Singh v. Interstate Finance of Indiana No. 2, Inc., 568

• Decision Date: 29 April 1969
• Docket Number: No. 568,No. 1,568,1
• Parties: David SINGH, Appellant, v. INTERSTATE FINANCE OF INDIANA NO. 2, INC., Appellee. A 79
• Court: Indiana Appellate Court

Page 776

246 N.E.2d 776

144 Ind.App. 444

David SINGH, Appellant, v. INTERSTATE FINANCE OF INDIANA NO. 2, INC., Appellee.

No. 568 A 79.

Appellate Court of Indiana, Division No. 1.

April 29, 1969.

Norman P. Metzger, Ft. Wayne, for appellant.

Ralph R. Blume and Thomas M. Hafner, Nieter, Smith, Blume, Wyneken & Dixon, Ft. Wayne, for appellee.

COOPER, Judge.

This appeal comes to us from the Superior Court of Allen County, wherein the trial court entered a summary judgment against the record herein.

The record now before us reveals that the appellee herein filed a complaint against the appellant alleging the failure to make payments according to the terms of a contract entered into by the appellant and the appellee's assignor at the time appellant purchased an automobile. Appellee also alleged that when appellant failed to make payment, appellee repossessed the automobile and sold the same at public sale, according to the terms of the contract and the provisions of the statutes of the State of Indiana. After crediting appellant's account with the net proceeds of the sale, there remained a deficiency of $362.64, and that appellant refused to pay said balance due on said contract.

Thereafter, appellant filed an answer denying the allegation that he failed to make payments according to the terms of the contract and stating that he had no information as to the public sale and the amount due under the contract.

Appellee then filed a motion for summary judgment pursuant to Burns' Ind.Stat.Anno. (1968 Repl.) Sec. 2--2524, alleging therein that the facts stated in the pleadings and the affidavit filed on behalf of the appellee entitled the appellee to a summary judgment as a matter of law.

Appellant filed an affidavit setting out therein certain facts which appellant alleged were in dispute.

The appellee's Affidavit in Support of Motion for Summary Judgment reads as follows:

'H. J. Trimble, being first duly sworn upon his oath deposes and says:

'1. That he is plaintiff's Manager, and makes this Affidavit in support of plaintiff's Motion For Summary Judgment.

'2. That affiant knows defendant executed the Contract or Security Agreement on which plaintiff basis (sic) its suit; that a copy of said Contract or Security Agreement is attached hereto, made a part hereof and marked Exhibit 'A'.

'3. That plaintiff is a holder of said Contract or Security Agreement in due course and for value by assignment thereof from the contract seller identified in Exhibit 'A'.

'4. That defendant paid, per the terms of Exhibit 'A' the sum of $96.34, and subsequently defaulted in the payments as set forth leaving a total balance due of $770.72.

'5. That plaintiff reclaimed possession of the personalty which is the subject matter of Exhibit 'A' on the 11th day of October, 1960.

'6. That plaintiff notified defendant of its intent to sell said personalty to the highest bidder on the 28th day of October, 1960, at 10:00 A.M., said sale to be held at the location set forth in the notice; that a copy of said notice is attached hereto, made a part hereof and marked Exhibit 'B'.

'7. That said personalty was sold on the date and at the time and place specified in the said notice; that plaintiff applied the proceeds of said sale to the above described balance due from defendant as above set forth.

'8. That plaintiff incurred $ 0 expense in regaining possession of said personalty and preparing and advertising same for the sale herein above described; that said expense was necessarily and reasonably incurred and expended by plaintiff to enable plaintiff to conduct said sale in a reasonable commercial manner.

'9. That plaintiff has credited defendant with the refund of unearned finance and insurance charged in the sum of $388.08; that there are no further credits owing to defendant from plaintiff.

'10. That plaintiff has made demand on defendant for the balance due under the terms of Exhibit 'A' herein and subject to those credits given defendant as set forth above, said demand for the balance due being in the sum of $362.64; that defendant refused to pay said balance due.

'11. That attached hereto, made part hereof and marked Exhibit 'c' is the ledger record pertaining to the transaction here involved.

'12. That the denial and refusal of defendant was wrongful and false; that the facts stated herein are true.'

The appellant's Reply Affidavit Opposing Motion for Summary Judgment, reads as follows:

'David Singh, being duly sworn, states that he is the defendant in the above entitled action; that he makes this affidavit in opposition to plaintiff's motion for summary judgment herein; that he has personal knowledge of the facts herein set sorth.

'1. That he has a good and valid defense to plaintiff's complaint because (a) defendant had paid the October 8, 1960 installment of the conditional sales contract entered into on July 8, 1960, between Johnson Auto Sales and Mr. David Singh, and later assigned by Johnson Auto Sales to Interstate Finance of Indiana No. 2, Inc., and (b) defendant was incarcerated at the time the plaintiff repossessed Mr. David Singh's 1955 Chevrolet Sedan and thereby was unable to prevent the repossession that occurred on October 11, 1960, only three (3) days after the due date, (c) defendant was told on or about October 14, 1960, by an agent of the plaintiff that the defendant's 1955 Chevrolet Sedan had been sold by them, but as shown by the plaintiff's own exhibits, the said automobile was sold at a public auction on October 28, 1960, (d) defendant never received the notice of sale made by the plaintiff which offered the said automobile for sale at public auction on October 28, 1960, and (e) even if the defendant had defaulted on the October 8, 1960, installment of said conditional sale contract, plaintiff had waived his rights for strict performance under the contract to repossess said automobile by accepting the August 8, 1960, installment and September 8, 1960, installment, on dates past the due date, August 9, 1960, and September 15, 1960, respectively.

'2. Affiant further states that he has examined the exhibits of the plaintiff attached to the plaintiff's affidavit therein. The affiant states that the exhibit which records the receipt of payment of each installment shows Mr. David Singh as being employed by Seyfert Food Co. Presumably, the payment record used as an exhibit was kept at a time contemporaneous with the payments made in 1960. The defendant states that he became an employee of Seyfert Food Co. of Fort Wayne only in the month of April, 1966, and thereby questions the credibility of such an exhibit.

'3. Affiant further states that the plaintiff's motion for a summary judgment is neither correct on the facts or the law in the amount of money demanded in the complaint as the deficiency remaining after crediting the defendant's account with the proceeds of the sale, unearned finance charges, and charges made in the original contract for insurance on the...