Lloyd's Plan, Inc. v. Brown

268 N.W.2d 192, 24 U.C.C. Rep. Serv. (West) 1053, 1978 Iowa Sup. LEXIS 1031
CourtSupreme Court of Iowa
DecidedJuly 26, 1978
Docket61085
StatusPublished
Cited by15 cases

This text of 268 N.W.2d 192 (Lloyd's Plan, Inc. v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lloyd's Plan, Inc. v. Brown, 268 N.W.2d 192, 24 U.C.C. Rep. Serv. (West) 1053, 1978 Iowa Sup. LEXIS 1031 (iowa 1978).

Opinion

McCORMICK, Justice.

This appeal involves issues relating to a creditor’s right to a deficiency judgment after repossession and sale of collateral. The trial court entered judgment for plaintiff Lloyd’s Plan, Inc., in the amount of $3054.08 for the alleged deficiency owed by defendant Judith A. Brown on a note and security agreement. Defendant contends the court erred because (1) plaintiff’s petition and computation of the alleged deficiency did not conform with statute, (2) the *193 notice to cure was inadequate, (3) she was not given reasonable notice of the proposed sale of collateral, and (4) her counterclaim should not have been dismissed. We affirm the trial court.

The case was tried to the court at law. Therefore the trial court’s findings of fact have the force of a jury verdict.

Most of the facts are undisputed. Where disputes exist, the court found plaintiff’s version of events to be credible rather than defendant’s. Because credibility is for the trier of fact to decide, we have no basis to interfere with the trial court’s findings of fact.

Defendant had financed a 1970 Chevrolet automobile with plaintiff in 1973. In August 1975 she traded that car in on a 1974 Plymouth and borrowed more money from plaintiff to finance that transaction. She paid $3595 for the Plymouth. -On August 9, 1975, she executed a note and security agreement for a loan of $5531.36 and finance charge of $2100.64, making a total debt of $7632.00. It was payable in 36 monthly installments of $212, commencing September 9, 1975. The automobile and household goods were collateral for the debt.

Only four payments were made. On February 5, 1976, plaintiff mailed a notice to cure default to defendant. The notice was addressed to her at 625 Boston Drive in Davenport, an address which plaintiff obtained from defendant’s employer. The notice informed defendant she was $420.75 in default, including $202.53 owed for January, $212 for February, and late charges of $4.22 She was given until February 25, 1976, to cure the default.

In a conversation with plaintiff’s manager in mid-February, defendant acknowledged having received the notice. At that time she lived in a trailer court with a rural Davenport address.

When defendant did not pay the amount in default, plaintiff’s manager obtained an ignition key for the Plymouth from a dealer and repossessed it. He removed it from the street adjacent to defendant’s trailer home.

On March 16, 1976, plaintiff sent a letter by certified mail to defendant at her trailer court address, telling her that unless she made the necessary arrangements to redeem her car before March 27, it would be “sold to the highest bidder” and she would be charged with the deficiency. This letter was returned to plaintiff marked “unclaimed”. It showed postal authorities had given defendant two notices regarding the mail and, when she did not respond, returned the letter to plaintiff on April 3, 1976. Plaintiff’s manager testified he left messages for defendant which she ignored. He also said he made at least two trips to her trailer home, but she would not answer the door.

Plaintiff parked the car on its lot with a “for sale” sign on it. Offers of $2475 and $2895 were received, but the car was sold in April 1976 to plaintiff’s manager’s secretary for $3400. This price was $195 less than defendant paid for the car and exceeded its retail book value.

The $3400 was credited against defendant’s debt. This left a deficiency of $3387.25 on the total obligation. Reducing this by the amount of rebate due upon prepayment, the deficiency at the time of trial was $3054.08, the amount for which the trial court awarded judgment'to plaintiff.

Defendant had asserted a counterclaim based on allegations of lack of compliance with statutory notice requirements and trespass in repossessing the car. The trial court dismissed the counterclaim on the basis of its findings of fact.

I. Sufficiency of plaintiff’s petition and proof. Defendant contends plaintiff’s petition did not conform with § 537.5114(1), The Code, which specifies what a creditor’s petition must contain. She also contends plaintiff’s proof did not allow her the prepayment rebate she was entitled to under § 537.2510, The Code.

A. The petition. Contents of a creditor’s petition are delineated in § 537.-5114(1) as follows:

*194 In an action brought by a creditor against a consumer arising from a consumer credit transaction, the complaint shall allege the facts of the consumer’s default, the amount to which the creditor is entitled, and an indication of how that amount was determined.

Plaintiff’s petition did not conform with the statute because it did not allege the facts of the alleged default or the manner in which the claimed deficiency was determined.

However, defendant did not raise any question about the sufficiency of the allegations of the petition at any time in the trial court. She may not do so for the first time here. See Kitchen v. Stockman National Life Ins. Co., 192 N.W.2d 796, 803 (Iowa 1971); McCuddin v. Dickinson, 230 Iowa 1141, 1143, 300 N.W. 308, 309 (1941).

B. Proof of the prepayment rebate. When maturity of a consumer credit obligation is accelerated because of default, the debtor is entitled to the same rebate as upon prepayment. This requirement is based on § 537.2510(6), The Code, which provides:

If the maturity is accelerated for any reason and judgment is obtained, the consumer is entitled to the same rebate as if payment had been made on the date maturity is accelerated.

Under this provision defendant was entitled to a prepayment rebate on the amount remaining on her obligation. Thus plaintiff was not entitled to judgment for the full deficiency of $3387.25 but only for the amount necessary to prepay the deficiency as of the date of judgment.

Plaintiff’s manager testified the prepayment rebate would reduce the deficiency to $3054.08. He said he obtained that figure from a computer. Defense counsel objected to the evidence on the general ground of lack of foundation.

This objection was inadequate to preserve error. A party objecting to evidence on foundation grounds must point out in what particular or particulars the foundation is deficient so the adversary may seek to remedy the defect, if possible. State v. Entsminger, 160 N.W.2d 480, 482-483 (Iowa 1968).

The record shows plaintiff’s manager did try to explain how prepayment rebates are computed under the consumer credit code, although his explanation was not a model of lucidity.

The computation is governed by § 537.-2510, The Code. The purpose of the rebate is to credit the prepaying consumer with unearned finance charges. Because the transaction has been precomputed on the assumption the loan will be repaid over the full term, the total finance charge, which consists primarily of interest, is chargeable to that period.

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Bluebook (online)
268 N.W.2d 192, 24 U.C.C. Rep. Serv. (West) 1053, 1978 Iowa Sup. LEXIS 1031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lloyds-plan-inc-v-brown-iowa-1978.