Rehurek v. Chrysler Credit Corp.
| Decision Date | 17 May 1972 |
| Docket Number | No. 71--567,71--567 |
| Citation | 262 So.2d 452 |
| Parties | , 10 UCC Rep.Serv. 988 Ronald W. REHUREK and Susan Rehurek, his wife, Appellants, v. CHRYSLER CREDIT CORPORATION et al., Appellees. |
| Court | Florida District Court of Appeals |
Howard C. Hadden, Tampa, for appellants.
Marvin Solomon, Tampa, for appellee Chrysler Credit.
W. DeHart Ayala, Jr. of Few & Ayala, Tampa, for appellee Brooks-Massey.
Irving G. Lawrence, of Rousseau, Wilkinson, Gordon & Lawrence, Tampa, for appellee Chrysler Corp.
Ronald W. Rehurek and Susan Rehurek, his wife, purchased a new 1969 Dart Automobile from Brooks-Massey Dodge, Inc., a dealer in Tampa, Florida. The automobile was manufactured by Chrysler Corporation and the sale was financed by Chrysler Credit Corporation. Shortly after the purchase, as alleged by Rehurek, the car begun to give him trouble. He alleges that the air-conditioning did not function properly, the engine burned an excessive amount of oil, the front-end assembly vibrated severely, and the brakes pulled. After approximately three months and 10,000 miles, he delivered the car to the dealer and informed Chrysler Credit Corporation that he would make no further payments. Chrysler Credit Corporation then brought suit in the amount of the deficiency after repossession and sale of the automobile, Rehurek answered Chrysler Credit's suit setting up seven defenses to Chrysler Credit's claim, and filed a third-party complaint against the dealer, Brooks-Massey Dodge, Inc., and Chrysler Corporation, the manufacturer. Rehurek requested a trial by jury of all the issues. The court entered its order granting motions for judgments on the pleadings as to all three appellees. Rehureks bring this appeal.
We take first the question presented in the suit against Chrysler Credit Corporation, assignee of the retail installment contract. The trial court, in granting Chrysler Credit's claim against Rehurek, struck his defenses. We must determine whether or not the purchaser is precluded from raising certain defenses under a retail installment contract which provides for waiver of defenses against the assignee, Chrysler Credit Corporation.
Under Fla.Stat. § 679.318, F.S.A., the assignee occupies basically the same position as the assignor unless an enforceable agreement exists not to assert certain defenses under Section 679.206. The pertinent part of this statute reads:
'. . . (A)n agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the chapter on commercial paper (chapter 673).'
The question then is whether Rehurek has waived his right to assert the defenses that the automobile was not what he had bargained for and whether or not Chrysler Credit Corporation took the assignment of the retail installment contract for value, in good faith and without notice of a claim or defense except those which may be asserted against a holder in due course.
This question has been answered on several occasions throughout the country and the courts have said this provision will not be enforced when it appears that:
'. . . (T)he financer maintains a close relationship with the dealer whose paper he buys; where the financer is closely connected with the dealer's business operations or with the particular credit transaction; or where the financer furnishes the form of sale contract and note for use by the dealer, the buyer signs the contract and note concurrently, and the dealer endorses the note and assigns the contract immediately thereafter or within the period prescribed by the financer.' Unico v. Owen, 1967, 50 N.J. 101, 232 A.2d 405 at 411.
The Florida Supreme Court in Mutual Finance Co. v. Martin, Fla.1953, 63 So.2d 649, when faced with this problem, held that the purchaser of an installment sales contract was not a purchaser in good faith for the reason that the dealer and finance company were too closely related.
In the case of Industrial Credit Company v. Mike Bradford & Co., Inc., Fla.App.1965, 177 So.2d 878, the court reaffirmed the holding in Martin and set up the same conditions in refusing to enforce a waiver of defenses. In the instant case we believe Chrysler Credit Corporation was not a purchaser in good faith such as would permit them to rely on the waiver of defenses. Chrysler Credit and Brooks-Massey Dodge, Inc., were too closely connected in this particular sale. Chrysler Credit Corporation was formed exclusively for the purpose of financing the sale of Chrysler products. Chrysler Credit furnished the forms of the sales contract; it investigated the credit rating of the purchaser; and did all of the things which are enumerated in the cited cases to bring them in close relationship with Brooks-Massey. Most retail installment sales made by Chrysler dealers are assigned as a matter of course to Chrysler Credit Corporation. The retail installment contract signed by the Rehureks contained a pre-printed assignment clause to Chrysler Credit Corporation and all that was needed to make the assignment effective was for the dealer to fill in the name of his agency, date the form (which incidentally was dated the same day as the date of purchase) and sign it. We therefore believe that Chrysler Credit Corporation did not as a matter of law take the assignment in good faith.
We come now to the cross-claim filed against Brooks-Massey Dodge, Inc., the dealer. They urge that the implied warranties of merchantability and fitness were effectively excluded by either the disclaimer clause in the retail installment contract or by the terms of the warranty booklet which were incorporated by reference into the contract. The disclaimer clause appears in small print in paragraph 6 on the back page of the contract and reads as follows:
This language must be examined in the light of the requirements contained in Fla. Stat. § 672.316(2), F.S.A., Exclusion or Modification of Warranties. The pertinent part of that statute reads as follows:
'. . . (T)o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be...
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