Jordan v. Citizens and Southern Nat. Bank of South Carolina, 21822

• Decision Date: 07 December 1982
• Docket Number: No. 21822,21822
• Citation: 278 S.C. 449,298 S.E.2d 213
• Court: South Carolina Supreme Court
• Parties: , 35 UCC Rep.Serv. 722 Larry J. JORDAN, Appellant, v. The CITIZENS AND SOUTHERN NATIONAL BANK OF SOUTH CAROLINA and Midland Auto Recovery Services, Inc., Respondents. and Kathy W. JORDAN, Appellant, v. The CITIZENS AND SOUTHERN NATIONAL BANK OF SOUTH CAROLINA and Midland Auto Recovery Services, Inc., Respondents.

Page 213

298 S.E.2d 213

278 S.C. 449, 35 UCC Rep.Serv. 722

Larry J. JORDAN, Appellant, v. The CITIZENS AND SOUTHERN NATIONAL BANK OF SOUTH CAROLINA and Midland Auto Recovery Services, Inc., Respondents. and Kathy W. JORDAN, Appellant, v. The CITIZENS AND SOUTHERN NATIONAL BANK OF SOUTH CAROLINA and Midland Auto Recovery Services, Inc., Respondents.

No. 21822.

Supreme Court of South Carolina.

Dec. 7, 1982.

Oswald & Floyd, West Columbia, for appellants.

Robert G. Currin, Jr., of Nelson, Mullins, Grier & Scarborough, John T. Moore, of Robinson, McFadden, Moore & Pope, and Herbert W. Hamilton, of Whaley, McCutchen & Blanton, Columbia, for respondents.

LITTLEJOHN, Justice:

This action was brought by Larry and Kathy Jordan (who are husband and wife), Appellants, to recover actual and punitive damages from the Respondents for having repossessed a 1978 Ford pick-up truck in what is alleged to be a wrongful manner. Citizens and Southern National Bank held a mortgage on the truck and Midland Auto Recovery Service, Inc. acted as agent for the bank in bringing about the repossession. In an Amended Complaint, the Appellants alleged causes of action for: (1) trespass, (2) conversion, and (3) invasion of privacy. After Answers were filed and depositions taken, the Respondents made Motions for Summary Judgment as to all causes of action.

The circuit judge granted the motions holding, in effect, that the Respondents proceeded legally. The Appellants submit error.

The Appellants financed the truck through the Respondent bank and failed to make at least two monthly installment payments. On September 29, 1978, at about 11:00 p.m., a Midland Recovery employee, at the behest of the bank, found the truck with keys in it at the Appellants' residence. The employee started the motor and drove it from the driveway into the public streets. They heard the motor running but did not see the truck until it was proceeding down the street. Thinking their truck had been stolen, they pursued it in another vehicle. The pursuit lasted some thirty minutes over a distance of several miles beginning at Lexington and ending in Columbia. There is evidence from the Appellants' depositions that the driver of the truck exceeded the speed limit, failed to observe traffic signals and drove recklessly. After they were unable to apprehend the driver of the truck, they reported it as a stolen vehicle to the police and later learned that the truck had been repossessed by the bank.

In oral argument, counsel for the Appellants conceded that under the mortgage contract and the law of this state, the repossession was proper unless it was accompanied by a breach of the peace. It is admitted that the taking of the truck from the premises of the Appellants did not amount to a breach of the peace but it is argued that the conduct of the driver of the truck in speeding, failing to observe traffic signals and in driving recklessly some distance from the residence constituted a breach of the peace and, accordingly, made the repossession actionable.

Section 36-9-503, Code of Laws of South Carolina (1976), provides a remedy to the lender upon failure of the borrower to pay:

Unless otherwise agreed a secured party has on default...