Shell v. Tidewater Fin. Co.

• Decision Date: 17 October 2012
• Docket Number: No. A12A1640.,A12A1640.
• Citation: 733 S.E.2d 375,318 Ga.App. 69
• Parties: SHELL v. TIDEWATER FINANCE CO.
• Court: Georgia Court of Appeals

318 Ga.App. 69

733 S.E.2d 375

SHELL

v.TIDEWATER FINANCE CO.

No. A12A1640.

Court of Appeals of Georgia.

Oct. 17, 2012.

William Ralph Carlisle, Sugar Hill, for Appellant.

Charles T. Day III, for Appellee.

DOYLE, Presiding Judge.

Patricia Shell appeals from the grant of summary judgment to Tidewater Finance Company d/b/a Tidewater Motor Credit (“Tidewater”), in Tidewater's suit against her on a retail installment contract to collect a deficiency from the sale of Shell's repossessed vehicle. Shell contends that the trial court erred because a genuine issue of material fact remains as to whether Tidewater met its obligation to provide notice required by OCGA § 10–1–36(a). Because the record contains a factual dispute as to that question, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. ¹

So viewed, the record shows that in 2008, Shell executed a retail installment contract financing the purchase of a 2006 Chevrolet Trailblazer, and the contract was assigned to Tidewater.² After Shell defaulted on her payment obligation, Tidewater repossessed the vehicle in September 2010 and mailed via certified mail a notice to Shell informing her of the repossession and her right to redeem the vehicle. The vehicle, which was in damaged condition, was sold at auction for $2,500.

After the auction, Tidewater filed a complaint against Shell to recover the outstanding principal and interest remaining after applying the $2,500 received at auction. Shell answered and denied liability. Tidewater moved for summary judgment, supporting its motion with a Tidewater employee's affidavit attesting to the amount of debt, repossession, notice to Shell, and auction. Shell opposed the motion and filed an affidavit supporting her response. The trial court granted the motion, and Shell now appeals.

Shell contends that the trial court erred because the record contains issues of fact as to whether Tidewater sent her notice to the correct address as required by OCGA § 10–1–36(a). That subsection provides as follows, in relevant part:

When any motor vehicle has been repossessed after default ..., the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller's or holder's intention to pursue a deficiency claim against the buyer.³

Here, the record shows that Tidewater sent its notice by certified mail to 611 Preston Park Drive, in Duluth, Georgia. Tidewater's supporting affidavit states that this address was designated by Shell after she signed the contract.⁴ The affidavit points to no record of this designation, and if this was the sole evidence in the record of Shell's address, it would be sufficient to support summary judgment. But Shell's affidavit, duly notarized and filed in the trial court, states that she did not designate the Preston Park address as her address, and her actual address was on White Grass Way in Grayson, Georgia. Despite the apparent self-serving nature of the affidavit, “[w]hether that testimony is credible is not an issue that the trial court can determine on summary judgment.” ⁵ On summary judgment,

[t]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. In summary judgment proceedings, the court is not in a position to weigh the evidence or determine its credibility. Where the facts alleged in the record create a conflict in the evidence, summary judgment is precluded. ⁶

In light of the conflict in the record as to whether Tidewater complied with the requirement under OCGA § 10–1–36(a) to mail a notice to Shell's designated address (or the address in the contract), the trial court erred by granting summary judgment to Tidewater.⁷

Judgment reversed.

ANDREWS and BOGGS, JJ., concur and concur specially.

BOGGS, Judge, concurring specially.

I agree that, under the facts as presented in the minimal record before us, the trial court erred in granting summary judgment. But I write to point out that the result here is limited to these facts and has no general application.

In the past, we have held that an issue of fact as to notice was created when the borrower presented evidence that a new address was designated, but the lender mailed the notice to the former address. Brack Rowe Chevrolet v. Walls, 201 Ga.App. 822, 825(2), 412 S.E.2d 603 (1991); Kight v. Ford Motor Credit Co., 313 Ga.App. 261, 262, 721 S.E.2d 204 (2011). This case presents the opposite situation: the lender mailed the notice to a new address which it contends the borrower designated, but the borrower denies having designated the new address.

Through an affidavit provided by its legal manager, Tidewater states baldly that Shell designated the Duluth address. In an opposing affidavit, Shell just as baldly denies it. No other evidence was presented by either party. Ordinarily, Shell's conclusory allegation and denial would be insufficient to withstand summary judgment; however, Tidewater presented absolutely no evidence to the trial court tending to demonstrate how it came to believe that Shell lived at the Duluth address. Even though Tidewater need not necessarily present a written designation from Shell, it must produce some evidence opposing her affidavit.

It is clear from the cases construing OCGA § 10–1–36 that a “designation” need not be in writing or even an explicit statement of intent by the borrower: it may be made by course of conduct. See Veitch v. National Bank of Georgia, 159 Ga.App. 473, 473–474, 283 S.E.2d 686 (1981) (printed address on borrower's payment check can be “designated address”); Versey v. Citizens Trust Bank, 306 Ga.App. 479(1), 702 S.E.2d 479 (2010...