Kruse v. Voyager Insurance Companies

648 N.E.2d 814, 72 Ohio St. 3d 192
CourtOhio Supreme Court
DecidedMay 17, 1995
DocketNo. 94-827
StatusPublished
Cited by9 cases

This text of 648 N.E.2d 814 (Kruse v. Voyager Insurance Companies) 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
Kruse v. Voyager Insurance Companies, 648 N.E.2d 814, 72 Ohio St. 3d 192 (Ohio 1995).

Opinion

Alice Robie Resnick, J.

The issue certified for our review is “whether a creditor’s failure to provide adequate notice of the sale of collateral establishes, as a matter of law, that the sale was commercially unreasonable so as to permit the debtor to not only defeat a prayer for a deficiency judgment but also obtain money damages under R.C. 1309.50(A).”

R.C. 1309.50(A) (UCC 9-507[l]) provides:

“If it is established that the secured party is not proceeding in accordance with the provisions of sections 1309.44 to 1309.50, inclusive, of the Revised Code, disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of sections 1309.44 to 1309.50, inclusive, of the Revised Code.' If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten percent of the principal amount of the debt or the time price differential plus ten percent of the cash price," (Emphasis added.)

In 2 White & Summers, Uniform Commercial Code (3 Ed.1988) 623, Section 27-18, the authors discuss the rationale behind the last sentence of UCC 9-507(1):

“It is now all but indisputable that compensatory damages are an insufficient deterrent to creditor misbehavior in nickel and dime consumer transactions where such damages will amount to very little in most cases. It is not surprising, therefore, that the draftsmen installed a statutory penalty in 9-507 to up the ante for those who would abuse the consumer * * *.
“The sentence is a penalty — a ‘minimum recovery’ the comment [Comment 1 to UCC 9-507] calls it — and the consumer is entitled to it even if he has not suffered a penny’s loss.” (Footnotes omitted.)

Although appellant has conceded that Fifth Third’s sale of her automobile after foreclosure was done in a commercially reasonable manner, appellant claims entitlement to the award of R.C. 1309.50(A) relating to consumer goods. Fifth [195]*195Third urges that the commercial reasonableness of the sale precludes the award and that a creditor that has been barred from recovering a deficiency judgment for failure to provide proper notice of the disposition of collateral to a debtor in default may not also be subject to liability involving consumer goods under R.C. 1309.50(A).1 Fifth Third did not appeal from the trial court’s decision that notice of the sale was inadequate, so no issue regarding the propriety of the notice is before us. Fifth Third also did not appeal from the trial court’s decision that the failure to provide notice to the debtor barred Fifth Third from recovering a deficiency judgment from appellant; that issue also is not before us.

The parties do not dispute that the collateral, the automobile taken by Fifth Third upon appellant’s default, is “consumer goods” for R.C. 1309.50(A) purposes. R.C. 1309.07(A) provides that goods are “ ‘consumer goods’ if they are used or bought for use primarily for personal, family, or household purposes.”

The court of appeals, in its phrasing of the certified issue, appears to presuppose that a creditor’s sale of repossessed collateral must necessarily be commercially unreasonable before a debtor may recover the statutory award relative to consumer goods in R.C. 1309.50(A). However, we do not read R.C. 1309.50(A) to impose such a requirement. Although it is true that a failure to conduct a commercially reasonable sale would be a failure to comply with Revised Code provisions for disposition of the collateral, a commercially reasonable sale is only one of the requirements imposed by the Revised Code for the disposition.

Comment 1 to UCC 9-507 states that “[t]he principal limitation on the secured party’s right to dispose of collateral is the requirement that he proceed in good faith (Section 1-203 [R.C. 1301.09]) and in a commercially reasonable manner. See Section 9-504 [R.C. 1309.47]. * * * The section [UCC 9-507] * * * provides for damages where the unreasonable disposition has been concluded, and, in the case of consumer goods, states a minimum recovery.”

This comment, however, does not limit the application of R.C. 1309.50(A) to only those cases where the creditor has failed to dispose of the collateral in a commercially reasonable manner, in light of the statute’s clear provision of a debtor’s right to recover for loss caused by the secured party’s “failure to comply with the provisions of sections 13094b to 1309.50, inclusive, of the Revised Code.” [196]*196(Emphasis added.) See Erdmann v. Rants (N.D.1989), 442 N.W.2d 441, 443, fn. 1 (commercial unreasonableness is not the only violation that will trigger UCC 9-507). R.C. 1309.47(C) provides that every aspect of the creditor’s disposition of the collateral after default must be “commercially reasonable.” R.C. 1309.47(C) also imposes on the secured party a responsibility to send to the debtor “reasonable notification of the time and place of any public sale” as a requirement separate from that of conducting a commercially reasonable sale.

In Erdmann v. Rants, supra, 442 N.W.2d at 443, the Supreme Court of North Dakota stated:

“By failing to notify [the debtor] Rants of the intended disposition, the creditors did not proceed in accordance with NDCC § 41-09-50(3) [UCC 9-504], even though the sale * * * was commercially reasonable. Their failure to give notice triggers the statutory damages provision and because the collateral is a consumer good, the debtor, Rants, is entitled to recover damages, ‘in any event,’ regardless of his actual loss. NDCC § 41-09-53(1) [UCC 9-507] entitles the debtor to a ‘minimum recovery’ as a statutory penalty for the creditor’s failure to give notice notwithstanding commercial reasonableness and notwithstanding no actual loss.”

Courts frequently discuss notification to the debtor as an aspect of the concept of commercial reasonableness, and it is true that debtor notification can be a part of the total inquiry into whether a sale of collateral was commercially reasonable. However, when R.C. 1309.50(A) is specifically at issue, the requirement that the creditor properly notify the debtor of the sale is separate from the requirement that the creditor conduct a commercially reasonable sale. In Huntington Natl. Bank v. Elkins (1990), 53 Ohio St.3d 79, 559 N.E.2d 456, and in Ford Motor Credit Co. v. Potts (1989), 47 Ohio St.3d 97, 548 N.E.2d 223, this court discussed what a commercially reasonable sale of collateral is, and cited R.C. 1309.50(B) for standards to be applied in determining commercial reasonableness. However, neither case cited R.C. 1309.50(A), and neither case stands for the proposition that notice to the debtor is merely one of several components of commercial reasonableness.

Since notice to the debtor is a requirement in its own right under R.C. 1309.47(C), the failure of the creditor to provide reasonable notice to the debtor of the foreclosure sale triggers the statutory award.

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Cite This Page — Counsel Stack

Bluebook (online)
648 N.E.2d 814, 72 Ohio St. 3d 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kruse-v-voyager-insurance-companies-ohio-1995.