Ford Motor Credit Co. v. Jackson

47 So. 3d 558, 2010 La. App. LEXIS 1142, 2010 WL 3156831
Louisiana Court of Appeal·Decided August 11, 2010·No. 45,447-CA·Published·Cited by 2 cases

Opinions

MOORE, J.

__JjRoy Jackson Sr. appeals a judgment for the balance due on a retail installment contract, $17,173.89. We affirm.

Factual Background

On June 26, 2000, Jackson bought a 1999 Ford Expedition from Victoria Lincoln Mercury in Victoria, Texas. The retail [560]*560installment contract stated a purchase price of $26,333.06 with no down payment, APR of 10.97%, and one payment of $31,368.91 due June 26, 2001. Ford Motor Credit (“FMC”), to whom the contract was assigned, concedes that Jackson was an employee (the credit application lists him as “dealer/operator”) of Victoria Lincoln Mercury; he also signed on behalf of the seller.

Jackson did not make the payment when due. After learning that the Expedition was in Clarksdale, Mississippi, FMC faxed Jackson a voluntary surrender form stating: “[U]nless I redeem the property it may be sold. If the sale price does not cover the balance due plus sale expenses, I will pay you or the dealer the difference.” Jackson testified that someone from Ford Motor Company (he insisted he never spoke to anyone at Ford Motor Credit) told him if he signed this, he would “owe nothing.” He signed it without reading it and faxed it back on September 26, 2001.

FMC seized the Expedition (which by then had 41,000 miles on it) and, on September 29, sent Jackson a “Notice of seizure and right to redeem,” advising that it would be sold at auction unless he paid the current balance of $32,341.34. The certified mail receipt shows that Jackson’s wife signed for the notice.

1 ?Again, Jackson made no payment. FMC sold the Expedition at an ADESA auction in October 2001 for $15,300, leaving a balance of $15,147.50. On October 13, FMC printed a “Statement of Sale” showing the original amount due, less the sale proceeds, plus the costs of sale, for a balance due of $17,495.84. The statement of sale further advised, ‘You should immediately remit the amount shown.” The statement is addressed to Jackson, but no proof of mailing is attached.

Procedural History and Action in the Trial Court

FMC filed the instant suit in June 2004, seeking the balance of $17,173.89, interest and attorney fees as provided in the contract. By answer, Jackson alleged that at the time of the purchase, he was “the dealer at Durant Ford-Lincoln-Mercury” in Durant, Oklahoma, and that the Expedition should have been placed in the dealer’s inventory instead of his personal name; that he signed the voluntary release after being “told that would end everything”; and that he simply did not owe anything.

FMC filed a motion for summary judgment which Jackson opposed with an affidavit admitting that the “Expedition was owned by appearer” but he had placed it on Durant’s used car lot; later, when he left Durant, he was unaware that he still had any ownership interest in it; and the voluntary surrender “erroneously stated that your petitioner [sic ] would be responsible for any balance.” The motion for summary judgment was denied, and the matter proceeded to bench trial in August 2009.

FMC’s only witness at trial was Ms. Tina Till, a “field service representative” who regularly testifies and presents exhibits for FMC. She |stestified that she had custody and control of the documents involved in this case, which are kept in the regular course of business. She admitted that with the exception of the initial retail installment contract, all her exhibits were computer printouts of documents that had been scanned into the company’s image retrieval system and were accessible by anyone in the company’s national recovery system. Jackson repeatedly objected to all these exhibits as improperly authenticated under La. C.E. art. 803(6); the court took it under advisement, allowing Ms. Till to testify.

[561]*561Referring to the exhibits, Ms. Till testified that Jackson executed the retail installment contract, made no payments, and attempted several times, without success, to arrange refinancing. Later, he signed a surrender form, received the notice of seizure and statement of sale, and still owed $17,495.84. On cross-examination, she admitted that she had never seen a contract on these terms — one balloon payment for the whole amount — and that Jackson had been employed by the seller in some capacity, but she maintained there was no documentation that Jackson bought the Expedition to place in Victoria’s inventory.

FMC also called Jackson on cross-examination. He admitted he bought the Expedition, made no payments on it, and ultimately signed the voluntary surrender without reading it. He also testified that he did not recall signing a return receipt for the deficiency notice.

On direct examination, Jackson insisted that he sold the vehicle to Durant and placed it in their inventory; when he left Durant in May 2001, it was still sitting on the lot; he thought he had no more ownership interest in |4it; and he never talked to anyone from FMC. He admitted he had no papers to prove he sold it, as when he left Durant, all such documents belonged to the dealership. The court took the matter under advisement.

By post-trial brief, Jackson argued that FMC’s documents were not properly authenticated under C.E. art. 803(6) and that after he sold the Expedition to Durant, he had no further liability. He also contended, for the first time, that the act of voluntary surrender was invalid because it did not comply with La. R.S. 10:9-620. FMC responded that it fully complied by sending Jackson the notice of seizure and statement of sale. It reiterated that authentication was proper under Art. 803(6) and that Jackson simply failed to prove the vehicle was dealer inventory.

By written reasons for ruling, the court found that Ms. Till had sufficient familiarity with the record-keeping system of the company to satisfy the foundational requirements of Art. 803(6); hence, the documents were admissible. The court further found that after Jackson failed to pay, FMC complied with § 9-620 by sending him the notice of seizure and the statement of sale, and that Jackson was bound by the terms of the voluntary surrender even if he did not read it. Finally, the court rejected Jackson’s other factual claims as not credible. The court rendered judgment in favor of FMC for $17,173.89, plus interest and attorney fees as stated in the installment contract.

Jackson filed a motion for new trial which was rejected after a hearing. He now appeals, raising three assignments of error.

15Discussion: Lack of Authentication

By his first assignment of error, Jackson urges the court erred as a matter of law in admitting FMC’s exhibits. He argues that Ms. Till did not prepare any of the records; she testified as to things “to which she would have had no way of having any knowledge”; and, because any person employed by FMC could access these records, “how she could qualify as the custodian is beyond the writer.” Citing the comments to Art. 803(6), he argues that the records were “merely oral” and that Ms. Till lacked “first hand knowledge” of them. Finally, he cites two criminal cases in which computer printouts were held inadmissible because the person offering them lacked sufficient knowledge. State v. Bonit, 2005-0795 (La.App. 1 Cir. 2/10/96), 928 So.2d 633, writ denied, 2006-1211 (La.3/16/07), 952 So.2d 688; State v. [562]*562Smith, 2004-0800 (La.App. 1 Cir. 12/17/04), 897 So.2d 710.1

FMC responds that Art.

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Ford Motor Credit Co. v. Jackson, 47 So. 3d 558, 2010 La. App. LEXIS 1142, 2010 WL 3156831 (La. Ct. App. 2010).

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