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RUSSELL NATIONAL BANK v. FLOYD E. SMITH (04/06/89)

filed: April 6, 1989.

THE RUSSELL NATIONAL BANK, APPELLANT,
v.
FLOYD E. SMITH, D/B/A L. SMITH & SON V. ROBERT E. WOLFLEY, TONY WOLFLEY, ROBERT E. MOORE AND AUDREY M. MOORE (TWO CASES)



Appeal from the Order Entered August 31, 1987 In the Court of Common Pleas of Mifflin County, Civil, No. 1411 of 1985. Appeal from the Judgment Entered October 19, 1987 in the Court of Common Pleas of Mifflin County, Civil, No. 1411 of 1985.

COUNSEL

Peter J. O'Donnell, Lewistown, for appellant (at 617 and 652).

James N. Bryant, State College, for Smith, appellee (at 617 and 652).

Cirillo, President Judge, and Wieand and Del Sole, JJ.

Author: Cirillo

[ 383 Pa. Super. Page 267]

This is an appeal from a judgment of the Court of Common Pleas of Mifflin County. We reverse and remand.

On April 21, 1982, Robert and Tony Wolfley entered into an installment sales contract with the appellee, Floyd Smith, d/b/a L. Smith & Sons, (Dealer), to purchase a mobile home. The Dealer immediately arranged for the assignment of this contract to appellant, The Russell National Bank (Bank), who advanced the Dealer the sum of approximately ten thousand eight hundred dollars ($10,800.00). The assignment was made with "full recourse,"*fn1 whereby the Dealer agreed to repurchase the contract upon default

[ 383 Pa. Super. Page 268]

    of the installment sales contract by the Wolfleys and upon demand by the Bank.

The Wolfleys subsequently defaulted on the sales contract. In March or April of 1983, Mr. Wolfley moved out of the trailer because of marital discord. On September 19, 1983, the Bank sent the Wolfleys a Notice of Default and Intent to Execute. This document advised the Wolfleys that the Bank intended to execute if the default was not cured within thirty-five (35) days. Upon receiving this notice, Mrs. Wolfley decided to abandon the mobile home rather than cure the default. She called the Bank to notify it that she intended to move out and drop off the keys.

On November 12, 1983, Mrs. Wolfley abandoned the mobile home. On November 22, 1983, the Bank sent the Wolfleys notice, as required by the Motor Vehicle Sales Finance Act (MVSFA), 69 P.S.A. ยง 623 G, that their "motor vehicle" had been repossessed.

Although continuing to hold title to the mobile home, the Bank has not taken any steps to actually physically repossess it. The home remains in its original trailer park, where the Dealer is general manager; it has been winterized by the Dealer and moved approximately 100 feet to make way for paying tenants.

Pursuant to the "full recourse" provision, the Bank made numerous oral and written demands upon the Dealer to repurchase the contract. The Dealer, however, refused to do so. Approximately one year later, on December 20, 1985, the Bank instituted suit against the Dealer under the full recourse contract. The complaint averred that the contract was with full recourse and as a result of the Wolfley's default, the Dealer was required to repurchase the contract from the Bank.

The Dealer subsequently joined the Wolfleys as additional defendants.*fn2 The matter proceeded to trial, at which time the trial court entered ...


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