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D'Happart v. First Commonwealth Bank, 2022 PA Super 132, 2022 Pa. Super. LEXIS 328 (No. 580 WDA 2021 August 5, 2022) , Judge Bender affirmed the Court of Common Pleas finding against a consumer who challenged the application of the UCC's safe harbor to the notice required after his vehicle was repossessed. Appellants' second issue, they claim that FCB's "pre-sale… Read More

In In re Haw. Motorsports, No. 20-10006-BPH, 2020 Bankr. LEXIS 3428 (Bankr. D. Mont. Dec. 7, 2020), the Bankruptcy Court found that AHFC did not own the retailer’s collateral, but retained an unperfected security interest pursuant to a Wholesale Financing Agreement. In its Motion and accompanying Brief, Honda asserts that stay relief is appropriate because Debtor is in possession of inventory… Read More

In Sarrouf Law LLP v. First Republic Bank, 97 Mass. App. Ct. 467, 471-79 (2020), the Massachusetts Court of Appeals held that a law firm's negligence action against its bank arising out of the dishonor of funds the firm deposited in the bank due to the fraud of a client was properly dismissed because the bank had no duty to detect… Read More

In Breckenridge v. Nissan Motor Acceptance Corp., No. 18-10787, 2019 U.S. Dist. LEXIS 70049, at *11-12 (E.D. Mich. Apr. 25, 2019), Judge Hood granted summary judgment to an automobile finance company as to a debtor's claim that the passage of time from repossession to sale violated the UCC. Nissan states that Plaintiffs have not produced any evidence that the Altima… Read More

In Blair v. Rent-A-Center, Inc., No. C 17-02335 WHA, 2019 U.S. Dist. LEXIS 21988 (N.D. Cal. Feb. 11, 2019), Judge Alsup granted summary judgment to a merchandise lessor against a class action plaintiff’s claim that the contracts were disguised security agreements subject to usury.  The allegations were as follows: Defendants Rent-A-Center, Inc. and Rent-A-Center West, Inc. (collectively "RAC") maintained rent-to-own… Read More

In Gomez v. Mercedes-Benz USA, LLC, 2018 WL 987398, at *6–7 (Mich.App., 2018), the Michigan Court of Appeals found that continued use of a vehicle after revocation of acceptance of non-conforming goods renders the revocation ineffective. Generally, if the buyer rejects the goods he is in possession of, he “is under a duty after rejection to hold them with reasonable… Read More

In SunTrust Bank v. Monroe, 2018 WL 651198, at *14 (Tex.App.-Fort Worth, 2018), the Texas Court of Appeals affirmed a jury's finding that an auto finance company did not dispose of a repossessed vehicle in a commercially reasonable fashion. The jury here was instructed that every aspect of the disposition—method, manner, time, place, and other terms—had to be commercially reasonable, see Tex.… Read More

In Volvo Financial Services, Inc. v. Williamson, 2017 WL 4708136, at *3 (S.D.Miss., 2017), Judge Guirola held that the statute of limitations on a promissory note secured by a number of tractors did not accrue until all of the repossessed collateral was sold, due to a cross-collateralization clause in the note. The most reasonable interpretation of the statute when applied… Read More

In Gay v. Alliant Credit Union, 2017 WL 35704, at *4 (E.D.Mo., 2017), Judge Fleissig said that a creditor need not repossess a boat or bear liability once it sunk.  The debtor still owed the money. In Count II, Plaintiff alleges that Defendant violated the UCC, as codified by Missouri, Mo. Rev. Stat. § 400.9-609, by “promising that it would repossess the… Read More

In WM Capital Partners, LLC. v. Thornton, 2016 WL 7477738, at *3–6 (Tenn.Ct.App., 2016), the Tennessee Court of Appeals found that a secured party's delay in securing possession of the collateral -- which resulted in a lesser price realized at disposition -- was not a defense to the secured party's collection action because the UCC's commercially reasonable disposition requirement is… Read More

In Ford Motor Credit Company v. First National Bank of Crossett, 2016 WL 4916829, at *5–8 (Ark.App., 2016), the Arkansas Court of Appeal held that a RISC assignee's security interest was superior to that of a floorplan finance company's. FNBC acknowledges that a buyer in the ordinary course of business takes free of any underlying security interest created by the seller,… Read More

In Harley-Davidson Credit Corp. v. Galvin, 2015 WL 8121856, at *4-7 (1st Cir. 2015), the 1st Circuit Court of Appeals reversed summary judgment for an airplane finance company, finding that sale of the repossessed airplane through a dealer might not have been commercially reasonable. Under Nevada law, a creditor may demonstrate that a sale through a dealer was “commercially reasonable”… Read More

In Mahdavi v. NextGear Capital, Inc., 2015 WL 1526538 (E.D. Va. 2015), Judge Buchanan found that a triable issue of fact existed as to whether a floorplan lender’s security interest was superior to a buyer-in-the-ordinary-course’s interest. Courts have used a variety of factors to determine if someone is a buyer in the ordinary course of business including where the sale… Read More

In Harley-Davidson Credit Corp. v. Galvin, 2014 WL 4384632 (D.N.H. 2014), Judge McCafferty rejected the debtor's arguments that Harley-Davidson did not fetch enough money for the aircraft that it repossessed from the debtor, and found that the debtor owed the balance. At its core, Galvin's argument is that SAS did not receive as much as it should have for the Aircraft, and… Read More

In Gardner v. Ally Financial Inc., --- A.3d ----, 2013 WL 765013 (Md. 2013), the Maryland Court of Appeals held that a $1,000 admission fee transformed a ‘public’ sale into a ‘private’ sale – the latter of which required more detailed post-repossession disclosures and accounting than were provided to the consumer. The issue before us is limited to the $1,000… Read More

In Ford Motor Credit Co. LLC v. Harris, --- S.W.3d ----, 2012 WL 5464340 (Mo.App. S.D. 2012), the Missouri Court of Appeal affirmed a trial court’s finding that the sale of a vehicle at auto auction was commercially reasonable. The Court had some troubling language regarding the auto finance company’s ability to offer custodian-of-records testimony as to documents that it… Read More

In La Gar Marketing, Inc. v. W. Finance & Lease, Inc., 2012 WL 4898785 (Ohio App. 9 Dist. 2012), the Ohio Court of Appeal found in favor of a commercial lender as against a bona-fide consumer purchaser of a vehicle under Ohio law.  The Court of Appeal relied on precedent finding dealer’s floor plan lender’s security interest superior to a… Read More

In an unpublished decision involving a purportedly defective yacht, the California Court of Appeal held in Andersen v. Pacific Asian Enterprises, Inc., 2012 WL 130473 (Cal.App. 4 Dist. 2012) that the Song-Beverly Act does not afford loss-of-use damages in the absence of actual expenses expended to cover.  The facts were as follows.  In April 2003, Andersen entered into a contract… Read More

In Cappo Management V, Inc. v. Britt, --- S.E.2d ----, 2011 WL 2277386 (Va. 2011), the Supreme Court of Virginia addressed a spot delivery situation where the dealer was unable to secure financing for the consumer and, accordingly, repossessed the car.  The Court found the repossession proper under Article 9 of the UCC, explaining:   Applying this principle, we hold… Read More

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