First State Bank v. Hallett

722 S.W.2d 555, 291 Ark. 37, 2 U.C.C. Rep. Serv. 2d (West) 1743, 1987 Ark. LEXIS 1880

• Court: Supreme Court of Arkansas
• Decided: January 20, 1987
• Docket: 86-119
• Status: Published

Opinions

Jack Holt, Jr., Chief Justice.

The appellant, First State Bank (FSB), concedes it failed to give the appellee, Edith Hallett, proper notice before it sold her collateral which it repossessed when she defaulted on a promissory note. FSB nevertheless sought a deficiency judgment against Hallett for the balance owed on the note. The trial court granted Hallett’s motion for summary judgment, dismissing the FSB claim. The issue on appeal is whether the failure of FSB as a secured party, to give proper notice to debtor Hallett of the time and place of the sale of repossessed collateral, as required by Ark. Stat. Ann. § 85-9-504(3) (Supp. 1985), absolutely bars FSB’s right to a deficiency judgment. We hold that it does and affirm the trial court. Jurisdiction in this court is pursuant to Sup. Ct. R. 29(1 )(c).

Hallett gave FSB a promissory note in the amount of $ 11,342.90, secured in part by a security interest in a 1983 pickup truck. Hallett defaulted. FSB repossessed the truck and sold it without written notice to Hallett of the sale date. A deficiency of $4,057.40 remained on the note. The trial court granted Hallett’s motion for summary judgment because FSB had not complied with § 85-9-504(3)’s guidelines for the disposition of repossessed collateral. That section states in pertinent part:

Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.

The trial court’s ruling complies with our most recent decision, Rhodes v. Oaklawn Bank, 279 Ark. 51, 648 S.W.2d 470 (1983). In Rhodes, we reversed a deficiency judgment in favor of the secured party, and held:

When a creditor repossesses chattels and sells them without sending the debtor notice as to the time and date of sale, or as to a date after which the collateral will be sold, he is not entitled to a deficiency judgment, unless the debtor has specifically waived his rights to such notice.

FSB does not attempt to distinguish Rhodes, but rather argues that it should be overruled in favor of an earlier line of cases which took a different approach to this issue. Those cases did not bar a deficiency judgment altogether, but instead “indulged] the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law.” Norton v. Nat’l Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966). See also, Universal C.I.T. Credit Co. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970); Carter v. Ryburn Ford Sales, Inc., 248 Ark. 236, 451 S.W.2d 199 (1970) and Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968). We think Rhodes represents the right approach and, although it did not expressly overrule these cases, its effect was to change our law.

Creditors are given the right to a deficiency judgment by Ark. Stat. Ann..§ 85-9-502(2) (Supp. 1985): “If the security agreement secures an indebtedness, the secured party must account to the debtor for any surplus, and unless otherwise agreed, the debtor is liable for any deficiency.” As stated, § 85-9-504(3) requires the creditor to send reasonable notification to the debtor before he disposes of this type of collateral. If the creditor does not dispose of the collateral in accordance with the code provisions, Ark. Stat. Ann. § 85-9-507 (Supp. 1985) gives the debtor “a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part [§§ 85-9-501 — 507].”

There is a split of authority nationwide on the correlation of these provisions of the code. A group of cases follows the position that § 85-9-507 gives the debtor a defense to a deficiency judgment when the creditor has failed to give proper notice, and that the deficiency judgment is reduced by the damages the debtor can prove. See Grant County Tractor Co. v. Nuss, 6 Wash. App. 866, 496 P.2d 966 (1972). Our previous cases, as represented by Norton, supra, followed this approach with the presumption in favor of the debtor that the collateral and the debt were equal and the burden placed on the creditor to prove a deficiency. The apparent majority position, however, with which we concur, is that § 85-9-507 is not applicable to the creditor’s action to recover a deficiency judgment, but is a separate affirmative action by the debtor to recover damages. The creditor’s right to a deficiency judgment is not merely subject to whether the debtor has a right to damages under § 85-9-507, but instead depends on whether he has complied with the statutory requirements concerning disposition and notice.

This view was explained in Atlas Thrift Co. v. Horan, 27 Cal. App. 3d 999, 104 Cal. Rptr. 315 (1972), quoting Leasco Data Processing Equip. Corp. v. Atlas Shirt Co., 66 Misc. 2d 1089, 323 N.Y.S. 2d 13 (1971):

“The plaintiff’s contention that a secured creditor’s right to a deficiency judgment under the described circumstances is limited only by the remedies set forth in 9-507 seems to me a tenuous one indeed, apart from the fact that no such effect was ever accorded the corresponding section in the Uniform Conditional Sales Act. . . .

“Preliminarily, it may be noted that Section 9-507 makes no direct allusion to the circumstances under which a right to a deficiency judgment may arise.

“More significant is the special nature of the language used: ‘the debtor or any person entitled to notification. . . has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part.’ If this were intended to authorize a defense to action for a deficiency judgment, it is hard to envisage language less apt to that purpose. The words used plainly contemplate an affirmative action to recover for a loss that has already been sustained — not a defense to an action for a deficiency. The distinction between an affirmative action and a defense is a familiar one, phrases that articulate the different concepts are familiar in the law, and it is unlikely that the experienced authors of the [Uniform Commercial Code] intended by the above language to provide a limited defense to an action for a deficiency judgment based on a sale that had violated the simple and flexible statutory procedure.

“It seems far more probable that this latter section has nothing whatever to do with defenses to an action for a deficiency, since it was never contemplated that a secured party could recover such a judgment after violating the statutory command as to notice.”

The Horan court concluded: “The rule and requirement are simple. If the secured creditor wishes a deficiency judgment he must obey the law. If he does not obey the law, he may not have his deficiency judgment.” Accord, see cases listed in “Disposition of Collateral — Required Notice,” 59 A.L.R.3d 401, § 3 (1974 and Supp. 1986).

When the code provisions have delineated the guidelines and procedures governing statutorily created liability, then those requirements must be consistently adhered to when that liability is determined. First State Bank v. Twin City Bank, 290 Ark. 399, 720 S.W.2d 295 (1986). Here, FSB failed to comply with the code’s procedures for disposition of collateral, and is therefore not entitled to a deficiency judgment under the code.

Affirmed.

Hays, Newbern, and Glaze, JJ., dissent.