Ault v. General Property Management Co.
| Decision Date | 06 March 1984 |
| Docket Number | No. 4,No. 58929,58929,4 |
| Parties | 1984 OK CIV APP 15 Ingrid T. AULT, Appellee, v. GENERAL PROPERTY MANAGEMENT COMPANY, an Oklahoma corporation, Appellant |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Tulsa County; Richard V. Armstrong, Trial Judge.
Appellant challenges propriety of trial court's application of provisions of Uniform Consumer Credit Code to note assigned to appellant by an attorney. In view of finding that evidence does not support application of the UCCC we reverse and remand cause with instruction to enter judgment for appellant.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Paul F. McTighe, Jr., Tulsa, for appellee.
Lewis C. Johnson, Tulsa, for appellant.
This is an appeal from a district court order finding defendant liable to plaintiff for Uniform Consumer Credit Code violations in connection with a note assigned to defendant by an attorney. The note and securing mortgage had been obtained by the attorney from plaintiff in return for legal services.
In 1972, plaintiff, Ingrid Ault, contacted attorney Joseph LeDonne, Jr., in connection with her decision to seek a divorce from her husband, Howard Ault. The divorce was obtained and her ex-husband left the state. Plaintiff was then besieged by creditors to whom money was owed by the couple's business, Ault Laboratory. Plaintiff's financial troubles and the failure of the business also resulted in several criminal charges being filed against plaintiff.
LeDonne told plaintiff that he would take $1,200 to cover the cost of the divorce, initiate a bankruptcy proceeding in her behalf and take care of one of the criminal charges against her. Plaintiff informed the attorney that she did not have the money.
On January 3, 1973, LeDonne had plaintiff execute a note for $1,200, payable in monthly installments of $50 beginning January 3, 1975. The note was secured by a second mortgage on plaintiff's home, also executed on January 3, 1973.
On February 9, 1978, plaintiff filed a petition in the District Court of Tulsa County alleging that on or about September 1, 1977, attorney LeDonne had assigned the note and mortgage to defendant, General Property Management Company. On September 8, 1977, defendant had made demand on plaintiff for the amount due on the note. In her petition plaintiff requested that the court decree the note and mortgage canceled. In support of this prayer plaintiff took the position that any liability on the note had expired because the statute of limitations for an action on the note had run. Plaintiff went on to request the penalty imposed under 46 O.S.Supp.1977 § 15, for refusal to release the mortgage on demand. Plaintiff had made demand for release in a letter delivered to defendant on January 9, 1978.
Defendant filed an answer and cross petition on April 14, 1978. In this answer defendant denied the applicability of 46 O.S.Supp.1977 § 15, and denied that plaintiff's liability on the note had expired.
In the cross petition defendant declared that it now held the note executed by plaintiff to LeDonne and that plaintiff had failed to pay the installments due on the note. Defendant declared the note due and payable and prayed for judgment on the note.
In a second cause of action in the cross petition defendant sought foreclosure of the second mortgage on plaintiff's home.
On July 26, 1978, plaintiff filed an answer to defendant's cross petition. In this answer, plaintiff averred that she had given defendant notice of certain defenses under the Uniform Consumer Credit Code within 30 days of receiving notice of the assignment of the note to defendant. Plaintiff then alleged that LeDonne had failed to comply with the disclosure provisions of the UCCC, 14A O.S.1971 § 2-301(2), and had violated the prohibition of 14A O.S.1971 § 2-403, by taking the note as payment in a consumer credit sale. Plaintiff prayed to recover the penalties for these violations provided for under 14A O.S.Supp.1976 § 5-203, and 14A O.S.1971 § 5-202, respectively, and for attorney fees and costs.
Trial was held in this matter to the court on March 13 and 17, 1981. At trial it was established that plaintiff had paid $1,149 to LeDonne, $645.16 of which should have been credited against the balance due on the note.
On March 15, 1982, the trial court filed its findings of facts and conclusions of law. The trial court concluded that the transaction between plaintiff and LeDonne was subject to the provisions of the Uniform Consumer Credit Code. The court found that LeDonne had regularly engaged in the sale of legal services for credit, and that the transaction had violated 14A O.S.1971 §§ 2-301(2) and 2-403. The court declared the note and mortgage to be null and void and awarded plaintiff the penalties provided under 14A O.S.1971 § 2-502, and 14A O.S.Supp.1976 § 2-503.
A journal entry of judgment embodying these findings was filed on May 19, 1982.
Defendant now appeals.
On appeal defendant presents one argument--the trial court erred in finding that the transaction between plaintiff and LeDonne was subject to the provisions of the Uniform Consumer Credit Code. Under the facts of this case, we must agree.
Title 14A O.S.1971 § 2-104(1), defines a consumer credit sale as:
"Except as provided in subsection (2), 'consumer credit sale' is a sale of goods, services or an interest in land in which
(a) credit is granted by a person who regularly engages as a seller in credit transactions of the same kind;
(b) the buyer is a person other than an organization;
(c) the goods, services or interest in land are purchased primarily for a personal, family or household purpose;
(d) either the debt is payable in installments or a credit service charge is made; and (e) with respect to a sale of goods or services, the amount financed does not exceed Forty-five Thousand Dollars ($45,000.00).
Title 14A O.S.1971 § 2-403, by its terms is applicable only in cases involving a consumer credit sale. For the purposes of the disclosure part of the UCCC the meaning of consumer...
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