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INDUSTRIAL VALLEY BANK AND TRUST CO. v. LIVINGSTON NASH (06/18/85)

submitted: June 18, 1985.

INDUSTRIAL VALLEY BANK AND TRUST CO.,
v.
LIVINGSTON NASH, AND HYALENE NASH. APPEAL OF LIVINGSTON NASH



Appeal from the Order entered by the Court of Common Pleas of Philadelphia, County, Civil Division, at No. 0628 January Term, 1983.

COUNSEL

Irv Ackelsberg, Philadelphia, for appellant.

Ivan Wille, Philadelphia, for appellee.

Montemuro, Popovich and Watkins, JJ.

Author: Montemuro

[ 349 Pa. Super. Page 28]

This is an appeal taken from an order of the Court of Common Pleas of Philadelphia County, denying defendant's-appellant's*fn1 (Livingston Nash) motion for summary judgment on his counterclaim and granting summary judgment in favor of the plaintiff-appellee, Industrial Valley Bank and Trust Company.

The facts are as follows: In 1978, Livingston and Hyalene Nash decided to trade in their 1975 Ford automobile for another car. Oak Lane Ford, Inc., apparently had the car they were looking for and on November 29, 1978, they purchased a used 1976 Chevrolet four door Caprice for the price of $4192.70.*fn2 At the same time, the Nashes executed a motor-vehicle installment sale contract in the total sum of $5575.32. The difference in the cash sale price and the installment contract price is represented by the net trade-in allowance on the Nashes' Ford;*fn3 the down payment of

[ 349 Pa. Super. Page 29]

$604.98; property damage insurance and life, accident and health insurance totaling $691.34; a one year extended service plan cost of $200.00 and finally the finance charge of $1184.98. The Nashes agreed to make 36 successive monthly payments of $154.87 each. The installment sale contract contained the Nashes' authorization to have judgment confessed against them in favor of the seller, Oak Lane Ford, Inc. or its assignors, in the event of their default under the terms of the contract. The installment sale contract was subsequently assigned to the plaintiff-appellee, Industrial Valley Bank and Trust Company.

The Nashes defaulted after having paid nineteen (19) installments for a total of $2942.53, or slightly in excess of 52% of the amount they owed. On January 19, 1979, plaintiff-appellee by confession of judgment on the installment sale contract entered judgment against defendant-appellant in the sum of $5575.72.

On October 17, 1980, plaintiff-appellee gave the defendant-appellant written notice concerning the repossession and future resale of the financed automobile. The vehicle was actually repossessed in October of 1980 and was subsequently sold at a public auction in December of 1980 for the price of $918.20. Because the notice which was sent to the defendant-appellant is critical to the disposition of this appeal, we shall set it forth in its entirety. The notice read:

10/17/80

Mr Livingston Nash

Mrs Hyalene Nash

5036 Wade St.

Phila. PA 19144

Re: 1-920-0831

Dear Mr and Mrs Nash,

You are hereby notified that the following described motor vehicle: 1976 Chevrolet, Serial # IN39V61156107 sold to you under Motor Vehicle Installment Sale dated, November 29, 1978, has been repossessed by or for us in exercise of our rights as holder of the said contract; and is now stored at Philadelphia County.

[ 349 Pa. Super. Page 30]

Unless you reclaim or redeem the vehicle by payment of the redemption price stated below before November 3, 1980 * * * we will have it sold or contract to sell it. An itemized statement of the total amount required to redeem the vehicle by payment of the contract in full, is as follows:

Unpaid Balance $2,632.79

Interest Rebate 149.97

Late Charges 7.05

Misc. Charges*fn* 12.00

Repossession Expenses 100.00

Amount required to redeem $2,589.87

Any personal belongings in vehicle must be claimed before sale of vehicle, or they will be donated to Goodwill or a similar charity.

Payment of the amount required and any notices which you desire to serve upon us should be sent to the Industrial Valley Bank and Trust Company, 412 Old York Road, Jenkintown, Pennsylvania, 19046, marked to the attention of the undersigned.

Very truly yours,

W.J. Gillespie

Collection Supervisor

On January 6, 1983, plaintiff-appellee filed an action in assumpsit alleging therein that following frequent demands, the defendant-appellant refused to pay all or any portion of the judgment which had been entered against defendant-appellant on January 19, 1979.

Defendant-appellant filed an answer together with new matter and a counterclaim. In the counterclaim, defendant-appellant sought to recover the statutory penalty imposed by the Uniform Commercial Code*fn4 for alleged irregularities in plaintiff's-appellee's repossession and resale of defendant's-appellant's automobile. Article 9, Uniform Commercial

[ 349 Pa. Super. Page 31]

Code-Secured Transactions, Act of November 1, 1979, P.L. 255, No. 86, § 1, effective January 1, 1980, 13 Pa.C.S. § 9507(a) [hereinafter the U.C.C.].

On April 2, 1983, plaintiff-appellee filed its reply to defendant's-appellant's new matter and counterclaim and asked the court to enter judgment in its favor in the amount of $1814.63.*fn5

Prior to a scheduled arbitration hearing, plaintiff-appellee voluntarily discontinued its suit. Thereafter, the case proceeded solely on defendant's-appellant's counterclaim. On September 22, 1983, the arbitration panel entered an award in favor of defendant-appellant in the amount of $1624.01.*fn6 From the award of arbitration, the plaintiff-appellee (I.V.B) appealed to the Court of Common Pleas.

Relying on the pleadings, defendant's-appellant's request for admission, and counsel's affidavit, defendant-appellant then moved, pursuant to Pa.R.C.P. 1035, for summary judgment on the counterclaim. Defendant-appellant also asserted ...


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