Opinion
53576.
ARGUED MARCH 2, 1977.
DECIDED MARCH 11, 1977.
Action for damages. Richmond Superior Court. Before Judge Pierce.
Oliver K. Mixon, Claude L. Emerson, for appellant.
Jones, Cork, Miller Benton, Hubert C. Lovein, Jr., for appellees.
Since upon default in installment payments under a security transaction the secured lender has a right to repossess and after notice to sell the collateral in any commercially reasonable manner, an agent of the company committed no tort in either repossessing or selling the vehicle here involved, it being uncontested that the loan was in default and that notice was given. It was proper to enter summary judgment in favor of the resident defendant, an agent, and to dismiss the case against the nonresident lender for lack of venue.
ARGUED MARCH 2, 1977 — DECIDED MARCH 11, 1977.
Appellant Thurmond filed suit in Richmond County against Elliott Finance Co. of Augusta and its agent Rowland for damages for conversion of his automobile. The defendants moved for summary judgment. It appears without dispute that the finance company had lent the appellant money on the vehicle as collateral, that plaintiff was in default, that the vehicle was towed away by the defendants without notice but that he was notified of the intended sale, and that prior thereto there was a conversation between himself and Rowland in which an oral agreement was reached. The vehicle was sold at private sale for $124, and resold by the purchaser the next day for $1,195. Rowland was a resident of Richmond County; the company, which had no office or place of doing business there, was served by second original. It is also agreed that following repossession but before sale the plaintiff paid Rowland $150. He contends that this was on an agreement that he was to have 30 days to pay the balance; Rowland denied this and contended the sale took place only after plaintiff's failure to make a second payment in 14 days which he says was the extended time limit.
The court sustained Rowland's motion for summary judgment and, without passing on the merits of the finance company's defense in effect dismissed as to this defendant for improper venue.
The sole question raised by this appeal is whether a tort imputable to the finance company was committed by its agent so as to permit venue in Richmond County, the company being served by a second original process. Where collateral is repossessed after default Code § 109A-9-504 gives the secured party a right to dispose of it by public or private sale, but this must be done in a commercially reasonable manner in default of which under Code § 109A-9-507 the debtor is entitled to stated remedies including an action for damages. These rights are built into the fabric of the law and cannot be waived. Code § 109A-9-501 (3) (e). Nor does the Commercial Code itself block out additional remedies to which either party would otherwise be entitled. We have therefore limited our inquiry to determining whether there is a common law remedy for any act of misfeasance on the part of Rowland so as to render him personally liable, for if he is not, the company cannot be sued in Richmond County as a joint tortfeasor.
The company had a statutory and contractual right to repossess the vehicle upon the admitted default in monthly payments. Code § 109A-9-503. Therefore, such repossession by an agent of the lending company is not a conversion, even though without notice to the debtor. Thompson v. Ford Motor Credit Co., 324 F. Supp. 108. Nor is a private sale of a vehicle so appropriated a conversion even though its terms are not commercially reasonable as required by Code § 109A-9-504 (3). Rangel v. Bock Motor Co., 437 S.W.2d 329. The remedy is therefore the statutory action for damages against the company, and under the circumstances of this case the court had no jurisdiction of the corporate defendant.
Although the judgment actually entered in this case sustained the motion for summary judgment of the finance company, the trial judge's opinion makes it clear that he is in fact dismissing for lack of venue without passing on the merits of the case. See in this regard Granite Equipment Leasing Corp. v. Marine Development Corp., 139 Ga. App. 778 ( 230 S.E.2d 43); 4 Anderson, Uniform Commercial Code, 641, § 9-507:4; Alliance Discount Corp. v. Shaw, 171 A.2d 548. The burden of showing that the resale was commercially reasonable remains with the lender.
Judgment affirmed. Webb and Marshall, JJ., concur.