Brewer v. Trust Co. Bank, A92A1235

• Decision Date: 22 October 1992
• Docket Number: No. A92A1235,A92A1235
• Citation: 424 S.E.2d 74,205 Ga.App. 891
• Parties: , 21 UCC Rep.Serv.2d 189 BREWER v. TRUST COMPANY BANK.
• Court: Georgia Court of Appeals

Page 74

424 S.E.2d 74

205 Ga.App. 891, 21 UCC Rep.Serv.2d 189

BREWER v. TRUST COMPANY BANK.

No. A92A1235.

Court of Appeals of Georgia.

Oct. 22, 1992.

Jack F. Witcher, Maryellen S. Mitchell, Bremen, for appellant.

Stokes, Lazarus & Carmichael, Karl M. Terrell, Richard J. Joseph, Atlanta, for appellee.

COOPER, Judge.

Appellee financed appellant's purchase of a vehicle, with the vehicle serving as collateral for the loan. Appellee brought this action for a deficiency judgment after repossession and sale of the vehicle. On appeal, appellant challenges the trial court's grant of summary judgment for appellee, contending that genuine issues of material fact remain for trial.

We view the facts in the light most favorable to the appellant as the non-moving party on a motion for summary judgment. In April 1990, appellee financed appellant's purchase of a vehicle appellant had previously been leasing. Appellant gave appellee a promissory note secured by the vehicle. Throughout the period of the lease and from the time of the purchase until March of 1991, appellant made her monthly payments in a regular and timely manner. In March 1991, however, appellant lost her job and, knowing she would not be able to make the payments on the vehicle, voluntarily transferred possession of the collateral to appellee. She thought appellee accepted the collateral in full satisfaction of its claim. Although there is in the record a copy of a letter to appellant, sent by certified mail to the proper address, informing appellant that the vehicle would be sold after a specified date and that she would be responsible for any deficiency, appellant states in her affidavit that she does not recall receiving this notice. The vehicle was sold by an auction house well established in the business of selling vehicles, but a deficiency remained.

1. In her first enumeration of error, appellant contends summary judgment was improper because a question of fact exists as to whether there was an accord and satisfaction when she voluntarily transferred possession of the vehicle to appellee. An accord and satisfaction must be supported by consideration, however, see OCGA §§ 13-4-102; 13-4-103, and " '[a]n agreement on the part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another.' [Cit.]" Barnes v. Reliable Tractor Co., 117 Ga.App. 777, 778, 161 S.E.2d 918 (1968); see also Ghitter v. Edge, 118 Ga.App. 750, 754(4), 165 S.E.2d 598 (1968). Because appellant was already legally obligated to surrender possession of the collateral upon default and appellee was legally entitled to take possession of the collateral, there could be no accord and satisfaction in this case even if we assume that appellant delivered the vehicle on the express condition that the delivery extinguish the debt. See Hall v. Bank South, 186 Ga.App. 860, 368 S.E.2d 810 (1988); Barnes, supra. Thus, the trial court correctly ruled that no issue of material fact remained with respect to appellant's defense of accord and satisfaction.

2. Appellant also argues that summary judgment should not have been granted because questions of fact remain regarding appellee's compliance with the statutory provision requiring that the debtor be notified of the intended disposition of the collateral. Subsection three of OCGA § 11-9-504 requires that "... reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor...." (Emphasis supplied.) Appellant states in her affidavit that she does not recall receiving notice from appellee that the vehicle was to be sold after a certain date. Yet appellee has put in the record a copy of a letter sent to appellant at her proper address, by certified mail, providing appellant with the requisite notice prior to the sale. " '[T]he requirement involved is one of the creditor giving the debtor reasonable notification as distinguished from the debtor receiving such notification.' [Cit.]" Friddell v. Rawlins, 160 Ga.App. 44, 46(2), 285 S.E.2d 779 (1981). Because the pertinent notification issue in this case is not whether appellant received or saw the notice but whether appellee properly sent it, appellant's statement in her affidavit that she does not recall seeing the notice does not suffice to create a question of fact on the issue of appellee's compliance with the notification requirement in light of appellee's documentation showing that the notice was properly sent.

3. Lastly, appellant contends that the trial...