Neighbors Federal Credit Union v. Anderson

196 So. 3d 727, 2015 La.App. 1 Cir. 1020, 89 U.C.C. Rep. Serv. 2d (West) 1003, 2016 La. App. LEXIS 1104, 2016 WL 3127428
CourtLouisiana Court of Appeal
DecidedJune 3, 2016
DocketNo. 2015 CA 1020
StatusPublished
Cited by16 cases

This text of 196 So. 3d 727 (Neighbors Federal Credit Union v. Anderson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neighbors Federal Credit Union v. Anderson, 196 So. 3d 727, 2015 La.App. 1 Cir. 1020, 89 U.C.C. Rep. Serv. 2d (West) 1003, 2016 La. App. LEXIS 1104, 2016 WL 3127428 (La. Ct. App. 2016).

Opinions

PETTIGREW, J.

| aThis appeal arises from a Suit on Note filed on August 27, 2012, by Neighbors Federal Credit Union (NFCU), the holder of a Retail Installment Contract and Security Agreement executed by the defendant, Sean Q. Anderson (Mr. Anderson), in favor of Salsbury’s' Dodge City, L.L.C. (Sals-bury’s) on June 3, 2006. The suit sought to collect the unpaid balance of $19,158.47, together with interest at the rate of 7.49 percent, from September 21,. 2007, until paid, in-addition to attorney fees not to exceed 25 percent of the amount due, and costs incurred in collection proceedings. The district court granted summary judgment in favor of NFCU, ordering Mr. Anderson to pay the amount sought — the sum of $19,158.47, together with interest at 7.49 percent per annum from September 21, 2007 until paid, reasonable attorney fees of 25 percent the amount due, as well as costs incurred in the collection proceedings. Mr. Anderson appeals that November 14, 2014 judgment. For all the reasons that follow, we affirm.

MOTION TO DISMISS APPEAL

Following the lodging of this appeal, on July 13, 2015, this court issued an ex proprno motil rule to show cause why the seemingly untimely filed appeal should not be dismissed. On October 19, 2015, a different panel of this court issued an Interim order, remanding the matter to the district court for the limited purpose of allowing Mr. Anderson to present proof of the time[729]*729liness of his appeal. Following that order, Mr. Anderson supplemented the record (both at the district court and this court) with documentation proving that he “forwarded” the original signed notice of appeal, together with the filing and transmission fee, within seven days, exclusive of legal holidays, from the date of the facsimile transmission of the document, as required by La. R.S. 13:850. Because the appeal had not yet been docketed, on February 16, 2016, a different panel of this court considered the supplements and referred a final ruling on the rule to show cause to the panel to whom the appeal on the merits has been assigned, and it is now before us. We have reviewed the evidence, now properly in the record, and find it amply supports (by a preponderance of the evidence) that Mr, Anderson timely filed the notice of appeal. Therefore, the appeal is maintained.

| «FACTUAL SUMMARY

Mr. Anderson purchased a 2004 Ford F-250 pickup truck on June 3, 2005, from Salsbury’s for $31,900.00 (net of sales tax). On that same date, Mr. Anderson executed a Retail Installment Contract and Security Agreement (covering the truck as collateral securing his indebtedness) in favor of Salsbury’s. By Dealer’s Assignment and Buyer’s Consent to assignment, the note executed by Mr. Anderson in connection with the above was assigned by Salsbury’s to NFCU on that same date. Ultimately, Mr, Anderson defaulted under the note and subsequently, voluntarily surrendered the truck to NFCU for sale (with NFCU reserving its deficiency rights). NFCU sold the truck on February 29, 2008, for $4,000.00, to McCray’s Auto Sales (McCray’s). NFCU filed suit on August 27, 2012; the amount sought reflects the deficiency NFCU alleged was owed by Mr. Anderson after he defaulted on the loan and after the sale of his vehicle was credited to his note.

PROCEDURAL HISTORY

On August 20, 2014, NFCU filed a motion for summary judgment, which was ultimately granted by the district court on November 14, .2014, awarding NFCU the amount it claimed. In support of its motion, NFCU . .submitted the affidavit of Robert Simon,, a recovery specialist at NFCU, attesting to the' existence and validity of all documents supporting NFCU’s claims, which were also submitted as evidence. This evidence includes: the Retail Installment Contract; the security agreement in favor of Salsbury’s and endorsed and assigned to NFCU; proof of Mr. Anderson’s default on the loan; a copy of the Voluntary Surrender, dated January 24, 2008, whereby Mr. Anderson voluntarily surrendered the truck for sale, with NFCU reserving its deficiency rights; a notice of NFCU’s plan to sell the . truck, mailed to, Mr. Anderson by NFCU, dated February 8, 2008; NFCU’s records reflecting that the truck was sold for $4,000.00, the highest bid made, on March 5, 2008; proof that NFCU received insurance premium refunds of $2,912.00 and $1,877.24 and that it applied those refunds to the balance on Mr. Anderson’s loan; records reflecting that $120.00 was transferred by NFCU from Mr. Anderson’s savings account and also applied to the balance due on the loan;, and a copy |4of a letter dated April 3, 2008, mailed by NFCU to Mr. Anderson, explaining the calculation of the deficiency owed on the note.

The record on appeal does not contain a memorandum in opposition to the motion for summary judgment, but the transcript of the hearing alludes to the existence of such a memorandum, and also reflects that Mr. Anderson opposed the motion on the [730]*730basis of allegedly unexplained discrepancies in the amount allegedly owed by him on the note, as well as challenging the subsequent sale of his vehicle by NFCU to McCray’s, as not being commercially reasonable.

On appeal, Mr. Anderson assigns error to the summary judgment grant on the basis that the district court’s acknowledgment of the conflicting evidence concerning the amount claimed to be owed reflected the presence of a genuine issue of material fact. Moreover, Mr. Anderson contends that the subsequent sale of his vehicle by NFCU to McCray’s was not commercially reasonable, another • basis upon which he contends the district court erred in granting summary judgment.

DISPOSITION OF COLLATERAL AFTER DEFAULT

It is not disputed that the security agreement in this matter was a secured transaction subject to Chapter 9 of the Louisiana Commercial Laws. With regard to secured transactions, Louisiana Commercial Laws govern the disposition of collateral after default in La. R.S. 10:9-610, in part, as follows:

(a) Disposition after default. After default, a secured party may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing.
(b) Commercially reasonable disposition. Every aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable. If commercially reasonable, a secured party may dispose of collateral by public or private proceedings, by one or more contracts, as a unit or parcels, and at any time and place and on any terms. A disclaimer or modification of warranties in a secured party’s disposition of collateral is commercially reasonable.

Although “commercially reasonable” is not defined in the Louisiana Commercial laws, “good faith” is defined in La. R.S. 10:1-201(20) as “honesty in fact and the observance of reasonable commercial standards of fair dealing.” Additionally, La. R.S. |fi10:9-627, entitled “Determination of whether conduct was commercially reasonable,” provides as follows:

(a) Greater amount obtainable under other circumstances; no preclusion of commercial reasonableness. The fact that a greater amount could have been obtained by a collection, enforcement, disposition, or acceptance at a different time or in a different method from that selected by the secured party is not of itself sufficient to preclude the secured party from establishing that the collection, enforcement, disposition, or acceptance was made in a commercially reasonable manner.

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Bluebook (online)
196 So. 3d 727, 2015 La.App. 1 Cir. 1020, 89 U.C.C. Rep. Serv. 2d (West) 1003, 2016 La. App. LEXIS 1104, 2016 WL 3127428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neighbors-federal-credit-union-v-anderson-lactapp-2016.