Braswell v. American Nat. Bank, 43501

• Court: Georgia Court of Appeals
• Writing for the Court: PANNELL; JORDAN, P.J., and DEEN
• Citation: Braswell v. American Nat. Bank, 161 S.E.2d 420, 117 Ga.App. 699 (Ga. App. 1968)
• Decision Date: 25 April 1968
• Docket Number: No. 43501,No. 3,43501,3
• Parties: , 5 UCC Rep.Serv. 420 T. J. BRASWELL v. AMERICAN NATIONAL BANK

Page 420

161 S.E.2d 420

117 Ga.App. 699, 5 UCC Rep.Serv. 420

T. J. BRASWELL v. AMERICAN NATIONAL BANK.

No. 43501.

Court of Appeals of Georgia, Division No. 3.

April 25, 1968.

Harrison & Laseter, John R. Laseter, St. Marys, for appellant.

Bennet, Gilbert, Gilbert & Whittle, R. John Genins, Brunswick, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

American National Bank brought an action for a deficiency judgment against T. J. Braswell upon a contract of conditional sale between defendant purchaser and a third party (assigned to plaintiff) whereby defendant purchased an automobile at the price of $2,195, plus $50.25 sales tax, on which he paid the sales tax with cash and received credit for $520 on a trade-in, leaving a balance of $1,675 to which was added a 'time price differential' of $284.50. A copy of the conditional sale contract was attached to the petition. The petition as amended further alleged that on March 22, 1965, the defendant defaulted in one of his payments and the entire balance of $1,568 was declared due and payable; that the automobile was repossessed, and on June 2, 1965, the defendant was informed that unless he paid off the balance due the automobile would be put up for bids and would be sold to the highest bidder, and that the defendant would be responsible for the deficiency between the amount the car sold for and the balance due on the contract; that the defendant failed to pay off the balance or any part thereof, the plaintiff put the car up for sale to the highest bidder, three parties bid on it, and it was sold for $850 to the highest bidder. The prayers were for recovery of the balance of $718 plus attorney's fees. The defendant answered denying the material allegations of the petition and further answered alleging 'that at no time was he advised of any sale, the date thereof, the method of sale, whether private or public nor the place of sale, but alleges that such sale, if any, was but a sham and a collusion on the part of the plaintiff and unknown, if any, private bidders who habitually do business with plaintiff, and is thusly a conspiracy among those unknown to defendant but well known and remembered by plaintiff, to extort and defraud your defendant out of money not rightfully theirs, and to otherwise impair and injure the reputation and good will of defendant.' He prayed for no damages either by setoff or recoupment. At the hearing on plaintiff's motion for summary judgment, the plaintiff proved the material allegations of the petition except as to the notice of sale and as to this the proof was that after the note became in default because of the failure to pay an installment 'the American National Bank repossessed the car which was the subject of said conditional sales contract and on June 2, 1965, informed T. J. Braswell that unless he made immediate arrangements with the bank to pay off the said balance due on said contract, the car would be sold and that T. J. Braswell would be responsible for any deficiency between the amount the car brought on the sale and the amount due on the contract' and that 'T. J. Braswell failed to make any such arrangements, or pay off the balance or any part thereof, and the American National Bank put the car up for sale to the highest bidder and three parties bid on same and it was sold to the highest bidder for $850.' The defendant offered no proof. The trial judge granted the...