Speigle v. Chrysler Credit Corp.

• Decision Date: 24 September 1975
• Parties: , 17 UCC Rep.Serv. 1395 W. J. SPEIGLE v. CHRYSLER CREDIT CORPORATION, a corporation, et al. Civ. 617.
• Court: Alabama Court of Civil Appeals

Page 360

323 So.2d 360

56 Ala.App. 469, 17 UCC Rep.Serv. 1395

W. J. SPEIGLE v. CHRYSLER CREDIT CORPORATION, a corporation, et al.

Civ. 617.

Court of Civil Appeals of Alabama.

Sept. 24, 1975.

Rehearing Denied Oct. 22, 1975.

John Martin Galese, Birmingham, for appellant.

William B. Hairston, Jr., Birmingham, for appellees.

BRADLEY, Judge.

This case involves the repossession of an automobile under the provisions of Uniform Commercial Code, Section 9--503. Plaintiff-appellant entered into a contract with defendant-appellee Chrysler Credit Corporation to finance the purchase of a new 1973 Dodge Dart. Plaintiff fell behind in his payments, and on October 10, 1974, defendants Terry Savage and Ricky Norris repossessed the car on behalf of their employer, Chrysler Credit Corporation.

Plaintiff filed suit in the Circuit Court of Jefferson County, alleging that the repossession amounted to conversion and demanding money damages and return of the vehicle. The complaint sought declaratory judgments holding that plaintiff was not in default on the contract and that defendants' conduct was inequitable and in breach of the peace. Additionally, plaintiff sought to have the repossession declared a deprivation of plaintiff's property without due process of law and asked the court to declare such practices under Title 7A (Uniform Commercial Code), Section 9--503, Code of Alabama 1940, as Recompiled 1958, in violation of the fifth and fourteenth amendments to the United States Constitution. The defendants answered by denying the allegations of the complaint. Trial was had before the court sitting without a jury. A judgment was rendered for defendants.

The trial court found that plaintiff had breached the contract and that defendants were entitled to take possession of the vehicle; that there was no breach of the peace or trespass committed by defendants in the repossession of the vehicle; that there was no conversion of the vehicle by defendants inasmuch as defendants had legal title and right to possession at the time the vehicle was repossessed, nor was there unlawful detention of the vehicle for the same reason; and that plaintiff was not entitled to declaratory relief for the reason that the acts and practices of defendants in taking possession of the 1973 Dodge Dart did not deprive plaintiff of any due process rights under the State and Federal Constitutions and that self-help repossession of personal property pursuant to Title 7A, Section 9--503 is constitutional. The appeal is from that judgment.

The plaintiff's first contention in his assignments of error is that the trial court erred in finding that at the time of the repossession of the vehicle, he was in default on his contract.

It is undisputed that plaintiff entered into an agreement with Chrysler Credit in 1973 whereby he agreed to pay for the Dodge Dart in thirty-six payments of $125.12 each, beginning on July 14, 1973 and due each month thereafter until paid for. The contract provided that if plaintiff failed to make the payments as agreed, the holder of the contract could, at its option, declare the balance remaining immediately due and repossess the automobile. The contract also provided that a waiver of any default would not be deemed as a waiver of any other default. Plaintiff failed to make his September 14, 1974 payment when it came due. Defendant Norris talked to plaintiff by telephone on October 9, 1974, and reminded him that his September 14, 1974 payment was delinquent, and asked when he was going to take care of it. Plaintiff replied that he was out of work and did not know when he would be able to make further payments. Plaintiff testified that he was then told that upon payment of a $15.00 fee, the delinquent September payment would be extended for thirty days. Norris, however, testified that he told plaintiff to pay both the September installment and an additional $15.00 in order that the October 14th payment, which was due in three or four days, could be extended.

The next day plaintiff went to defendants' office and offered to pay $15.00 but not the September 14 payment. He was told at that time by Norris that the car was being repossessed for failure to make trial court erred in holding that no breach

After a careful review of the record in this case, we are convinced that the evidence amply supports the court's finding that the plaintiff, having breached his contract with Chrysler Credit by failure to make the payments as agreed therein, was in default, and no error infected such finding.

Plaintiff next contends that the trial court erred in holding that on breach of the peace accompanied the repossession of the automobile. We said in Ford Motor Credit Co. v. Ditton, 52 Ala.App. 555, 295 So.2d 408, cert. den., 292 Ala. 423, 295 So.2d 412, that:

'. . . It has long been the law in this state that the title holder under a conditional sales contract, who becomes entitled to repossess for conditions of the contract broken, may take possession of the property, provided he does not in doing so use force or threats of violence against the person having possession or control or does not breach the peace. Street v. Sinclair, 71 Ala. 110; Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 So. 89; Folmar & Sons v. Copeland & Brantley, 57 Ala. 588; McGill v. Holman, 208 Ala. 9, 93 So. 848; Singer Sewing Machine Co. v. Hayes, 22 Ala.App. 250, 114 So. 420; Crews & Green v. Parker, 192 Ala. 383, 68 So. 287; American Discount Co. v. Wyckroff, 29 Ala.App. 82, 191 So. 792; McWaters v. Gardner, 37 Ala.App. 418, 69 So.2d 724; Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 863. Title 7A, § 9--503, Uniform Commercial Code.

'The gist of the action of trespass is an injury to the possession of personal property by use of unlawful force. Unlawful force is the essential element of the action. Cox v. Stuart, 229 Ala. 409, 157 So. 460; Webb v. Dickson, 276 Ala. 553, 165 So.2d 103. Such force may be actual physical force or it may be constructive force. Constructive force in such cases has been defined in a general way as that sort, such as threats or intimidation, to compel the submission of plaintiff against his will to the appropriation of what he asserts to be his property. Jones v. Americar, Inc., supra. The threats or intimidation referred to are those which if carried out would amount to a breach of peace or if resisted would tend to promote a breach of peace. We have found no case in which such threats and intimidation did not occur in the presence of the plaintiff and at the time of the taking . . ..'

The evidence shows that plaintiff drove the car in question to defendants' office in Mountain Brook, Alabama, although there is no evidence that he was asked to do so, and sought to negotiate some solution to his contractual default. While in the office discussing the matter, he was informed by defendant Norris that he was in default on his contract and, since he could not make the delinquent payment, the car was being repossessed. As plaintiff was being told this, and while he was still in the office, defendant Savage, another employee of Chrysler Credit, went outside and parked another automobile behind plaintiff's car, blocking it in so that it could not be moved. Plaintiff went outside, unaccompanied by any of Chrysler Credit's employees, and, upon discovering this situation, went back in defendants' office and asked for an explanation. He was again told that the vehicle had been repossessed and that he would not be allowed to drive it away. Plaintiff then called his mother to come get him. As illustrated above, the record presents no evidence of any threats or rude language spoken by defendants or their agents during the repossession, and can thus be distinguished from Crews & Green, v. Parker, 192 Ala. 383, 68 So. 287, cited by plaintiff. Firthermore, it should be noted that the repossession took place at defendants' office and not at plaintiff's home as occurred in the cited case. Since there is no evidence that any actual physical force or constructive force was exercised by defendants in carrying out the repossession of the vehicle or that a breach of the peace occurred during that time, the trial court's finding to that effect is not erroneous.

Plaintiff next argues that the repossession of his automobile by defendants pursuant to the provisions of Title 7A, Section 9--503, Code of Alabama 1940, as Recompiled 1958, violated the due process clause of the fourteenth amendment to the United States Constitution, and that the failure of the trial court to so hold was error.

Title 7A, Section 9--503, Code of Alabama 1940, as Recompiled 1958, provides in part as follows:

'Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. . . .'

The text of this provision is identical with the Official Text of Section 9--503 of the Uniform Commercial Code promulgated by the National Conference of Commissioners on Uniform State Laws and now in effect in most states. In the wake of Sniadech v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), Section 9--506 of the U.C.C. has been challenged in a number of jurisdictions as a pre-judgment taking of property lacking in due process. In virtually every case the constitutionality of the provision has been upheld. Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973), cert. den., 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974); James v. Pinnix, 495 F.2d 206 (5th Cir. 1974); Brantley v. Union Bank & Trust Company, (dec'd. jointly with Baker v. Keeble, same citation), 362 F.Supp. 355 (M.D.Ala., 1973), aff'd. 498 F.2d 365 (5th Cir. 1974); Kirksey v. Theilig, 351 F.Supp. 727 (D.Colo., 1972).

The ...