Mullen v. American Honda Fin.Corp.
| Docket Number: | 2006-CA-00288-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-20-2007 Opinion Author: LEE, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Admission of sales contract - Breach of peace - Section 75-9-609 Judge(s) Concurring: MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: KING, C.J. Procedural History: Summary Judgment Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 02-01-2006 Appealed from: Choctaw County Circuit Court Judge: Clarence E. Morgan, III Disposition: SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS. Case Number: 2003-0078 CV-M |
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| Party Name: | Attorney Name: | |||
| Appellant: | EDGAR M. MULLEN AND PATSY C. MULLEN |
THOMAS A. COLEMAN |
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| Appellee: | AMERICAN HONDA FINANCE CORPORATION, A CALIFORNIA CORPORATION, MISSISSIPPI RECOVERY, INC., A MISSISSIPPI CORPORATION, D/B/A AMERICAN LENDERS SERVICE COMPANY OF JACKSON, MISSISSIPPI AND TOMMY MORGAN | TRAVIS MAC HAYNES, JOE S. DEATON, ERNEST RUSSELL TURNER |
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| Topic: | Contract - Admission of sales contract - Breach of peace - Section 75-9-609 |
| Summary of the Facts: | Edgar and Patsy Mullen filed a complaint against American Honda Finance Corporation, John Doe and Richard Roe seeking damages which they allegedly sustained when the defendants repossessed the car which had belonged to their deceased daughter. The Mullens sought $10,000 in actual damages and $50,000 in punitive damages. The Mullens later amended their complaint twice to include Mississippi Recovery, Inc., d/b/a American Lenders Service Company, as an additional defendant and to substitute Tommy Morgan and Michael Owen in lieu of John Doe and Richard Roe. AHFC filed a motion for summary judgment, which American Lenders and Morgan both joined. The court found that since the defendants did not breach the peace, they had a right to repossess the car. The Mullens appeal. |
| Summary of Opinion Analysis: | Issue 1: Admission of sales contract The Mullens argue that the court erred in allowing the sales contract between AHFC and their daughter to be introduced into evidence, because it was irrelevant as to the issues in the pleadings and AHFC did not meet its burden of proof as to the authenticity of the contract. AHFC produced the original contract, an affidavit from an employee who witnessed the daughter sign the contract and verified her identification from her driver’s license photo, and another affidavit from an employee, who received the contract immediately after she signed it and then assigned it to AHFC. Therefore, the court did not err in allowing the contract to be admitted. Issue 2: Breach of peace Pursuant to section 75-9-609, a secured party has a right to take possession of the collateral after default without judicial process, if it proceeds without breach of the peace. AHFC has established a security interest in the car. From the record, it is clear that there was no breach of the peace. The cases relied upon by the Mullens to support their argument are all distinguishable from the case at bar because in the cited cases there was more than a verbal objection by the debtor. Therefore, summary judgment was properly granted in favor of AHFC. |
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