McKee v. Mississippi Bank & Trust Co.
| Decision Date | 17 January 1979 |
| Docket Number | No. 50812,50812 |
| Citation | 366 So.2d 234 |
| Court | Mississippi Supreme Court |
| Parties | 25 UCC Rep.Serv. 1491 Onesifrus McKEE v. MISSISSIPPI BANK & TRUST COMPANY. |
Charles H. Ramberg, Brandon, for appellant.
McDavid & Edmonson, Robert A. Biggs, III, Jackson, for appellee.
Before SMITH, LEE and COFER, JJ.
COFER, Justice, for the Court:
Appellant bought an automobile and arranged financing with appellee to which he gave the vehicle as security. The loan was in the amount of $3,104.16. He became delinquent in his monthly installments and after contacts with him in an effort to bring the debt to a current basis, appellee took from the appellant on October 6, 1976, a document entitled, "Release for Purposes of Repossession" upon which document appellee took possession of the vehicle.
The release says in part:
. . . I/we understand that the bank may dispose of the property within ten (10) days hereof and that a deficiency may result for which I/we will be responsible.
and
I/we hereby waive my/our right to receive any further notification of sale or other disposition of the property.
Despite the waiver of notice of sale of the vehicle, appellant expected that a notice would be given him.
Regardless of his expecting such notification, appellee mailed, by certified postage, a letter to appellant dated October 12, 1976, advising him as to the security property, For some reason the letter, though unquestionably correctly addressed, was returned "unclaimed."
Appellee contacted appellant and was advised by him that he did not receive the letter in the mail, "so (Jerry Ezelle, outside adjuster for appellee, testifying) I told the secretary to send a copy of this letter to him, but they sent another letter of the same standard form we send." This latter letter is dated October 19, 1976, and appellant was warranted in concluding from it that the vehicle would be held for his redemption at least until October 29, 1976. Appellant testified he received the notice on October 21 or 22. There was further communication between the parties concerning appellant's bringing his payments to a current basis and reclaiming the car, but, on October 25, 1976, appellee, having received bids therefor, sold the vehicle at private sale for a consideration of $2,105.
To procure possession of the vehicle at the outset, appellee was forced to pay off a mechanics lien $230.05, with the result that, after the sale, there remained a deficiency in the amount of $991.53, for which sum appellee brought suit in the Circuit Court of Rankin County.
Appellant, defendant in said suit, included affirmative defenses "(1) no notice of the sale of the vehicle was given to defendant by plaintiff according to law; (2) the sale was not made in conformity with "reasonable commercial practices" as required by law; and (3) the sum received at the sale did not represent the fair market value of the vehicle. He also included a counterclaim, wherein he repeated that no notice of the sale was given him as provided by law, and asserted that the automobile involved was consumer goods. He asked judgment on his counterclaim in the amount of $607.58, which he arrived at by including in the amount "an amount not less than the credit service charge plus ten percent of the principle (sic) amount of the debt or the time-place differential, plus ten percent of the cash price, or the total of $607.58. " On trial, the jury returned a verdict of $829 in favor of plaintiff-appellee and found against the counterclaimant, appellant on his counterclaim, on all of which judgment was entered.
The appellant thereupon appealed, assigning three errors which will be presently noticed. We reverse and remand.
The first error assigned has to do with the admission of business machine printouts on the transaction, but appellant concedes that their admission was harmless error, and we agree it was harmless, if it was error.
The other assignments go to two instructions given at appellee's request.
Assignment number two is that the court should not have granted the instruction next below because it incorrectly permitted the jury to find from the evidence presented that appellant had waived the right to receive notification of the post-repossession sale of the vehicle. The instruction reads as follows:
The court instructs the jury that if you find from a preponderance of the evidence, if any, that the defendant, McKee, either received reasonable notice of the sale or waived the right to receive such notice, it then becomes his burden to prove to you that the amount received by the plaintiff for the repossessed automobile was not the fair market value under the circumstances, and if he should fail to meet that burden, it is your sworn duty to return a verdict for the plaintiff, the Mississippi Bank & Trust Co.
Mississippi Code Annotated, section 75-9-504(3) (1972), provides, as to disposition of collateral in a situation such as this before us, that
. . . Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or Reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor . . .. (Emphasis added).
Mississippi Code Annotated, section 75-9-501(3) (1972), prohibits waiver of notice of intended disposition of the collateral in a case of property such as here involved.
If it should be assumed, however, that the collateral surrender document noticed above did, regardless of the statute, operate to waive notification of the intended disposition of the vehicle, the attempted notice to appellant by certified mail indicated an unwillingness on appellee's part, for some reason, to rely on such waiver, and in our view, operated an abandonment thereof. There is, in the next place, the sending by mail, and receipt by appellant, of a similar notification dated October 19, 1976, advising him that the vehicle would be sold if not reclaimed within ten days of receipt of the notice by appellant. (Testimony is to the effect that this notice was to have...
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