CIT Corp. v. Nielson Logging Co.
Decision Date | 08 November 1985 |
Citation | 706 P.2d 967,75 Or.App. 267 |
Parties | , 41 UCC Rep.Serv. 1539 CIT CORPORATION, a New York corporation, Appellant, v. NIELSON LOGGING CO., a partnership, Edwin J. Nielson and Aletha C. Nielson, Respondents. 16-82-05987; CA A31470. |
Court | Oregon Court of Appeals |
William H. Martin, Eugene, argued the cause for appellant. With him on the briefs were Gleaves, Swearingen, Larsen and Potter, Eugene.
F. William Honsowetz, Eugene, argued the cause for respondents. With him on the brief were John Mark, and Mills, Lombard, Gardner, Honsowetz, Brewer and Schons, Eugene.
Before JOSEPH, C.J., and VAN HOOMISSEN and YOUNG, JJ.
This action concerns the resale of collateral after defendants' default on a security agreement. ORS 79.5040. Plaintiff sought a deficiency judgment for the difference between the debt, plus personal property taxes and expenses incurred in retaking and reselling the collateral, and the proceeds obtained from the sale of the collateral. Defendants denied the debt and affirmatively alleged that the sale of the collateral was commercially unreasonable. ORS 79.5070.
The jury returned a verdict for plaintiff in the amount of $8,393.03. The trial judge determined that the jury's answers to the interrogatories in the special verdict form were inconsistent with its general verdict and entered judgment for defendants. ORCP 61 C. We conclude that the verdict form is consistent and reinstate the verdict.
Nielson Logging is a partnership consisting of defendants Nielson. In February, 1980, defendants purchased a hydraulic log loader. The purchase was financed. Plaintiff took a security interest in the log loader and in defendants' tractor. The security agreement provided that, in case of default, defendants would be liable to plaintiff for any deficiency remaining on the debt after a disposition sale and for reasonable attorney fees.
Defendants had difficulty making the payments. In April, 1982, they were in default, having failed to pay the monthly installments and personal property taxes assessed against the equipment. In May, plaintiff repossessed the log loader and the tractor. In June, the equipment was sold to plaintiff at a public auction.
After the sale, plaintiff continued to seek buyers for the equipment. It sold the tractor for $28,000 and the log loader for $167,500. Both amounts were credited to defendants' account. Demand was made on defendants to pay the deficiency. They refused, and this action followed. The jury returned a special verdict, which was received by the court without objection, and the jury was discharged. Defendants then filed a "Motion for Judgment N.O.V. and for Judgment in Accordance With Interrogatories Inconsistent With the General Verdict." The trial court granted defendants' motion and, pursuant to ORCP 61 C, 1 entered a verdict in defendants' favor.
Plaintiff makes three assignments of error; we need decide only the first, which contends, inter alia, that the jury's verdict complied with the special verdict form and applicable law. The special verdict provided:
The trial court concluded that the jury's answers to questions 1, 7 and 8 of the special verdict form contradicted its verdict for plaintiff (question 10).
The disposition of collateral following default is controlled by ORS 79.5040 and 79.5070. ORS 79.5040 provides, in part:
ORS 79.5070 provides in part:
'(1) * * * If the disposition has occurred the debtor * * * has a right to recover from the secured party any loss caused by failure to comply with the provisions of ORS 79.5010 to 79.5070."
A creditor's failure to sell the collateral in a commercially reasonable manner pursuant to ORS 79.5040(3) gives rise to a presumption that the collateral was worth the amount of the outstanding debt at the time of the default. All-States Leasing v. Ochs, 42 Or.App. 319, 600 P.2d 899 (1979). In Ferrous Financial Services Co. v. Wagnon, 70 Or.App. 285, 291, 689 P.2d 974 (1984), we held that a creditor is entitled to recover the commercially reasonable costs of resale under ORS 79.5040(1)(a),...
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CIT Corp. v. Nielson Logging Co.
...1057 713 P.2d 1057 300 Or. 470 CIT Corporation v. Nielson Logging Co. NOS. A31470, S32219 Supreme Court of Oregon JAN 07, 1986 75 Or.App. 267, 706 P.2d 967 ...
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CIT Corp. v. Nielson Logging Co., s. CA
...1986. William H. Martin, Eugene, for petitioner. John Mark Mills, Eugene, for respondent. PETERSON, Chief Justice. Prior Report: 75 Or.App. 267, 706 P.2d 967. BASED UPON THE STIPULATION of the parties hereto, as indicated below, by and through their attorneys of record, that the parties hav......