Barnett Bank of Tallahassee v. Campbell
| Decision Date | 17 June 1981 |
| Docket Number | No. WW-186,WW-186 |
| Citation | 402 So.2d 12 |
| Parties | 32 UCC Rep.Serv. 653 The BARNETT BANK OF TALLAHASSEE, a Florida banking corporation, Appellant, v. Kenneth R. CAMPBELL, Appellee. |
| Court | Florida District Court of Appeals |
John C. Cooper, of Douglass, Davey & Cooper, Tallahassee, for appellant.
Gordon D. Cherr, of Frates, Jacobs, Farrar, Novey, Blanton & Poole, Tallahassee, for appellee.
This appeal is from a final judgment denying appellant Bank's claim for a deficiency judgment on a promissory note. We affirm.
The note in question was executed by Campbell Mechanical Services, Inc. (by its president, appellee). Appellee, individually, was a co-maker, endorser and guarantor of the note which was secured by certain business equipment and seven motor vehicles. Campbell Mechanical Services thereafter filed bankruptcy and defaulted on the note. Appellant Bank took possession of the collateral pursuant to a bankruptcy court order, and disposed of it in two private sales one was to appellee of miscellaneous equipment and the other disposed of the motor vehicles to Tallahassee Motors. The second sale is the subject of this dispute.
After disposition of the collateral, the Bank sought a deficiency judgment against appellee. In defense at the trial, appellee disputed the reasonableness of the notice of the sale of the motor vehicles and the commercial reasonableness of the conduct of the sale. He denied that appellant Bank complied with notice requirements of Florida law.
Mr. Sims, a loan officer of the Bank, testified that he told appellee in September 1976 that the Bank intended to sell the collateral. On December 13, 1976, appellant Bank sent written notice to appellee at 160 S.W. Capital Circle of its intent to sell the motor vehicles after December 23, 1976. The notice letter was returned to the Bank undelivered. The actual address of appellee's place of business is 1601/2 S.W. Capital Circle. (Some of appellee's equipment apparently was stored at 160 S.W. Capital Circle, but that is a separate parcel of property and a different building.) The address on the note and security agreement is 4386 Shelfer Road. Neither the note, the security agreement nor the guaranty signed by appellee listed a personal address for him. Since 1971 or 1972 when Campbell Mechanical Services began to do business with the Bank, its mailing address has been P. O. Box 5738, Tallahassee. Also since 1971 or 1972, appellee had his personal checking account with appellant Bank, and at all times his personal address was listed with the Bank as P.O. Box 5741. The address to which the notice was sent to appellee appears on the business stationery of Campbell Mechanical Services (the bankrupt corporation) and was the address listed on the corporation resolution authorizing loans from appellant Bank signed by appellee. The Bank made no further effort to contact appellee even though it had the other addresses mentioned above and knew that appellee's attorney's office was in the same office building as the Bank.
The note signed by appellee stated in part that he:
... consents that from time to time, without notice to the undersigned and without affecting any liability of the undersigned, (a) any collateral for payment of this note may be exchanged, released, surrendered, sold (by foreclosure or otherwise) applied or otherwise dealt with at the election of the holder ...
Appellee also signed a separate letter of guaranty waiving the right to notice, which stated in part:
Guarantor agrees to pay and discharge each such indebtedness and obligation of debtor to bank when due, in accordance with the terms of the obligation and hereby waives all notice of acceptance of this guaranty, notice of demand, maturity, payment or default of any indebtedness and any other requirement or notice necessary to bind the guarantor hereunder.
The trial court refused to grant a deficiency against appellee, finding that appellant Bank did not give appellee reasonable notice of the sale; that appellant sent notice to an address that was not the address furnished to appellant nor was it on the contract or on appellant's record; that appellant was in communication with appellee's attorney, whose office was in the same building with appellant and had a correct address for appellee in its records but, unreasonably, made no further effort to notify appellee...
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