Summary
distinguishing Massey-Ferguson Credit Corp., supra, on its facts
Summary of this case from H. John Homan Co. v. Wilkes-BarreOpinion
Dissent of Justice Shea Jan. 3, 1985.
For Majority Opinion see, 210 Mont. 312, 682 P.2d 723.
HASWELL, Chief Justice, dissenting.
I fully concur in the dissent of Mr. Justice Morrison. However, since the majority have decided this appeal on the ground that the credit company is not liable to the consumer under the terms of the contract, I further dissent to that holding.
The contract contains the following provision in bold face print on the face of the contract:
"NOTICE--ANY HOLDER OF THIS CONSUMER CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER."
This provision clearly and unambiguously states that the holder of the contract (Ford Motor Credit Company) is subject to all claims and defenses which the debtor (Cuchine) could assert against the seller (H.O. Bell, Inc.). This provision for consumer protection is mandatory under Federal Trade Commission regulations. 16 C.F.R. Sec. 433.2 (1978). If Cuchine got a "lemon," he has a claim against H.O. Bell to which Ford Motor Credit Company is subject.
Alternatively, this consumer contract should be recognized for what it is--an adhesion contract. There is no real choice or bargaining on the terms of the contract. It is offered to the consumer on a take-it-or-leave-it basis and he must accede to the terms required by the finance company.
The FTC regulation is an attempt to protect the powerless consumer. Montana's version of the UCC provides a means for the Court to assist those purchasing goods for personal, family or household use:
"Unconscionable contract or clause. (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
"(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination."
Contrary to the majority opinion, I would hold the credit company liable to the consumer under the contract, both by its express terms or alternatively under non-enforceability of unconscionable terms if otherwise interpreted.
MORRISON, Justice, respectfully dissents as follows:
The majority opinion recognizes the "well established rule" that a party to a contract cannot relieve himself of obligations imposed by the contract by assigning the contract to a third person. However, the majority then goes on to determine whether, under the Uniform Commercial Code, the assignment of the contract to the credit company imposed full contract liability on the credit company as assignee. While it may appear that, pursuant to section 30-9-318, MCA, the assignee assumed full liability by operation of law, the issue is not before this Court.
At the trial court level Ford Motor Credit Company moved for summary judgment based upon its assignment of the contract to H.O. Bell. This issue was briefed. The trial court granted summary judgment based upon that re-assignment. Cuchine appealed. The only issue on appeal was whether the assignment by Ford Motor Credit Company to H.O. Bell effectively insulated Ford Motor Credit Company from liability. In respondent's brief mention is made of an interpretation of section 30-9-318, MCA, which would protect Ford Motor Credit Company from liability. Since this issue was not presented below it was not addressed by the appellant's brief. It was first raised on appeal in the respondent's brief. The issue is not properly before this Court and the majority opinion, in turning the case on this issue, has prevented appellant Timothy Cuchine from having his day in court.
I would hold that the re-assignment from Ford Motor Credit Company to H.O. Bell, Inc., did not relieve Ford Motor Credit Company from its liability. I would therefore reverse summary judgment in favor of Ford Motor Credit Company and remand for trial.
SHEA, Justice, dissenting:
I concur with the dissent of Mr. Justice Morrison. The majority has improperly decided this case on an issue not presented by this appeal. The issue of contractual liability assumed by H.O. Bell under the assigned contract was not presented at the trial court level, nor by the appellant's brief. Rather, the sole issue appealed was whether Ford Motor Credit Company could relieve itself of its contractual obligations, by assigning the contract to H.O. Bell. Instead of ruling on those legal issues properly presented to this Court, the majority has raised its own issue in order to justify the desired result.
I would hold that Ford Motor Credit Company could not relieve itself of its contractual obligations by assigning the contract to H.O. Bell. Accordingly, the summary judgment entered in favor of Ford Motor Credit Company should be reversed and the cause remanded for further proceedings.