Van Bibber v. Norris

• Decision Date: 03 June 1980
• Docket Number: No. 2-376A91,2-376A91
• Citation: 404 N.E.2d 1365
• Parties: 29 UCC Rep.Serv. 1458 Virgil VAN BIBBER, The Van Bibber Lakeside Retreat, Inc., and American Fletcher National Bank and Trust Company, Appellants (Defendants Below), v. William C. NORRIS, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1365

404 N.E.2d 1365

29 UCC Rep.Serv. 1458

Virgil VAN BIBBER, The Van Bibber Lakeside Retreat, Inc. and American Fletcher National Bank and Trust Company, Appellants (Defendants Below), v. William C. NORRIS, Appellee (Plaintiff Below).

No. 2-376A91.

Court of Appeals of Indiana, Fourth District.

June 3, 1980.

Rehearing Denied Aug. 25, 1980.

Terrill D. Albright and James M. Carr, Baker & Daniels, Indianapolis, for American Fletcher Nat. Bank & Trust Co.

Glenn E. Davis, Sr., Davis & Davis, Indianapolis, for Virgil Van Bibber, et al.

Robert J. Hoffman, Hugh G. Baker, Jr., Steven D. Allen, Indianapolis, for appellee.

YOUNG, Judge.

This cause was distributed to the Fourth District November 16, 1979.

William Norris brought this action to recover damages for the loss of his mobile home and its contents. He sued American Fletcher Nat'l Bank & Trust Co., Virgil Van Bibber, and the Van Bibber Lakeside Retreat, Inc. ¹ The trial court awarded against all defendants damages of $5,000 for the home and $10,000 for the contents. Van Bibber was given a set-off of $1,837.41 for sums owed by Norris to Van Bibber. Norris also recovered punitive damages of $10,000 against the bank and $30,000 against Van Bibber. We affirm.

Our statement of the facts is taken largely from the bank's brief. Where the evidence or inferences are in conflict we will accept that version which is favorable to the judgment. Kroger Co. v. Beck, (1978) Ind.App., 375 N.E.2d 640, 643.

Norris purchased a mobile home from Van Bibber in 1965. The total time balance of this purchase was $5,738.04. This amount included the finance charge and insurance expenses. Norris agreed to pay the balance in 84 monthly instalments of $68.31. These fell due on the thirtieth day of each month. The contract between Van Bibber and Norris was on a form prepared by the bank. It was entitled "retail instalment sale security agreement." Van Bibber assigned the contract to the bank on a full repurchase basis.

The contract contained the following provision:

"Upon the occurrence of any of the following events or conditions, namely: (i) default in the payment or performance of any of the obligations of the Buyer or of any covenant or liability contained or referred to herein; (ii) any warranty, representation or statement made or furnished to the Seller by or on behalf of the Buyer in connection with this Agreement proving to have been false in any material respect when made or furnished; (iii) loss, theft, substantial damage, destruction, sale or encumbrance to or of any of the Goods, or the making of any levy, seizure or attachment thereof or thereon; (iv) death, dissolution, termination of existence, insolvency, business failure, appointment of a receiver of any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding under, any bankruptcy or insolvency laws by or against the Buyer or any guarantor or surety for the Buyer; or (v) the Seller, for any reason deeming itself insecure, the Seller may at its option without notice or demand declare all of the Buyer's obligations to be immediately due and payable and shall then have the remedies of a secured party under the Uniform Commercial Code as enacted in Indiana (regardless of whether the Code has been enacted in the jurisdiction where rights or remedies are asserted), including without limitation thereof, the right to take possession of the Goods, and for that purpose the Seller may, so far as the Buyer can give authority therefor, enter upon any premises on which the Goods or any part thereof may be situated and remove the same therefrom. The Seller may require the Buyer to make the goods available to the Seller at a place to be designated by the Seller which is reasonably convenient to both parties. Unless the Goods are perishable or threaten to decline speedily in value or are of a type customarily sold on a recognized market, the Seller shall give the Buyer at least ten (10) days' prior written notice of the time and place of any public sale thereof or of the time after which any private sale or any other intended disposition thereof is to be made. Expenses of retaking, holding, preparing for sale, selling or the like shall include the Seller's reasonable attorneys' fees and legal expenses."

The repurchase obligation of Van Bibber was contained in the following language:

"This assignment is made:

". . .

"4) on a FULL REPURCHASE basis whereby Dealer agrees to purchase the Goods from the Bank for the unpaid balance due under the terms of the Agreement if the Goods are repossessed by the Bank and offered to the Dealer within 90 days after maturity of the earliest instalment remaining unpaid, or if the Bank is required by law or by the order of any court or governmental agency to hold said Goods for any reason, the Dealer will accept delivery of the Goods as soon as they can be delivered, notwithstanding the fact that delivery may be delayed for such reason beyond the 90-day period mentioned above, and the Dealer will so purchase the Goods although the Bank has, prior thereto, and without Dealer's consent waived default by the Buyer in the performance of the Agreement or has granted an extension of time to the Buyer in which to perform, or has taken possession of Goods."

Very often Norris was late with his monthly payments. The bank's employee, John Runk, testified that out of fifty-nine payments Norris was past due (five days late) fifty-seven times. Thirty-seven times the account was delinquent (over ten days late). The bank would press him for the payments. Eventually Norris would make them. Sometimes his mother made the payments for him. The bank's brief also informs us that on seventeen occasions instalments were more than thirty days overdue. The bank twice extended the maturity date.

Norris initially kept the mobile home at a trailer park operated by Van Bibber. Animosity developed between Norris and Van Bibber. Norris eventually removed his mobile home from Van Bibber's trailer park. By this time Norris was allegedly indebted to Van Bibber for about $400.00. This debt was evidenced by a promissory note.

Upon leaving the Van Bibber trailer park Norris moved his mobile home to a park operated by Imperial Estates. Norris became indebted to Imperial Estates.

An instalment on the bank loan fell due October 30, 1970. Norris did not pay the instalment by that date. According to Runk's testimony the bank would not consider a payment delinquent until "over ten days past the payment date." The tenth day was November 9.

On November 6, 1970, Imperial Estates filed a "Complaint for Rent and Restraining Order" against Norris. The purpose of this was to recover delinquent rent and various penalties. Imperial Estates also prayed the court to order Norris not to remove his mobile home from the trailer park. The Montgomery Circuit Court issued the order the same day.

Norris tried to remove his mobile home secretly from Imperial Estates on the night of November 7-8. His friend Ronnie Van Bibber, the son of defendant Van Bibber, assisted him in this attempt. Norris planned to tow the trailer with a truck belonging to defendant Van Bibber. The removal attempt was thwarted when Norris was served with the restraining order.

November 8 was a Sunday. That evening law officers arrested and incarcerated Norris and Ronnie Van Bibber in Indianapolis on a drug charge. The elder Van Bibber was not immediately aware of this.

The next morning, November 9, Van Bibber called John Runk of the bank. Van Bibber first asked whether the account of Norris was current. Runk "advised him that it was at that time." (This was consistent with his testimony that the bank would not consider the account delinquent until ten days after October 30, and November 9 was the tenth day.) After receiving this response from Runk, Van Bibber then told him about the weekend incident at Imperial Estates.

Following this conversation Runk discovered in a local newspaper that Norris had been arrested the night before. Runk conferred with his superior, James McAllister, about the matter. They decided to repossess the trailer even though Norris was current on his account.

That same morning Runk called Van Bibber to tell him of the bank's decision to repossess. During this conversation Runk informed Van Bibber of the arrest of Norris. At the same time Runk discovered that the newspaper article also recounted the arrest of Ronnie Van Bibber. This was the first information that Van Bibber had received of his son's arrest.

On November 9 the bank requested Van Bibber to repossess the mobile home. Van Bibber did this on November 20 after the bank agreed to pay the claim of Imperial Estates against Norris. Van Bibber removed the mobile home from Imperial Estates to Van Bibber's trailer park the same day.

On November 25, 1970, the bank mailed to Norris written notice of the repossession. The bank sent the notice to the former address of Norris at Imperial Estates. The bank gave the notice pursuant to a provision of the bank's insurance coverage.

Norris, meanwhile, resided in the Marion County Jail from November 9 through the 23rd. From November 24 through December 11 he was in the Crawfordsville jail. It was not until December 11 that Norris was able to obtain release on bail.

Tom Madden, a relative of Norris, contacted the bank on December 2. He asked how the trailer could be reacquired by Norris. Runk informed Madden that it would be necessary to pay the full amount owing on the contract, the amount reimbursed to Imperial Estates, and the costs of the repossession. Madden pursued nothing further along this line.

On December 14 the bank received a check from Van Bibber for the repurchase of the home.

After his release from jail Norris contacted Van Bibber. Van Bibber refused to return the mobile home or its contents unless Norris first paid him $2,580.11. This amount apparently included the balance due on...