First American National Bank v. Alexander & Betty Smith

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
_______________________________________________________ FILED
) March 12, 1998
FIRST AMERICAN NATIONAL ) Madison County Chancery Court
BANK, ) No. 48389 Cecil Crowson, Jr.
) Appellate C ourt Clerk
Plaintiff/Appellee. ) HON. JOE C. MORRIS,
) CHANCELLOR
VS. )
) C.A. No. 02A01-9710-CH-00273
)
ALEXANDER SMITH and ) AFFIRMED AND REMANDED
BETTY K. SMITH, )
) OPINION FILED:
Defendants/Appellants. )
)
Marcus M. Reaves, Jackson, Tennessee, for Defendants/Appellants.
James Belew Webb, Milan, Tennessee, for Plaintiff/Appellee.
______________________________________________________________________________
MEMORANDUM OPINION1
______________________________________________________________________________
FARMER, J.
Alexander Smith and Betty K. Smith appeal from a judgment entered against them
in favor of First American National Bank (Bank). The Bank sued to recover the deficiency owed
on a note executed by Mr. and Mrs. Smith after sale of the collateral, a 1990 Chevrolet van, and for
interest and attorney’s fees as provided in the note. The Smiths filed a counterclaim alleging that
the Bank breached its agreement to allow them to refinance and for the value of items of personal
property and contracts which were in the van at the time it was repossessed and resulting loss of
business due to loss of the contracts. The chancellor denied recovery on the counter complaint.
It is undisputed that Alexander Smith and Betty K. Smith entered into a retail
installment sale contract and security agreement with Casey Chevrolet, Inc. which was assigned to
Bank. The indebtedness was in the amount of $28,729.06 bearing interest at the rate of fourteen and
1
Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The court, with
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.
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one-half percent (14.5%) payable in sixty months at $675.94 per month beginning May 17, 1990.
It is further undisputed that Alexander Smith filed a petition in bankruptcy and
thereafter entered into a Reaffirmation Agreement whereby he was to pay the Bank the sum of
$23,827.05 at the rate of twelve and one-half percent (12.5%) payable at $536.18 per month
beginning June 20, 1991. On February 24, 1993, Bank assigned to United Auto Recovery to
repossess the collateral and it was repossessed on March 1, 1993.
The issues as presented by Appellants are as follows:
1. Appellee is not entitled to judgment against Appellants for
breach of retail installment contract and security agreement.
2. Appellants are entitled to judgment against Appellee for
damages caused by negligence in bailee-bailor relationship.
This matter was tried before the chancellor. As no findings of fact were made other
than the rendering of the judgment, our review of this matter is de novo upon the record of the trial
court.
James Nathan Buckley2 testified that, following Mr. Smith’s execution of the
Reaffirmation Agreement, Mr. Smith made three payments, one each in July, August and September
of 1991. Mr. Smith had a discussion with Mr. Buckley, in December, 1991 at which point he told
Mr. Smith that the only way he could keep the van was to catch the payments up to date. No other
payments were received.
Eugene Douglas, Assistant Vice President with First American, testified that he is
with the service center in Nashville and his responsibility at all times here pertinent was
repossessions. When a borrower files bankruptcy, the bank transfers the files to the recovery
2
He is identified as Nathan Duncan in the transcript, Nathan Buckley in the statement of
the evidence and signed the Reaffirmation Agreement for the Bank as James Nathan Buckley.
Therefore we will refer to him by the latter.
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department. He testified that there was a default on the loan after the bankruptcy and the Bank
approved repossession. On February 24, it was assigned to United Auto Recovery in Memphis to
repossess the collateral. It was repossessed on March 1, 1993 and on March 3, 1993 a notice of
private repossession of sale3 was sent to the defendants. The notice of private repossession was
mailed to Alexander Smith and Betty K. Smith, 70 Flint Drive, Jackson, Tennessee, advising them
that the vehicle would begin to be offered for sale after March 13, 1993 and any personal property
could be reclaimed by calling him at the number set forth in the notice. A certified receipt bears the
signature of B. Smith.
He further testified that the sale was conducted in a commercially reasonable manner
and the proceeds were applied to the debt. He testified that the balance owed including principal and
interest through the date of the trial was $23,528.97 and that the per diem interest was $4.75.
$11,000 was realized from the sale of the van.
He testified on cross-examination that the file was turned over to him on February
23, 1993. He identified an inventory of personal property which he received from United Auto
Recovery as follows:
1 gold ring 1 gold bridge - in safe
Avon - After shave - deodorant
Bible - Cap - Shades
VCR - Tapes - Cass. Tapes
Bag with Paper - Note pad
Booster Cable - funnel
T.V. in Van
Vac. In Van
Head phone in Van
Cass. deck in back of Van & speaker
Gerald Andreoni testified that in February of 1993 he was employed by United Auto
Recovery. He prepared the personal property inventory. The gold ring and gold bridge were placed
3
The notice of private repossession sale states that “any personal belongings not part of
the collateral may be reclaimed within ten days. For any needs or information regarding this
collateral or the sale, contact Eugene Douglas at First American National Bank, Nashville, TN.
Phone (615) 781-7341.”
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in the safe. The last four items on the list were built into the van and stayed with the van. The
personal property is boxed and put into a locked room where it is kept for 6 months. At the end of
6 months if no one claims it, it is given to a charitable institution or disposed of. An employee
named Chris and possibly one other individual did the actual repossession.
Alexander Smith testified that, after reaffirming the debt, he made three payments but
“was not allowed to make any others.” He testified that at the time the van was repossessed it
contained a taped commercial for his business which would cost $5,000 to replace, work clothing
valued at $200, telephone antenna $60, black leather jacket $200, Bible $60, 7 VHS tapes valued at
$250 each and a brief case valued at $75. He testified that the van also contained the originals and
only copies of bids he had made on contracts for work.
Betty K. Smith testified that after the van was repossessed they received a certified
letter from First American Bank stating that the van was in its possession. She also testified as to
the items which were left in the van at the time of repossession. She was unsure of the value of the
items. Neither Mr. or Mrs. Smith testified as to any efforts they made to obtain the personal property
in the van at the time of repossession.
Upon reviewing the record in this cause, we have determined that the evidence
supports the judgment of the trial court that Bank was entitled to recover against the Defendants.
As to the second issue, a bailment is a delivery of personalty for a particular purpose
or on mere deposit, on a contract expressed or implied, that after the purpose has been fulfilled, it
shall be re-delivered to the person who delivered it or otherwise dealt with according to his direction
or kept until he reclaims it. Merritt v. Nationwide Warehouse Co., 605 S.W.2d 250, 252 (Tenn.
App. 1980); Rhodes v. Pioneer Parking Lot, Inc., 501 S.W.2d 569 (Tenn. 1973); Jernigan v. Ham,
691 S.W.2d 553, 556 (Tenn. App. 1984). We do not agree with the appellants that the situation
presented here constitutes a bailment. The judgment of the trial court is affirmed and the costs of
this appeal are taxed to the appellants, Alexander Smith and Betty K. Smith and their surety, for
which execution may issue if necessary.
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____________________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)
______________________________
LILLARD, J. (Concurs)
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