Securities Acceptance Corp. of Sante Fe v. Valencia
| Citation | 373 P.2d 545,70 N.M. 307,1962 NMSC 93 |
| Decision Date | 05 July 1962 |
| Docket Number | No. 7012,7012 |
| Parties | SECURITIES ACCEPTANCE CORPORATION OF SANTA FE, Plaintiff-Appellant, v. Joe M. VALENCIA, Abran Valencia, and Abel B. Maez, d/b/a Abe & Joe's Auto Sales, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellant.
McKenna & Sommer, Santa Fe, for appellees Joe M. and Abran Valencia.
The question presented is whether the action was correctly terminated by summary judgment of dismissal. Involved is Section 6(2)(3)(a)(b), Chapter 151, Laws 1947, Section 50-13-6(2)(3)(a)(b), 1953 Compilation, the Uniform Trust Receipt Act. Since the section has been repealed, Chapter 96, Article 10, Laws 1961, we quote its pertinent provisions:
Under date of June 12, 1959, the appellant entered into various trust receipt agreements with the appellees for the financing of some 14 motor vehicles. Thereafter, the appellees defaulted in payments thereon and the appellant repossessed the vehicles and sold them at private sale without giving any notice whatever of intention to sell or notice of the actual sale thereof. At the sale, the vehicles failed by $5,988.78 to satisfy the amount due under the terms of the agreements and this action is to recover such deficiency, together with attorney fees and cost.
The complaint alleges that the vehicles were sold after due notice to the appellees. The appellees moved for summary judgment on the ground the complaint failed to allege that written notice of the sale was given. Attached to appellee's motion is an affidavit to the effect that no such written notice was given.
Thereupon, the appellant moved to amend its complaint to show compliance. The court delayed ruling on the motion for summary judgment and permitted the appellant first to develop facts before the court, if it could, to show compliance with the statute, that is, that written notice had been given. At a hearing on the motion to amend, the witness Foss, the general manager of the appellant, was called and testified that after repossession, the vehicles were left on appellees' car lot and sold therefrom by him from time to time over a period of some 60 to 90 days after repossession and, that while no written notice was given as designated by the statute, the appellees had actual notice and knowledge of the sale.
The court concluded that since appellant was unable to allege that written notice of the sale had been given, the motion to amend was denied and summary judgment was granted, from which this appeal is taken.
The law is well settled that the sale of pledged property can only be made after notice to the pledgor of the time and place of sale; nevertheless, the parties by written stipulation may dispense with notice of sale. Atlantic National Bank of Boston v. Korrick, 29 Ariz. 468, 242 P. 1009, 43 A.L.R. 1184. See Third Jones on Pledges, Secs. 611, 611a. We recognize the holder of the trust receipt is not to be regarded as a mere pledgee, 49...
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