ITT Commercial Finance Corp. v. DDD Appliance Service & Sales, Inc., s. 86-2498
| Decision Date | 20 May 1987 |
| Docket Number | Nos. 86-2498,86-2675,s. 86-2498 |
| Citation | 509 So.2d 341,12 Fla. L. Weekly 1318 |
| Parties | 12 Fla. L. Weekly 1318 ITT COMMERCIAL FINANCE CORPORATION, Appellant, v. DDD APPLIANCE SERVICE & SALES, INC., Richard Innis, and Norma Innis, Appellees. |
| Court | Florida District Court of Appeals |
Charles M. Tatelbaum and Charles L. Weissing of Kass, Hodges & Massari, Tampa, for appellant.
John F. Hooley and Lawrence D. Martin of Vega, Brown, Stanley & Martin, P.A., Naples, for appellees.
The secured creditor, ITT Commercial Finance Corporation (ITT), appeals two trial court nonfinal orders from the Twentieth Judicial Circuit. These orders, one from Lee County and the other from Collier County, determined the right to immediate possession of property by partially dissolving the writs of replevin ITT had obtained against its debtors, DDD Appliance Service & Sales, Inc., Richard Innis, and Norma Innis (DDD). The appeals have been consolidated. We reverse.
Beginning in March, 1982, ITT provided DDD with secured floor plan financing under an agreement for wholesale financing. The security agreement provided that DDD gave ITT a security interest
[I]n all chattels financed by you, and in all present and future attachments and accessories thereto and components and replacements thereof and in all proceeds (including insurance proceeds) thereof, whether or not identifiable, and in all our inventory, parts, machinery and equipment wherever located and whether or not financed hereunder....
................................................................................
* * *
[I]n all accounts, contract rights and general intangibles now or hereafter owned by or due to us....
DDD also specifically agreed to follow the following trust fund payment arrangement:
Our obligation as to each chattel shall become due as indicated on the Statement, or if no due date is shown, then 90 days from the date of your advance thereon. Upon the sale of any chattel, however, we shall immediately pay you in cash the pertinent amount of the total indebtedness allocable thereto....
The parties further agreed that upon breach of the security agreement, or whenever ITT deemed itself insecure, ITT could accelerate the entire debt, demand possession of all the collateral, and generally exercise all the rights of a secured party under the Uniform Commercial Code. ITT filed financing statements to perfect its security interest in the collateral.
Upon DDD's selling some of the collateral contrary to the trust fund payment agreement and its failing to make payments as agreed, ITT filed suits in Lee and Collier Counties seeking replevin and money damages against DDD and its principals. After the trial judges in the respective counties reviewed ITT's verified complaints and supporting affidavits, they entered orders directing the issuance of a writ of replevin. ITT posted the required bond, the clerk issued the writs, and the sheriff seized the collateral.
DDD then filed motions in contradiction claiming...
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