Calcote v. Citizens & Southern Nat. Bank

• Decision Date: 23 April 1986
• Docket Number: No. 71807,71807
• Citation: 345 S.E.2d 616,179 Ga.App. 132
• Court: Georgia Court of Appeals
• Parties: , 1 UCC Rep.Serv.2d 1764 CALCOTE v. CITIZENS & SOUTHERN NATIONAL BANK.

Page 616

345 S.E.2d 616

179 Ga.App. 132, 1 UCC Rep.Serv.2d 1764

CALCOTE v. CITIZENS & SOUTHERN NATIONAL BANK.

No. 71807.

Court of Appeals of Georgia.

April 23, 1986.

Rehearing Denied May 19, 1986.

E.T. Hendon, Jr., Decatur, for appellants.

Frederick L. Warren, Atlanta, for appellee.

CARLEY, Judge.

Appellant obtained a loan from appellee Citizens and Southern Bank (the Bank) to finance the purchase of an automobile, in which the Bank acquired a security interest. When appellant defaulted, the Bank repossessed the automobile and sold it at an auction held for dealers only. The Bank then instituted this action to recover a deficiency on the debt. After a bench trial, the trial court found for the Bank and judgment was entered accordingly. Appellant appeals from the judgment entered in favor of the Bank.

1. Appellant contends that the trial court erroneously found that the automobile was repossessed on March 28, 1984. "In a bench trial ' "the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them." ' [Cit.]" National Carloading Corp. v. Security Van Lines, 164 Ga.App. 850, 853, 297 S.E.2d 740 (1982). Business records of the Bank, admitted without objection, show clearly that the repossession was accomplished on March 28, 1984. Testimony from witnesses, including appellant herself, also indicated that the Bank did indeed repossess appellant's automobile, on the evening of March 28, 1984. Clearly the evidence was sufficient to support the trial court's finding.

2. Appellant resided at 2015 Spring Road, Smyrna, Georgia 30080, the address of record in the Bank's files. The Bank repossessed the automobile from that address. On March 29, 1984, the Bank sent a letter, certified mail return receipt requested, to appellant at her residence. The letter informed appellant that the automobile had been repossessed and that she had a right of redemption, as well as the right to demand a public sale. The letter also apprised appellant of the Bank's intention to sell the automobile at a private sale to be held after April 19, 1984. The letter was post-marked both March 29 and April 7, and the Post Office attempted delivery on April 4 and April 14. Appellant never actually received the letter, and it was returned to the Bank, marked "unclaimed," on April 19. The automobile was then sold at a private auction on May 11, 1984. On these facts, the trial court held that the Bank had complied with the two applicable Code sections, to wit: OCGA §§ 10-1-36 and 11-9-504(3). Appellant urges that the trial court erroneously concluded that the Bank was in compliance with the requirements of these applicable statutory provisions.

The evidence is clear that the Bank complied with OCGA § 10-1-36, the statutory provision which relates specifically to the disposition of motor vehicles after default and to the secured party's right to recover for a deficiency. There is no requirement in OCGA § 10-1-36 that the debtor actually receive notice. The Bank sent proper notice, via certified mail, to the appropriate address and thereby complied with OCGA § 10-1-36. Veitch v. Nat. Bank of Ga., 159 Ga.App. 473, 283 S.E.2d 686 (1981). However, by its terms, OCGA § 10-1-36 must be read in conjunction with OCGA § 11-9-504(3). "This Code section is cumulative of Part 5 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer...." (Emphasis supplied.) OCGA § 10-1-36. OCGA § 11-9-504(3) provides, in pertinent part, 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...." The question for resolution is whether the evidence of the Bank's compliance with OCGA § 10-1-36 is also a sufficient showing of the Bank's compliance with the cumulative and additional "reasonable notification" provision of OCGA § 11-9-504(3).

This court has held that, under certain circumstances, the mere sending of notice via certified mail which is subsequently returned as "unclaimed" will not, standing alone, satisfy the "reasonable notification" requirements of OCGA § 11-9-504(3). Geoghagan v. Commercial Credit Corp., 130 Ga.App. 828, 204 S.E.2d 784 (1974). Appellant contends that Geoghagan, supra, controls the case at bar. The instant case is, however, quite different. Unlike Geoghagan, this case involves the sale of an automobile and therefore OCGA § 10-1-36 must be considered as well. Moreover, Geoghagan was decided on summary judgment and has been interpreted as merely holding that the secured party does not carry his "burden of proof on a motion for summary judgment when [he] does not show the date that the letter was returned and [where] the sale was held almost four months after the notice letter was mailed. [Cit.]" Slocum v. First Nat. Bank, 152 Ga.App. 632, 633, 263 S.E.2d 516 (1979). The instant case is not on summary judgment and the sale was conducted within a few weeks of the return of a twice "unclaimed" letter mailed to an address shown to be appellant's actual current residence as well as the location where the automobile had been found. Accordingly, we do not construe Geoghagan as controlling authority. In a case such as this one, where both statutes come into play, it has been held to be a question of fact whether, under the existing circumstances, the attempted notification was reasonable. See Slocum v. First Nat. Bank, supra; ...