Green v. FORD CREDIT CO.

• Decision Date: 08 July 2003
• Docket Number: No. 1674,1674
• Citation: 152 Md. App. 32,828 A.2d 821
• Parties: Cordella GREEN, et al. v. FORD MOTOR CREDIT COMPANY, et al.
• Court: Court of Special Appeals of Maryland

828 A.2d 821

152 Md. App. 32

Cordella GREEN, et al. v. FORD MOTOR CREDIT COMPANY, et al.

No. 1674, Sept. Term, 2002.

Court of Special Appeals of Maryland.

July 8, 2003.

Thomas J. Minton (Jiranek, Goldman & Minton, P.C., on the brief), Baltimore, for appellants.

Terri L. Goldberg (S. Todd Wilson and Eccleston & Wolf, P.C., on the brief for appellee, Thieblot, Ryan, Miller & Hrehorovich, P.A.), Thomas G. Parachini (P. Rivka Schochet, Miller, Canfield, Paddock, Stone, P.L.C., Detroit, MI, Steven C. Kahn and Miller, Canfield, Paddock and Stone, P.L.C., Washington, DC, on the brief for appellee, Ford Motor Credit Company.

Argued before SALMON, CHARLES E. MOYLAN, JR. (Ret., Specially Assigned), ROBERT F. FISCHER, (Ret., Specially Assigned), JJ. SALMON, Judge.

Cordella Green ("Ms. Green") and George Johnson brought suit in the Circuit Court for Baltimore City against Ford Motor Credit Company ("FMCC") and the law firm of Thieblot, Ryan, Miller and Hrehorovich, P.A. ("Thieblot, Ryan"). The defendants filed a motion to dismiss for failure to state a cause of action upon which relief could be granted. The motions judge, the Honorable Allen L. Schwait, granted the dismissal motion as to Johnson due to his failure to allege any damages. The court granted the motion to dismiss all claims made by Ms. Green on the basis that her claims were barred by the doctrine of res judicata.

Both Johnson and Ms. Green filed an appeal to this Court. Nevertheless, in the brief filed by appellants, no argument is advanced that would suggest that Judge Schwait erred in granting the dismissal motion as to Johnson's claims. Moreover, counsel for appellants, at oral argument, agreed that Judge Schwait had appropriately dismissed Johnson's claims. Accordingly, the sole issue presented is whether the court erred in dismissing the complaint as to Ms. Green.

I. FACTS AS ALLEGED IN APPELLANTS' COMPLAINT¹

Ms. Green purchased an automobile from a Ford dealer in 1995. The purchase was financed by a loan from the dealer. The loan contract was later assigned to FMCC. That contract referred to and incorporated by reference all the provisions of the Credit Grantor Closed End Credit ("CLEC") statute, which is codified in Title 12, Subtitle 10, of the Commercial Law Article ("CL") of the Maryland Code (1975, 2000 Repl.Vol.).

CL section 12-1021(e) requires that in the event that a creditor repossesses a car or other item, the creditor must send the debtor a notice telling the debtor (1) where the item is located and (2) the place where the item will be sold.

Ms. Green failed to make her car payments when due. As a result, FMCC repossessed her vehicle. On February 24, 1998, which was shortly after her car was repossessed, FMCC sent Ms. Green a "Notice of Repossession & Right to Redeem." The notice advised that Ms. Green's car was located at the Baltimore Washington Auto Exchange ("BWAE"), 7151 Brookdale Drive in Baltimore, Maryland, and that a public sale of the vehicle would be conducted at the same address on April 7, 1998, at 9:30 a.m.

Contrary to the statement in the notice, Ms. Green's repossessed automobile was located at 7151 Brookdale Drive in Elkridge, Howard County, Maryland. Although there is a Brookdale Drive in Baltimore City, that street is approximately fifteen miles from BWAE's facility in Elkridge.

On April 7, 1998, Ms. Green's car was sold at public auction at 7151 Brookdale Drive in Elkridge. The sale resulted in a $4,854.19 deficiency.

In December 1998, FMCC filed suit against Ms. Green in the District Court of Maryland for Baltimore City. In its statement of claim, FMCC alleged, inter alia, that Ms. Green's vehicle was "repossessed and sold in accordance with the provisions of the [installment-sale] agreement." This latter statement was technically false because the agreement required FMCC to comply with CL section 12-1021, which, in turn, required the repossession notice to provide the debtor with notice of the exact location of the car that was repossessed and the place where the car was to be sold.

Ms. Green, on February 11, 1999, entered into a consent judgment with FMCC. The agreement was as follows:

[A] judgment [was to be entered] in the amount of $4,865.19, plus prejudgment interest in the amount of $218.33, plus post-judgment interest at the legal rate, plus attorney's fees in the amount of $729.77 and court costs. [She] further agree[d] to make payments to [FMCC] at the rate of $200.00 per month, commencing 2/15/99, and each month thereafter until the judgment [was] paid. [FMCC] agree[d] not to execute on the judgment so long as [d]efendant makes the payments as agreed.

Ms. Green did not make the $200 monthly payments as required by the consent judgment, and as a result, FMCC filed a garnishment proceeding to attach Ms. Green's wages and monies she held in a bank account. In December 2000, Ms. Green filed a motion to quash the garnishment proceeding. One of her grounds for that motion was that the consent judgment was invalid because the notice of sale provided by FMCC did not accurately provide her with information as to the place where the repossessed automobile would be sold.² Ultimately, FMCC voluntarily quashed the garnishment as to all property other than wages.³ In regard to the wage garnishment, Ms. Green's wages were garnished until the judgment was satisfied sometime in July 2001.

On November 9, 2001, which was approximately three months after having paid off the judgment against her, Ms. Green, along with Mr. Johnson, commenced the subject law suit against FMCC. On February 21, 2002, the plaintiffs filed their first amended complaint in which they added Thiebolt, Ryan as defendants.

Judge Schwait, in his written opinion dismissing this case, accurately summarized the seven counts of appellants' complaint. His summary, with certain additions (which we have placed in brackets) and a few deletions, was as follows:

FMCC has used in the past and continues to use the services of BWAE in Elkridge, Maryland for repossession, storage and sale of cars repossessed by FMCC. Plaintiffs aver that cars repossessed by FMCC are brought to BWAE from locations throughout the State of Maryland. For all of these repossessed cars, FMCC issues standard form Notices of Repossession, with blank spaces for individual account information. Plaintiffs contend that, since 1992, FMCC has issued notices set forth on a standard form that stated that the repossessed cars had been taken to and stored in Baltimore, Maryland when, in fact, they had been taken to Elkridge, Maryland....

... [U]nder Count I of their Amended Complaint, [p]laintiffs seek declaratory judgment ... injunctive relief [and restitution]. Specifically, [p]laintiffs ask that the [c]ourt declare the Notices of Repossession invalid pursuant to the contractual and statutory requirements of Title 12, Subtitle 10 of the Maryland Commercial Code. Further, [p]laintiffs ask the [c]ourt to declare that, for cars repossessed by FMCC which are stored for sale by BWAE in Elkridge, Maryland, FMCC is contractually and statutorily obligated to issue notices of repossession that list the exact location of the car and place of sale as 7141 Brookdale Drive in Elkridge, Maryland.

Plaintiffs further seek an injunctive order permanently requiring FMCC to comply with its contracts and with the referenced statute by issuing Notices of Repossession which accurately list the location of the repossessed property and place of sale. Plaintiffs also seek to enjoin FMCC from prosecuting actions against them for deficiency judgments where the Notices of Repossession are inaccurate as to location for storage and sale of the car.

Finally, under Count I, [p]laintiffs seek an order voiding all judgments obtained by FMCC against the named plaintiffs and all class members during the past four years to the extent such judgments are not yet satisfied or have been satisfied in the six months preceding the filing of their complaint. Plaintiffs seek a concomitant order of restitution of all funds collected as a result of such judgments plus pre-judgment interest.

Count II alleges that FMCC is liable for fraud for sending out Notices of Repossession that are purported to comply with contractual and statutory provisions where the [p]laintiffs "have no practical way to know" of the alleged deficiencies. Plaintiffs allege that because the Notices of Repossession sent to them were defective, FMCC could not obtain deficiency judgments if it revealed the deficiencies. Plaintiffs further allege that by representing to [p]laintiffs and the courts that the Notices of Repossession were proper, FMCC committed fraud, which led to consent or uncontested judgments. Count II also states that in failing to issue proper notices, FMCC also fails by definition, to conduct commercially reasonable sales of the cars.... [Plaintiffs' prayer for relief as to Count II read:

[P]laintiffs seek judgment against FMCC on behalf of themselves and the class herein, for all sums paid by them to FMCC pursuant to judgments obtained by FMCC, plus prejudgment interest, to the extent such judgments have been obtained and/or any payments have been made under those judgments at any time during the four year period preceding the filing of this Complaint. Plaintiffs and the class also seek punitive damages in an amount to be determined at trial.]

Count III seeks recovery for breach of contract. Plaintiffs' claim that the financing agreement incorporates the terms of Title 12, Subtitle 10 of the Maryland Commercial Code, and any violation of the statute constitutes a breach of contract. By sending the defective Notices of Repossession, under the statute, [p]laintiffs aver that FMCC breached its contracts with them and failed to sell the automobiles in a commercially reasonable manner. Furthermore, [p]laintiffs allege that any deficiency judgments FMCC obtained against them where there is an allegedly defective Notice of Repossession also

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