Clark v. General Motors Acceptance Corp.

• Decision Date: 01 December 1987
• Docket Number: Nos. 74396,74429,s. 74396
• Citation: Clark v. General Motors Acceptance Corp., 363 S.E.2d 813, 185 Ga.App. 130 (Ga. App. 1987)
• Parties: , 5 UCC Rep.Serv.2d 1237 CLARK v. GENERAL MOTORS ACCEPTANCE CORPORATION; GENERAL MOTORS ACCEPTANCE CORPORATION v. CLARK.
• Court: Georgia Court of Appeals

Page 813

363 S.E.2d 813

185 Ga.App. 130, 5 UCC Rep.Serv.2d 1237

CLARK v. GENERAL MOTORS ACCEPTANCE CORPORATION;

GENERAL MOTORS ACCEPTANCE CORPORATION v. CLARK.

Nos. 74396, 74429.

Court of Appeals of Georgia.

Dec. 1, 1987.

Alton D. Kitchings, Savannah, Lloyd D. Murray, Pembroke, for appellant.

James M. Thomas, James L. Elliott, Susan B. Paul, Savannah, for appellee.

BEASLEY, Judge.

In August 1981 Mr. and Mrs. Clark entered into an installment contract with Backus Cadillac for the purchase of a new car. The contract, ultimately financed by GMAC, provided for monthly payments of $340.81 for 48 months.

Mrs. Clark had recurring mechanical problems with the car which were never fully corrected. Because of her dissatisfaction, Mrs. Clark ceased making payments in March 1982. On May 5, GMAC sent Mrs. Clark a letter stating that she was in default and had 10 days to cure it or the entire balance of the debt would be due. Mrs. Clark did not respond.

On May 20, an attorney for GMAC sent Mrs. Clark a letter notifying her that she was in default and demanding the entire sum of the debt ($11,252) plus attorney fees. Mrs. Clark did not respond. On May 24, GMAC filed a mortgage foreclosure action. As a result, Mrs. Clark was ordered on June 16 to make payments of $1,022.43 into the court registry. This amount covered three months' back payments allegedly due. The order specified that Mrs. Clark would retain possession of the car until the matter was concluded. She filed an answer on June 23 and paid the required amount. No further payments were made.

Mrs. Clark, GMAC, and Backus Cadillac met in November to see whether an agreement could be reached regarding the car. By this time, Mrs. Clark was five months behind on payments. She contends that the agreement reached at this meeting was that the vehicle would be repaired to her satisfaction, and only then would she be required to make her account current. GMAC concedes that a promise was made to repair the car but denies any oral modification of the written payment schedule. There is no written evidence of such a modification. The car was left with Backus Cadillac to be repaired, and when Mrs. Clark returned for it, she was told she could not take it, but she did anyway.

In July 1983, the court ordered the payment of past due sums into the registry. Mrs. Clark told the court that since the car was not operating satisfactorily she would relinquish it to the court in lieu of payments until the litigation concluded. However, she did not do so.

Mrs. Clark became physically disabled within the terms of her credit disability insurance. The insurance proceeds were credited to her account, which brought it within approximately $300 of the amount due.

On August 1, Mrs. Clark's husband committed suicide. On August 19, the court issued a writ of possession, as the car was still in Mrs. Clark's possession, and the car was repossessed on August 27. GMAC sent a notice of sale to Mrs. Clark on August 31, but it was returned undelivered to GMAC. The car was sold on December 8.

Mrs. Clark filed an "Amendment to Answer, Counterclaim, and Motion to add Parties" in February 1985. GMAC moved for and was granted separate partial summary judgments, from which Mrs. Clark appeals, on the following issues: the notice of intent to seek legal fees was legally sufficient; the notice of post repossession sale was legally sufficient; obtaining a writ of possession less than three weeks after Mr. Clark's suicide did not give rise to an action for intentional infliction of emotional distress; Mrs. Clark waived and was estopped from asserting by counterclaim the issues of GMAC's taking unlawful possession of the automobile and fraud; GMAC did not waive payments and default by way of an oral promise; and GMAC acted in compliance with the contract and applicable law.

GMAC cross-appeals, citing as error the denial of its motion for summary judgment "as to any alleged tortious conduct on the part of the plaintiff not ruled upon in other motions for partial summary judgment" and the denial of its motion for summary judgment on fraud, conspiracy, and punitive damages.

Case No. 74396

1. Adequacy of notice of attorney fees under OCGA § 13-1-11(a)(3).

Mrs. Clark urges that the May 20 letter of notice of default was ambiguous and misleading and so was inadequate. The letter notifies Mrs. Clark that she is in default, and further states that the note "contains a provision for attorney fees and pursuant to Georgia Code Annotated § 20-506, you are notified hereby that the provision relative to the payments of attorney's fees are set out in said note in addition to the principal and interest shall be enforced, and that you have 10 days from the receipt of this letter to pay the attorney's fees. If said principal and interest is not so paid, then payment of the attorney's fees in addition to the principal will be demanded and enforced." (Emphasis supplied.) GMAC admits that the phrase "10 days ... to pay attorney's fees" is a typographical error, and should read "10 days ... to pay principal and interest."

One of the substantive matters to be set forth in a letter of notice regarding attorney fees is that "the party has 10 days from the receipt of such notice to pay the principal and interest without the attorney fees." General Elec. Credit Corp. v. Brooks, 242 Ga. 109, 119, 249 S.E.2d 596 (1978). The error in GMAC's letter makes it unclear exactly what is being sought. First there is a reference to attorney fees, and then to "said" principal and interest. It is simply too far a stretch to conclude as a matter of law from this that "the debtor is informed that he has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees." General Elec. Credit Corp., supra at 118, 249 S.E.2d 596. See also Albany Production Credit Assn. v. Sizemore, 175 Ga.App. 826, 334 S.E.2d 872 (1985).

GMAC cites Turner Advertising Co. v. Prakas, 164 Ga.App. 788, 298 S.E.2d 553 (1982) to support the contention that a typographical error does not negate "substantial compliance" with the notice requirement. Turner, however, dealt with an error which resulted in the notice being read to provide that no attorney fees would be sought if payment was delayed for at least 10 days. The error here was not, as in Turner, so obviously "a typographical error which could not reasonably have mislead anyone." Turner, supra at 790, 298 S.E.2d 553. The notice having misstated to the debtor an essential condition to avoiding attorney fees, summary judgment should not have been granted to GMAC on this issue. Nor is the statement such that a jury would be compelled to conclude that a reasonable man would not deduce the correct message, so appellant Clark was not entitled to summary judgment on the issue either.

2. Adequacy of notice of post-repossession sale under OCGA § 11-9-504(3).

Mrs. Clark contends that she was never notified in advance of the post-repossession sale of the car. GMAC shows that a letter was sent but was returned unopened. Appellant's response is that there remains a question of fact as to whether the letter's contents constituted a reasonable attempt at notification, thus precluding summary judgment on the issue. We need not examine the legal efficacy of the letter's contents.

To begin with, the Uniform Commercial Code does not prohibit a post-repossession sale without notice. OCGA § 11-9-507(1). Trust Co. of Columbus v. Kite, 164 Ga.App. 119, 121, 294 S.E.2d 606. A debtor's remedies for a sale without notice are recovery of loss caused by an inadequate sale price, Trust Co., supra, and a debtor is protected in a suit on any deficiency by a rebuttable presumption that the value of the collateral is equal to the indebtedness. Emmons v. Burkett, 256 Ga. 855, 857, 353 S.E.2d 908 (1987).

Mrs. Clark does not allege inadequacy of price. GMAC would not be seeking a deficiency judgment, because the sale of the car resulted in a surplus rather than a deficiency. Even if summary judgment should not have been granted on the issue, no harm resulted. "Appellant must show harm as well as error to prevail." Pope v. Propst, 179 Ga.App. 211, 217, 345 S.E.2d 880 (1986).

Mrs. Clark acknowledges this facet of GMAC's case but contends that Backus Cadillac's "fraudulent involvement" in the resale of the car should have an effect on the disposition of this issue. However, appellant fails to advance any fraudulent conduct on the part of Backus Cadillac which affects the adequacy of notice. The trial court's ruling stands.

3. Intentional infliction of emotional distress.

Mrs. Clark's action for intentional infliction of emotional distress is based upon the "manner and circumstances" involved as to the trial court's issuance of the writ of possession on August 19, 1983. The impropriety alleged is not in obtaining the court order, but the timing thereof, i.e., the fact that it was issued shortly after Mr. Clark's suicide. Mrs. Clark urges that it was "part of the plan to strike appellant when she would least be able to respond."

However, no evidence is offered to prove this "plan."

"[I]n the absence of any evidence suggesting either a malicious purpose on their part or wanton disregard of the [other party's] rights, their behavior cannot reasonably be characterized as outrageous or egregious." Arrowsmith v. Williams, 174 Ga.App. 690, 692(3), 331 S.E.2d 30 (1985). GMAC was entitled to summary judgment on this issue.

4. Waiver and estoppel.

The trial court granted GMAC summary judgment on the issues raised by Mrs. Clark's counterclaim as to GMAC unlawfully obtaining possession of the property and related fraud. Mrs. Clark maintains that, because there had been no pretrial order in this case, she was entitled to add these assertions by counterclaim.

"A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be...