Emmons v. LeMaster, Inc.

10 P.3d 33, 27 Kan. App. 2d 940, 42 U.C.C. Rep. Serv. 2d (West) 861, 2000 Kan. App. LEXIS 795
CourtCourt of Appeals of Kansas
DecidedAugust 11, 2000
DocketNo. 84,164
StatusPublished
Cited by4 cases

This text of 10 P.3d 33 (Emmons v. LeMaster, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emmons v. LeMaster, Inc., 10 P.3d 33, 27 Kan. App. 2d 940, 42 U.C.C. Rep. Serv. 2d (West) 861, 2000 Kan. App. LEXIS 795 (kanctapp 2000).

Opinion

Green J.:

Cheryl M. Emmons and LeMaster, Inc., through its president, Charles A. LeMaster, entered into a written agreement giving LeMaster an exclusive option to purchase Emmons’ airplane if she defaulted on repayment of a loan from LeMaster. The trial court originally found that this transaction was not a secured transaction governed by K.S.A. 84-9-201 el seq. The Court of Appeals disagreed, determining that the agreement between the. parties was a security agreement and satisfied the requirement of [941]*941a writing. The Court of Appeals remanded for a new trial on the issue of whether the parties intended to create a security interest. On remand, the trial court determined that the parties’ security agreement contained a security interest to secure repayment of a loan. The trial court also found that Emmons failed to object to LeMaster’s purchase proposal within 15 days of receiving notice and, as a result, she waived her right of redemption. We disagree and remand with directions for a determination of Emmons’ damages.

Emmons owned a Piper PA 28-140 airplane that she hangered at the Coffey County Airport. She failed to pay the hanger fees, and the airport authority obtained a judgment against her. In order to satisfy that judgment, her airplane was to be sold at a sheriff s sale on March 13, 1995.

LeMaster offered to help Emmons avoid the loss of her airplane by loaning her the money to pay her debt to the airport authority in exchange for an “exclusive option to purchase” the airplane. The agreement was executed on March 13, 1995. LeMaster advanced Emmons $1,294.18 under the agreement. If Emmons paid back the advance in full by June 13, 1995, she was to retain all rights to the airplane. If she did not, LeMaster was to purchase the airplane for $13,000. A signed bill of sale was placed in escrow at Citizen’s State Bank in New Strawn, Kansas.

On June 13, 1995, Emmons paid LeMaster $425 in partial repayment. No further payments were made until later. On June 13, 1995, LeMaster exercised its option to purchase the airplane. Le-master paid $11,705.82 to Citizen’s State Bank in exchange for the executed bill of sale. On the same day, Citizen’s State Bank mailed $11,705.82 to Emmons to pay for the plane. The cashier’s check noted that payment was from Charles LeMaster and LeMaster, Inc. The payment was accompanied with a note written on the Citizen’s State Bank letterhead, which simply stated: “Enclosed is payment in full on LeMaster-Emmons escrow for purchase of Piper PA28-140.” Emmons refused to accept the payment. On July 5, 1995, Emmons mailed two checks to LeMaster that totaled the amount advanced and paid to the escrow agent by LeMaster. LeMaster did not cash these checks. LeMaster had taken posses[942]*942sion of the airplane on June 13,1995, registered it with the Federal Aviation Administration, and made repairs on the plane in preparation for resale. On August 4, 1995, LeMaster sold the plane to Ralph and Latricia Mathews for $23,000 plus tax after incurring $5,906 in expenses in preparing the airplane for resale.

Notice of Strict Foreclosure under KS. A. 84-9-505(2)

Emmons appeals from the trial court’s decision on remand that she had proper notice of LeMaster’s intention to satisfy the debt by retaining the collateral under K.S.A. 84-9-505(2) and that she waived her right to redemption because she did not object within 15 days of receiving notice. It is first necessary to address whether the check and letter sent to Emmons constitutes sufficient notice of LeMaster’s intention to satisfy the debt by retaining the airplane. K.S.A. 84-9-505(2) provides in pertinent part:

“[A] secured party in possession may, after default, propose to retain die collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to die debtor if he has not signed after default a statement renouncing or modifying his rights under diis subsection. ... If the secured party receives objection in writing from a person entitled to receive notification within fifteen (15) days after die notice was sent, the secured party must dispose of the collateral under section 84-9-504. In the absence of such written objection the secured party may retain the collateral in satisfaction of die debtor’s obligation.”

This section requires notice to the debtor of the creditor’s proposal to retain the collateral as full satisfaction of the debt. “The notice must be of strict foreclosure in particular, and not simply of an intent to foreclose.” Fletcher v. Cobuzzi, 499 F. Supp. 694, 699 (W.D. Penn. 1980) (holding that letters sent by the creditor to the debtor did not constitute notice under Uniform Commercial Code § 9-505 [2] because the letters made no reference to the creditor’s intention to retain the collateral rather than dispose of it by sale or otherwise); see 10 Anderson on the Uniform Commercial Code § 9-505:84 (3d ed. 1999) (“[I]n the case of nonconsumer collateral, all that the creditor is required to do is to manifest the intent to retain the collateral in satisfaction of the debt. Such declaration gives the creditor the rights to ownership of the collateral.”).

Here, the letter sent by Citizen’s State Bank to Emmons merely stated LeMaster’s intent to exercise the option contract and pur[943]*943chase the airplane. The letter makes no reference of LeMaster’s intent to retain the airplane in full satisfaction of the debt. Moreover, LeMaster has produced no other evidence indicating that he gave notice of strict foreclosure to Emmons or that she renounced after default her right to receive notice. Not only was LeMaster required to notify Emmons of his intent to retain the airplane in full satisfaction of the debt, but it would have been good business practice to have also informed her that she had 15 days to object under K.S.A. 84-9-505(2). As a result, LeMaster’s alleged strict foreclosure of the collateral was invalid for failure to comply with the notice provisions of K.S.A. 84-9-505(2). See Fletcher, 499 F. Supp. at 699; In re Sports Autos, Inc., 6 U.C.C. Rep. Serv. 991, 993-94 (W.D. Pa. 1969).

Right of Redemption under K S.A. 84-9-506

Because LeMaster failed to notify Emmons of his intent to retain the airplane in full satisfaction of the debt, Emmons may have had the right under K.S.A. 84-9-506 to redeem the collateral. The statute provides:

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Bluebook (online)
10 P.3d 33, 27 Kan. App. 2d 940, 42 U.C.C. Rep. Serv. 2d (West) 861, 2000 Kan. App. LEXIS 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emmons-v-lemaster-inc-kanctapp-2000.