Parks Chevrolet, Inc. v. Watkins, 8421DC1040
| Decision Date | 21 May 1985 |
| Docket Number | No. 8421DC1040,8421DC1040 |
| Citation | 74 N.C.App. 719,329 S.E.2d 728 |
| Court | North Carolina Court of Appeals |
| Parties | , 41 UCC Rep.Serv. 1146 PARKS CHEVROLET, INC. v. Veola WATKINS. |
Frye & Porter by James M. Stanley, Jr., Winston-Salem, for plaintiff, appellee.
Legal Aid Soc. of Northwest North Carolina, Inc. by Susan Gottsegen, Winston-Salem, for defendant, appellant.
The following facts are not in dispute: On 5 November 1979, plaintiff Parks Chevrolet, Inc., contracted to sell a used 1977 Monte Carlo to Cornell Donald Wright, defendant's son. The car was financed with a $3,500.00 installment note which defendant co-signed. Plaintiff retained an interest in the automobile as security for the loan. On 9 December 1981 defendant refinanced the automobile, executing a contract in the face amount of $3,969.54 payable in 27 monthly installments of $147.02. Defendant defaulted on the loan and on 8 March 1982 plaintiff repossessed the automobile while it was in plaintiff's possession for repairs. On 11 May 1982 plaintiff sold the automobile to a wholesaler for $1,330.00, leaving a deficiency balance of $1,519.53.
The dispositive issue on appeal is whether the court was in error when it granted summary judgment for the plaintiff and dismissed defendant's counterclaim when the issue of the commercial reasonableness of the resale of defendant's automobile remained unresolved between the parties. A secured party's right to dispose of collateral after default is governed by the Uniform Commercial Code, N.C.G.S. Chapter 25. Defendant argues that granting summary judgment to a creditor who seeks a deficiency from a private sale is appropriate only when the creditor proves that there is no dispute that the sale was commercially reasonable, and that here the creditor has failed to meet that burden. Plaintiff counters that Mr. Parks' affidavit shows that the sale was in conformity with the statutory requirements for the resale of repossessed collateral. Further, plaintiff argues that defendant has brought forth "not a shred of evidence" to show the sale was not reasonable.
When the party with the burden of proof moves for summary judgment he must show that there are no genuine issues of fact, that there are no gaps in his proof, that no inferences inconsistent with his recovery arise from the evidence, and that there is no standard that must be applied to the facts by the jury. The party with the burden of proof who moves for summary judgment supported only by his own affidavits will ordinarily not be able to meet these requirements and thus will not be entitled to summary judgment. Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976).
In the present case defendant challenged the commercial reasonableness of the private resale of the repossessed automobile. G.S. 25-9-504(3) provides that a secured party may dispose of collateral after default, "but every aspect of the disposition including the method,...
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