Simms v. Ford Motor Credit Company, 40396.

• Decision Date: 09 September 1980
• Docket Number: No. 40396.,40396.
• Parties: Cynthia SIMMS, Plaintiff-Appellant, v. FORD MOTOR CREDIT COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

605 S.W.2d 212

Cynthia SIMMS, Plaintiff-Appellant, v. FORD MOTOR CREDIT COMPANY, a corporation, Defendant-Respondent.

No. 40396.

Missouri Court of Appeals, Eastern District, Division Two.

September 9, 1980.

Frances Dianne Taylor, Rodney H. Powell, Richard B. Teitelman, Legal Aid Society of St. Louis, St. Louis, for plaintiff-appellant.

John S. Sandberg, Steven P. Sanders, St. Louis, for defendant-respondent.

KELLY, Chief Judge.

The appellant, Cynthia Simms, appeals from a judgment of the Circuit Court of the City of St. Louis dismissing her First Amended Petition and rendering judgment for the respondent, Ford Motor Credit Company. We reverse the judgment of the Circuit Court and remand the cause of action for further proceedings consistent with the instructions hereinafter set out.

On July 20, 1977, appellant entered into a Missouri Automobile Retail Installment Contract which was assigned to the respondent, Ford Motor Credit Company, a corporation, on July 27, 1977, whereby the respondent extended credit to the appellant for the purchase of a 1977 Ford LTD II automobile. The total amount of the contract, including a finance charge of $980.00, came to $5,649.48 payable over a 36 month period in monthly installments of $156.93. Title was vested in the petitioner subject to a security interest the respondent retained in the automobile.

Appellant failed to make a payment on the note due on December 3, 1977, and within the 17 day period thereafter respondent's parent corporation, located in Dearborn, Michigan, sent petitioner two delinquency notices. When no reply was received in response to these notices, respondent sent five letters to petitioner and made eight attempts to reach her by telephone both at home and at work. On only one of these telephone attempts was she contacted, and that was on January 4, 1978. She had also failed to make the January 3, 1978, payment and by this time she was two payments in arrears. While respondent did not specifically notify appellant of its intent to exercise its right to declare all amounts due or to become due under the contract to be immediately due and payable, pursuant to the provisions of paragraph 19 of the agreement, it did, during this telephone conversation of January 4, 1978, notify appellant of the possible repossession of the automobile and appellant replied that the car had been stolen and that respondent should do "whatever they had to do." Sometime during the evening of January 26, or the morning of January 27, 1978, respondent had the automobile repossessed. Appellant received a redemption letter on January 27, 1978, via certified mail, whereby she was informed that with full payment of the balance due to respondent-which at that time was $4,392.13-appellant could regain possession of her car. Respondent filed an application with the Director of Revenue for a Certificate of Ownership of the repossessed car, pursuant to the provisions of § 301.215 RSMo.1969.

On February 22, 1978, the appellant filed a three count petition in the Circuit Court of the City of St. Louis. In Count I of this petition, appellant sought the issuance of a temporary restraining order against the respondent, restraining it from proceeding to gain title to the repossessed automobile and an order that the automobile be returned to the possession of the appellant. Count II of the petition sought a judgment declaring the right of the appellant to possession of the automobile and an order ordering return of possession of the automobile to the appellant. Count III of said petition sought a temporary restraining order prohibiting the respondent from obtaining title to the repossessed automobile and restraining the Motor Vehicle Bureau of the Missouri Department of Revenue from issuing a title to the said respondent for said automobile. On the same date, February 22, 1978, the Circuit Court of the City of St. Louis, entered an order directing the respondent to show cause why a temporary restraining order should not be granted. Arguments were heard on this show cause order on the 24th day of February, 1978, and a temporary order was granted appellant restraining defendant from selling the car or obtaining title thereto. Hearing on the permanent injunction was set for February 28, 1978.

On February 27, 1978, appellant filed a First Amended Petition, incorporating Counts I through III of the original petition therein, and adding a fourth count seeking damages in an amount of $5300.00 and court costs incurred by the appellant.

When the matter came on for trial on February 28, 1978, the trial judge, at the outset, stated that the court was not dealing with the permanent injunction referred to on February 24, 1978, but was going to consider solely the order to show cause why a temporary injunction should not issue. The court said that it was not clear whether the case was purely at law or equity and therefore, the temporary injunction question had to be answered before any determination could be made...