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FIDELITY CONSUMER DISCOUNT COMPANY v. JUANITA R. CLARK (04/02/84)

submitted: April 2, 1984.

FIDELITY CONSUMER DISCOUNT COMPANY, APPELLANT,
v.
JUANITA R. CLARK, TRUSTEE FOR ANNE CLARK, REAL OWNER AND JUANITA CLARK, TRUSTEE AND JUANITA CLARK, INDIVIDUALLY, A/K/A JUANITA WHEELER, AND ROB R. WHEELER, MORTGAGOR, AND UNITED STATES OF AMERICA



No. 3244 Philadelphia, 1982, Appeal from the Order entered October 7, 1982, Court of Common Pleas, Philadelphia County, Civil Division at No. 3609 February Term, 1981.

COUNSEL

George Willner, King of Prussia, for appellant.

Neil Leibman, Philadelphia, for Clark, appellee.

Richard J. Stout, Philadelphia, for U.S., appellee.

Wieand, Johnson and Lipez, JJ.

Author: Johnson

[ 333 Pa. Super. Page 307]

On February 6, 1978 Appellees Juanita Clark and Rob Wheeler executed a mortgage on their property at 7422 Georgian Road, Philadelphia, Pa. and a security agreement in favor of Appellant, Fidelity Discount Company, obligating

[ 333 Pa. Super. Page 308]

    these Appellees to pay Appellant $6,552 in thirty-six monthly installments of $182.00 each. Under the terms of the security agreement, Appellant obtained a security interest in Appellee Wheeler's 1975 Ford LTD and his 1973 Plymouth Wagon.

Beginning in May 1980 Appellees Clark and Wheeler stopped making payments to Appellant. In October 1980 Appellant took possession of Appellee Wheeler's 1975 Ford LTD and notified him by letter dated October 30, 1980 that the vehicle could be redeemed by paying the entire balance on the loan on or before November 12, 1980. That letter went on to indicate "[f]ailure to do so will result in your automobile being sold at public or private sale." (R. at 27) Appellant received no response from Appellee Wheeler and the 1975 Ford LTD was sold on November 28, 1980 for $100.00.

In December 1980 Appellant took possession of Appellee Wheeler's 1973 Plymouth wagon and notified him by letter dated December 11, 1980 that the car could be redeemed on or before December 23, 1980. The body of the December 11th letter was identical to the earlier October 30th letter sent to Appellee Wheeler except for the identification of the automobile to be sold and the last date for redemption. (R. at 27a) Again Appellant received no response from its December 11, 1980 letter. The 1973 Plymouth Wagon was sold for $50.00 on January 14, 1981.

On February 20, 1981 Appellant filed Complaint in Mortgage Foreclosure against Appellees Clark and Wheeler seeking to foreclose on the mortgaged premises located at 7422 Georgian Road, Philadelphia, Pa.. The United States of America was also named as defendant because the Federal government had recorded a lien of $904.98 against the premises. Appellees Clark and Wheeler filed an Answer and Counterclaim in which they denied that ...


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