Thompson v. Ford Motor Credit Company

Decision Date10 March 1971
Docket NumberCiv. A. No. 70-694.
Citation324 F. Supp. 108
CourtU.S. District Court — District of South Carolina
PartiesOwen C. THOMPSON, Jr., Plaintiff, v. FORD MOTOR CREDIT COMPANY, Defendant.

W. Ray Berry, of Fulmer, Berry & Alford, Columbia, S. C., and J. Roy Berry, Johnston, S. C., for plaintiff.

J. Means McFadden, of Robinson, McFadden, Moore & Pope, Columbia, S. C., for defendant.

ORDER

HEMPHILL, District Judge.

Plaintiff seeks damages of defendant for the alleged conversion1 of a 1969 Ford, and certain articles of personal property stored therein. The alleged tortious action took place in South Carolina. Upon call of the case for pre-trial and calendar purposes counsel announced their willingness to stipulate the facts and submit the issues to the court on briefs, which was done. Upon examination of the record and review of memoranda submitted by counsel this court publishes its

FINDINGS OF FACT

(All Facts Stipulated)

1. On March 20, 1969, Owen C. Thompson, Jr., hereinafter referred to as Thompson, purchased a 1969 Ford automobile from Arrants Ford Sales, of Ortonville, Michigan. After a trade-in the balance of the purchase price was financed by the dealer who thereafter, for valuable consideration, assigned the Michigan Automobile Retail Instalment Contract executed by Thompson at the time of the purchase to the defendant Ford Motor Credit Company, hereinafter referred to as FMCC. At the time of purchase Thompson was a resident of Goodrich, Michigan, as he had been for a period of approximately three years.

2. Thereafter Thompson and his family moved to South Carolina, where he was living on June 24, 1970.

3. On June 24, 1970, Thompson was in arrears in the monthly payments due on the Michigan Automobile Retail Instalment Contract for the months of March, April and May, 1970.

4. On June 24, 1970, an agent of FMCC located the Ford automobile in a parking lot adjacent to a project on which Thompson was working, with the keys in the ignition. After identifying the automobile, the agent got in and drove it away. No contact was made with Thompson.

5. Thompson's first knowledge that the vehicle had been repossessed by FMCC was receipt of a letter dated June 24, 1970, and mailed on June 25, 1970, from Dearborn, Michigan, by certified mail, return receipt requested, which letter was receipted for on June 29, 1970. Copy of this letter together with postal receipt and return receipt are included hereinafter.

6. At the time the automobile was driven away from the parking lot adjacent to the construction site there were certain items of personal property in the automobile. Agents of FMCC are clearly of opinion that all of the items were in the trunk of the automobile. Thompson is clearly of opinion that a portfolio was in the glove compartment and a spread was on the front seat of the automobile, with the remaining items in the trunk of the car. The items of personal property referred to are shown on the attached list contained in a letter dated July 16, 1970, which the Greenville office of FMCC wrote to Thompson at his Saluda County address, and which was received by Thompson. Thompson stipulates that the value of these items of personal property was Fifty-Eight and No/100 ($58.00) Dollars.

7. The parking lot at the construction site above referred to was located in or near the City of Greenwood, in Greenwood County; and, at that time, Thompson was living in Saluda County.

8. The letter of June 24, 1970, agreed upon in the stipulation is as follows:

9. The letter of July 16, 1970, referred to is as follows:

July 16, 1970 Mr. Owen Thompson Route 3 Saluda, South Carolina Account # KB A142 J273 Dear Sir In repossessing the motor vehicle financed under the above account we have found the following items of personal property in the vehicle 1 pair jumper cables 1 hose pipe nossle 2 window cleaners 1 trailer hitch 1 ½ pint Grande Candian Blended Whiskey (2 oz. in bottle) 1 set of keys (5 on ring) 1 comb 2 screw drivers 1 red sponge ball 1 pair sunglasses 2 Dixie Deluxe Transparent Thins 1 306 cartridge 1 Savings pass book 1 unemployment insurance policy 1 bed spread 1 Sewing Susan kit 2 portfolios with miscellaneous papers We are holding the property for you at 334 West Stone Ave., Greenville South Carolina. Please arrange to pick up this property immediately. RES/rh 2cc 10. The stipulation included as an exhibit the Michigan Automobile Retail Instalment Contract. The critical provisions are the same as Nos. 7 and 8 of the "Additional Terms and Conditions" which read as follows:

No. 7
(a) Time is of the essence of this contract. In the event Buyer defaults in any payment or fails to obtain or maintain the insurance required hereunder, or fails to comply with any of the terms and conditions hereof, or a proceeding in bankruptcy, receivership or insolvency shall be instituted by or against Buyer or his property, or Seller deems the Property in danger of misuse or confiscation, Seller shall have the right, at its election to declare the unpaid portion of the Time Balance, together with any other amount for which the Buyer shall have become obligated hereunder, to be immediately due and payable;
(b) Further in any such event, Seller, its agent or representatives, may take immediate possession of the Property, including any equipment or accessories, and for this purpose Seller, its agents or representatives, may enter upon the premises where the Property may be and remove same, and Seller may take possession of any other items in or on the property at the time of repossession wherever such other items may be, and hold same temporarily for Buyer without liability on the part of Seller;
(c) Such repossession shall not affect Seller's right hereby confirmed, to retain all payments made prior thereto by Buyer. In the event of repossession of the property, and if the Buyer has not redeemed same in accordance with law, Seller may either sell same at public sale (at which Seller may purchase) or dispose of same by private sale or otherwise in such manner and upon such terms as shall appear to Seller to be reasonable without demand for performance, with such notice to Buyer, if any, as may be required by law and with or without having the Property at the place of sale or other disposition; and
(d) The proceeds of any such sale or disposition of the property, less the expense of retaking, holding, preparing for sale and selling the Property and reasonable attorneys' fees and legal expenses incurred by Seller, shall be applied to the partial or complete satisfaction of Buyer's obligations hereunder. The surplus, if any, shall be paid to the Buyer unless otherwise required by law. The deficiency, if any, shall be paid by Buyer to Seller forthwith, upon demand, with interest thereon at the highest lawful contract rate. Seller's rights and remedies hereunder are in addition to any given by law and may be enforced successively or concurrently. Waiver by Seller of any default shall not be deemed a waiver of any other default.
No. 8
This contract constitutes the entire agreement between Buyer and Seller and no modification of any of the terms and conditions herein shall be valid in any event, and Buyer expressly waives the right to rely thereon, unless made in writing duly executed by Seller. Any provision of this contract prohibited by the law of any state, shall as to such state be ineffective to the extent of such prohibition without invalidating the remaining provisions of this contract. This contract shall be governed by the law of the state in which the Original Seller is located as shown on the face of the contract.

(AND)

CONCLUSIONS OF LAW

A. The court has jurisdiction of the parties and the subject matter of the action. 28 U.S.C. 1332.2

B. The interpretation of any rights of the parties under the Michigan Automobile Retail Instalment Contract is to be determined by the applicable law3 of the State of Michigan. Both the contract4 and a wealth of authorities5 support this position. The action for conversion is a tortious action and the complaint alleges, and the stipulation verifies, that any acts done in connection with the repossession of the automobile, were done in South Carolina. The law of the State of South Carolina would govern as to the alleged tort action. There is no federal common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in nature or "general", be they commercial law or a part of the law of torts. Erie R. Co. v. Tompkins (1938), 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.2d 1188, 1194, 114 A.L.R. 1487.

C. Plaintiff has not seriously contested defendant's right to repossess the car. In his brief he poses a question of: "(1) Did the taking of the plaintiff's vehicle by the agents of the defendant constitute a peaceful taking (peaceful possession) under the facts of the case?" This, says plaintiff is the first of two issues in the case.

Both Michigan and South Carolina have adopted the Uniform Commercial Code—Michigan by Public Act 174 of 1962, effective January 1, 1964, and South Carolina by Act No. 1065 of the Acts and Joint Resolutions of 1966, effective January 1, 1968. In Michigan, it is identified as Chapter 440, Compiled Laws of Michigan, 1948, as amended; and also in Michigan States Annotated, Chapter 190a. In the Compiled Laws, each Code Section is preceded by the designation 440 and the hyphen is omitted, so that § 1-101 is § 440.1101, and in the Statutes Annotated each section number is preceded by the designation 19, so that § 1-101 is 19.1101.

Section 440.9503, Compiled Laws, (Section 19.9503, Michigan Statutes Annotated) provides:

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. If the
...

To continue reading

Request your trial
14 cases
  • General Elec. Credit Corp. v. Timbrook
    • United States
    • West Virginia Supreme Court
    • 14 d5 Maio d5 1982
    ...v. Wann, Ind.App., 403 N.E.2d 348, 351 (1980); Deavers v. Standridge, 144 Ga.App. 673, 242 S.E.2d 331 (1978); Thompson v. Ford Motor Credit Co., 324 F.Supp. 108, 115 (D.S.C.1971).4 Accord, Evers-Jordan Furniture Co. v. Hartzog, 237 Ala. 407, 187 So. 491 (1939); Cox v. Stuart, 229 Ala. 409, ......
  • Ivy v. General Motors Acceptance Corp.
    • United States
    • Mississippi Supreme Court
    • 17 d4 Dezembro d4 1992
    ...den. 295 Ala. 420, 323 So.2d 367 (1975); Cox v. Galigher Motor Sales Co., 158 W.Va. 685, 213 S.E.2d 475 (1975); Thompson v. Ford Motor Credit Co., 324 F.Supp. 108 (D.C.S.C.1971). But see Chrysler Credit Corp. v. McKinney, 38 UCC Rep.Serv. 1409 (Ala.1984); Walker v. Walthall, 121 Ariz. 121, ......
  • Davenport v. Chrysler Credit Corp.
    • United States
    • Tennessee Court of Appeals
    • 1 d3 Maio d3 1991
    ...in order for a secured party's conduct to amount to a breach of the peace under Tenn.Code Ann. § 47-9-503. Thompson v. Ford Motor Credit Co., 324 F.Supp. 108, 115 (D.S.C.1971) (violence not required); Bloomquist v. First Nat'l Bank, 378 N.W.2d 81, 86 (Minn.Ct.App.1986) (violence not require......
  • Henderson v. Security Nat. Bank
    • United States
    • California Court of Appeals Court of Appeals
    • 22 d1 Agosto d1 1977
    ...La.App., 8 So.2d 566, 567--568; Douglas Motor Co. v. Watson, 68 Ga.App. 335, 22 S.E.2d 766, 767; and Thompson v. Ford Motor Credit Company, D.C., 324 F.Supp. 108, 115, where the court said, 'if the mortgagee finds that he cannot get possession without committing a breach of the peace, he mu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT