Barnett v. Barnett Bank of Jacksonville, N. A., CC--432
| Decision Date | 19 April 1977 |
| Docket Number | No. CC--432,CC--432 |
| Citation | 345 So.2d 804 |
| Parties | 21 UCC Rep.Serv. 329 Arnold I. BARNETT and Alexander P. Rosin, Appellants, v. BARNETT BANK OF JACKSONVILLE, N.A., a National Banking Association, Appellee. |
| Court | Florida District Court of Appeals |
Adam G. Adams, II, of Adams & Adams, Jacksonville, for appellants.
James A. Bledsoe, Jr., of Mahoney, Hadlow & Adams, Barry L. Zisser of Zisser & Robison, Jacksonville, for appellee.
This appeal is from a final judgment in favor of appellee Barnett Bank of Jacksonville on its complaint against appellants Arnold I. Barnett and Alexander P. Rosin seeking recovery under a promissory note and commercial equipment security agreement which were guaranteed by appellants. Final judgment was entered after partial summary judgment against appellants was granted as to liability and after trial thereafter on damages.
Appellants contended that upon default under the note and security agreement, the Bank sold the collateral prior to giving notice to appellants and thus without affording appellants an opportunity to redeem and be subrogated to the rights of the Bank in the security. Appellants contend that they are thereby released as guarantors. The Bank points out that in the guaranty agreement, appellants expressly waived notice of disposition of the collateral. Appellants counter with the contention that under the Uniform Commercial Code, the guarantor of an obligation may not prior to default waive the rights accorded to a 'debtor' under the Code and that they are debtors under the Code. The trial court ruled against appellants' contention and entered partial summary judgment against them as to liability. We disagree and reverse.
§ 679.501(3) provides in pertinent part as follows:
'To the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the subsections referred to below may not be waived or varied . . .:
(a) * * *
(b) Sections 679.504(3) and 679.505(1) which deal with disposition of collateral;
(c) * * *
(d) Section 679.506 which deals with redemption of collateral; and
(e) * * *'
§ 679.504(3) states as follows:
(Emphasis supplied.)
§ 679.506 states as follows:
'Debtor's right to redeem collateral.--At any time before the secured party has disposed of collateral or entered into a contract for its disposition under § 679.504 or before the obligation has been discharged under § 679.505(2) the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorney's fees and legal expenses.'
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