Mobile Discount Corp. v. Price
| Citation | 99 Nev. 19,656 P.2d 851 |
| Decision Date | 20 January 1983 |
| Docket Number | No. 13845,13845 |
| Parties | , 35 UCC Rep.Serv. 850 MOBILE DISCOUNT CORPORATION, Appellant, v. George R. PRICE and Doris J. Price, Respondents. |
| Court | Nevada Supreme Court |
Cal J. Potter, III, Las Vegas, for appellant.
Monte J. Morris, Henderson, for respondents.
On May 4, 1970, respondents George and Doris Price purchased a mobile home on a retail installment contract from E-Z Livin' Mobile Home Sales, Inc. (E-Z Livin'). On the very same day, E-Z Livin' assigned the contract to Western Coach who in turn assigned it to Fidelity Acceptance Corporation. After several other mesne assignments, the contract was finally assigned to appellant Mobile Discount Corporation, Inc. (Mobile) on April 9, 1980.
Pursuant to the installment contract, the Prices made twelve consecutive payments of $105 each and none thereafter, leaving a balance due of $11,334.40. As a consequence of the default in payment, E-Z Livin' repossessed the mobile home sometime after June of 1971 and filed suit against the Prices on January 7, 1972, for monies E-Z Livin' had paid on its guarantee and for repossession costs. When the matter came to trial, the complaint was dismissed without prejudice. No appeal was taken nor was any further action commenced against the Prices until Mobile filed its complaint in the present action on June 12, 1980, some eight years after the dismissal of E-Z Livin's complaint. With this background in mind, the facts giving rise to the instant case are as detailed below.
After appellant Mobile was assigned the contract on April 8, 1980, it immediately published and sent notice to the Prices that as a result of the latters' default, Mobile would be selling the mobile home at auction pursuant to the Uniform Commercial Code. The sale took place on April 23, 1980, and Mobile received $7,381 from the highest bidder. The proceeds of the sale were credited to the balance owing on the mobile home of $11,334.40, leaving a deficiency balance of $3,953.40. Mobile then filed suit against the Prices on June 12, 1980, to recover this deficiency. 1
In the process of litigation, the Prices filed a cross motion for dismissal based upon one or all of the following grounds: (1) res judicata; (2) statute of limitations; and (3) laches. The district court granted the Prices' motion to dismiss without specifying the grounds which prompted the dismissal. Under the specific facts of this case, we conclude that the district court properly dismissed the complaint on the ground that the statute of limitations had expired. Accordingly, we affirm.
In a secured transaction contract, a default occurs when a debtor fails to meet his or her monetary obligations. Boudreau v. Borg-Warner Acceptance Corp., 616 F.2d 1077 (9th Cir.1980); Whisenhunt v. Allen Parker Co., 119 Ga.App. 813, 168 S.E.2d 827 (1969). Therefore, it is quite clear the Prices defaulted in 1971 when they failed to make any further payments on their retail installment contract. Having defaulted, the cause of action accrued at that time because under the UCC provisions dealing with the statute of limitations "[a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." NRS 104.2725. Nevertheless, appellant contends that Western Coach continued to make the delinquent interest payments through March of 1980; therefore, it is argued that these payments tolled the statute of limitations until March of 1980 when Western Coach refused to continue to make the delinquent interest payments. We disagree.
As a general rule, the payment of interest on a debt will ordinarily take the debt out of the operation of the statute of limitations. Guild v. Meredith Village Sav. Bank, 639 F.2d 25 (1st Cir.1980); 54 C.J.S. Limitations of Actions, § 323 (1948). The theory on which this rule is based is that the payment amounts to a voluntary acknowledgement of the existence of the debt which raises an implied new promise to pay. S...
To continue reading
Request your trial
-
Scott v. Ford Motor Credit Co.
...355 (1984) (seller's action for deficiency owed by defaulting buyer of car after car's repossession sale); and Mobile Discount Corp. v. Price, 99 Nev. 19, 656 P.2d 851 (1983) (suit by assignee against purchasers following repossession and sale of mobile home). Compare Chaney v. Fields Chevr......
-
Butcher v. Gilroy
...his written promise to that effect. Id. at 391-92, 45 P.2d at 568 (emphasis added) (citation omitted). Accord Mobile Discount Corp. v. Price, 99 Nev. 19, 656 P.2d 851, 853 (1983); Jarnagin v. Ditus, 198 Kan. 413, 424 P.2d 265, 270 Under Holloway, section 78-12-44 extends the six-year statut......
-
Jhangmen Kinwai Furniture Decoration Co. v. Int'l Mkt. Ctrs., Inc.
... ... Dep't of the Army, 611 F.2d 738, 749 (9th Cir. 1979)); see also Olin Corp. v. Cont'l Cas. Co., 2011 WL 1337407, *2 (D. Nev. April 6, 2011) (holding ... ...
-
First of America Bank v. Thompson
...A.2d 469, 471 (Del.1981) (deficiency suit by bank following debtor's breach of an installment sale agreement); Mobile Discount Corp. v. Price, 99 Nev. 19, 656 P.2d 851 (1983) (suit by assignee against purchasers following repossession and sale of mobile home); and Jack Heskett Lincoln-Mercu......