Shell v. Tidewater Finance Co. ( 2012 )

DOYLE, Presiding Judge.

Patricia Shell appeals from the grant of summary judgment to Tidewater Finance Company d/b/a Tidewater Motor Credit (“Tidewater”), in Tidewater’s suit against her on a retail installment contract to collect a deficiency from the sale of Shell’s repossessed vehicle. Shell contends that the trial court erred because a genuine issue of material fact remains as to whether Tidewater met its obligation to provide notice required by OCGA § 10-1-36 (a). Because the record contains a factual dispute as to that question, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.¹

So viewed, the record shows that in 2008, Shell executed a retail installment contract financing the purchase of a 2006 Chevrolet Trailblazer, and the contract was assigned to Tidewater.² After Shell defaulted on her payment obligation, Tidewater repossessed the vehicle in September 2010 and sent via certified mail a notice to Shell informing her of the repossession and her right to redeem the vehicle. The vehicle, which was in damaged condition, was sold at auction for $2,500.

After the auction, Tidewater filed a complaint against Shell to recover the outstanding principal and interest remaining after applying the $2,500 received at auction. Shell answered and denied liability. Tidewater moved for summary judgment, supporting its motion with a Tidewater employee’s affidavit attesting to the amount of debt, repossession, notice to Shell, and auction. Shell opposed the motion and filed an affidavit supporting her response. The trial court granted the motion, and Shell now appeals.

Shell contends that the trial court erred because the record contains issues of fact as to whether Tidewater sent her notice to the correct address as required by OCGA § 10-1-36 (a). That subsection provides as follows, in relevant part:

When any motor vehicle has been repossessed after default . . . , the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer. . . .³

Here, the record shows that Tidewater sent its notice by certified mail to 611 Preston Park Drive, in Duluth, Georgia. Tidewater’s supporting affidavit states that this address was designated by Shell after she signed the contract.⁴ The affidavit points to no record of this designation, and if this was the sole evidence in the record of Shell’s address, it would be sufficient to support summary judgment. But Shell’s affidavit, duly notarized and filed in the trial court, states that she did not designate the Preston Park address as her address, and her actual address was on White Grass Way in Grayson, Georgia. Despite the apparent self-serving nature of the affidavit, “[w]hether that testimony is credible is not an issue that the trial court can determine on summary judgment.”⁵ On summary judgment,

[t]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. In summary judgment proceedings, the court is not in a position to weigh the evidence or determine its credibility. Where the facts alleged in the record create a conflict in the evidence, summary judgment is precluded.⁶

In light of the conflict in the record as to whether Tidewater complied with the requirement under OCGA § 10-1-36 (a) to mail a notice to Shell’s designated address (or the address in the contract), the trial court erred by granting summary judgment to Tidewater.⁷

Judgment reversed.

Andrews and Boggs, JJ., concur and concur specially.

1 Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

2 On appeal, Shell contends that issues of fact remain as to the identity of assignee, because the assignment was to Tidewater Motor Credit. Nevertheless, the undisputed record shows that Tidewater Motor Credit was the “d/b/a” name of Tidewater Finance Company. Thus, this argument is without merit. Cf. Wilson Marine Sales &c. v. Fireman’s Fund Ins. Co., 133 Ga.App. 220, 222 (1) (211 SE2d 145) (1974) (contemplating that “d/b/a” entity could be considered a real party in interest).

3 (Emphasis supplied.) OCGA § 10-1-36 (a).

4 The address listed for Shell in the contract was on Florence Street in Detroit, Michigan.

5 Crossing Park Properties v. Archer Capital Fund, 311 Ga.App. 177, 183(2)(715SE2d444) (2011). See Peach Blossom Dev. Co. v. Lowe Elec. Supply Co., 300 Ga.App. 268, 271 (684 SE2d 398) (2009) (trial court cannot discount affidavit merely because it is self-serving).

6 (Citations and punctuation omitted.) First Nat. Bank of Gainesville v. Loggins, 207 Ga. App. 814, 816-817 (429 SE2d 278) (1993).

7 See Brack Rowe Chevrolet Co. v. Walls, 201 Ga. App. 822, 824 (2) (412 SE2d 603) (1991) (directed verdict was not appropriate in light of factual issues as to notice because compliance with the notice provisions of OCGA § 10-1-36 is mandatory for recovery).