Southeast Recovery Services, LLC v. Northen

565 S.E.2d 861, 255 Ga. App. 516, 47 U.C.C. Rep. Serv. 2d (West) 1510, 2002 Fulton County D. Rep. 1576, 2002 Ga. App. LEXIS 673
CourtCourt of Appeals of Georgia
DecidedMay 23, 2002
DocketA02A0369
StatusPublished
Cited by5 cases

This text of 565 S.E.2d 861 (Southeast Recovery Services, LLC v. Northen) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southeast Recovery Services, LLC v. Northen, 565 S.E.2d 861, 255 Ga. App. 516, 47 U.C.C. Rep. Serv. 2d (West) 1510, 2002 Fulton County D. Rep. 1576, 2002 Ga. App. LEXIS 673 (Ga. Ct. App. 2002).

Opinion

Miller, Judge.

As the assignee of stock in B&N Company, Inc. (B&N), Southeast Recovery Services, LLC (SRS) sued Arthur A. Northen for a deficiency on the value of B&N stock pledged by Northen as collateral on a secured transaction. The trial court granted summary judgment to SRS on the issue of Northen’s liability in the amount of $1.7 million but denied SRS summary judgment on the issue of the value of the collateral sold at foreclosure. In this cross-appeal, SRS contends that the trial court erred in finding that a jury issue remains as to the commercial reasonableness of the foreclosure sale of the collateral.1 We agree and reverse.

The underlying litigation arose after Northen defaulted on contractual obligations incurred with Stephen E. Raville. In December [517]*5171995, Northen, as seller, and Raville, as purchaser, entered into a stock purchase and sale agreement. Raville paid Northen $1 million for 42.15 shares of common stock in B&N, a company begun by Northen in 1994 to sell computer software. Prior to this sale, Northen owned 750 shares of common stock in B&N. Contemporaneously with the purchase and sale agreement, Northen and Raville executed a pledge and assignment of collateral agreement and irrevocable proxy for an additional 42 shares of common stock of B&N. Paragraph 5.4 of Article V of the stock purchase and sale agreement obligated Northen to repurchase the 42 shares from Raville for $1 million in one year if Raville gave proper notice and demand. In the event of default, the pledge agreement authorized the secured party (Raville) the discretion to issue a demand upon Northen for full payment. The agreement further provided that in the event of default: “In furtherance of the Secured Party’s rights and remedies hereunder and not in limitation thereof, the Secured Party shall have full power and authority to sell, assign, transfer and deliver the whole of the Collateral, or any part thereof. . . .”

In November 1996, Raville notified Northen of his intent to invoke the repurchase provisions in Paragraph 5.4. Northen, however, claimed that he was unable to pay the repurchase price. As a result, in December 1996, Northen and Raville entered another agreement in which Northen pledged his remaining 665.85 shares of B&N as additional collateral and, in exchange, Raville agreed to extend the repurchase and payment obligations of Paragraph 5.4 until June 1, 1998, at which time Northen would be required to pay $1.7 million to Raville.

In October 1998, B&N filed for bankruptcy. In November 1998, after Northen had still failed to satisfy his obligation to pay $1.7 million, Raville notified Northen that his breach constituted an “event of default.” About six months later, on June 1,1999, Raville assigned all his rights, claims, and interest that he had against Northen to SRS, an entity in which Raville was a majority member. On June 4, 1999, SRS notified Northen by regular and certified mail of its intention to foreclose upon its security interests in the collateral and to sell the collateral at public auction under the terms of the Georgia Uniform Commercial Code. SRS informed Northen that in the event that it was unable to sell the collateral for the full amount due, SRS was reserving the right to pursue a deficiency claim against him. SRS advertised the public sale on June 7 and June 14, 1999, and on June 18, 1999, the B&N stock was offered for sale at public auction. Having received no bids, SRS purchased the collateral for $50,000. After the foreclosure sale, SRS sued Northen for the deficiency. SRS sought to collect $1.7 million plus interest, costs, and other expenses, less credit for the $50,000 obtained from the foreclosure sale.

[518]*518SRS moved for summary judgment, arguing that because the amount of $50,000 for the sale of the collateral was the result of a commercially reasonable sale, and because the undisputed evidence showed that Northen owed $1.7 million less a credit for $50,000, SRS was entitled to summary judgment to also include interest, attorney fees, and expenses of litigation.

Finding that Northen had, in fact, defaulted on his debt of $1.7 million now owed to SRS, the trial court granted only partial summary judgment to SRS. The trial court refused to grant judgment to SRS in that amount because it found “there exists a question of fact as to whether the disposition of the collateral was reasonable, considering the timing of the bankruptcy and the sale.” The court also noted that questions of fact remained regarding the value of the collateral since SRS paid $50,000 for collateral it declared “worthless.” The trial court ruled, “[therefore, the Plaintiff’s motion for summary judgment in connection with the value of the collateral, whether its disposition was commercially reasonable and whether the appropriate amount was offset against the $1,700,000.00 owed, is hereby DENIED.”

1. SRS contends that the trial court erred in finding summary judgment was precluded by a material question of fact as to whether the sale of the stock pledged by Northen and purchased by SRS was commercially reasonable within the meaning of the Georgia UCC. SRS asserts that the record contains no competent evidence to show that the value of the collateral was anything other than $50,000. We agree and reverse.

When Northen defaulted on his obligation, under the Georgia UCC, as a secured party, Raville was entitled to “sell, lease, or otherwise dispose of any or all of the collateral in its then condition.” Former OCGA § 11-9-504 (1). The stock purchase agreement authorized Raville to assign his rights to the collateral, which he did to SRS. Under the framework of the UCC, the “[s]ale or other disposition may be as a unit or in parcels and at any time and place or on any terms but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable.” Former OCGA § 11-9-504 (3). When a secured party either sells the collateral in the usual manner in any recognized market therefor or when he has otherwise sold the property in conformity with reasonable commercial practices among dealers in the type of property sold, the secured party has sold the collateral in a commercially reasonable manner. See former OCGA § 11-9-507 (2); Farmers Bank &c. v. Hubbard, 247 Ga. 431, 432 (276 SE2d 622) (1981).

It is undisputed that B&N was not a publicly traded stock. Raville testified that the B&N stock was essentially worthless at the time of foreclosure and that “$50,000.00 was considerably more than [519]*519the fair and reasonable value of the collateral.” As Northen himself acknowledged, the corporation filed for liquidation under Chapter 7.2 The corporation was in bankruptcy on June 18, 1999, the date of the public sale of the B&N stock.

At the motion hearing, counsel for SRS explained that the $50,000 figure was selected “as being something too high to be challenged as unreasonable.” But Northen pointed out that B&N’s bankruptcy case was still pending as of the day of the hearing, March 16, 2001.

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565 S.E.2d 861, 255 Ga. App. 516, 47 U.C.C. Rep. Serv. 2d (West) 1510, 2002 Fulton County D. Rep. 1576, 2002 Ga. App. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southeast-recovery-services-llc-v-northen-gactapp-2002.