Georgia Receivables, Inc. v. Cheatham

Court of Appeals of Georgia

Georgia Receivables, Inc. v. Cheatham

455 S.E.2d 375, 216 Ga. App. 656, 95 Fulton County D. Rep. 1227, 1995 Ga. App. LEXIS 260

CourtCourt of Appeals of Georgia

DecidedMarch 15, 1995

DocketA94A2325

StatusPublished

Cited by6 cases

This text of 455 S.E.2d 375 (Georgia Receivables, Inc. v. Cheatham) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Georgia Receivables, Inc. v. Cheatham, 455 S.E.2d 375, 216 Ga. App. 656, 95 Fulton County D. Rep. 1227, 1995 Ga. App. LEXIS 260 (Ga. Ct. App. 1995).

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McMurray, Presiding Judge.

Georgia Receivables, Inc. (plaintiff), assignee to Great Southern Federal Savings Bank, brought an action against Robert C. Cheatham and Joyce H. Cheatham (defendants) to recover under a promissory note that was secured by defendants’ automobile. Defendants filed an answer, pro se, contending that “normal repossession procedures were not followed, and [that] sale of collateral was not made in a commercially reasonable manner, [allegedly resulting in the sale of defendants’ car] for less than 1/20 of value at time of sale.” The trial court denied plaintiffs motion for summary judgment, finding that plaintiff “failed to establish the material facts of notice to the debtor of the disposition of the collateral, commercially reasonable manner of sale, and commercially reasonable terms of sale.” The trial court later entered an order on its own motion, dismissing plaintiffs complaint based on expiration of the four-year statute of limitation prescribed by the Uniform Commercial Code in actions “for breach of a contract for the sale of goods. . . . O.C.G.A. Section ll-2-[725] (1).” This appeal followed. Held:

1. In its first enumeration of error, plaintiff asserts that the trial [657]*657court “abused its discretion and violated [plaintiffs] due process rights when it dismissed [the] Complaint without first providing [plaintiff] with notice and an opportunity to be heard.” It is unnecessary to reach this contention because we agree with plaintiffs second enumeration that the trial court erred in dismissing plaintiffs complaint based on expiration of the four-year statute of limitation prescribed by OCGA § 11-2-725 (1). In this regard, plaintiff argues that the promissory note defendants executed (on December 30, 1986) is a contract under seal for which the applicable statute of limitation is 20 years. OCGA § 9-3-23.

“The promissory note [which is the subject of the case sub judice] is indistinguishable from the contract in Telfair Fin. Co. v. Williams, 172 Ga. App. 489 (323 SE2d 689) (1984) and thus constituted a contract under seal for which the applicable statute of limitation is 20 years. OCGA § 9-3-23. Accordingly, the trial court [erred in dismissing plaintiffs complaint because of expiration of the statute of limitation prescribed by OCGA § 11-2-725].” Frank Maddox Realty &c. v. First Nat. Bank of Atlanta, 196 Ga. App. 114, 115 (1) (395 SE2d 326).

Contrary to any inference in the special concurrence, it would not be prudent to suggest that defendants waived any defense of the statute of limitation. Defendants still have the right to assert such a defense (albeit unlikely in light of the disposition of this appeal) via motion to dismiss, motion for summary judgment, as well as special plea in their answer. Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 345 (2a) (173 SE2d 723). See also Frank Maddox Realty &c. v. First Nat. Bank of Atlanta, 196 Ga. App. 114, 115 (1), supra. The quote drawn by the special concurrence from Searcy v. Godwin, 129 Ga. App. 827, 829 (1) (201 SE2d 670), is not germane to the circumstances now before this court. Unlike the defendants in the case sub judice, the defendant in Searcy no longer had the option of filing a plea of the statute of limitation as he failed to do so before trial.

2. We reject plaintiffs contention that the trial court erred in denying its motion for summary judgment. To this extent, plaintiff presented no evidence piercing the defenses asserted in defendants’ answer. See OCGA § 11-9-504 (3); Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596 (281 SE2d 338). Further, plaintiff presented insufficient evidence to rebut the presumption that the value of the collateral is equal to the debt. Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596, supra. Accordingly, the trial court was correct in finding that plaintiff “failed to establish the material facts of notice to the debtor of the disposition of the collateral, commercially reasonable manner of sale, and commercially reasonable terms of sale.”

3. It is unnecessary to address plaintiff’s remaining enumeration [658]*658of error in light of our holding in Division 1 of this opinion.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur specially.

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McMurray, Presiding Judge.

Georgia Receivables, Inc. (plaintiff), assignee to Great Southern Federal Savings Bank, brought an action against Robert C. Cheatham and Joyce H. Cheatham (defendants) to recover under a promissory note that was secured by defendants’ automobile. Defendants filed an answer, pro se, contending that “normal repossession procedures were not followed, and [that] sale of collateral was not made in a commercially reasonable manner, [allegedly resulting in the sale of defendants’ car] for less than 1/20 of value at time of sale.” The trial court denied plaintiffs motion for summary judgment, finding that plaintiff “failed to establish the material facts of notice to the debtor of the disposition of the collateral, commercially reasonable manner of sale, and commercially reasonable terms of sale.” The trial court later entered an order on its own motion, dismissing plaintiffs complaint based on expiration of the four-year statute of limitation prescribed by the Uniform Commercial Code in actions “for breach of a contract for the sale of goods. . . . O.C.G.A. Section ll-2-[725] (1).” This appeal followed. Held:

1. In its first enumeration of error, plaintiff asserts that the trial [657]*657court “abused its discretion and violated [plaintiffs] due process rights when it dismissed [the] Complaint without first providing [plaintiff] with notice and an opportunity to be heard.” It is unnecessary to reach this contention because we agree with plaintiffs second enumeration that the trial court erred in dismissing plaintiffs complaint based on expiration of the four-year statute of limitation prescribed by OCGA § 11-2-725 (1). In this regard, plaintiff argues that the promissory note defendants executed (on December 30, 1986) is a contract under seal for which the applicable statute of limitation is 20 years. OCGA § 9-3-23.

“The promissory note [which is the subject of the case sub judice] is indistinguishable from the contract in Telfair Fin. Co. v. Williams, 172 Ga. App. 489 (323 SE2d 689) (1984) and thus constituted a contract under seal for which the applicable statute of limitation is 20 years. OCGA § 9-3-23. Accordingly, the trial court [erred in dismissing plaintiffs complaint because of expiration of the statute of limitation prescribed by OCGA § 11-2-725].” Frank Maddox Realty &c. v. First Nat. Bank of Atlanta, 196 Ga. App. 114, 115 (1) (395 SE2d 326).

Contrary to any inference in the special concurrence, it would not be prudent to suggest that defendants waived any defense of the statute of limitation. Defendants still have the right to assert such a defense (albeit unlikely in light of the disposition of this appeal) via motion to dismiss, motion for summary judgment, as well as special plea in their answer. Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 345 (2a) (173 SE2d 723). See also Frank Maddox Realty &c. v. First Nat. Bank of Atlanta, 196 Ga. App. 114, 115 (1), supra. The quote drawn by the special concurrence from Searcy v. Godwin, 129 Ga. App. 827, 829 (1) (201 SE2d 670), is not germane to the circumstances now before this court. Unlike the defendants in the case sub judice, the defendant in Searcy no longer had the option of filing a plea of the statute of limitation as he failed to do so before trial.

2. We reject plaintiffs contention that the trial court erred in denying its motion for summary judgment. To this extent, plaintiff presented no evidence piercing the defenses asserted in defendants’ answer. See OCGA § 11-9-504 (3); Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596 (281 SE2d 338). Further, plaintiff presented insufficient evidence to rebut the presumption that the value of the collateral is equal to the debt. Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596, supra. Accordingly, the trial court was correct in finding that plaintiff “failed to establish the material facts of notice to the debtor of the disposition of the collateral, commercially reasonable manner of sale, and commercially reasonable terms of sale.”

3. It is unnecessary to address plaintiff’s remaining enumeration [658]*658of error in light of our holding in Division 1 of this opinion.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur specially.

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455 S.E.2d 375, 216 Ga. App. 656, 95 Fulton County D. Rep. 1227, 1995 Ga. App. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-receivables-inc-v-cheatham-gactapp-1995.

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