Ford Motor Credit Co. v. Potts

548 N.E.2d 223, 47 Ohio St. 3d 97, 10 U.C.C. Rep. Serv. 2d (West) 1477, 1989 Ohio LEXIS 313
CourtOhio Supreme Court
DecidedDecember 20, 1989
DocketNo. 88-1519
StatusPublished
Cited by16 cases

This text of 548 N.E.2d 223 (Ford Motor Credit Co. v. Potts) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford Motor Credit Co. v. Potts, 548 N.E.2d 223, 47 Ohio St. 3d 97, 10 U.C.C. Rep. Serv. 2d (West) 1477, 1989 Ohio LEXIS 313 (Ohio 1989).

Opinions

Wright, J.

The initial issue that we must decide involves two questions. First, as a matter of law, does R.C. 1317.12, 1317.16 or 1309.47 require a secured creditor to take steps beyond sending notice of sale (and, if sent together, notice of right to cure), by certified mail to the debtor’s last known address? Second, do these statutes stay the creditor’s right to sell the collateral until after the creditor receives the certified mail receipt showing that the notice was delivered as addressed?

The second issue before us is whether, as a matter of law, Ford Motor’s sale of the debtor’s vehicle was commercially reasonable and was conducted in compliance with R.C. 1317.16(B) and 1309.47. We are asked to apply these two statutes to the following circumstances: where, after proper advertisement, the disposition was by public sale; where the disposition accorded with the usual manner of sale in a recognized market; and where the vehicle sold for more than two-thirds of its original cash price.

For the reasons that follow, the opinion of the court of appeals is reversed and the judgment of the trial court is reinstated.

I

R.C. 1309.47 governs the secured party’s right to dispose of collateral after default. R.C. 1309.47(F) states that this statute is “subject to the limitations of section 1317.16 of the Revised Code.” A provision of the Retail Installment Sales Act (“RISA”), R.C. 1317.16(B), requires that a secured party repossessing collateral pursuant to a retail installment sales contract must, at least ten days prior to sale, “* * * send notification of the time and place of such sale and of the minimum price for which such collateral will be sold, together with a statement that the debtor may be held liable for any deficiency resulting from such sale, by certified mail, return receipt requested, to the debtor at his last address known to the secured party, and to any persons known by the secured party to have an interest in the collateral. In addition, the secured [99]*99party shall cause to be published, at least ten days prior to the sale, a notice of such sale listing the items to be sold, in a newspaper of general circulation in the county where the sale is to be held.”

Further, RISA establishes strict criteria for the contents of the notice to the debtor to allow the debtor to cure his default. The secured party “* * * shall, within five business days after taking possession, send to the debtor a notice setting forth specifically the circumstances constituting the default and the amount by itemization that the debtor is required to pay to cure his default. Any notice required by section 1309.47 or 1317.16 of the Revised Code may be included as part of the notice required by this section. A secured party who disposes of the collateral without sending notice required by this section may not recover the costs of retaking possession of the collateral and is not entitled to a deficiency judgment.” R.C. 1317.12.

These two provisions afford consumers special protection by requiring creditors to follow precise procedural requirements when giving notice to consumers of impending sales of repossessed collateral. Yet the General Assembly has also recognized that consumer default occurs frequently. The legislature has balanced the need to protect consumers from creditor overreaching with the need to provide creditors with a simple and standardized repossession and resale mechanism should default occur. Given these policy guidelines, R.C. 1317.16(B) specifically instructs the secured party to send the notice of sale by certified mail. R.C. 1317.16 does not require that notice of sale be sent using any other or further method.

In the case at hand, Ford Motor has indisputably and precisely complied with the statutory requirements. The statute is clear on its face. Contrary to the court of appeals’ opinion, the statutes nowhere require the secured party to delay its sale until return of the certified mail receipt. The court of appeals erred in holding that Ford Motor was required to take further steps to notify the debtor. This holding incorrectly interprets the plain language of the statute. Such a holding, if allowed to stand, might serve to erode the entire notice process, which is a pivotal point upon which our entire system of due process and speedy resolution of disputes in this area is based.

It is well-established law in Ohio that “[a] secured creditor can * * * satisfy the notice requirements set forth in R.C. 1309.47 merely by sending notice to the debtor. Actual receipt of the notice is not required and need not be proven. All that is required of the creditor under R.C. 1309.47 is that he take reasonable steps to notify the debtor of his intentions to resell certain repossessed collateral. * * *” BancOhio Natl. Bank v. Freeland (1984), 13 Ohio App. 3d 245, 247, 13 OBR 298, 300, 468 N.E. 2d 941, 944, citing Umbaugh Pole Bldg. Co. v. Scott (1979), 58 Ohio St. 2d 282, 12 O.O. 3d 279, 390 N.E. 2d 320.

In fact, no statute or controlling case law specifies that the debtor must actually sign the notice, indicating actual receipt. In Freeland, supra, ,the creditor was unable to produce a signed or unsigned mail receipt. The court in Freeland nonetheless found that the creditor had fulfilled the reasonable notice of resale requirement of R.C. 1309.47 by sending a certified mail notice in a timely and proper manner addressed to defendant’s correct address. Id. at 247, 13 OBR at 300, 468 N.E. 2d at 944.

The facts of First Natl. Bank v. Turner (1981), 1 Ohio App. 3d 152, 1 [100]*100OBR 463, 439 N.E. 2d 1259, are very similar to the case at bar with regard to notice. In Turner, the court held that where the secured party had sent notice of sale of repossessed collateral by certified mail properly addressed to the debtor, where three notices of arrival of the letter were left at the debtor’s address, and where notice was returned by the postal authorities as “unclaimed,” the creditor had complied with the notice requirements of R.C. 1309.47. Id. at 154, 1 OBR at 464-465, 439 N.E. 2d at 1262. Freeland and Turner take on even more significance when we note that those decisions refer to R.C. 1309.47, which does not designate a specific means of notice. Since Ohio courts have approved of the certified mail scheme as satisfying due process, the result should not be different for a case such as the one at bar, where the Revised Code specifically mandates a certified mail scheme.

The court of appeals itself noted the salutary effects of Ohio’s statutory certified mail scheme, because it gives “assurance that a secured party will attempt to send notification in the manner most likely to notify and in a manner most likely to reasonably assure accomplishment of the receipt of notification by the debtor.”

The court of appeals erred in imbuing R.C. 1317.12 and 1317.16 with a “good faith” requirement on the part of the creditor. In doing so, the court of appeals relied on Huntington Natl. Bank v. Stockwell (1983), 10 Ohio App. 3d 30, 10 OBR 38, 460 N.E. 2d 303, and BancOhio Natl. Bank v. Cousins (May 31, 1984), Franklin App. No. 83AP-937, unreported. Unfortunately, both of these cases are inapplicable to the particular facts at bar.

The court of appeals cited Stockwell for the proposition that a secured party must “* * * comply with R.C. 1317.12 and R.C.

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Bluebook (online)
548 N.E.2d 223, 47 Ohio St. 3d 97, 10 U.C.C. Rep. Serv. 2d (West) 1477, 1989 Ohio LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-motor-credit-co-v-potts-ohio-1989.