Hooks v. COBB CENTER PAWN & JEWELRY, A99A2439.

• Decision Date: 10 November 1999
• Docket Number: No. A99A2439.,A99A2439.
• Citation: 241 Ga. App. 305,527 S.E.2d 566
• Parties: HOOKS v. COBB CENTER PAWN & JEWELRY BROKERS, INC.
• Court: Georgia Court of Appeals

527 S.E.2d 566

241 Ga. App. 305

HOOKS v. COBB CENTER PAWN & JEWELRY BROKERS, INC.

No. A99A2439.

Court of Appeals of Georgia.

November 10, 1999.

Reconsideration Denied December 6, 1999.

Certiorari Denied May 5, 2000.

Kris K. Skaar, Marietta, James M. Feagle, Decatur, for appellant.

Cornelison & Van Gelderen, Leon Van Gelderen, John A. Ziolo, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Appellant-plaintiff Daniel Hooks pawned his car, a 1990 BMW 535i which he valued at $8,000, for a $300 loan from appellee-defendant Cobb Center Pawn & Jewelry, Inc., secured by allowing the defendant to hold the title to the vehicle. The plaintiff attempted to redeem the vehicle approximately one month after the loan's maturity date; however, the defendant refused to accept payment as untimely, repossessed the vehicle, and later sold it for $2,000. Thereafter, plaintiff sued defendant alleging violations of certain of the State's title pawn statutes, its civil and criminal usury laws, breach of contract, conversion, and bad faith. The superior court granted defendant's motion for summary judgment and, by silence thereon, impliedly denied plaintiff's motion for partial summary judgment as to the issue of liability. Plaintiff appeals. For the reasons which follow, we affirm in part and reverse in part.

1. Summary judgment is properly granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga.App. 592, 593, 472 S.E.2d 140 (1996).

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684.

2. Citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680, plaintiff claims that the superior court erred in granting summary judgment to defendant in that defendant's evidence in support of its motion for summary judgment was contradictory for its admission that plaintiff appeared to have signed a second document at the time he signed the pawn ticket while contemporaneously denying that the document was a part of the parties' agreement. Id. at 28(1), 30, 343 S.E.2d 680. In this regard, plaintiff argues that the agreement between the parties consisted of two documents—the pawn ticket executed upon the loan he received and a second document as to which he asserts defendant has given contradictory testimony in support of its motion for summary judgment purporting to: (a) give him the right to recover the value of his vehicle as it exceeded the balance owing on such loan upon repossession, and (b) make him personally liable on the loan beyond the title in the vehicle he originally gave thereon as collateral.

The record reflects that defendant supported its motion for summary judgment by affidavit given by a corporate representative asserting that the pawn ticket constituted the entire agreement between the parties. Upon being deposed by plaintiff, such representative adhered to his affidavit, identified the second document as a repossession document, and, asked if the second document constituted a part of the agreement between the parties, testified only that the document appeared to have been signed by the plaintiff and that it was an "extra document" not necessary to the agreement. On its face, this testimony does not contradict defendant's testimony indicating that the pawn ticket represented the entire agreement between the parties. Moreover, we note that the document of which plaintiff complains is not signed by the defendant, not notarized as required, and, for preprinted spaces left blank, makes no reference to the vehicle sub judice. Thus, we conclude that Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680, supra, is here inapplicable. Further, we conclude that plaintiff has not offered more than allegation and conjecture contradicting defendant's showing that the entire agreement between the parties consisted of the pawn ticket alone. As a consequence, plaintiff has not "borne [his] responsibility to point to specific evidence giving rise to a triable issue" regarding the agreement as consisting of two documents. Hambrick v. B.G. Swing Games Mgmt., 267 Ga. 597, 599, 481 S.E.2d 816. Accordingly, the superior court properly granted defendant summary judgment as to the pawn ticket as representing the entire agreement between the parties.

3. Plaintiff contends that the superior court erred in granting defendant summary judgment, arguing that the instant title pawn transaction is unenforceable as void under OCGA § 44-12-131(a)(6) and (b) for the pawn ticket's under representation of the applicable annual percentage rate of interest. In this regard, plaintiff contends that contrary to 300 percent as disclosed by the pawn ticket, the actual annual percentage rate of interest was 304.167 percent, a deviation greater than the tolerance allowed under the Code of Federal Regulations (CFR) § 226.22(a)(2) (deviation between annual percentage rate of interest disclosed and actual annual percentage rate of interest must not exceed 1/8 of one percent). In this regard, plaintiff correctly points to OCGA § 44-12-138(b)(5) as requiring that annual percentage rates applicable to pawn transactions in Georgia be calculated under the federal truth in lending law and regulations. Further, he correctly notes that 25 percent is the maximum interest and charges rate allowed Georgia pawnbrokers per 30-day period, OCGA § 44-12-131(a)(4), and that the Code of Federal Regulations formulates the allowable annual percentage rate of interest as equal to the unit-period rate times the number of unit-periods per year. 12 CFR § 226, App. J(B)(1).

As to this claim of error, the parties dispute only the number of unit-periods per year as applicable to the annual percentage rate of interest calculation. Citing 12 CFR § 226, App. J(B)(5)(vii) as controlling, plaintiff contends that the correct number of unit-periods in the instant action was 12.167. Defendant argues that the correct unit-period number is 12 citing 12 CFR § 226.17(c)(3)(iii) (creditor may disregard effect of differing numbers of days in the months of year when making calculations and disclosures) and OCGA § 44-12-130 ("month" defined as that period of time from one date in a calendar month to corresponding date in following calendar month). 12 CFR § 226, App. J(B)(5)(vii) provides:

In a single advance, single payment transaction in which the term is less than a year and is not equal to a whole number of months, the number of unit-periods in the term shall be 1, and the number of unit-periods per year shall be 365 divided by the number of days in the term.

(Emphasis supplied).

We are required to construe the foregoing language literally in the absence of statutory contradiction. Telecom*USA v. Collins, 260 Ga. 362(1), 363, 393 S.E.2d 235. So construing such language, we conclude that in single advance, single payment transactions in which the term is less than a year and not equal to a whole number of months, as here, pawnbroker-creditors must make the unit-period determination on the basis of the term as a number of days.¹ Accordingly, in the instant circumstances the allowable annual percentage rate of interest was 304.167 percent (25 percent times 12.167). This is not inconsistent with discretionary authority allowing pawnbroker-creditors to disregard the effects of months having different numbers of days under 12 CFR § 226.17(c)(3)(iii), in that the term is here not one of months but of a specified number of days. In any event, it is only in the instance that the pawnbroker-creditor has charged interest and charges exceeding the amounts permitted under OCGA § 44-12-131(a) that the pawn transaction is rendered void. OCGA § 44-12-131(b). We conclude that defendant has not done so in the case sub judice. Accordingly, the superior court properly granted defendant summary judgment on plaintiff's claim that the instant pawn transaction was unenforceable as void under OCGA § 44-12-131(a)(6) and (b).

4. Plaintiff contends that the terms of the pawn ticket authorizing defendant to repossess and sell his vehicle for his default are unenforceable under OCGA § 11-2-302, due to unconscionability for inadequacy of consideration. Although OCGA § 11-2-302 by its terms applies to transactions involving a sale, Interstate Security Police v. C & S Emory Bank, 237 Ga. 37, 38, 226 S.E.2d 583, we nonetheless find nothing unconscionable about imposing such terms in a motor vehicle title pawn transaction. Francis v. Union Bank, 183 Ga.App. 84(1), 85, 357 S.E.2d 837. This is particularly the case when, as here, plaintiff-pledgor-debtor is a sophisticated businessman who deposed that he had previously entered into an identical title pawn transaction with the defendant.

5. The plaintiff also contends that the superior court erred in granting summary judgment to defendant on his remaining tort claim as to defendant's conversion of personal property not returned to him after his car was...