Bing v. General Motors Acceptance Corporation

• Decision Date: 02 February 1965
• Docket Number: Civ. A. No. AC-1331.
• Citation: 237 F. Supp. 911
• Court: U.S. District Court — District of South Carolina
• Parties: Leo Laury BING, Plaintiff, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Defendant.

237 F. Supp. 911

Leo Laury BING, Plaintiff, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Defendant.

Civ. A. No. AC-1331.

United States District Court E. D. South Carolina, Columbia Division.

February 2, 1965.

Melton Kligman, Columbia, S. C., for plaintiff.

Cooper, Gary, Nexsen & Pruet, by William A. Dallis, Columbia, S. C., for defendant.

HEMPHILL, Chief Judge.

Action for damages arising out of an alleged unlawful repossession of personal property by the defendant.

Defendant moves to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure contending the complaint fails to state a claim against the defendant upon which relief can be granted. Defendant also moves for summary judgment dismissing the action on the ground that no genuine issue arises as to any material fact and that, therefore, defendant is entitled to a judgment as a matter of law.

A motion to dismiss under Rule 12(b) performs substantially the same function as the old common law general demurrer and is the usual and proper method of testing the legal sufficiency of the complaint. Nicholson Transit Co. v. Bassett, 42 F.Supp. 990, 991 (N.D.Ill.1941); Smith v. Blackwell, 34 F.Supp. 989, 994 (E.D. S.C.1940), aff'd 4 Cir., 115 F.2d 186. For the purposes of the motion, the well-pleaded material allegations of the complaint are taken as admitted. Lada v. Wilkie, 250 F.2d 211 (8 Cir. 1957). And such facts must be viewed in light most favorable to the plaintiff. Sinclair Refining Co. v. Atkinson, 290 F.2d 312 (7 Cir., 1961). "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 2 L.Ed.2d 80; Lee v. Hodges, 321 F.2d 480, 485 (4th Cir. 1963).

Plaintiff's complaint, after setting forth the allegations relating to the jurisdiction of this Court, alleges that on or about October 23, 1962, he purchased from Mutual Motors, Columbia, South Carolina, one 1959 Oldsmobile "98" automobile, Serial No. 559A-02377, for a total purchase price of $1,800 to which was added the cost of insurance, recording fees and documentary stamps, the State sales tax and time and finance charges, making a total of $2,259.72. He paid $495.00 down at the time of purchase and, together with his mother, Anna Malloy, executed a promissory note to the defendant for the balance of $1,764.72 payable in 24 monthly payments of $73.53 each, commencing December 2, 1962.

Plaintiff further alleges that on or about March 27, 1963, defendant's agent called at his home and spoke to one Mamie Martin. The agent advised Mamie Martin that since the plaintiff was delinquent in his installment payments, he was coming to repossess the automobile. He states that Mamie Martin informed the agent that it was not her automobile, that she did not reside there, but that she would advise the plaintiff. Plaintiff alleges that on or about March 28, 1963, the day following the first visit, defendant's agent again came to his home and again talked to Mamie Martin; that Mamie Martin offered to give defendant's agent a partial payment of the delinquent installments but instead the defendant took the automobile from the premises of the plaintiff. The complaint states that Mamie Martin, at the request of defendant's agent, signed a paper asserting that the automobile would be kept in storage until the delinquent payments could be made and that the delinquent payments would be made on April 2, 1963 and releasing defendant from any liability arising out of the repossession which was done without the permission of plaintiff; that defendant's representative advised Mamie Martin that defendant would keep the automobile until plaintiff made his payments, but that after April 2, plaintiff would have to pay storage charges until he recovered said automobile.

Plaintiff alleges that on or about April 10, 1963, David Diggs, acting in his behalf, went to defendant's place of business with sufficient money to bring the installment payments to date through April 2, 1963, but was informed by defendant that the car had been sold and it was unable to do anything about the matter; that the records of the South Carolina Highway Department show that said car was transferred to Charlie James Brown on July 17, 1963.

On the basis of the above allegations the plaintiff claims that the repossession was unlawful, willful and wrongful and seeks actual and punitive damages therefor.

Assuming the allegations to be true, defendant contends that the complaint fails to state a claim against it upon which relief can be granted. Plaintiff alleges that he was delinquent in the installment payments. The South Carolina Courts have consistently held that upon condition broken title to mortgaged chattels passes to the mortgagee. John Deere Plow Company of St. Louis v. L. D. Jennings, 203 S.C. 426, 428, 27 S.E.2d 571; Justus v. Universal Credit Co., 189 S.C. 487, 492, 1 S.E.2d 508.

Title to the mortgaged chattel vests in the mortgagee upon condition broken, carries with it the right to possession and carries with it the right to do whatever is reasonably necessary to make seizure, including the right to enter peaceably on mortgagor's premises without provoking a breach of the peace. Soulios v. Mills Novelty Company, 198 S.C. 355, 367, 368, 17 S.E.2d 869; Justus v. Universal Credit Company, supra. Emphasis supplied.

The most recent case touching on the question is that of Mishoe v. General Motors Acceptance Corporation, 234 S.C. 182, 107 S.E.2d 43. Although the facts in that case are not on all fours with the facts in this case, there is a striking similarity. The plaintiff in that case alleged that he was induced to part with the possession of the property by reason of fraud and deceit of the defendant. The alleged fraud was based on plaintiff's contention that, being four days past due on an installment, a representative of the defendant requested that the plaintiff accompany him to the selling dealer's place of business in order that the interest on the past due installment could be computed. Plaintiff had sufficient funds to pay the installment. However, the representative demanded the entire outstanding balance on the contract and possession of the automobile. A verdict for the plaintiff was reversed on appeal. The Supreme Court again reiterated the principle of law regarding the rights of a mortgagee to possession of a mortgaged chattel upon condition broken (quoting from Willis v. Whittle, 82 S.C. 500, 64 S.E. 410), stating:

"It is well settled that, after condition broken, the legal title to mortgaged chattels vests in the mortgagee. The right of the mortgagee to seize mortgaged chattels after condition broken is a license coupled with an interest, which cannot be revoked by the mortgagor. It is a part of the consideration of the mortgage, and to allow the mortgagor to revoke it would be a fraud upon the rights of the mortgagee, and would very much impair the value of the chattel mortgages as securities. The right to seize carries with it by necessary implication, the right * * * to peaceably enter upon the premises of the mortgagor. There is one restriction, however, which the law imposes upon this right. It must be exercised without provoking a breach of the peace;

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