Brown v. General Motors Acceptance Corp.

• Decision Date: 10 April 1985
• Docket Number: No. 84-770.,84-770.
• Parties: Claudette C. BROWN, Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
• Court: D.C. Court of Appeals

Page 1125

490 A.2d 1125

Claudette C. BROWN, Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.

No. 84-770.

District of Columbia Court of Appeals.

Argued February 25, 1985.

Decided April 10, 1985.

James B. Miles, Washington, D.C., for appellant.

Gilbert L. Sussman, Silver Spring, Md., with whom Seymour Korn, Silver Spring, Md., was on the brief, for appellee.

Before PRYOR, Chief Judge, and TERRY and ROGERS, Associate Judges.

TERRY, Associate Judge:

This is an appeal from an order of the Superior Court granting the motion of appellee General Motors Acceptance Corporation (GMAC) for summary judgment and dismissing appellant Brown's counterclaims. Appellant contends that the trial court erred in failing to recognize that there was a genuine issue of material fact which precluded summary judgment. We need not rule on this contention because we conclude that the judgment must be reversed for another reason, namely, that GMAC's motion for summary judgment was inadequate to demonstrate the absence of any genuine issue of material fact.

I

In November 1979 appellant bought a new 1980 Pontiac from a retail dealer. The sales contract provided that appellant would make forty-eight monthly payments, and it assigned all of the collection rights to GMAC.

On January 5, 1982, because appellant had fallen three months behind in her payments, GMAC repossessed the car. In a letter dated January 6, GMAC advised appellant that the car would be offered for sale after January 25 unless she paid all past due installments, plus expenses, before that date. When she failed to do so, GMAC sold the car on January 27.

A few months later GMAC sued appellant in the Superior Court, seeking a deficiency judgment to recover the difference between the proceeds of the sale and the amount still due on the installment contract. In her answer appellant asserted that GMAC was not entitled to a deficiency judgment because it had failed to send her a timely notice of the sale. Her answer also included a counterclaim seeking compensatory and punitive damages, as well as attorney's fees, for GMAC's failure to comply with applicable statutes governing the sale of repossessed chattels.

GMAC moved for summary judgment, contending that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Appellant opposed the motion, asserting that there was a genuine dispute as to whether GMAC had given her timely notice of the proposed sale of the car. The trial court rejected her argument, granted GMAC's motion, and dismissed appellant's counterclaims.

II

A motion for summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Super.Ct.Civ.R. 56(c). On appeal this court must make an independent review of the record and apply the same standard that the trial court applies when it initially considers the motion. Taylor v. Eureka Investment Corp., 482 A.2d 354, 357 (D.C.1984); Phenix-Georgetown, Inc. v. Chas. H. Tompkins Co., 477 A.2d 215, 221 (D.C.1984); Holland v. Hannan, 456 A.2d 807, 814 (D.C.1983). That is, we must view the record in the light most favorable to the party opposing the motion and resolve any doubt regarding the existence of a factual dispute against the moving party. Swann v. Waldman, 465 A.2d 844, 846 (D.C.1983); Murphy v. Army Distaff Foundation, Inc., 458 A.2d 61, 62 (D.C.1983). Most pertinent to this case is the rule that the moving party has the burden of proving the absence of any genuine issue of fact. McCoy v. Quadrangle Development Corp., 470 A.2d 1256, 1259 (D.C.1983); Nader v. de Toledano, 408 A.2d 31, 42 (D.C.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). "[I]f the moving party does not meet its initial burden, summary judgment must be denied even where the opponent comes forth with nothing." Burt v. First American Bank, 490 A.2d 182, 185 (D.C. 1985), citing Burch v. Amsterdam Corp., 366 A.2d 1079, 1084 (D.C.1976).

Super.Ct.Civ.R. 55-II(b) provides that "[n]o deficiency judgment after repossession of personal property shall be granted unless it shall appear to the satisfaction of the Court by proper evidence that [the] plaintiff complied with applicable law. . . ." The "applicable law" in this case is 5AA DCRR § 5.2(a) (1981), which states:

Within five days after any motor vehicle is repossessed, the holder shall deliver to the buyer personally, or send him by registered or certified mail to his last known address, a written notice stating (1) the buyer's right to redeem and the amount due and payable, (2) the buyer's rights as to a resale and his liability for a deficiency, and (3) the exact address where the motor vehicle is stored and the exact address where any payment is to be made or notice delivered.

When a secured party fails to give notice in accordance with this regulation, the trial court...