quoting N/A Amount to Finance line e. (if e. is negative) $ below ONLY th e coverages you have chosen to purchase. Cash Price $ •-- . 314/4 • bZ Manufacturer's Rebate S 3000,00 Credit Life: Insured N/A Term N/A 0 Single 0 Joint Prem $ Cash Down Payment S 3000.00 ' N/A Credit Disability: Insured Deferred Down Payment $ 6000.00 N/A Term N/A a. Total CasteRebate Down $ 0 Single ED Joint Prem $ N/A b. Trade-In Allowance $ N/A c. Less: Amount owing $ Paid or N/A N/A d. Net Trade-In (b. minus c.) S Your signature below means you want (only) the Insurance 6000.00 e. Net CashrTrade-In (a. plus d ) $ coverage(s) quoted above. If none are quoted, you have declined 6000,00 Down Payment (e.: disclose as $0 it negative) $ any coverages we offered. Unpaid Balance of Cash Price $ 25474,52 05/25/1974 Paid to Public Officials • Filing Fees $ 21.00 rtro!b Buyer Buyer cVat N/A Insurance Premiums' $ N/A Additional Finance Charge(s), Paid to Seller $ PROPERTY INSURANCE: You must insure the Property securing To: UNITED STATES -WARRANTY CO FOR SAP* 750.00 this Contract. You may purchase or provide the insurance through any $ 399.95 Insurance company reasonably acceptable to us. The collision coverage To: KR SVCS FEE 500.00 . If you get insurance To: N/A N/A deductible may not exceed $ $ for N/A kom or through us you will pay $ NM ro $ N/A 1170,95 of coverage. Too. T N/A ChargesfAmounts Pd. to Others $ N/A This premium is calculated as follows: Less: Prepaid Finance Charges $ N/A Amount Financed $ 26645.47 N/A Deductible, Collision Coverage $ Os N/A 'We may retain or receive a portion of this amount. 0$ —NIA Deductible, Comprehensive Con $ N/A 0 Fife-Theft and Combined Additional Coverage $ NOTICE TO BUYER

$

0

N/A

Liability Insurance coverage tor bodily injury and property

Do not sign this agreement before you read It or if it. .....1.= noes, Wank gnacas. You are entitled to an

damage caused to others le not Included In thls Contract unless checked and indicated.

I 11E11 1111111111111111111H!

'in SERVICE CONTRACT: With your purchase of the Vehicle, •MN,' yo agree purchase a Service Contract to cover IA 2005 K 1A

wan me seller. 1 rte outlet Indy eaaryn aura Contract and retain Its right to receive a part of the Finance Charge.

This Service Contract will be in select for ASAtgfnig, - Ibia Contract and Security Agreement Is assigned bAttr. to phone i HUD ItiL I - /U1/6 This assignment is made the Assignee. 0 under the terms of a separate agreement. 0 under the terms of the ASSIGNMENT BY SELLER on page 2. 0 This ssignment is made with r 2009 Seller 411114. tail/iret;ieNg, 14,0‘0.1

*

Buyer: Sig

gazugu . .11 ■ rifi .

09/30/2009 Data

09/30/2009 S enalure

Dale

Seller: B

GEORGUIFIEWANSTALWENTCONIRACTANDSECURITYAGREEMENY 0,14,1995121..onSAImitnc-.51.0.3.1,41firoomliSSIMVL,GA 0/15/2005

MOTOR VEHICLE- NOTFOTMANUFACNreEDHOMEs

ADDITIONAL TERMS OF THIS CONTRACT AND SECURITY AGREEMENT GENERAL TERMS: You have been given the opportunity to purchase By choosing any one or more of these remedies, we do not waive our the Vehicle and described services for the Cash Price or the Total Sale right to later use another remedy. By deciding net to use any remedy, wo Price. The Total-Sale Price is the total price of the Vehicle and any do not give up our right to consider the event a default it it happens again. services it you buy Meat over lime. You agreed to purchase the items You agree that If any notice IS required to be given to yea of an over time. The Total Sale Price shown In the TRUTH IN LENDING intended sale or transfer of the Property, notice is reasonable il mailed to DISCLOSURES assumes That all payment; will be made as scheduled. your last known address, as reflected in our records, at least 10 days The actual amount you will pay may be more or less depending on your before the data of the intended sale or transfer (or such other period Of payment recotd. time as is required by law). We do not Intend to charge or collect, and you do not agree to pay, You agree that, subject to your right to recover such property, we may any finance charge or lee, that is more than the maximum amount lake possession of personal property left in or on the Property securing permined for this sale by state or lederat law. If you pay a finance charge this Contract and taken kilo possession as provided above. Notice of or fee that is contrary to this provision, we will. instead, apply it first to intent to dispose of the personal property will be delivered to you within reduce the principal balance, and when the principal has been paid in full, 10 days pursuant to Ga. Code Ann. § 44-14.411.1. You will have 30 days refund it to you. from Ma date of this notice to claim the personal property. If you do not You understand and agree that some payments to third ponies as claim the personal property, a second notice will be sent. If you do not a pert of this Contract may Involve money retained by us or paid claim the personal property within 30 days alter the date of the second back to as as commissions or other remuneration. notice, the personal properly will be disposed of. Any proceeds will be If any seder) or provision of this Contract le net enforceable, the other dispersed according to Ga. Code Ann. § 44-14-412. terms wilt remain part of this Contract. WAIVER AND ASSIGNMENT OF EXEMPTIONS: You waive and The law of Georgia will govern this transaction. It is also governed renounce all exemptions as they relate to any interest in the Property. by applicable federal law and regulationS. In the event of a dispute, You assign to us sufficient amount of exemptions to pay the amount due the exclusive forum, venue, and place of jurisdiction will be in under this Contract. You direct any trustee to deliver to us a sufficient Georgia, unless otherwise required by law. amount of the Properly claimed as exempt to pay oft the amount so NAME AND LOCATION: Your name and address indicated on allowed on this debt. page 1 are your exact legal name and your principal residence. You INSURANCE: You agree to buy property insurance on the Properly will provide us with at least 30 days notice prior to changing your protecting against loss and physical damage and subject to a maximum name or principal residence. deductible amount indicated in the PROPERTY INSURANCE section, or PREPAYMENT: You may prepay this Contract in full or in part at any as we will otherwise require. You will name no as loss payee on any such In the event of loss or damage to the Properly, we may require time. Any partial prepayment will not excuse any later scheduled payments unlit you pay in full. additional security or assurances of payment before we allow insurance A refund of any prepaid, unearned insurance premiums may be proceeds to be used to repair or replace the Property. You agree Mat if obtained from us or from the insurance company named in your policy or the insurance proceeds do not cover the amounts you still owe us, you will pay the difference, You may purchase or provide the insurance certificate of insurance. OWNERSHIP AND DUTIES TOWARD PROPERTY: By giving us a through any insurance company reasonably acceptable to us. You wilt keep the insurance in full force and effect unul this Contract is paid in full. security interest in the Property, you represent and agree to the following: If you fail to obtain or maintain this insurance, or name as as a loss A. Our security interest will not extend to consumer goods unless you acquire rights to them within 10 clays after we enter into payee, we may obtain insurance to protect our interest in ihe Property. This insurance may include coverages not required at you. This this Contract, or they are installed le or affixed to the Vehicle. B. You will defend our interests in the Property against claims insurance may be written by a company other than one you would made by anyone else, You will do whatever is necessary to keep choose. It may be written at a rate higher than a rale you could obtain it you purchased the property insurance required by this Contract. We will our claim to the Property ahead of the claim of anyone else. add the premium for this insurance to the amount you owe us. Any C. The security interest you are giving us in the Property comes amount we pay will be due immediately. This amount will earn finance ahead of the claim of any other of your general or secured charges from the daM paid at the post-maturity rate described In tho creditors. You agree to sign any additional documents or provide PROMISE TO PAY AND PAYMENT TERMS section until paid in lull. us with any. additional information we may require to keep our claim to the Property ahead of the claim of anyone else. You will OBLIGATIONS INDEPENDENT: Each person who signs thi5 Contract agrees to pay this Contract according to ifs terms. This means not do anything to change our interest in the Property. 0. You will keep the Property in your possession in good condition the following: A. You most pay this Contract even d someone else has also signed it. and repair. You will use the Properly for its intended and lawful B. We may release any co-buyer or guarantor and you will still be purposes. Unless otherwise agreed In writing, the Property will obligated to pay this Contract. be located at your address fisted on page 1 of this Contract. C. We may release any seceder and you will still be obligated to pay E. You will not attempt to sell the Property (unless it is properly this Contract. identified inventory) or otherwise transfer any rights In the O. II we give up any of our rights, it will not affect your duty to pay this Property to anyone else, without our prior written consent. F. You will pay all taxes and assessments on the Property as E. IC(cwnetrilxcle nd new credit or renew this Contract, it will not affect your they become due. duty to pay this Contract. ' G. You will notify us of any less or damage to the Property. You will provide as reasonable access to the Property for the purpose of WARRANTY: Warranty information is provided to you separately. inspection. Our entry and inspection must be accomplished WAIVER: To the extent permitted by taw, you agree to give up your lawfully, and without breaching the peace. rights to require us to do certain things. We are not required to: (1) DEFAULT: You will be in default on this Contract it any one of the demand payment of amounts duel (2) give notice that amounts due have not been paid, or hove not been paid In the appropriate following occurs (except as prohibited by law): A. You fall to Worth any obligation that you have undertaken in this amount, tInta et manner; or, (3) glee notice that we intend to make, or are making, thls Contract Immediately due. Contract. B. We, In good faith, believe that yea cannot, or will not, pay or perform the obligations you have agreed to in this Contract, THIRD PARTY AGREEMENT it you default, you agree to pay our costs for collecting amounts owing, By signing below you agree to give no a security interest in the including court costs, reasonable attorneys' fees (if referred for collection Property described in the SALE section. You also agree to the terms to an attorney not a salaried employee of Ours) and fees for repossession, of this Centred, including the WAIVER section above, except that repair, storage and sale of the Property securing this Contract. you will not be liable for the payments it requires. Your Interest in the II an event of default occurs as to any one of you, we may exercise Properly may be used to satisfy the Buyer's obligation, You agree our remedies against any or all of you_ that we may renew, extend, change this Contract, or release any REMEDIES: If you are in default on this Contract, we have all of the party or properly without releasing you from this Contract. We may remedies provided by law and this Contract lake these steps without notice or demand upon you. A. We may require you to immediate} pay us, subject to any refund You acknowledge receipt of a completed copy of this Contract. rewired by law, the remaining unpaid balance of the amount financed, finance charges and all other agreed charges. B. We may pay taxes, assessments, or other liens or make repairs Signature Date to the Properly it you have not done so. We are not required to do so. Any amount we pay will be added to the amount you owe us and will be due 'mediatory. This amount will earn finance NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT charges from the date paid at the post-maturity rate described in CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES the PROMISE TO PAY AND PAYMENT TERMS section until WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER paid C. We may require you to make the Property available lo us at a OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY place we deSignale that is reasonably convenient to you and us. D. We may immediately take possession of the Property by legal THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE process oesell-help, belie doing so we may not breach the peace DEBTOR HEREUNDER. or unlawfully enter onto your premises. We may then sell the Property and apply what we receive as provided by law to our IF YOU ARE BUYING A USED VEHICLE, THE INFORMATION YOU SEE ON THE WINDOW FORM FOR THIS VEHICLE IS reasonable expenses and then toward your obligations. E. Except when prohibited by law, we may sue you for additional PART OF THIS CONTRACT. INFORMATION ON THE WINDOW amounts If the proceeds of a sale do not pay all of the amounts you FORM OVERRIDES ANY CONTRARY PROVISIONS IN THE Owe us. CONTRACT OF SALE ASSIGNMENT BY SELLER Seller sells and assigns this Retail Installment Contract and Security Agreement, (Contract), to the Assignee. its successors and assigns, inducting all its fights, title and Interest In this Contract, and any guarantee executed In connection with this Contract. Seller gives Assignee full power, either in its own name or in Seller's name, to lake all legal or ether actions welch Seller could have taken under this Contract. (SEPARATE AGREEMENT:11 this Assignment is made 'under the terns of a separate agreement' es indicator) on page 1, the terms of this assignment are described in a separate writingts) and not as provided below.) Seller wanants: A. This Contract represents a gale by Seller to Bum on a time price basis and not on a cash basis. , B. The statements contained in thls Contract are true and correct. C. The down payment was made by the Buyer in the manner slated on page I of this Contract and, except for the application of any manufacturer's rebate, no panel the down payment was loaned or paid to the Buyer by Seller or Sellars representatives. O. This sole was completed in accordance wire all applicable federal and slate lows and regulations. E. This Contract Is valid and enforceable in accordance with its terms. F. The names and signatures on this Contract are not forged, fictitious or assumed, and are true and correct. 0, This Contract Is vested in the Seiler tree of all liens, is not subject to any claims or defenses of the Buyer, and may be sold or assigned by rho Seller. H. A completely fillechln copy of this Contract was delivered to the Buyer at the limo of execution. I. The Vehicle has been delivered to Ma Buyer In good condition and has bean accepted by Buyer. J. Seller has or will perfect a security interest in the Property In favor of the Assignee. It any of these warranties is breached or untrue, Seller will, upon Assignee's demand, purchase this Contract from Assignee. The purchase shall bo in cash In the amount of the unpaid balance (including finance charges) plus the costs and expenses of Assignee, including attorneys' lees, Seller will indemnify Assignee for any loss sustained by it because of judicial set-olt or as the result or a recovery made against Assignee as a result of a claim or defense Buyer has against Seller. Seller waives notice of the acceptance at this Assignment, notice of non-payment or non-performance and notice of any other remedies available to Assignee. Assignee may. without notice to Seller, and without affecting Ma liability of Seller under this Assignment, compound or release any rights against, and grant extensions of time for payment to be made, to Buyer and any other person obligated under this Contract. UNLESS OTHERWISE INDICATED ON PAGE 1, THIS ASSIGNMENT IS WITHOUT RECOURSE. WITH RECOURSE: II this Assignment is made 'with recourse' as indicated on page 1, Assignee lakes this Assignment with certain rights of recourse against Seller. Seller agrees that if the Buyer defaults on any obligation of payment or performance under this Contract, Seller will, upon demand, repurchase this Contract for the amount el the unpaid balance, Including finance charges. duo at the! time.

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IN THE SUPERIOR COURT OF CHATTAHOOCHEE COUNTY STATE OF GEORGIA JAMES R. THOMAS, JR. and SABRINA R. THOMAS, Plaintiffs, CIVIL ACTION FILE v. NO. 11-CV-154 KIA AUTO SPORT OF COLUMBUS, INC. and SUNTRUST BANK, Defendants.

JUDGE LUMSFORD ) )

SUNTRUST BANK'S BRIEF IN REPLY TO PLAINTIFFS' MOTION(S)FOR SUMMARY JUDGMENT AND SUNTRUST BANK'S BRIEF IN SUPPORT OF ITS CROSS MOTION FOR SUMMARY JUDGMENT AND FOR A BILL OF PEACE AGAINST PLAINTIFFS COMES NOW, SUNTRUST BANK, a Georgia banking corporation ("SunTrust Bank" or "SunTrust"), a named Defendant in the above-captioned civil action' and Movant herein, by and through its undersigned counsel, and, pursuant to O.C.G.A. §§ 911-56 and 9-11-54(b), files this Brief in Reply to Plaintiffs' Motion (s) for Summary

In response to the Orders entered by the Court on February 14, 2017 [filed on the Court's civil docket on February 17, 2017], Plaintiffs filed a Notice of Dismissal of Remaining Claims Against KIA Autosport of Columbus, Inc. ("KIA," "Kia" or "Defendant KIA") on February 23, 2017. In a subsequent Order entered March 13, 2017 [filed on the Court's civil docket on March 16, 2017] ("Order on Plaintiffs' Notice of Dismissal"), the Court admonished the Plaintiffs, stating that "Plaintiffs did not first seek the Court's approval to dismiss Kia from the action as required ... Therefore, Plaintiffs' Notice of Dismissal for Kia fails as a matter of law. Plaintiffs remain ordered to arbitrate their claims with Kia." [Citations omitted]. Order on Plaintiffs' Notice of Dismissal, p. 2. The Court further stated: "If Plaintiffs wish to dismiss their claims, they may dismiss the entire action against Kia and SunTrust without leave of Court pursuant to 0.C.G.A. § 9-11-41(a) by filing a Notice of Dismissal of 11-CV-154 with the Clerk of Court." Id. (Emphasis added).

Judgment and in Support of its Cross Motion for Summary Judgment and for a Bill of Peace Against Plaintiffs (the "Motion"), respectfully showing this honorable Court the following: INTRODUCTION This is a simple case of buyer's remorse. Plaintiffs James R. Thomas, Jr. and Sabrina R. Thomas (collectively, "Mr. and Mrs. Thomas" or the "Thomases") purchased a vehicle from Kia in September 2009 and, after driving the vehicle for nearly a year, requested to return the vehicle and, ultimately, to rescind the loan extended to them by SunTrust Bank for their purchase of the vehicle. As this Court noted in its Order on Plaintiffs' Notice of Dismissal (see n.1, supra), this action has been pending since 2011; further, as the Court noted more recently in its Order entered December 20, 2017 [filed on the Court's civil docket on December 26, 2017], Plaintiffs have applied for numerous appeals to both the Georgia Court of Appeals and the Supreme Court of Georgia in the seven years since they filed their initial Complaint ("Order on Plaintiffs Motion for Scheduling a Jury Trial"). See Order on Plaintiffs' Motion for Scheduling a Jury Trial, p. 1. ["Since the assignment to Judge Lumsden, Plaintiffs have applied for numerous appeals (after appealing previously in 2012 and 2013)."]. The claims which the Plaintiffs continue to press against SunTrust Bank have been dismissed, specifically for identity theft and RICO Act violations, by the prior Orders of the several judges assigned to this case, as also noted by this Court in its recent Orders. SunTrust respectfully submits that the Plaintiffs have failed to state a cause of action against SunTrust Bank upon which

2

relief may be granted and their Motion(s) for Summary Judgment2 must be denied and all of their Complaint(s) against SunTrust Bank3 must be dismissed. PRELIMINARY STATEMENT The underlying facts and record evidence in this case are contained in the pleadings and documents before this Court. In the interest of judicial economy, those facts will not be repeated here. Further, the undisputed facts establishing SunTrust Bank's entitlement to judgment as a matter of law are set forth in full in SunTrust's Response to Plaintiffs' Statement of Material Facts and Theory of Recovery, filed March 30, 2017,4 as

2 Plaintiffs filed their initial Motion for Summary Judgment on or about February 25, 2017 (the "First Summary Judgment Motion") in violation of this Court's Order entered Order entered February 14, 2017 [filed on the Court's civil docket on February 17, 2017], staying the proceedings in this litigated matter and compelling the Plaintiffs to arbitrate all claims remaining between the Plaintiffs and KIA as provided in the contract between the Plaintiffs and KIA; that Order further directed the Clerk of Court not to accept any pleadings submitted by the Plaintiffs until such time as they had complied and participated in arbitration proceedings. Out of an abundance of caution, SunTrust Bank responded to First Summary Judgment Motion on March 30, 2017 as reflected on the Court's civil docket in this case. Subsequently, while the First Summary Judgment Motion was still pending and while Plaintiffs' most recent set of appeal(s) were still being considered by the Court of Appeals and the Georgia Supreme Court (see Order on Plaintiffs' Motion for Scheduling a Jury Trial, p. 1), Plaintiffs filed their Second Motion for Summary Judgment on or about September 7, 2017 (the "Second Summary Judgment Motion"). SunTrust notes that the Second Summary Judgment Motion is substantively similar and virtually identical to the First Summary Judgment Motion.

Plaintiffs, proceeding pro se, filed their initial Complaint against KIA Autosport of Columbus, Inc. and SunTrust Bank on December 2, 2011. Plaintiffs subsequently filed an Amendment to Original Complaint on March 21, 2012 and, most recently, a "Third Amendment Verified Complaint" [sic] on or about September 25, 2017. The allegations, claims, and prayers for relief sought in each of the "complaints" is substantially similar if not verbatim. 4 In light of the similarity between the First Summary Judgment Motion and the Second Summary Judgment Motion filed by the Plaintiffs, and in the interest of judicial economy and the parties' respective time and resources, SunTrust Bank respectfully 3

3

though restated herein and in its Statement of Material Facts as to Which There is No Genuine Issue for Trial ("Statement of Undisputed Facts"), filed contemporaneously herewith. Although this Court is already familiar with these facts and the protracted litigation history of this case from the many pleadings filed by the Plaintiffs, SunTrust Bank summarizes these pertinent facts and procedural history for the Court's consideration. STATEMENT OF FACTS AND PROCEDURAL HISTORY Statement of Facts Plaintiffs' claims in this litigated matter arise from the actions surrounding the Thomases entering into an agreement to purchase a vehicle from Defendant Kia (see n.1, supra). In the course of purchasing a vehicle from Kia on September 30, 2009, Mr. and Mrs. Thomas each signed a "Vehicle Buyer's Order,"5 an "Applicant's Credit Statement," and a "Retail Installment Agreement" (hereinafter, the "Contract").6 In completing the paperwork to purchase the vehicle, the Thomases freely provided Kia their names, their respective Social Security numbers, their respective driver's license

adopts and incorporates both its Response to Plaintiffs' Statement of Material Facts and Theory of Recovery and its Protective Response in Opposition to Plaintiffs' Motion for Summary Judgment and Memorandum of Law in Support in their respective entirety as though fully restated herein. A provision of this signed agreement states "Any controversy or claim arising out of or relating to this contract or the breach thereof shall be settled by arbitration in North Florida in accordance with the rules of the American Arbitration Association." 6 By their signatures on the Contract, Mr. and Mrs. Thomas each agreed to make monthly payments beginning on November 15, 2009 in order to finance their purchase of a 2009 KIA Sorento. 5

4

numbers and birth dates, as well as their occupations and salary or other source of income. See Exhibit 1 to "Plaintiffs' Affidavit in Support of Motion for Summary Judgment." Additionally, the Thomases signed a separate document entitled "Arbitration Agreement."7 Kia subsequently submitted the Thomases' credit information to, inter alia, SunTrust Bank to secure financing for the vehicle. The Thomases drove the vehicle home. SunTrust Bank received the signed Retail Installment Agreement [the Contract], dated September 30, 2009 and executed by James R. Thomas, Jr. and Sabrina R. Thomas, from Kia on October 8, 2009. Following approval, the Thomases set the retail loan up for automatic payments using SunTrust's automatic payment system and paid as agreed through July 2010. The Thomases' August 2010 payment was received by SunTrust but returned, as the deposit account from which the payment was drafted had been closed. Plaintiffs subsequently requested to voluntarily return the vehicle and, ultimately, to rescind the loan. Because the loan was delinquent and no payments had been made since July 2010, SunTrust was forced to repossess the vehicle on October 13, 2010. The Thomases were notified of SunTrust Bank's intention to sell the automobile at auction, and the vehicle was subsequently sold at auction on November 4, 2010. Procedural History Plaintiffs filed this lawsuit on December 2, 2011. SunTrust was served on December 20,2011 and, on January 19, 2012, SunTrust Bank timely filed its Answer and

Plaintiffs have either conveniently omitted or elected to ignore the Arbitration Agreement which is, noticeably, not attached to their Affidavit(s) or any other pleading 5

Affirmative Defenses. Plaintiffs have twice amended their Complaint, initially on March 21, 2012 and, more recently, on or about September 25, 2017. SunTrust Bank filed an Answer and Defense to the "Amendment Complaint" on April 4, 2012 but did not respond to the "Third Amendment Verified Complaint" as all of the complaints in this action are substantively similar and, in most instances, identical. Plaintiffs propounded limited discovery in the early stages of the litigation. As Plaintiffs have noted in their Statement(s) of Material Fact and Theory of Recovery submitted in support of both the First Summary Judgment Motion and the Second Summary Judgment Motion, The Honorable Frank K. Jordan granted Kia's Motion to Compel Arbitration and dismissed Plaintiffs' identity theft and RICO claims by Order dated June 11, 2012. To date, and despite the numerous subsequent Order(s) entered by the several judges assigned to this case, Plaintiffs have failed and refused to participate in arbitration to resolve their claims against Kia. ARGUMENT AND SUPPORTING AUTHORITY On the basis of the record evidence and pleadings in this case, and the authorities cited below, SunTrust Bank submits it is entitled to summary judgment as a matter of law on all of the claims alleged by the Plaintiffs. A. THE STANDARD FOR SUMMARY JUDGMENT. To prevail at summary judgment under O.C.G.A. § 9-11-56, the moving party must demonstrate that there is "no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a filed in this case.

6

matter of law." O.C.G.A. § 9-11-56(c). See also Kaplan v. City of Sandy Springs, 286 Ga. 559 (2010) ("Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law."). A defendant may accomplish this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a genuine issue on at least one essential element of the plaintiffs case. Ledford v. Darter, 260 Ga. App. 585, 588 (2003). All other disputes of fact are rendered immaterial. See Lau's Corp. v. Haskins, 261 Ga. 491 (1991). Moreover, "[a]llegations, conclusory facts and conclusions of law cannot be utilized to support or defeat motions for summary judgment." [Cits. omitted]. Ledford, 260 Ga. App. at 589, quoting Peterson v. Midas Realty Corp., 160 Ga. App. 333, 335 (1981). The summary judgment procedure codified in O.C.G.A. § 9-11-56 is intended "to allow a party to pierce the allegations of the pleadings, show the truth to the Court, and receive judgment where there is no genuine issue of material fact, although an issue may be raised by the pleadings." Laite v. Baxter, 126 Ga. App. 743, 745 (1972). A party who will not bear the burden of proof at trial need not disprove each element of the nonmoving party's case in order to prevail on a motion for summary judgment. Lau's Corp., supra. In such circumstances, the movant need only show that "there is an absence of evidence to support the non-moving party's case." Id. When the movant meets its burden of eliminating at least one essential element of the opposing party's claim, as SunTrust

7

Bank does here, "it is useless to present the case to a jury, and the movant is entitled to summary judgment as a matter of law." Laite, 126 Ga. App. at 745. Further, because the applicable standard under O.C.G.A. § 9-11-56 is whether any genuine issue of material fact remains to be tried, a dispute regarding an immaterial fact does not preclude summary judgment. Wood v. Metropolitan Atlanta Girls' Club, Inc., 141 Ga. App. 473, 474 (1977). The Thomases, by their own respective actions, cannot demonstrate the validity of the Plaintiffs' claims, allegations, admissions, and prayers for relief in the case presently before this Court. SunTrust Bank submits it has satisfied its burden as the movant herein and, further, SunTrust has demonstrated it is entitled to judgment as a matter of law on all of Plaintiffs' claims. B. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT MUST BE DENIED. The Thomases have failed to meet their burden as the initial movants herein. As noted above, it is well settled that the movant for summary judgment has the burden of showing the absence of any genuine issues of material fact which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. Raven v. Dodd's Auto Sales & Service, 117 Ga. App. 416 (1968). To prevail on a motion for summary judgment, a plaintiff/movant must produce evidence that the defenses presented by the defendant are insufficient as a matter of law. Hipes & Norton, PC v Pye Auto. Sales of Chattanooga, Inc., 254 Ga. App. 360 (2002). The movant has this burden even as to issues upon which an opposing party would have had the burden at trial. D.H. Overmyer Co. v. Joe Summers Roofing Co., 120 Ga. App. 188 (1960). It is 8

unequivocally evident here that the Thomases have not met their burden, their claims for relief against SunTrust Bank are without merit,8 and the Motion must be denied. C. SUNTRUST BANK IS ENTITLED TO A BILL OF PEACE. It is well settled in Georgia law that "IT]he prevention of vexatious, oppressive and ruinous litigation is a frequent cause for the exercise of equity jurisdiction, and injunctions to restrain a multiplicity of suits in such cases are not only permitted, but favored, by the courts.'" Allstate Ins. Co. v. Hill, 218 Ga. 430, 434 (1962) (citing 1 Pomeroy, EQUITY JURISPRUDENCE (5th ed.) § 261(j), p. 551). Plaintiffs' repetitive filings of abusive pleadings in this litigation is the very behavior that equity is intended to enjoin. 1.

Standard of Decision for Bill of Peace.

Bills of Peace are governed by O.C.G.A. § 23-3410, which states, in pertinent part: "[I]t being the interest of this state that there shall be an end of litigation, equity will entertain a bill of peace: (1) To confirm some right which has been previously satisfactorily established by more than one legal trial and is likely to be litigated again; (2) To avoid a multiplicity of actions by establishing a right, in favor of or against several

Indeed, the only claim(s) Plaintiffs assert against SunTrust in both the First Summary Judgment Motion and the Second Summary Judgment Motion is that SunTrust Bank "willingly accepted, approved and ratified" the allegedly "fictitious ACS" submitted by Defendant Kia at the time of the transaction involving the Thomases' purchase of the vehicle. See, generally, Plaintiffs' Motion(s) for Summary Judgment. Plaintiffs contend that in doing so, SunTrust violated O.C.G.A. § 16-9-121 and, by extension, O.C.G.A. § 16-9-121.1. Both of these statutes pertain to identity fraud, a claim that was dismissed by the prior Order(s) of the Court. 9 8

persons, which is likely to be the subject of legal controversy; or (3) In some similar cases." O.C.G.A. § 23-3-110(a). All of these factors are present here. 2.

SunTrust is Entitled to a Bill of Peace Preventing Mr. and Mrs. Thomas From Further Abusing the Judicial System.

The record in this case, as well as the record(s) from the numerous appeals the Plaintiffs have taken from the Order(s) of this Court to the Georgia Court of Appeals and the Supreme Court of Georgia, speak for themselves. These repeated, frivolous pleadings demonstrate the Plaintiffs' pattern and practice of continued contumacy and evidence an utter contempt for the courts, the legal system, and legal practitioners in general. The intent of O.C.G.A. § 23-3-110 has never been to enjoin a plaintiff or potential plaintiff from vigorously pursuing a legitimate, well-founded legal action, nor is such the intent of SunTrust Bank. See, e.g., Bond v. Little, 10 Ga. 395 (1851). The Thomases have persisted in their claims in both this court and the appellate courts and have consistently ignored the explicit direction of the respective courts in these various venues. Plaintiff has failed to prevail in any forum. "The principle on which Courts of Equity grant such relief in such cases is to suppress useless litigation; to prevent multiplicity of suits; to restrain oppressive litigation; and to prevent irreparable mischief." Bond, supra, 10 Ga. at 400. (Emphasis in original).9 SunTrust Bank has met the statutory requirement for obtaining a Bill of Peace as the Thomases continue to pursue claims that have been previously dismissed and disposed by this Court, and the Plaintiffs, by their own statements, will attempt to litigate these issues again.

10

SunTrust Bank has satisfactorily established at law that it is not liable to either Mr. or Mrs. Thomas for any action(s) arising out of the facts pled in this lawsuit, but the Thomases continue to litigate this alleged liability. As such, SunTrust petitions to have this Court confirm its right to be forever free from liability to the Thomases with respect to the subject matter of this lawsuit against SunTrust Bank. These rights are likely to be the subject of future legal controversy, and SunTrust seeks herein to have such rights established in favor of SunTrust Bank in order to avoid a multiplicity of actions against it by the Plaintiffs. The Thomases' continued harassment of SunTrust Bank by continuing to pursue claims that have been previously dismissed is illegal and contrary to equity and good conscience, and SunTrust is without adequate remedy at law to protect itself from such lawsuits. Equity demands that the Plaintiffs be permanently enjoined from pursuing their demonstrated course of action, and SunTrust Bank is entitled to a temporary and perpetual injunction restraining and prohibiting Plaintiffs James R. Thomas, Jr. and Sabrina R. Thomas from engaging in the practices complained of herein. D. THE STANDARD FOR DISMISSAL. Notwithstanding the foregoing, the Thomases, by their own respective actions, cannot demonstrate the validity of her claims, allegations, and prayers for relief in their multiple complaints. SunTrust Bank is entitled to judgment as a matter of law on all of the Plaintiffs' claims as alleged, and the Complaint(s) against SunTrust should be dismissed with prejudice.

The Court in Bond also noted the "object" of a Bill of Peace is "to quiet fruitless litigation." Id. (Emphasis in original). 11 9

1.

The Complaint(s) Fail to State a Claim Against SunTrust Bank.

SunTrust Bank submits the Complaint(s) should be dismissed with prejudice due to Plaintiffs' failure to state a legally viable claim. O.C.G.A. § 9-11-12(b)(6). Where, as here, a plaintiffs allegations show he/she "'would not be entitled to relief under any state of provable facts asserted in support thereof, and ... the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought', a motion to dismiss pursuant to O.C.G.A. § 9-11-12(b)(6) may be granted. McLain v. Mariner Health Care, Inc., 279 Ga. App. 410, 411 (2006), quoting Smith v. Germania of America, 249 Ga. App. 587, 588 (2001). Further, Georgia courts have held a complaint should be dismissed on motion if clearly without merit, as in the case at bar. "[T]his want of merit may consist in an absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim Poole v. City of Atlanta, 117 Ga. App. 432, 434 (1968). The Complaint(s) here fail to state a legally cognizable claim against SunTrust Bank upon which relief can be granted. 2.

Plaintiffs' Claims Lack Merit and Fail as a Matter of Law.

Plaintiffs' novel legal theories, to the extent they are discernable, are meritless. Specifically, Plaintiffs' conclusory allegations with respect to a purported breach of contract, to the extent such claim is either averred or inferred (see, generally, Complaint), fail for lack of breach and causation elements. The uncontroverted evidence in this case demonstrates that when the Plaintiffs sought to purchase a vehicle from Kia, they

12

executed a Retail Installment Contract and Security Agreement (the "Contract" or the "Loan"), which SunTrust Bank received on October 8, 2009 and accepted. The evidence in this case further shows that on November 9, 2009, the Plaintiffs set up automatic payments for the Loan. SunTrust has not breached a duty allegedly owed to the Plaintiffs. Under well-settled Georgia law, no such duty exists.1° The only contract at issue in this case is comprised of the Contract executed by Mr. Thomas and Mrs. Thomas, the terms of which were adhered to at all times. See O.C.G.A. §§ 13-5-30(4), (7). Georgia law further provides that where a bank and borrower are involved in an "arm's length transaction," such as that here, "no confidential relationship exists" and the borrower "ha[s] a duty to exercise ordinary diligence to protect her own interest." Dollar v. NationsBank of Ga., N.A., 244 Ga. App. 116, 117 (2000).11 See also Newitt v. First Union Nat'l Bank, 270 Ga. App. 538, 546 (2004) ("[M]ost business relationships are not generally confidential or fiduciary relationships"). Here, there was certainly no special relationship between the Thomases and SunTrust Bank other than an arm's length relationship between bank and customer. Accordingly, SunTrust submits the Plaintiffs

As Georgia courts have consistently held, a lender does not owe any duty(ies) to a borrower independent of the duties, if any, imposed by the contract. See, e.g., Pardue v. Bankers First Fed. Say. & Loan Ass'n, 175 Ga. App. 814 (1985) (Holding there is no confidential relationship or fiduciary duty between a lender and a borrower, for they are creditor and debtor with clearly opposite interests); Baxter v. Fairfield Fin. Servs., 307 Ga. App. 286, 293 (2010) (A "bank owes no legal duty to act as a customer's legal or financial advisor."); Traina Enters. v. Racetrac Petroleum, 241 Ga. App. 18, 19-20 (1999) ("[M]ere negligent performance of a contractual duty does not create a tort cause of action ..."); Limoli v. First Ga. Bank, 147 Ga. App. 755, 757-758 (1978) (Creditors deal with debtors at arm's length, and do not stand in a fiduciary capacity in relationship to the debtor). 13 10

cannot present a cognizable tort claim against SunTrust Bank and Plaintiffs' breach of contract claim, to the extent such is averred, fails as a matter of law. Plaintiffs also assert broad and unsubstantiated fraud claims against SunTrust in this action (see, generally, Complaint); however, these allegations, as pled, fall far short of the specificity required for a fraud claim to satisfy the heightened pleading requirements of Georgia law. O.C.G.A. § 9-11-9(b); see also Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 82 (2008) ("In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity."). (Emphasis added). To state a cause of action for fraud, the plaintiff is required to allege facts showing that the defendant knowingly made false statements; that the defendant intended for the plaintiff to act or refrain from acting in reliance on those statements; that the plaintiff justifiably relied on the false statements; and as a result of that reliance, the plaintiff suffered damage. See Wylie v. Denton, 323 Ga. App. 161 (2013). The Thomases' vague allegations here are insufficient to state with particularity the circumstances constituting fraud and, as such, Plaintiffs' fraud claims against SunTrust Bank fail as a matter of law. 3.

Plaintiffs Have No Claim for Emotional Distress.

Plaintiffs are also seeking, without substantiation, an award of actual damages against SunTrust Bank for its alleged "intentional infliction" of their "emotional pain,

The court in Dollar also found that "NationsBank's primary duty was to protect its interest in the security of the mortgage." Id. 11

14

harassment, and oppression [...]." See, generally, Complaint.' 2 Giving Plaintiffs the benefit of the doubt that the vague and ambiguous allegations averred in this case satisfy notice pleading, which SunTrust disputes and denies, Mr. and Mrs. Thomas have no legal claim in this action for emotional distress against SunTrust Bank. Under Georgia law; the elements for a claim of intentional infliction of emotional distress are: "(1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the plaintiff's emotional distress; and (4) the emotional distress must be severe". Udoinyion v. RE/Max of Atlanta, 289 Ga. App. 580 (2008). To the extent Plaintiffs base this claim on SunTrust Bank's alleged conduct in taking steps to repossess the vehicle following their undisputed default on the Loan, they have failed to specify the action(s) taken that would classify as either intentional, reckless, extreme, or outrageous as applicable law requires. Simply stated, Plaintiffs have not alleged sufficient facts to state a claim for intentional infliction of emotional distress. While the Georgia Code provides for a measure of recovery for "emotional distress damages," it does not create an independent cause of action for injury to peace, feelings or happiness. Reeves v. Edge, 225 Ga. App. 615, 620 (1997), citing O.C.G.A. § 51-12-6. Although Plaintiffs allege otherwise (see, generally, Complaint), a claim for emotional distress must be supported by an underlying cause of action. See Lee v. State

In their Motion(s) for Summary Judgment, Plaintiffs state they are seeking damages of $3 million for their claim(s) that SunTrust Bank inflicted "emotional pain, harassment, and oppression, injuries [...]." 12

15

Farm Mut. Auto Ins. Co., 272 Ga. 583, 588 (2000).13 Moreover, Plaintiffs' failure to point to specific incident(s) of the alleged emotional distress unquestionably reflects the absence of any condition of the requisite severity to support a cause of action in the case at bar. See Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227 (1985); see also Moses v. Prudential Ins. Co., 187 Ga. App. 222 (1988). None of the conduct alleged in the Complaint(s) qualifies as "extreme or outrageous" within the meaning of Georgia's tort law and, accordingly, SunTrust Bank submits Plaintiffs' claim for intentional infliction of emotional distress fails as a matter of law. 4.

Plaintiffs' Punitive Damages Claim Fails.

Each of the Thomases' substantive claims here are flawed and must be dismissed. As a result, Plaintiffs' claim for punitive damages, to the extent such is either averred or inferred (see, generally, Complaint), must also be dismissed.14 See Franklin Credit Management Corp. v. Friedenberg, 275 Ga. App. 236, 242 (2005) (Stating that claims for punitive damages are not independent causes of action); Fitzgerald v. Storer Cable Communications, Inc., 213 Ga. App. 872, 875 (1994 (Holding that a party may not recover punitive damages in the absence of an award of compensatory damages). Further, pursuant to O.C.G.A. § 13-6-10, punitive damages are never allowed in cases arising

13 Where, as here, the plaintiffs do not claim and cannot show the distress resulted from a physical injury inflicted by the defendant, recovery is precluded as a matter of law. Johnson v. Allen, 272 Ga. App. 861, 869 (2005); McCunney v. Clary, 259 Ga. App. 260 (2003). 14 In their Motion(s) for Summary Judgment, Plaintiffs state they are seeking damages of $10 million for their claim(s) that SunTrust Bank's actions "showed willful misconduct, malice, intent to inflict pain and financial damage [...]."

16

from a contract and punitive damages cannot be predicated on a tort committed through negligence (even gross negligence) or a mistake. Molton v. Commercial Credit Corp., 127 Ga. App. 390 (1972); Gaither v. Barclays American Fin. of Ga., Inc., 194 Ga. App. 188 (1990); Tower Fin. Servs., Inc. v. Smith, 204 Ga. App. 910 (1992). Contrary to Plaintiffs' allegations otherwise, there is no evidence in this case that SunTrust Bank committed a tort of any kind.15 In the absence of a legally sufficient tort claim, as in the case at bar, the issue of punitive damages is moot. Shaw v. Ruiz, 207 Ga. App. 299, 304305 (1993). 5.

Plaintiffs' Alleged Damages Are Speculative.

When it comes to Plaintiffs' totally unsubstantiated claim for damages, such alleged damages are purely speculative and cannot be awarded. See, generally, Complaint.16 Itiis well settled under Georgia law that "[t]he question of damages cannot be left to speculation, conjecture and guesswork." Where a party sues for damages he has the burden of proof of showing the amount of loss in a manner in which the jury or the trial judge in non jury cases can calculate the amount of the loss with a reasonable degree of certainty. (Citations omitted). Hayes v. Flaum, 138 Ga. App. 787 (1976); see also Schill v. A.G. Spanos Dev., Inc., 217 Ga. App. 260, 262 (1995). SunTrust respectfully submits that the record in this case

15 An award of punitive damages can be made only on the basis of a recovery of actual damages for the underlying tort and must be pled and proven. Mayfield v. Ideal Enters., Inc., 157 Ga. App. 266 (1981); Haugabrook v. Taylor, 225 Ga. 317 (1969); Stiefel v. Schick, 260 Ga. 638 (1990). 16 In their Motion(s) for Summary Judgment, Plaintiffs state they are seeking general damages "[f]or loss of income from business and patents in the amount of [$]1

17

contains insufficient evidence for any party to calculate the amount of Plaintiffs' alleged loss or damages, albeit speculative, with a reasonable degree of certainty within the meaning of Hayes, supra. Georgia courts have held that legal causation and damage are essential elements of a plaintiff's claim. Graham Bros.' Constr. Co. v. C. W. Matthews Contracting, 159 Ga. App. 546 (1981). Remote or speculative damage affords no basis for recovery in contract or tort. 0.C.G.A. §§ 13-6-8, 51-12-8, 51-12-9. "The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to the cause, rather than uncertainty as to the measure or extent of the damages." HixsonHopkins Autoplex, Inc. v. Custom Coaches, 208 Ga. App. 820, 821 (1993). Thus, "the losses must be directly traceable to the acts of the other party." Id. Here, as in Hixson, the Plaintiffs are unable to show that SunTrust Bank's actions or omissions caused the alleged damage. Instead, any damage suffered by either Mr. Thomas or Mrs. Thomas is a result of their failure to make their installment payment(s) on the Loan. Further, Georgia courts have found that judgment as a matter of law in the defendant's favor is proper when insufficient evidence has been introduced to allow for the formulation of damages. Silco, Inc. v. Gwinnett County Hospital Auth., 151 Ga. App. 634, 635 (1979) (Directed verdict in favor of the defendant where damages had not been established with reasonable certainty).

billion" and "[nor losses concerning past, present, and future, from the negative credit rating possession and litigation expenses in the amount of $750,000.00." 18

Based upon the complete lack of evidence of damages in this case, SunTrust Bank submits that the Court must conclude the Plaintiffs have failed to prove their damages. See Olagbegi v. Hutto, 320 Ga. App. 436, 439-440 (2013). Accordingly, the Court should deny all of Plaintiffs' claims for damages. CONCLUSION Based upon the extensive record in this action, SunTrust Bank submits that Plaintiffs' Motion(s) for Summary Judgment must be denied. For the aforementioned reasons and based on all pleadings, evidence, and other matters of record upon which the Movant relies, SunTrust submits that no genuine issue of material fact remains for trial and SunTrust Bank is entitled to judgment as a matter of law on all of Plaintiffs' claims in this case. SunTrust requests that the Court grant its Motion for Summary Judgment and issue an Order, in accordance with O.C.G.A. § 9-1154(b), with an express determination that there is no just reason for delay for entry of a final judgment in favor of SunTrust Bank and for such other and further relief as the Court deems is just and proper including, without limitation, issuing a Bill of Peace against Plaintiffs James R. Thomas, Jr. and Sabrina R. Thomas. Respectfully submitted this 5th day of January, 2018. THE GILROY FIRM

MONICA K. GILROY Georgia Bar No. 427520 KENT E. ALTOM Georgia Bar No. 014054 Attorneys for SunTrust Bank 19

IN THE SUPERIOR COURT OF CHATTAHOOCHEE COUNTY STATE OF GEORGIA . JAMES R. THOMAS, JR., and SABRINA R. THOMAS,

CASE NO.: 11-CV-154

ssa:a Fried p --

Plaintiffs,

At

JUN 12 2012 vs. chnr

tauntMar wochao Supadar ccturt ly

JUDGE FRANK J. JORDAN, J127.

KIA AUTOSPORT OF COLUMBUS, INC. and SUNTRUST BANK,, Defendants.

ORDER + Pending before the Court is Defendant Kia Autosport of Columbus, Inc.'s, Motion to Dismiss Complaint or, in the Alternative, to Stay the Proceedings and Compel Arbitration. DISCUSSION After considering the arguments of both parties, as well as all of the evidence, the Court hereby GRANTS Defendant Kia Autosport's Motion to Stay the Proceedings and Compel Arbitration. All of the claims of the Thomas's' are subject to arbitration. In completing the purchase of their automobile from Kia Autosport of Columbus, the Thomas's signed two arbitration agreements, both of which clearly state that all claims

1

on

rli - -

arising from the sale shall be arbitrated. Furthermore, this Court finds the arbitration agreements valid and all issues are arbitrable under the language of the arbitration agreement.' The Court hereby DISMISSES the Thomas's claims for identity theft and a RICO Act violation. By voluntarily providing their "identifying information" to MA, the Thomas's claim does not rise to the level of a violation of 0.C.G.A. § 169-121 (a)(1), (5) and O.C.G.A. § 16-9-120 (4), (5). The Court finds their claim for identity theft without merit. Furthermore, the Court also finds the Plaintiffs' allegations of a RICO Act Violation meritless. The Plaintiffs' have made no showing of a "pattern of racketeering activity"2 and therefore, this claim is also DISMISSED. Based upon the foregoing discussion and the findings of fact and conclusions of law, the Court hereby GRANTS Defendant Kia Autosport's Motion to Stay the Case and Compel Arbitration. So ORDERED this 11th day of June, 2012.

e J. JORDAN JR. HONORAB T OF CHATTAHOOCHEE COUNTY SUPERIOR CO CHATTAHOOCHEE JUDICIAL CIRCUIT

2

Knit v. Whitecap Hour. Group, 268 Ga.App.436, 442-43 (Ga. Ct. App. 2004). 0.C.G.A. § 16-14-4.

2

\

IN THE SUPERIOR COURT OF CHATTAHOOCHEE COUNTY STATE OF GEORGIA JAMES It THOMAS JR., SABRINA R. THOMAS, Plaintiffs, ) )

v.

Civil Action Number: 11-CV-154

KIA AUTO SPORT OF COLUMBUS, INC., and SUNTRUST BANK, ) )

Defendants.

ORDER This matter comes before the Court on Defendant SunTrust Bank (hereinafter `Defendant") Motion for Summary Judgment. After fully considering the briefs, eviewing all pleadings in the matter, and consideration of applicable Georgia Law, this ourt hereby GRANTS Defendant's Motion for Summary Judgment finding as follows: I.

STANDARD OF REVIEW.

Summary judgment is proper "if the pleadings, depositions, answers to nterrogatories, and admissions on file, together with the affidavits, if any, show that there s no genuine issue as to any material fact and that the moving party is entitled to a udgment as a matter of law." O.C.G.A. § 9-11-56(c). Thus, to prevail on a motion for ummary judgment, "the moving party must demonstrate that there is no genuine issue of aterial fact," Montgomery v. Barrow, 286 Ga. 896, 898 (2010), so that the party "is ntitled to judgment as a matter of law." Kaplan v. City of Sandy Springs, 286 Ga. 559, 60 (2010). Ati

c.c. Filed_

_._•_, --/,

&Clock

OCT 0 7. 2019 Laura Marion Clerk Superior Court By Chattahoochee ounty, GA

"A defendant may do this by either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims." Oglethorpe Dev. Group, Inc. v. Coleman, 271 Ga. 173, 173 (1999). Thus, "the rule with regard to summary judgment" is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party's case. Cox Enters., nc. v. Nix, 274 Ga. 801, 803 (2002).Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must oint to specific evidence giving rise to a triable issue." Lau's Corp., Inc. v. Haskins, 261 a. 491, 491 (1991); O.C.G.A. § 9-11-56 (e). H.

HISTORY

James Thomas and Sabrina Thomas (hereinafter "Plaintiffs") Complaint arises as result of the Plaintiff's purchase of an automobile from nulled Defendant, KIA utosport of Columbus (hereinafter "ICIA"). The undisputed evidence of record reveals at on September 30, 2009, the Plaintiffs in connection with purchasing a vehicle from entered into an agreement. Each signed a "Vehicle Buyer's Order", "Applicant's redit Statement", and "Retail Installment Agreement" (hereinafter collectively the `Contract"). In furtherance of the Contract the Plaintiffs provided KIA with their credit ormation, including their names, social security numbers, occupations and salaries. subsequently provided the Plaintiffs' credit information to SunTrust Banking to James R Thomas Jr, Sabrina R. Thomas, v. Kia Auto Sport of Columbus, INC. & SunTrust Bank II-CV-I54 Chattahoochee County Superior Court

2

a

secure financing for the vehicle. StufTrust Bank approved the Plaintiffs for financing and Plaintiffs on November 9, 2009 signed up for SunTrust's autopay program to make payments to SunTrust in relation to the financing for the vehicle. In August of 2010, Plaintiffs' sought to rescind the loan and voluntarily return the vehicle, SunTrust repossessed the Vehicle in October of 2010 due to Plaintiffs' failure to make a payment since July of 2010. HI.

FINDINGS OF FACT AND LAW

Count II: "Identity Theft, Conspiring, Ratification of Identity Theft & Fraud"; Count IV: "Violations of GA RICO" First, the Court takes into account the previous order of Hon. Frank J. Jordan Jr. dismissing all claims of Identity Theft and RICO Act Violation claimed by the Plaintiffs, thus all arguments in relation Count II and Count IV are moot.

Count VI: "Violation of GA Fair Business Practice Act" Plaintiff claims that Defendant violated the Georgia Fair Business Practice Act by opening its doors by committing and conspiring to commit identity theft fraud causing he plaintiffs to become liable for a fraudulent auto loan at a higher price." After reviewing the evidence before it in the light most favorable to the nonmoving arty, the Plaintiffs, the Court finds that the Plaintiffs have not presented sufficient vidence to show that the Defendant violated the Act. The evidence of record shows that James R. Thomas Jr, Sabrina I?. Thomas, Kia Auto Sport of Columbus, INC. & SunTrust Bank 11-CV-154 Chattahoochee County Superior Court

3

the Defendant provided financing on a vehicle that the Plaintiffs purchased from KIA. In completing required paperwork with KIA in relation to the purchase of the vehicle, Plaintiffs authorized KIA to send financial and identification information to third parties in order to gain financing. Georgia Courts have held that to be successful in a claim of Violation of the Georgia Fair Business Practice Act the Plaintiff must show "a violation of the Act, causation, and injury."Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 139, 610 S.E.2d 68, 70 (2005). Plaintiffs have failed to show that the Defendant violated the act and that such violation caused injury for which the Plaintiffs are entitled to relief om the court. For the foregoing reasons, there is no genuine issue of material fact on the claim f "Violation of Georgia Fair Business Act" and as such Defendant is entitled to a ummary Judgment as a matter of law as to Count VI.

Count VII: "Breach of ACS Agreement Fraud" Plaintiffs claim that "Defendant along with co-defendant MA altered laintiffs' identity information without their knowledge and consent." The plaintiff also aguely pleads that the Defendant committed fraud in relation to the ACS agreement. After reviewing the evidence before it in the light most favorable to the nonmoving arty, the Court finds there is no admissible evidence in the record to show that the efendant breached the agreement between the parties. Furthermore, the Court finds that e Plaintiff has failed to plead fraud with particularity as required by O.C.G.A. § 9-11-9 James It Thomas Jr, Sabrina R. Thomas, V. Kia Auto Sport of Columbus, INC. & Sun Trust Bank 11-CV-154 Chattahoochee County Superior Court

4

(b). The undisputed evidence shows that On October 8, 2009 the Defendant received the Contract between KIA and the Plaintiffs dated September 30, 2009 and upon review approved the Plaintiffs for financing of the vehicle. Subsequent to such approval the Plaintiffs began making payments to the Defendant and set up automatic payments using SunTrust's automatic payment systern. For the foregoing reasons, there is no genuine issue of material fact on the claim of "Breach of ACS Agreement Fraud" and as such Defendant is entitled to a Summary Judgment as a matter of law as to Count VII.

IV.

CONCLUSION.

For the foregoing reasons, this Court hereby finds Defendant is entitled to udgment a matter of law as to all of Plaintiffs' claim and ORDERS judgment for the defendant on all claims.

SO ORDERED this

elk day of October, 2019.

one a Katherm . Lumsden Judge, Superior Court Houston Judicial Circuit

James R. Thomas Jr, Sabrina R Thomas, v. Kia Auto Sport of Columbus, INC. & SunTrust Bank 11-CV-154 Chattahoochee County Superior Court

S

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