Gaynor v. Union Trust Co.

582 A.2d 190, 216 Conn. 458, 13 U.C.C. Rep. Serv. 2d (West) 1, 1990 Conn. LEXIS 392
CourtSupreme Court of Connecticut
DecidedNovember 13, 1990
Docket14001
StatusPublished
Cited by78 cases

This text of 582 A.2d 190 (Gaynor v. Union Trust Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaynor v. Union Trust Co., 582 A.2d 190, 216 Conn. 458, 13 U.C.C. Rep. Serv. 2d (West) 1, 1990 Conn. LEXIS 392 (Colo. 1990).

Opinion

Peters, C. J.

This case concerns the propriety of the procedures used by a secured creditor to repossess and resell a used car after the consumer debtors’ failure to make timely instalment payments. The plaintiffs, Douglas L. and Lisa Gaynor, brought a four count action against the defendant, Union Trust Company, alleging violations of the Uniform Commercial Code (UCC), the Retail Instalment Sales Financing Act (RISFA), the Connecticut Unfair Trade Practices Act (CUTPA) and the Creditors’ Collection Practices Act (CCPA). The defendant counterclaimed to recover a deficiency judgment for the amount of the plaintiffs’ remaining indebtedness after due credit for the net proceeds of the resale. The trial court, Koletsky, J., rendered judgment for the defendant on the complaint and, in a diminished amount, on the counterclaim. In accordance with Practice Book § 4023, we transferred the plaintiffs’ appeal to this court, and now reverse in part.

It is undisputed that on August 26, 1986, the plaintiffs borrowed $7000 from the defendant in order to finance the purchase of a used car, a 1982 Pontiac, for $7200.1 As security for the loan, the plaintiffs gave the defendant a security interest in the car. The security agreement contained clauses purporting to authorize resale upon the plaintiffs’ default and to limit the implications of waiver of the defendant’s rights.

From the outset, the plaintiffs consistently made their instalment payments later than the schedule stipulated in the security agreement. One late payment check was subsequently returned for lack of sufficient [461]*461funds. The defendant repeatedly telephoned the plaintiffs to advise them of their defaults and to request payment. In April, 1987, the defendant warned the plaintiffs by letter that their defaults put them at risk of repossession. A further conversation between the parties in early July resulted in a promise by the plaintiffs to make specified payments to render their account more current. Although the plaintiffs made the promised July payment, the defendant never received a promised $300 payment that was due on August l.2

The defendant repossessed the car on August 16, 1987. Two days later, the plaintiffs received from the defendant a notice of repossession, describing their rights of redemption, as well as a notice that, on or after September 1, 1987, the car would be resold at a private sale. After soliciting six bids, all at wholesale, the defendant sold the car for $2000 to the highest bidder on September 16,1987. The defendant promptly notified the plaintiffs of the sale, the sales price, the costs claimed to have attended the repossession and resale, and the amount of the contract balance still claimed to be due, $4432.24.

The trial court concluded that the plaintiffs had failed to demonstrate any actionable deficiencies in the repossession or resale of their car, and accordingly rendered judgment in favor of the defendant on the complaint. On the counterclaim, the court found that the fair retail market value of the repossessed car was $3000, and that the defendant had failed to prove its claim for a repossession charge. It accordingly rendered judgment for the defendant in the reduced amount of $3232.24.

Only the plaintiffs have appealed. Although they do not deny their default in making instalment payments [462]*462in a timely fashion, they continue to assert that the defendant wrongfully repossessed and resold their car. They maintain further that the defendant’s alleged misconduct entitles them to affirmative relief in the form of statutory damages and attorney’s fees.

I

The plaintiffs challenge the validity of the defendant’s repossession of their car on three grounds.3 They claim that: (1) the bank had no statutory right to repossess; (2) the bank could not reinstate any contractual right it might have possessed without giving the plaintiffs written notice to that effect; and (3) the bank’s notice of repossession did not comply with the statutory requirements contained in the UCC; General Statutes §§ 42a-9-504 and 42a-9-506;4 and in RISFA. General [463]*463Statutes § 42-98.5 The trial court concluded to the contrary in large part because it found that the plaintiffs knew that they were “behind and continually behind [464]*464in [their] payments.” It found further that the plaintiffs had not been lulled into any misapprehension by the defendant’s conduct and that the plaintiffs’ failure to pay $300 to the defendant on their overdue debt on the first of August triggered the repossession in accordance with the terms of their contract with the defendant. Finally, it held that the notice of repossession gave the plaintiffs fair notice that a private sale would be held on September 1 or thereafter, and that they then owed $785.09 plus the listed costs of repossession and storage. We agree with the trial court except for its [465]*465resolution of the issue of the effect of inaccuracies in the notice of repossession concerning the defendant’s incidental costs of repossession and storage.

A

The plaintiffs’ claim that the defendant lacked statutory authority to repossess their car rests on their construction of the relevant provision of RISFA, General Statutes § 42-98 (a). The clause in the security agreement on which the defendant relied as authorizing repossession stated: “If you break any of your promises [466]*466in this agreement, we can sell or otherwise get money for this collateral and apply the proceeds to the unpaid balance of this loan.” The plaintiffs do not contest the trial court’s finding that the plaintiffs in fact had notice of the defendant’s right to repossess. They maintain instead that, as a matter of law, this contract clause, because it does not refer expressly to “repossession” or “retaking,” violated the statutory mandate in § 42-98 (a) that limits a permissible retaking to nonperformance of a promise by a consumer buyer “the breach of which is by such contract expressly made a ground for the retaking of the goods.”

The question is whether the text of § 42-98 (a) supports the plaintiffs’ argument. It provides in relevant part: “When the retail buyer is in default in the payment of any sum due under the retail instalment contract or instalment loan contract, or in the performance of any other condition which such contract requires him to perform, or in the performance of any promise, the breach of which is by such contract expressly made a ground for the retaking of the goods, the holder of the contract may retake possession thereof.” Although consumer legislation must be interpreted so as to implement its remedial purpose of protection for consumer buyers; Mack Financial Corporation v. Crossley, 209 Conn. 163, 166, 550 A.2d 303 (1988); Barco Auto Leasing Corporation v. House, 202 Conn. 106, 116, 520 A.2d 162 (1987); Rhodes v. Hartford, 201 Conn. 89, 95, 513 A.2d 124 (1986); Keyes v. Brown, 155 Conn. 469, 474, 232 A.2d 486 (1967); even such legislation cannot transcend its statutorily defined ambit. “ ‘The meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation.’ Eason v. Welfare Commissioner, 171 Conn. 630, 634, 370 A.2d 1082 (1976), cert. denied, 432 U.S. 907, 97 S. Ct. 2953, 53 L. Ed.

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Bluebook (online)
582 A.2d 190, 216 Conn. 458, 13 U.C.C. Rep. Serv. 2d (West) 1, 1990 Conn. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaynor-v-union-trust-co-conn-1990.