Ford Motor Credit Co. v. Parsons

• Decision Date: 24 June 1980
• Docket Number: No. 59430,59430
• Citation: 155 Ga.App. 46,270 S.E.2d 230
• Parties: FORD MOTOR CREDIT COMPANY v. PARSONS et al.
• Court: Georgia Court of Appeals

Page 230

270 S.E.2d 230

155 Ga.App. 46

FORD MOTOR CREDIT COMPANY v. PARSONS et al.

No. 59430.

Court of Appeals of Georgia.

Argued Feb. 14, 1980.

Decided June 12, 1980.

Rehearing Denied June 24, 1980.

Homer S. Mullins, Atlanta, G. Michael Hartley, Douglasville, for appellant.

Alton T. Milam, Austell, for appellees.

CARLEY, Judge.

Plaintiff-appellant filed a petition for writ of possession seeking recovery of a 1973 Ford pickup truck in possession of appellee, Anita J. Parsons (hereinafter "Mrs. Parsons"). Mrs. Parsons' husband, Theodore A. Parsons, bought the truck from an auto dealer in Colorado and gave a promissory note and security instrument to the dealer. Shortly before Mr. Parsons' death, the couple returned to Georgia and after his death, Mrs. Parsons took possession of the truck. Mrs. Parsons defaulted on the monthly payments and appellant instituted this action on the basis of its security interest in the truck acquired as the result of an assignment from the Colorado auto dealer.

Mrs. Parsons answered asserting that appellant had released its security interest in the truck and filed a counterclaim seeking damages for improper collection techniques and harassment. Appellant's complaint was subsequently amended adding a second count against Mrs. Parsons based upon the provisions of Code Ann. § 113-1102. Upon trial of the case, the court granted appellant's motion for directed verdict as to Mrs. Parsons' counterclaim and the jury returned a verdict in favor of Mrs. Parsons as to the claims of appellant. Appellant appeals from the order denying its motion for judgment n. o. v. or, in the alternative, for a new trial.

1. Appellant urges that the trial court erred in failing to direct a verdict in its favor and in thereafter failing to grant appellant's motion for judgment n. o. v., or in the alternative, for a new trial. It is undisputed that appellant did, on or about May 25, 1977, execute a release of its first lien on the State of Colorado Certificate of Title covering the truck. The main issue revolves around the question of whether or not the aforesaid release was supported by sufficient consideration so as to discharge the underlying debt and, thus, preclude the recovery of the truck by appellant.

A review of the record reveals that after her husband's death Mrs. Parsons sought to purchase a Georgia license tag for the truck and in furtherance of such endeavor she furnished the appropriate state representatives with a certified copy of the Colorado title which showed on its face the first lien of appellant. Thereafter, representatives of the state informed Mrs. Parsons by letter, a carbon copy of which was sent to appellant, that two requirements must be met before a Georgia replacement title could be issued, to wit: (1) The original Colorado Certificate of Title must be provided, and (2) the security interest of appellant must be released. In accordance with Mrs. Parsons' request, appellant forwarded the original Colorado title to Georgia which showed on its face that the first lien of appellant had been released.

A lien may be waived by express agreement based upon a valuable consideration. Complete AAA Mfg. Corp. v. C. & S. Nat. Bank, 119 Ga.App. 450, 167 S.E.2d 734 (1969). Words in a release placed upon a recorded security instrument importing payment of the secured indebtedness are not a contract but constitute only prima facie evidence of payment and may be denied or explained by parol evidence. Security Financial Corp. v. Blackwood, 111 Ga.App. 850, 143 S.E.2d 515 (1965); Schaffer v. Wolbe, 117 Ga.App. 118, 121, 159 S.E.2d 924 (1968).

Apparently, Mrs. Parsons contends that the rebate of the unearned portion of a credit life insurance premium constitutes sufficient consideration to support the release. However, the right to claim the returned insurance premium was a pre-existing right already given appellant under the provisions of the installment note. As a pre-existing legal right of appellant, the rebate could not constitute a new consideration for the release or discharge of the lien. Stamsen v. Barrett, 135 Ga.App. 156, 217 S.E.2d 320 (1975).

The uncontroverted evidence shows that the release by appellant of its first lien on the truck was for only the limited purpose of accommodating and assisting Mrs. Parsons in her efforts to obtain a Georgia tag and title. There was no evidence of any original or new consideration paid by or on behalf of Mrs. Parsons for the release of the security interest by appellant. No payments were made on the truck subsequent to Mr. Parsons' death. Under these circumstances, the release was not supported by good or valuable consideration and, thus, was of no effect.

The purpose of a motion for judgment notwithstanding the verdict is "to provide for a final disposition of the case by the appellate court where the evidence is insufficient to justify the verdict rendered on any theory,...