Gibbs v. Green Tree Acceptance, Inc., s. 76556
| Decision Date | 06 September 1988 |
| Docket Number | Nos. 76556,76762,s. 76556 |
| Citation | 188 Ga.App. 633,373 S.E.2d 637 |
| Parties | GIBBS v. GREEN TREE ACCEPTANCE, INC. (Two Cases). |
| Court | Georgia Court of Appeals |
Nadine D. Bailey, Paul E. Kauffmann, Columbus, Phyllis J. Holmen, John L. Cromartie, Jr., Atlanta, for appellant.
David M. Wolfson, Valdosta, for appellee.
On March 24, 1986, the appellant, Teresa Gibbs, executed a retail installment contract for the purchase of a new mobile home from Ray's Mobile Home Sales, Inc., which immediately assigned the contract to the appellee, Green Tree Acceptance, Inc. The contract provided for a cash price of $18,096, $308 for property damage insurance, $10 for title and filing fees, and an unidentified charge for $182, all of which were financed; the specified finance charge was $20,175.40. The payment schedule called for 180 payments of $213.73, beginning May 1, 1986. Virtually from the beginning, Gibbs established a pattern of late payments, usually sending a check that was dated with a future date.
On July 1, 1987, the appellee, by certified mail, gave Gibbs notice of default and right to cure, but this notice was returned to the appellee on July 24, 1987, as undelivered. On August 4, 1987, the appellee accepted another late payment of $214 from Gibbs. In early September 1987 Gibbs mailed to the appellee another check for $214, dated September 30, 1987. The appellee received this check on September 10, 1987, prompting it to inform Gibbs by letter that the post-dated check was inadequate and that the account had been turned over to its attorney. On September 14, 1987, the appellee filed a petition for a writ of possession pursuant to OCGA § 44-14-230, et seq.
On November 6, 1987, a hearing on the petition was begun, but, upon being informed that Gibbs never received the appellee's notice of default and right to cure sent in July 1987, the trial court continued the hearing for 30 days. Following the aborted hearing on November 6, 1987, however, the appellee moved pursuant to OCGA § 44-14-234 to have Gibbs pay into the court registry $1,125.25 past due under the contract. At the show-cause hearing on November 20, 1987, Gibbs asserted several defenses but presented no evidence, resulting in the trial court's order for Gibbs to pay the sum requested. Appeal No. 76556 is Gibbs' interlocutory appeal from that order.
The hearing on the merits of the petition for writ of possession resumed on December 18, 1987, and December 23, 1987. On February 12, 1988, the trial court ruled in favor of Green Tree on all of Gibbs' defenses and granted the writ of possession. Appeal No. 76762 is Gibbs' appeal from that final order. Held:
1. Appeal No. 76556, the interlocutory appeal from the order requiring Gibbs to pay into the court registry past due amounts under the contract, was rendered moot by the subsequent entry of final judgment in favor of Green Tree on the merits of the petition for writ of possession. See Dein v. Citizens Jewelry Co., 149 Ga.App. 340, 254 S.E.2d 403 (1979). Accordingly, it is dismissed.
2. During the final hearing, Green Tree's loan service manager testified that the company usually sold the security agreements it held to a large investment pool, but he had no specific knowledge of the company's handling of this particular security agreement. In response to that testimony, Gibbs moved to dismiss the action on the basis that Green Tree was not the real party at interest, pursuant to OCGA § 9-11-17. As was the trial court, we are unpersuaded by Gibbs' argument, which was supported not by real evidence but only by an assumption.
3. Gibbs also contends that the history of her payments on the installment loan, i.e., her late payments always accepted by Green Tree until September 10, 1987, demonstrated a mutual departure from the original terms of the contract, which obligated Green Tree to give her a "reasonable notice ... of intention to rely on the exact terms of the agreement" under OCGA § 13-4-4. However, Gibbs herself testified at the hearing that by sending in checks bearing a future date she had intended to comply with the contractual terms, not deviate from them. This evidence supported the trial court's finding that Green Tree had no duty to notify Gibbs of its intention to return to the original contract terms, because no mutual departure from the contractual terms occurred.
4. Gibbs contends that judgment for Green Tree was error because Green Tree had never given her 30 days' notice of default and right to cure, pursuant to OCGA § 7-4-3(b)(1), which adopts the "contract provisions required by subsection (c) of Section 501 of the Depository Institutions Deregulation and Monetary Control Act of 1980, Public Law 96-221 (12 U.S.C. 1735f-7, notes)." That subsection (c) required, in part, "a 30-day notice prior to...
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Tollett v. Green Tree Acceptance, Inc., 77518
...penalty under this Code section." Finally, contrary to appellant's assertion, nothing stated by this court in Gibbs v. Green Tree Acceptance, 188 Ga.App. 633(2), 373 S.E.2d 637 supports a finding that GTA should be treated as a holder in the instant case. It follows that the trial court pro......