Opinion
C.A. No.: 98A-11-012-FSS
Submitted: February 10, 2000.
Decided: May 26, 2000.
Upon Appellee's Motion to Affirm the Court of Common Pleas- GRANTED
Mr. Joseph L. Clark, pro Se, 17 Carver Court, Coatesville, Pennsylvania, 19320.
Curtis J. Crowther, Esquire, White Williams, LLP, 824 N. Market Street, Suite 902, P.O. Box 709, Wilmington, Delaware, 19899. Attorney for Appellee.
ORDER
This is an appeal from a trial de novo in the Court of Common Pleas, which entered a civil judgment against Appellant. Appellant has appeared without counsel throughout the entire proceeding. This state of affairs has not made it easy for the courts. It has taken some effort to understand what has happened and what issues Appellant is raising.
Basically, Appellant bought a car and failed to make payments. Due to his default, the car was repossessed and eventually salvaged for $50. The litigation has concerned Appellee's efforts to obtain a deficiency judgment. In February 1996, Appellant purchased a 1989 automobile from Deals on Wheels Trucks, obtaining financing through D.O.W. Finance Corporation. The financing agreement provided for forty-three biweekly payments at an interest rate of 35%. Appellant only made two payments and the vehicle was repossessed on May 12, 1997.
I.
Although the history of this highly contentious case is long, the Court will recite it fully for the sake of illustration. Justice of the Peace Court No. 12 entered a default judgment against Appellant on April 25, 1997 due to his failure to appear for trial. On May 5, 1997, appellant filed a motion to vacate judgment. which the Court granted on May 21, 1997. Following a trial on July 2, 1997, the Court entered judgment against Appellant.
Appellant filed an appeal de novo with the Court of Common Pleas on July 14, 1997. Appellee then filed a complaint on appeal and an amended complaint on appeal with the Court of Common Pleas on August 1, 1997. Appellant filed an answer and counterclaim on August 26, 1997, in which Appellant demanded:
[J]udgement against Plaintiff below/Appellee for the sum of $3,500 plus Interest at the rate of 55% from MARCH 5, 1996. THE Immediate removel of all derogatory claims from all credit reporting agencies AND a letter for a time until all derogatory information is Removed, and ALL Attorney fees should an attorney enter an appearance.
Appellant, however, cited no factual basis for his demands.
Appellee replied to the counterclaim on September 16, 1997. The reply included affirmative defenses, a motion to strike and a motion to dismiss. During the very hostile discovery phase, Appellee filed a motion to compel discovery on January 13, 1998, followed the next day by a motion to dismiss or strike counterclaims. The Court granted both motions on January 30, 1998. On February 20, 1998, Appellant filed an Answer to the amended complaint.
Appellant filed a motion to compel production of documents on June 2, 1998, but did not notice it. Appellant then sent a letter dated July 10, 1998 to Appellee's attorney stating that:
TAKE NOTICE, both you and your client, D.O.W. Finance Corp., was served more than sufficient warnings of my impending legal actions against the both of you yet it went ignored. This letter served is during a priority "Bravo — 1. Joseph L. Clark in addition to all claims, demand full written apology from both attorney and client and expected within 10 consecutive days from date posted on this letter herein. At the close . . . of business day July 21, 1998, I will move all legal action against you to priority level Alpha — 1. This in part will include the posting to find and identify all previous victims of your clients'. Posting will take place in all media both local and national. MR Crowther how do you wish for me to engage?
On July 13, 1998, Appellant filed an Amendment to Appeal in which Appellant apparently made multiple requests for $90,000 and other damages.
On August 31, 1998, the Court, upon application by Appellee, entered a non-suit dismissal against Appellant due to Appellant's failure to appear for trial. Later that day, Appellant filed a motion to reopen the case, blaming his failure to appear on unforeseen traffic problems, his "not knowing how to get to Court House," parking problems, security checks, and being momentarily delayed by having to ascertain in which courtroom his case would be heard.
On September 1, 1998, Appellee filed a response in opposition to Appellant's "Motion to Vacate Non-Suit Judgment." Appellee noted that Appellant appeared for three prior proceedings, including two at the same time of day as the trial. In addition, Appellee noted that on a previous occasion, Appellant called the Court from his cellular phone when he was going to be late, and on this occasion Appellant did not.
The Court of Common Pleas granted Appellant's motion on September 3, 1998, noting:
A review of the Court file indicates that Mr. Clark also had a default judgment entered in the Justice of the Peace Court for his failure to appear. Given this record, [Appellee's] legal and factual argument has merit. However, given this matter is Mr. Clark's day in court, this Court shall lift the non-suit and allow this case to proceed on the merits.
The Court of Common Pleas held the trial de novo on October 22, 1998. As mentioned, judgment was entered again on behalf of Appellee.
On November 19, 1998, Appellant filed his initial complaint for citation on appeal to this Court. Appellant filed his brief on October 12, 1999, which notably asked for $1 million from Appellee. Appellee filed a motion to strike Appellant's opening brief on October 14, 1999. The grounds cited were Appellant's failure to comply with Superior Court Rule 107, Appellant's request for affirmative relief and that the brief was "not presented in such a manner as to permit a meaningful review, examination and/or response." The Court granted Appellee's motion on November 12, 1999, but granted Appellant thirty days in which to file another brief. Specifically, the Court instructed Appellant that his "brief must state in simple informative sentences precisely what errors were made by the Court of Common Pleas and the authorities, if any, on which Mr. Clark relies." Appellant filed another brief on January 18, 2000. Appellee filed a motion to affirm on January 24, 2000. On February 2, 2000, Appellant filed a "Motion to Reverse and in Opposition to Affirm." Appellant's final pleading is not contemplated by the Court's rules. But consistent with the way that all the courts have treated this pro-se litigant's homemade pleadings and his other procedural defaults and failures, including his failure to appear in court for trial — twice, the Court has considered Appellant's last pleading.
Super. Ct. Civ. R. 107(d): Contents. All briefs shall contain the following matter arranged in the following order:
(1) A table of contents or index.
(2) A table of citations arranged alphabetically and indicating the pages of the brief on which each cited authority appears.
(3) In the first brief of each party, a statement of the case, including a statement of the nature of the proceedings and a concise chronological statement, in narrative form, of all relevant facts with page references to the transcript of testimony, if any, and to any pleadings and exhibits.
(4) A statement of the questions involved.
(5) Argument, divided into sections under appropriate headings, one section to be devoted to each of the questions involved.
II.
Although Appellant's second brief is a great improvement over the first, it still is extremely difficult to understand. The Court will address Appellant's contentions as best it can decipher them.
Appellant appears to argue that the financing agreement violated 6 Del. C. § 2407 and 2408 because no "notice of cancellation" appeared above buyer's signature. Nor were any detachable "notice of cancellation[s]" given. Appellant also contends that the absence of a "notice of cancellation" provision in the contract violated 6 Del. C. § 504 (3). Additionally, Appellant argues that Appellee's postrepossession letters to Appellant violated the reasonable notification provision of 6 Del. C. § 9-504 (3). Appellant cites to the letters from Appellee concerning the repossession and sale of the vehicle, the transcript and Stigars v. Mellon Bank to support the argument that no reasonable notification was provided. Appellant seems to argue that the salvage documentation violated 6 Del. C. § 2403 (4), 2512, 9-504 and 9-507. Despite the fact that this is an appeal on the record, Appellant now attempts to enter "new evidence," namely a certified copy of a title search for the vehicle, in support of Appellant's allegations that Appellee, which is subject to all good claims and defenses against the dealer, violated 6 Del. C. § 9-504, 9-507(1) and 2403(4), by not transferring the title of the vehicle to him.
Del. Super., C.A. No. 96A-02-OO9JA, Gebelein, J. (Feb. 3, 1998) (Order and Op.)
Super. Ct. Civ. R. 72. See also 10 Del. C. § 1326.
III.
Appellee's motion to affirm argues that on the face of Appellant's brief, the appeal is without merit. The issue on appeal clearly is controlled by settled Delaware law. The issue on appeal is factual and clearly there is sufficient evidence to support the findings of fact below. And the issue is one of judicial discretion and clearly there was no abuse of discretion. Furthermore, Appellee argues that Appellant did not raise 6 Del. C. § 2407 and 2408 before the Court of Common Pleas and therefore Appellant may not raise those issues on appeal. Appellee also argues that the contract at issue is for financing a motor vehicle sale subject to Chapter 29 of Title 5 of the Delaware Code, not Chapter 24 of Title 6, which applies to credit service organizations and therefore is inapplicable to this transaction. Furthermore, Appellee notes that Chapter 29 of Title 5, which addresses the financing of the sale of an automobile, does not require a notice of cancellation.
Concerning Appellant's argument that Appellee violated 6 Del. C. § 9-504 in connection with reasonable notification of the vehicle's sale, Appellee notes that Appellant also never raised 6 Del. C. § 9-504 before the Court of Common Pleas and he may not raise the issue for the first time on appeal. Additionally, Appellee contends that Appellant's position is contrary to established law because Appellee's July 31, 1997 letter states that "D.O.W. Finance Corp. intends to sell the vehicle at a private sale after August 14, 1997," thereby providing notice "of the time after which a private sale or other intended disposition is to be made" in accordance with 6 Del. C. § 9-504 (3). Furthermore, Appellee argues the sale complied with 6 Del. C. § 9-504 (3).
Stigars v. Mellon Bank is argued to be inapplicable because Stigars concerned conversion of title to the finance company before the sale. As to Appellant's argument about the salvage receipt, Appellee's statutory support is "simply inapplicable or manifestly without merit" because Chapter 24 of Title 6 does not apply to the transaction.
Del. Super., C.A. No. 96A-02-OO9JA, Gebelein, J. (Feb. 3, 1998) (Order and Op.)
IV.
Appellant's "Motion to Reverse and in Opposition to Affirm" insists that Appellee is a credit service organization according to 6 Del. C. § 2402. Appellant argues:
The motion is out of order. There is no such thing as a Motion to Reverse and there is no reply to a Motion to Affirm.
However, arguments of "notice of cancellation are open to interpretation, however the main concern is that Appellee states in answer to brief that Appellant is "without" merit" and at the same time fail to answer the major questions at hand. Was the security interest contract perfect, and the wrong weight accorded to the evidence?
Appellant argues that the financing agreement violated "numerous" Delaware laws but cites only 6 Del. C. § 9-103(2) and 21 Del. C. § 2510(a) and (c). As to 6 Del. C. § 9-103(2), Appellant contends that a certificate of title was required to perfect the security interest:
Contract of record in nonperfect and invalid in accord with both 6 Del. C. § 9-103(2) and 21 Del. C. § 2510(a) and (c) the "endorsement and delivery of certificate of title upon transfer[.]
Appellant cites to the transcript to demonstrate that the dealer never transferred title to him.
Appellant insists that Appellee failed to address his contentions regarding reasonable notice because the June 10, 1997 and July 31, 1997 letters are "faulty." Specifically, Appellant argues that the June 10 letter does not meet the requirements of 6 Del. C. § 9-504 as to method, manner, time, place and terms because it states "[i]f I do not receive payment by May 20, 1997. . . ." Appellant further contends that:
[I]in agreement with 6 Del code 9-103(2) "Certificate of title for "perfection of security interest contract is also required to insure "reasonable notice" in accord with 6 Del Code 9-504(3).
As to the July 31 letter, Appellant argues that it also fails to meet the requirements of 6 Del. C. § 9-504 (3). Again, Appellant cites the certificate of title language in 6 Del. C. § 9-504 to support Appellant's argument of lack of reasonable notice.
Appellant further contends in his sui generis reply that the vehicle was salvaged for junk, and that under 21 Del. C. § 2512 this was the second time within the same security interest transaction that a new certificate of title was required. Again, Appellant argues that Appellee neglected its duty to maintain the records required by 21 Del. C. § 2512 (e), so therefore no reasonable notice was provided.
Appellant makes several requests for affirmative relief in his reply. In addition to reversal of the Court of Common Pleas' judgment, Appellant seeks the return of "all purchase money security interest" given Appellee pursuant to 6 Del. C. § 9-107; damages against Appellee for violation of 6 Del. C. § 2402; damages pursuant to 6 Del. C. § 9-507; "[i]n accord with 6 Del. C. § 2532 (11) (12) and at Superior Court Board discretion the award of 6 Del. C. § 2533"; the removal of negative information on Appellant's credit report pursuant to 15 U.S.C. § 1681o (a)(1)-(2) and at the Court's discretion an award pursuant to 15 U.S.C. § 1681o an award pursuant to 15 U.S.C. § 1681n (a)la of $1000, and finally attorney's fees.
In Appellee's "answer" states "Appellant is without merit". As a matter of right, and at Superior Court Board discretion the award of reasonable Attorney Fee's and Court cost for the little merit Appellant do have.
V.
The Court notes that most of Appellant's contentions were not raised before the Court of Common Pleas. In fact, only one of the arguments in Appellant's opening brief was even mentioned in the court-below, and that was in passing and in general terms. This case has reached the point where it is too late to raise new issues. This appeal is on the record made in the court-below. Appellant's failure to raise an issue at trial precludes Appellant from raising the issue on appeal. Likewise, even when a reply is permitted, Appellant may only use a reply to respond to arguments made in Appellee's opposing brief. Nevertheless, the Court will address all of Appellant's arguments, as if Appellant had made them properly and in a timely way.VI.
As to Appellant's contentions that the financing contract with Appellee violated 6 Del. C. § 2407 and 2408. Appellant's contentions are misplaced because Appellee is not a credit services organization and therefore is not subject to Chapter 24 of Title 6. Six Del. C. § 2402(a) defines a credit services organization as:
[A] person who, with the respect to the extension of credit by others and in return for the payment of money or other valuable consideration, provides, or represents that the person can or will provide, any of the following services: (1) Improving a buyer's credit record, history or rating; (2) Obtaining an extension of credit for a buyer; or (3) Providing advice or assistance to a buyer with regard to paragraph (1) or (2) of this subsection.
Appellee does not fit the definition because Appellee does not obtain extensions of credit by others for consideration. Because Appellee is not a credit services organization governed by Chapter 24 of Title 6, no cancellation notice was required. Chapter 29 of Title 5, entitled "Financing the Sale of Motor Vehicles" does govern the transaction. Five Del. C. § 2906. which addresses the requirements and prohibitions of retail installment contracts in the sale of motor vehicles, does not require a notice of cancellation.
As to Appellant's contention with regard to 6 Del. C. § 504 (3), there is no such section of the Delaware Code. So the Court assumes that Appellant meant 6 Del. C. § 9-504 (3), which does not mention notice of cancellation. Concerning Appellant's contention that Appellee violated 6 Del. C. § 9-504 by failing to provide reasonable notification to Appellant, the Court does not see how Appellee's letters failed to provide reasonable notice. Although the issue of notification was addressed very generally at trial, Appellant did not cite any statute or facts to support his argument. The June 10 letter informed Appellant that:
• the vehicle had been repossessed due to delinquent payments;
• the date of the repossession; an itemized list of charges necessary to redeem the vehicle; the date, although with an error, of the time after which an auction would be scheduled;
• that the proceeds from the sale would be applied to his account and a court action would be filed in the event of a deficiency;
• that Appellant had fourteen days to remove any personal belongings from the vehicle,
• and that he would be notified of the time and place of the sale.
Appellant emphasizes a typographical error in the letter, where Appellee states that if payment were not received by May 20, 1997, then the vehicle would be sold. Had Appellant been confused by the May 20 date, however, Appellant could have written D.O.W. or even picked up the phone to inquire. Appellant's argument is disingenuous at best because Appellant never picked up the June 10 letter from the post office. Under circumstances not present in this case, an error concerning the date might be crucial. Here, the mistake could not have made a meaningful difference.
As to the July 31 letter, it stated that "D.O.W. Finance Corp. intends to sell the vehicle at a private sale after August 14, 1997," but that Appellant could redeem the vehicle prior to the sale. Like the June 10 letter, the July 31 letter provided contact information had anything been unclear. The notice requirement under Delaware law is to send a notice "of the time after which a private sale or disposition is to be made. . . ." The Supreme Court has addressed the issue, holding that:
The purpose of the requirement of "reasonable notification" is threefold: (1) it gives the debtor the opportunity to exercise his redemption rights under s9-506; (2) it affords the debtor an opportunity to seek out buyers for the collateral; and (3) it allows the debtor to oversee every aspect of the disposition, thus maximizing the probability that a fair sale price will be obtained. Any aspect of the notice that is contrary to these purposes necessarily prevents it from being "reasonable notification."Wilmington Trust further holds that notice which frustrates any of these purposes is void, not that the creditor must necessarily invite the debtor to find another buyer or become involved in the disposition process. This borrower had reasonable notice.
Wilmington Trust Co. V. Conner, Del. Supr. 415 A.2d 773, 776 (1980) (citations omitted).
See id.
Concerning Appellant's arguments that lack of a certificate of title constitutes a lack of reasonable notice, Appellant's arguments also are misplaced. Although the record is unclear about whether the car was registered to Appellant, registration is not important. In the Court of Common Pleas, Appellant argued that the dealer's failure to transfer title invalidated the contract. The Court of Common Pleas correctly ruled that the contract on its face should stand. Although the Court does not know exactly what happened regarding the transfer of title, Appellant has produced no evidence that the sale involved fraud or that the dealer did not fulfill its contractual obligations. Even had the security interest not been perfected, perfection is beside the point because an unperfected security interest is valid against the debtor.
As to Appellant's contention that the vehicle's salvage violated 21 Del. C. § 2512, this contention is without merit. There is not enough information before the Court to determine if a violation occurred. The statute, however, applies to salvage dealers and Appellee is not a salvage dealer. Furthermore, the statute is not a consumer protection law.
Appellant's counterclaims in Appellant's "Motion to Reverse and in Opposition to Affirm" were not raised properly. Because Appellant failed to bring counterclaims before the Justice of the Peace Court, Appellant could not bring counterclaims before the Court of Common Pleas. In fact, the Court of Common Pleas granted an order striking Appellant's counterclaims. Even had the Court of Common Pleas permitted the counterclaims, the counterclaims would not be before this Court properly because Appellant did not raise them until his "reply" brief.
Gaster v. Belak, Del. Super., 318 A.2d 628 (1974).
See Jeffrey v. Seven Seventeen Corp., Del. Supr., 461 A.2d 1009 (1983).
The Court, however, will examine Appellant's counterclaims. Appellant seeks return of his purchase money security interest in accordance with 6 Del, C. § 9-107. That law merely defines a purchase money security interest and provides no basis for recovery. As to Appellant's request for relief for the alleged violation of 6 Del. C. § 2402 and 2403, the Court reiterates that Appellee is not a credit services organization and therefore is not subject to Chapter 24 of Title 6. As to Appellant's claim for damages under 6 Del. C. § 9-507 for failure to comply with 6 Del. C. § 9-504 (3), the Court agrees that Appellee provided reasonable notice so damages can not be awarded. As to the claims under Chapter 25 of Title 6, the Court can not see how any errors in the salvage documents constitute a deceptive trade practice, and Appellant has produced no explanation as to how they could.
Appellant's demand that the judgment against him be removed from his credit report in accordance with 15 U.S.C. § 168 lo(a)(1)-(2) is misguided because no inaccurate information was reported to a credit agency. A valid judgment can not constitute inaccurate information on a credit report, even if the person feels the Court's decision was wrong. In addition, Appellant contends that Appellee is liable for damages under 15 U.S.C. § 1681n because Appellee's attorney failed to "provide notice of dispute" to the credit reporting agency. Fifteen U.S.C. § 1681s-2(3) provides that:
If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.
There is no dispute concerning whether the recordation of the judgment in Appellant's credit report accurately and completely revealed that a valid judgment had been entered against Appellant.
Concerning Appellant's request for attorney fees, even if Appellant were the prevailing party, which he is not, the Court would not award attorney fees. Delaware follows the American rule, under which parties pay their own attorney fees regardless of the outcome of the case. Further more, there is no Delaware precedent for granting a pro se litigant attorney's fees. With his many last minute claims, Appellant's position begins to verge on the frivolous.
Stephenson v. Capano, Del. Supr., 462 A.2d 1069 (1983).
VII.
Appellant has litigated this case vigorously. The courts have taken Appellant's contentions seriously keeping in mind the troublesome truth that this case involves a loan for an old, very used car at 35% interest.
At bottom, it appears that Appellant borrowed money to buy a car. He failed to repay the loan and the car was repossessed after it was discovered in a parking lot much later. At trial it appeared that the car was a jalopy. But instead of returning it to the dealer promptly as he claimed, Appellant used the car until he abandoned it. While the law creates procedural rules as safeguards for borrowers, the truth remains that car loans must be repaid or, sooner or later, the borrowers' cars will be repossessed and in some cases a deficiency judgment will be obtained.
For the foregoing reasons, the October 22, 1998 decision of the Court of Common Pleas is AFFIRMED.