In Re Huffman

204 B.R. 562, 32 U.C.C. Rep. Serv. 2d (West) 1259, 1997 Bankr. LEXIS 55, 1997 WL 24872
CourtUnited States Bankruptcy Court, W.D. Missouri
DecidedJanuary 21, 1997
Docket13-42395
StatusPublished
Cited by3 cases

This text of 204 B.R. 562 (In Re Huffman) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Huffman, 204 B.R. 562, 32 U.C.C. Rep. Serv. 2d (West) 1259, 1997 Bankr. LEXIS 55, 1997 WL 24872 (Mo. 1997).

Opinion

*563 MEMORANDUM OPINION

ARTHUR B. FEDERMAN, Bankruptcy Judge.

Creditor Ford Motor Credit Company (“FMC”) moves this Court to lilt the co-debtor stay as to Janet S. Huffman. This is a core proceeding under 28 U.S.C. § 157(b)(2)(G) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth below, FMC’s motion will be DENIED.

The facts are not in dispute. Jack and Janet Huffman were married at the time they purchased a 1988 Mercury Cougar. Janet Huffman signed the Missouri Vehicle Retail Installment Contract as a “Co Buyer.” FMC’s Ex. # 1. The contract was assigned to FMC. Ultimately, Jack and Janet Huffman were divorced. By the terms of the divorce decree Janet Huffman was awarded possession of said automobile and Jack Huffman was ordered to continue making payments. FMC sent a Notice of Default and Intent to Repossess to Janet Huffman on October 1,1992, at Route 2, Jamesport, Missouri, 64048. FMC’s Doc. # 2. That default was cured. After being granted three extensions by FMC, totaling six months, Mr. Huffman again defaulted on the car loan. By that time, Janet Huffman and the Mercury Cougar had relocated to Iowa. The car was voluntarily surrendered to a Ford Dealer in Iowa on July 19, 1993. Following the voluntary surrender, Janet Huffman was sent a Notice of Repossession and Right to Redeem (the “Notice”) on July 20,1993, informing her that the car would be “sold at a private sale at any time after 10 days from the Date of Notice ... unless redeemed_” FMC’s Ex. # 4. The Notice was addressed as follows:

HUFFMAN JANET S
RT 3 BOX 211
SHERATON, LA 11111

Id. The Account and Deposition Report, mailed to Janet Huffman on March 31, 1994, indicates the ear was actually sold on August 31, 1993, for a sum of $3,000.00, leaving a deficiency of $2,018.55 after deducting the balance due the lender and the costs of repossession and sale. FMC’s Ex. #5. The Account and Disposition Report indicates that Janet S. Huffman’s address is Route 3 Box 211, Chariton, Iowa 50049. Id. That is also the address listed on a cover letter seeking collection which accompanied the Account and Disposition Report. Id.

Mr. Huffman filed a Chapter 13 bankruptcy petition on March 8, 1996. At that time FMC claims its deficiency debt was $2,925.64. After Mr. Huffman’s Chapter 13 plan was confirmed, which proposes to pay approximately fifty percent of general unsecured creditor’s claims, FMC asked for relief from the automatic stay to pursue Janet Huffman for any part of the debt not provided for in Mr. Huffman’s plan.

A hearing was held on January 16, 1997. Ms. Huffman was not in attendance, but was represented by her attorney, Stephen B. Strayer. Mr. Strayer does not contest any of the facts as presented, save one. He argues that Ms. Huffman never received notice of the private sale because FMC sent the notice to the wrong address. He, thus, maintains that FMC has no deficiency claim as to Ms. Huffman.

Missouri law determines a creditor’s right to a deficiency following the repossession of personal property secured by a properly perfected security interest. See Mo.Stat.Ann. § 400.9-504(2) (1994). Missouri law provides that:

(3) Dispositions of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcel and at any time and place and on any terms but every aspect of the Disposition including the method, manner, time, place and terms must be commercially reasonable. 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....

Mo.Stat.Ann. § 400.9-504(3) (1994). It is undisputed that the right to a deficiency exists *564 only if the creditor strictly complies with these statutory requirements. Executive Financial Serv., Inc. v. Garrison, 722 F.2d 417, 418 (8th Cir.1983); Commerce Bank of St. Louis, N.A. v. Dooling, 875 S.W.2d 943, 946 (Mo.Ct.App.1994); Ford Motor Credit Co. v. Freihaut, 871 S.W.2d 129, 130-31 (Mo.Ct.App.1994); Boatmen’s Bank of Pulaski County v. Brooks, 869 S.W.2d 781, 783 (Mo.Ct.App.1994). Likewise, a co-debtor or guarantor is a debtor entitled to notice as a prerequisite to the collection of a deficiency from the co-debtor or guarantor. RWR, Inc. v. DFT Trucking, Inc., 899 S.W.2d 875, 878 (Mo.Ct.App.1995); Lankheit v. Estate of Scherer, 811 S.W.2d 853, 858 (Mo.Ct.App.1991); Cherry Manor, Inc. v. American Health Care, Inc., 797 S.W.2d 817, 821 (Mo.Ct.App.1990); Sedalia Mercantile Bank and Trust Co. v. Loges Farms, Inc., 740 S.W.2d 188, 195 (Mo.Ct.App.1987); Lendal Leasing, Ltd. v. Farmer’s Wayside Stores, Inc., 720 S.W.2d 376, 379 (Mo.Ct.App.1986). Voluntary surrender of the collateral does not negate the necessity for written notice of the sale of collateral by the creditor, and a debt- or’s right to written notice cannot be waived or varied by any pre-default agreement. RWR, Inc. v. DFT Trucking, Inc., 899 S.W.2d at 878. In State Bank of Hallsville v. Hull, 148 B.R. 917, 918 (Bankr.W.D.Mo.1993), the Court held that the no notice, no deficiency rule is unaffected by creditor’s claim that the debt was incurred by fraud or misrepresentation. In In re Boehne, 82 B.R. 525, 529 (Bankr.W.D.Mo.1988), the Court held that once a creditor takes possession of personal property and sells it without notice, it is prohibited from any further recovery of the debt, and with no debt, a creditor cannot proceed with a fraudulent conveyance action.

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Bluebook (online)
204 B.R. 562, 32 U.C.C. Rep. Serv. 2d (West) 1259, 1997 Bankr. LEXIS 55, 1997 WL 24872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-huffman-mowb-1997.