South Mississippi Finance Co. v. Mississippi State Tax Commission

605 So. 2d 736, 17 U.C.C. Rep. Serv. 2d (West) 766, 1992 Miss. LEXIS 317, 1992 WL 118490
CourtMississippi Supreme Court
DecidedJune 3, 1992
DocketNo. 90-CC-0629
StatusPublished
Cited by3 cases

This text of 605 So. 2d 736 (South Mississippi Finance Co. v. Mississippi State Tax Commission) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Mississippi Finance Co. v. Mississippi State Tax Commission, 605 So. 2d 736, 17 U.C.C. Rep. Serv. 2d (West) 766, 1992 Miss. LEXIS 317, 1992 WL 118490 (Mich. 1992).

Opinion

ROBERTSON, Justice,

for the Court:

I.

This case about an almost new Cadillac turns on principles as old as the law itself. Appellant finance company appears this day as innocent as the driven snow but cannot escape that its borrower’s “rights” were born of a felonious fraud. The Circuit Court ruled the original conditional seller holder of a first perfected security interest. We affirm.

II.

In the Summer of 1989, near the end of the model year, a 1989 Cadillac Brougham sedan automobile, VIN 1G6DW51Y4KR715396, sat on the sales lot of McConnell Cadillac, Inc., in Mobile, Alabama. The Cadillac had been previously owned by a fleet rental company in Florida, and McConnell had bought it at auction. Of importance, in May of that year, the State of Florida had issued a Certificate of Title to the Cadillac, and, on July 19, 1989, the Florida owner assigned the title to McConnell.

Enter Rhonda G. Ross of Rocky Creek Road in Lucedale, Mississippi. On August 10, 1989, McConnell agreed to sell the Cadillac to Ross, and the two entered into a written agreement to that effect. The [738]*738sales price was some $22,500.00. Ross paid $3500.00 down, $2000.00 in cash and the balance by check. Ross simultaneously executed a garden variety installment sales contract and security agreement, granting McConnell a purchase money security interest in the Cadillac to secure her making the $505.49 monthly payments, plus other conventional obligations. McConnell then sold the contract and security interest to Central Bank of the South, also of Mobile, with full right of recourse.

Incident to the sale, McConnell’s title clerk, Tammy Burgess, executed an Alabama Assignment Supplement and attached it to the original (and theretofore assigned to McConnell) Florida Certificate of Title, reflecting that McConnell had sold the vehicle to Ross and noting the Bank as first lienholder.1 At the same time, McConnell’s finance manager, Mike Cotner, executed an Odometer Disclosure Statement reflecting the Cadillac’s mileage as of the date of the sale to Ross. Because McConnell was not a designated title agent in Mississippi, title clerk Burgess then mailed the original Florida Certificate of Title with the assignment supplement and the customer’s copies of other sales documents to Ross in Lucedale, so that she could have a new Mississippi title issued. Ross’ signature appearing on the return receipt shows she received these papers on August 24, 1989.

As fate would have it, Ross’ $1500.00 down payment check bounced. To add insult to injury, Ross missed her September or October monthly payments to Central Bank. Becoming nervous, because it had received neither payment from Ross nor title certificate, Central Bank inquired of the Mississippi Motor Vehicle Comptroller and found that office had issued a new title certificate respecting the Cadillac, reflecting Gary Marcus Gunter as the owner and South Mississippi Finance Company as first lienholder.

We know not what happened in the days following August 24, but it seems on September 1, 1989, Gunter appeared at the Lucedale office of South Mississippi Finance and made application for a loan. He offered the Cadillac as collateral and produced the Florida Certificate of Title with the Alabama Assignment Supplement bearing the forged signature of McConnell title clerk Burgess and showing himself as owner. Gunter produced as well the McConnell-issued Odometer Disclosure Statement bearing the forged signature of McConnell’s finance manager, Cotner, also showing Gunter as the owner. South Mississippi Finance ran a routine credit check on Gunter, inspected the vehicle, but did not detect the forgeries, and on September 5, 1989, made Gunter a secured loan of $5000.00. Incident thereto, Gunter purported to grant South Mississippi Finance a security interest in the Cadillac. He delivered the Florida and Alabama title papers which, together with a Mississippi application, were forwarded to the Motor Vehicle Comptroller, who issued the new certificate here at issue.

Once all of this came to light, Central Bank of the South decided discretion was the better part of valor and exercised its right of recourse, demanding McConnell repurchase the contract. McConnell acquiesced and, effective November 10, 1989, reacquired Central Bank’s first lienholder position. McConnell then applied to the Mississippi Motor Vehicle Comptroller for revocation of the Certificate of Title issued Gunter and South Mississippi Finance on grounds it “was fraudulently procured or erroneously issued.” Miss.Code Ann. § 63-21-59(a) (1972). South Mississippi Finance objected and joined issue, but the Commissioner revoked the certificate and, [739]*739on January 19, 1990, the State Tax Commission’s Board of Review affirmed.

Thereafter, South Mississippi Finance sought review in the Circuit Court of George County, Mississippi, and demanded trial de novo. See Miss.Code Ann. § 63-21-61 (1972).2 The Circuit Court took evidence from both parties. Without contradiction, the proof established that the signature on the Alabama dealer assignment supplement purporting to show a transfer of title from McConnell to Gunter was a forgery of the signature of Tammy Burgess. Moreover, the Odometer Disclosure Statement Gunter furnished South Mississippi Finance was found to bear the forged signature of Mike Cotner. Nothing in the record reflected any conveyance by Ross to Gunter of any interest in the Cadillac, nor do we know who the forger was.

In this state of the matter, the Circuit Court found that the Certificate of Title South Mississippi Finance held

was fraudulently procured and erroneously issued upon the presentment of documents bearing the forged signatures of employees of Defendant McConnell Cadillac, Inc.

The Court then upheld the order revoking the certificate and ordered the Comptroller to issue a new Certificate of Title reflecting Rhonda G. Ross as the owner and McConnell Cadillac, Inc. as the first and only lienholder of record.

South Mississippi Finance now appeals to this Court.

III.

South Mississippi Finance argues that it is an innocent purchaser for value and, as such, its rights should prevail and the judgment below be reversed. Conceding that “the facts in this case are not disputed,” and that “the whole issue turns upon the application of ... [Mississippi law] to said undisputed facts,” Brief of Appellant, p. 1, South Mississippi Finance claims of and through Gary Marcus Gun-ter. When it does so, it encounters a rule as old as the hills and often enforced without regard to context, viz., no thief, forger or other felonious fraud has power to pass title to his ill-gotten goods. See, e.g., Morgan v. Morgan, 431 So.2d 1119, 1120 (Miss.1983); Craig v. Columbus Compress & Warehouse Co., 210 So.2d 645, 648 (Miss.1968); St. Paul Fire & Marine Ins. Co. v. Leflore Bank & Trust Co., 254 Miss. 598, 609-10, 181 So.2d 913, 918 (1966). We have more than once said this of stolen automobiles, Allstate Insurance Company v. Estes, 345 So.2d 265, 266 (Miss.1977); Gurley v. The Phoenix Insurance Co., 233 Miss. 58, 61, 101 So.2d 101, 102 (1958), viz.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Eisenberg v. Grand Bank for Savings
70 F. App'x 765 (Fifth Circuit, 2003)
Shutze v. Credithrift of America, Inc.
607 So. 2d 55 (Mississippi Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
605 So. 2d 736, 17 U.C.C. Rep. Serv. 2d (West) 766, 1992 Miss. LEXIS 317, 1992 WL 118490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-mississippi-finance-co-v-mississippi-state-tax-commission-miss-1992.