Fulton v. Anchor Sav. Bank, FSB

• Citation: 215 Ga.App. 456,452 S.E.2d 208
• Decision Date: 05 December 1994
• Docket Number: No. A94A0918,A94A0918
• Parties: , 26 UCC Rep.Serv.2d 938 FULTON v. ANCHOR SAVINGS BANK, FSB et al.
• Court: Georgia Court of Appeals

Page 208

452 S.E.2d 208

215 Ga.App. 456, 26 UCC Rep.Serv.2d 938

FULTON v. ANCHOR SAVINGS BANK, FSB et al.

No. A94A0918.

Court of Appeals of Georgia.

Dec. 5, 1994.

Timothy W. Storm, Decatur, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Paul R. Vancil, Welch, Spell, Reemsnyder & Pless, Robert A. Burnett, Freeman & Hawkins, B. Rose Miller, Warner S. Fox, Atlanta, for appellees.

McMURRAY, Presiding Judge.

Carrie B. Fulton (plaintiff) filed a multi-count complaint and an amended complaint against Anchor Savings Bank, FSB ("Anchor Bank"), Omni Recovery Services, Inc. ("Omni"), Southern States Vehicle Auction of Atlanta, Inc. ("Southern States") and James L. Carter (defendants) for the alleged wrongful repossession of her automobile. Defendants denied the material allegations of the complaint and the parties filed opposing motions for summary judgment. The evidence, construed in a light which most favorably supports plaintiff's claims, reveals the following:

On June 28, 1986, plaintiff financed and purchased a new car through an automobile dealership and committed the vehicle as collateral under a retail installment contract ("the loan agreement") assigned to Anchor Bank. The loan agreement calls for 60 consecutive monthly installments in the amount of $366.19, prescribes a late charge of five percent on any payment more than ten days overdue, prohibits plaintiff from moving the collateral without the lender's prior written consent and requires plaintiff to insure the vehicle "with comprehensive, fire and theft, and a minimum amount of deductible collision insurance satisfactory to [the lender], endorsed to protect [the lender] with a licensed insurance company." The loan agreement also provides that "[the lender] can waive or delay enforcing any of [its] rights without losing them."

Plaintiff tendered all 60 monthly payments as required under the loan agreement and maintained the required comprehensive, fire, theft and collision coverage on the vehicle during the entire life of the loan. The only time plaintiff tendered a monthly payment beyond the ten-day grace period prescribed in the loan agreement was in the early part of 1989 when Anchor Bank closed its Marietta Street office (where plaintiff hand-delivered her payments) and posted an inaccurate address for customers to mail loan payments. This confusion was clarified and plaintiff thereafter posted her monthly payments to an address in Chamblee, Georgia, as she was directed by an agent for Anchor Bank.

In December 1988, plaintiff notified a teller at Anchor Bank's Marietta Street office that she changed her residence on November 22, 1988, from the address designated on the loan agreement to an address in Atlanta, Georgia. The teller responded by (apparently) entering plaintiff's new address into Anchor Bank's computer records. However, the teller did not give plaintiff written authorization to move the collateral as required by the loan agreement and Anchor Bank never forwarded such authorization to plaintiff.

Anchor Bank posted a form notice, dated March 16, 1989, to the address listed on the loan agreement reminding plaintiff of the need for insurance covering the collateral and warning plaintiff that failure to confirm the existence of such insurance within 15 days of the date of the notice will result in procurement of a policy covering Anchor Bank's interest in the vehicle ("forced placed policy") at plaintiff's expense. Plaintiff never received this notice as she no longer resided at the address provided on the loan agreement. As a consequence, Anchor Bank purchased a forced placed policy covering its interest in the vehicle from February 11, 1989 to February 11, 1990, and charged the premium cost ($1,284) to plaintiff's loan account.

In December 1989, plaintiff's insurance carrier settled a claim for damage to the plaintiff's vehicle and issued a check in the amount of $1,358.77 to plaintiff and Anchor Bank as loss-payees. Both plaintiff and Anchor Bank endorsed the insurance check and tendered it to the automobile dealership where plaintiff's car was repaired. Despite this proof of insurance, Anchor Bank purchased another forced placed policy covering the vehicle from February 11, 1990 to February 11, 1991, and charged the premium to plaintiff's loan account, bringing the total balance for the forced placed insurance to $2,378. However, Anchor Bank did not demand reimbursement of the cost of these policies immediately. It waited until after plaintiff paid off her loan in July 1991.

Anchor Bank posted correspondence, dated August 14, 1991, to plaintiff's former address demanding either proof that the vehicle was insured during the terms of the forced placed policies (between February 11, 1989, and February 11, 1991) or payment of the premiums paid for the forced placed policies. This letter required a response within 15 days from the date on the letter and included Anchor Bank's promise that proof of such insurance would result in a credit to plaintiff's loan account for the full cost of the forced placed insurance. Plaintiff never received this notice.

On September 13, 1991, Anchor Bank posted a notice to the address listed on the loan agreement demanding payment of amounts which appear to reflect the cost of the forced placed insurance. On September 16, 1991, Anchor Bank posted another notice to the address listed on the loan agreement demanding payment of an amount which appears to reflect the cost of the forced placed policies, plus a $73.20 late charge Anchor Bank claims plaintiff owes as a result of a delinquent payment during the term of the loan. A third notice demanding immediate payment of the same amount was mailed to plaintiff's former address on September 25, 1991. When plaintiff did not respond to these notices, Anchor Bank contracted for Omni to repossess plaintiff's car. Omni enlisted James L. Carter to carry out the task.

At 5:00 in the morning on October 11, 1991, Carter went with two other men to plaintiff's home in Atlanta to seize the collateral. Plaintiff was (apparently) aroused from sleep by the activities of Carter and his associates and confronted the men outside her home. Plaintiff informed the strangers that they had no right to seize her car and showed Carter proof that she paid the car loan off in July 1991. Carter informed plaintiff that the car was being repossessed for lack of insurance. Plaintiff then showed Carter proof that she maintained insurance on the vehicle during the entire life of the loan. Nonetheless, Carter refused to leave plaintiff's premises, explaining that it was his job to seize her car.

Plaintiff telephoned for police assistance and attempted to move the vehicle from her driveway and into her garage. However, Carter's associates stepped in front of the garage door, blocking her way. Plaintiff then ordered the men to remove themselves from her path. The strangers complied and warned plaintiff that she would be committing an illegal act if she refused to relinquish control of the car. Plaintiff then heard Carter inform his associates that they would have to remove the car by force, i.e., towing.

A law enforcement officer later arrived on the scene and examined Carter's repossession papers. The officer informed plaintiff that Carter had authority to repossess the car and instructed plaintiff to turn her car keys over to Carter. Plaintiff complied and Carter took possession of the vehicle, delivering it to Southern State's place of business where it was prepared for auction.

Plaintiff contacted Michael Cerase, an agent for Anchor Bank, on the day the car was repossessed and Cerase informed plaintiff that her car would not be returned. That same day, Cerase posted a letter to plaintiff's former address informing plaintiff that her car would be sold at a private sale on October 21, 1991, if she did not pay an amount which appears to reflect the cost of the forced placed insurance plus a $73.20 late charge Anchor Bank claims plaintiff owes as a result of a delinquent payment during the term of the loan. However, this threat was never carried out and plaintiff's car was returned to her by Southern States five days after repossession upon the direction of Anchor Bank. On October 22, 1991, Anchor Bank posted a notice to plaintiff's former address congratulating her "on the successful completion of payments on [her] loan."

The trial court denied plaintiff's motion for summary judgment and granted defendants' motions for summary judgment. This appeal followed. Held:

1. Defendants have filed a motion to remand the case sub judice to the trial court, pointing out that a transcript of the summary judgment hearing is not included in the appellate record as requested by plaintiff in her notice of appeal.

In the notice of appeal, plaintiff's attorney directed "[t]he Clerk [of the trial court] to omit nothing from the record on appeal" and augmented this directive via the following handwritten insertion: "The summary judgment hearing transcript should be included." Over two months later, plaintiff's attorney posted (in pertinent part) the following letter to a deputy clerk of the trial court: "Please remit the record on the above-styled case to the Georgia Court of Appeals. There is no transcript to forward with the record in this case." The clerk of the trial court transmitted "the original Notice of Appeal together with a true copy of those portions of the record required to be transmitted to the Court of Appeals of Georgia...." After the case was docketed in the Court of Appeals, defendants jointly filed a motion to remand the appeal to the trial court, arguing the case sub judice is premature because of plaintiff's failure to have the summary judgment hearing transcript prepared and filed for inclusion in the record on appeal.

Defendants fail to point to any specific evidentiary material or admission adduced at the summary judgment hearing which could have possibly...