James v. Ford Motor Credit Corp.

305 S.E.2d 604, 166 Ga. App. 879, 1983 Ga. App. LEXIS 2358

• Court: Court of Appeals of Georgia
• Decided: May 4, 1983
• Docket: 65818
• Status: Published

Opinions

Deen, Presiding Judge.

In September 1977 Mr. and Mrs. James, appellants here, purchased a 1978 Ford Mustang automobile and entered into a retail installment sales contract which was subsequently assigned to the Ford Motor Credit Co. (FMCC), appellee here. Mr. and Mrs. James were furnished with a booklet containing coupons for their monthly payments and a set of address labels, together with instructions for mailing. They made monthly payments approximately on time until the winter of 1980, at which time Mr. James was injured and began to receive disability payments, which provided him less income than his regular wages had done. Appellants contacted appellee’s customer account representative by telephone regarding the possibility of making payments on a deferred basis or in a lesser amount during the period of Mr. James’ disability, and it was agreed that the then due payment or payments might be postponed, and only a partial payment would be made during the next ensuing month.

According to the record, appellants did not make the partial payment until two months, rather than one, after this conversation but continued to make payments on a monthly basis, in more or less timely fashion, through January of 1981. According to appellee’s records, no payment for February 1981 was received, and since the deferral during the previous year had produced a state of technical default, appellee in early March of 1981 declared appellants in default and repossessed the automobile. Six days later appellants tendered an installment payment, and sixteen days later they filed a complaint alleging that they were not in default and that the automobile had been wrongfully repossessed. After extensive discovery the trial court granted FMCC’s motion for summary judgment. Appellants enumerate as error the granting of summary judgment to appellees. Held:

Decided May 4, 1983 Rehearing denied June 14, 1983 Charles C. Carter, for appellants. Jerry A. Buchanan, for appellee.

Although appellants contend that they had made all payments due at the time of the repossession, and that FMCC’s acceptance of a number of payments which had been tendered after their respective due dates constituted a waiver of the right to enforce the default provisions of the contract, the evidence presented by appellants fails to sustain these contentions. Appellants made a number of discrepant statements in the course of discovery and from time to time were uncooperative to the point of hostility, if not evasiveness. For example, appellants’ statements regarding the dates when certain payments were mailed were inconsistent both with the money order stubs and with statements made on different occasions by appellants themselves. Mrs. James, after extensive examination and cross-examination, ultimately acknowledged that, contrary to prior testimony, she had altered the dates on some of the stubs.

Not every detail of sundry disputed factual matters was conclusively resolved in the pleadings or through discovery procedures. Examination of the record indicates, however, that such disputed matters were either irrelevant or, at best, de minimis. This being so, the evidence clearly indicates that there remain in the case no genuine issues of material fact that would preclude an award of summary judgment. See OCGA § 9-11-56 (c) (Code Ann. § 81A-156). Our scrutiny of the record indicates that, the statutory criteria having been fulfilled, the court below did not err in granting appellee’s motion for summary judgment.

Judgment affirmed.

Banke, J., concurs. Carley, J., concurs specially.