{ "id": 6141195, "name": "Lennie R. MILLER v. FIRST NATIONAL BANK of Eastern Arkansas", "name_abbreviation": "Miller v. First National Bank of Eastern Arkansas", "decision_date": "1989-12-06", "docket_number": "CA 89-285", "first_page": "247", "last_page": "253", "citations": [ { "type": "official", "cite": "29 Ark. App. 247" }, { "type": "parallel", "cite": "780 S.W.2d 589" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "23 Ark. App. 129", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138488 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "134-35" }, { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/ark-app/23/0129-01" ] }, { "cite": "293 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869659 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "598" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/ark/293/0594-01" ] }, { "cite": "104 Cal. Rptr. 315", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1972, "pin_cites": [ { "page": "321" } ], "opinion_index": 0 }, { "cite": "27 Cal. App. 3d 999", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4407105 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/cal-app-3d/27/0999-01" ] }, { "cite": "291 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872679 ], "weight": 8, "year": 1987, "pin_cites": [ { "page": "41-42" }, { "page": "556-57" }, { "page": "41" }, { "page": "557" }, { "page": "41" }, { "page": "557" }, { "page": "41-42" }, { "page": "556-57" } ], "opinion_index": 0, "case_paths": [ "/ark/291/0037-01" ] }, { "cite": "190 Cal. Rptr. 878", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1983, "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "142 Cal. App. 3d 338", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2107705 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/cal-app-3d/142/0338-01" ] }, { "cite": "21 Ark. App. 33", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136751 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "39" }, { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ark-app/21/0033-01" ] }, { "cite": "245 Ark. 315", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606937 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "316" }, { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/ark/245/0315-01" ] }, { "cite": "27 Ark. App. 173", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139877 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "175" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ark-app/27/0173-01" ] } ], "analysis": { "cardinality": 621, "char_count": 11262, "ocr_confidence": 0.916, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1749407011760145 }, "sha256": "24aa4509fc413f4c83c5095183160a67f4555274665a165dccc108abb0ab35f7", "simhash": "1:a121d4f817604cb6", "word_count": 1892 }, "last_updated": "2023-07-14T20:00:46.162740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft and Jennings, JJ., agree." ], "parties": [ "Lennie R. MILLER v. FIRST NATIONAL BANK of Eastern Arkansas" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nLennie R. Miller appeals a judgment of the St. Francis County Circuit Court. He contends that the circuit judge erred in awarding a deficiency judgment to appellee, First National Bank of Eastern Arkansas, because the notice provided by appellee of the repossession and sale of the collateral was defective and because Lennie C. Miller, who also signed the promissory note, was not provided with notice of the repossession and sale. Because the notice sent to appellant was not in compliance with the requirements of Ark. Code Ann. Section 4-9-504(3) (1987), we reverse.\nOn May 8, 1984, appellant financed the purchase of an automobile with a loan from appellee in the amount of $4,291.00. Appellant and his father, Lennie C. Miller, signed the.promissory note. At the time the loan was made, appellant gave Route 1, Box 28C7, Colt, Arkansas, as his address. Appellant defaulted in his payments, and the automobile was repossessed. On October 9, 1985, appellee sent the following notice to appellant at 307 North Chicago, Brinkley, Arkansas:\nThis is to notify you that we will offer at private sale on or after 10:00 o\u2019clock A.M. October 24, 1985, at First National Bank of Eastern Arkansas 101 N. Washington, Forrest City, Ar. the collateral referred to in the Security Agreement between you, and ourselves, which collateral has been repossessed by us, and is briefly described below.\nYou may redeem said collateral at any time before we dispose of it, by paying the balance owing to us, including cost of repossession, storing and preparing for sale, if any, as provided in said Security Agreement.\nThe collateral is now stored at 625 W. Broadway, Forrest City, Ar., and consists of 1 - 1980 Chev. Monte Carlo, VIN 1Z373AK420348.\nThe notice was sent by certified mail, return receipt requested, and was returned to appellee, \u201cAddressee unknown.\u201d No notice was sent to Lennie C. Miller.\nThe automobile was transported to Memphis, Tennessee, on October 24, 1985, for public auction. Before the auction, an advertisement was published in The Commercial Appeal, a Memphis newspaper, which stated:\nBANK REPO SALE\nNOVEMBER 1, 1985 \u2014 10 A.M.\n1312 THOMAS ST.\nPUBLIC AUCTION \u2014 These vehicles must be sold as is to the highest bidder. Open to general public and all dealers. Clear title guaranteed by bank.\nTERMS: Cash, Cashier\u2019s Check or Bank Reference Letter\n\u201885 Ford LTD\n\u201885 Ford Escort\n\u201885 Ford 150 Pick Up\n\u201885 Mercury Marquis\n\u201885 Lincoln Town Car\n\u201884 Mercury Lynx\n\u201885 Nissan Pulsar\n\u201885 Nissan Stanza\n\u201885 Pontiac Sunbird\n\u201884 Mercury Cougar\nMore Than 84 Cars & Trucks To Be Sold\nSale Conducted by Licensed Auctioneers\nPhone For Information, 523-6615\nThe car was sold for $550.00 on November 1,1985, and appellee sued appellant and Lennie C. Miller for the deficiency. At the time of trial, the outstanding deficiency on the debt was $4,410.51.\nAt trial, appellant testified that, a few days prior to the repossession, his house on Chicago Street burned down and he moved in with his parents.\nSam Woolridge, appellee\u2019s assistant cashier and loan officer, testified that appellant\u2019s North Chicago address in Brinkley was obtained from appellant or his father and was, at the time the notice was sent, the last known address of appellant. Woolridge admitted that appellee did not send a notice to Lennie C. Miller, although Woolridge knew his address. Woolridge also admitted that, although the notice indicated that the car would be offered at private sale, it was ultimately sold at public auction.\nThe circuit judge awarded appellee a deficiency judgment in the amount of $4,410.51, plus interest, costs and attorney\u2019s fees. He dismissed appellee\u2019s complaint as to Lennie C. Miller because appellee did not give him notice of the sale of the collateral.\nOn appeal, appellant asserts that (1) the circuit judge erred in awarding the deficiency judgment to appellee because the notice sent to appellant did not state the time and place of the sale and because it was sent to an incorrect address and (2) that appellee\u2019s failure to send notice to Lennie C. Miller forecloses appellee\u2019s right to obtain a deficiency judgment against appellant.\nArkansas Code Annotated Section 4-9-504(3) (1987) provides in pertinent part:\nUnless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.\nSee also Anglin v. Chrysler Credit Corp., 27 Ark. App. 173, 175, 768 S.W.2d 44, 45 (1989). In the case at bar, there was no evidence that appellant signed after default a statement renouncing or modifying his right to notification of sale.\nIn their treatise, Uniform Commercial Code, James White and Robert Summers note that:\nFor a private sale of collateral that is neither perishable nor threatens to decline speedily in value, nor is customarily sold on a recognized market, the creditor must inform the debtor of \u201cthe time after which any private sale or other intended disposition is to be made * * *.\u201d For such public sales, 9-504 requires different information: \u201cthe time and place of any public sale * *\nJ. White & R. Summers, Uniform Commercial Code Section 27-12, at 600 (3d ed. 1988). The distinction between private sale and public sale was recognized by the Arkansas Supreme Court in Barker v. Horn, 245 Ark. 315, 316, 432 S.W.2d 21, 22 (1968), where the court stated that, although the statute requires notice of the time and place of public sale, only reasonable notification of the time after which a private sale will be made is required. In Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987), we stated, \u201c[i]t seems to be generally understood that when the debtor was not given written notice of the time and place of the sale, the sale was not conducted according to the provisions of the Code.\u201d 21 Ark. App. at 39, 728 S.W.2d at 197.\nIn the treatise, Uniform Commercial Code, the authors state that:\nBefore the creditor can sell or otherwise dispose of the collateral, 9-504(3) requires the creditor to send notice to the debtor.\nThe purpose of notice is to give the debtor an opportunity either to discharge the debt and redeem the collateral, to produce another purchaser or to see that the sale is conducted in a commercially reasonable manner. [Buran Equip. Co. v. H & C Investment Co., 142 Cal. App. 3d 338, 190 Cal. Rptr. 878, 881 (1983).]\nCases involving notice issues should be resolved with these three purposes in mind.\nJ. White & R. Summers, Uniform Commercial Code Section li-li, at 598 (3d ed. 1988).\n\u201cSend\u201d is defined in Ark. Code Ann. Section 4-1-201(38) (1987) as follows:\n\u201cSend\u201d in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed and in the case of an instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances. The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending.\nArkansas Code Annotated Section 4-1-201(26) (1987) states that a person \u201cnotifies\u201d or \u201cgives\u201d notice by:\ntaking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person \u201creceives\u201d a notice or notification when:\n(a) It comes to his attention; or\n(b) It is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.\nIn First State Bank of Morrilton v. Hallett, 291 Ark. 37, 41-42, 722 S.W.2d 555, 556-57 (1987), the supreme court ruled that, when a creditor repossesses collateral and sells it without sending proper notice to the debtor as required by the Uniform Commercial Code, the creditor is not entitled to a deficiency judgment. \u201cWhen the code provisions have delineated the guidelines and procedures governing statutorily created liability, then those requirements must be consistently adhered to when that liability is determined.\u201d First State Bank of Morrilton, 291 Ark. at 41, 722 S.W.2d at 557. \u201cIf the secured creditor wishes a deficiency judgment he must obey the law. If he does not obey the law, he may not have his deficiency judgment.\u201d First State Bank of Morrilton, 291 Ark. at 41, 722 S.W.2d at 557, quoting Atlas Thrift Co. v. Horan, 27 Cal. App. 3d 999, 104 Cal. Rptr. 315, 321 (1972).\nWe need not decide whether appellee\u2019s mailing of the notice to the Chicago Street address was sufficient compliance with the Uniform Commercial Code, because we hold that, even if appellant had actually received the notice, it would have been deficient.\nEven if the secured party\u2019s notice to the debtor contains information relating to all the items that the Code and courts require, that information may be incorrect. The Code has no provision addressed to this issue except that 9-504 says that notice must be \u201ccommercially reasonable.\u201d The most common example is a notice that leads the debtor to believe the creditor plans one type of sale (private or public), but the creditor subsequently holds the other type. Courts generally hold that such a notice does not satisfy 9-504(3).\nJ. White & R. Summers, Uniform Commercial Code Section 27-27, at 601 (3d ed. 1988). It was not disputed at trial that the disposition of the collateral in question was by public sale. The notice sent by appellee, however, simply stated that the automobile would be offered at private sale on or after 10:00 a.m., October 24,198 5; it did not provide appellant with the time or the place of the sale. This notice was clearly not in compliance with the requirements of Ark. Code Ann. Section 4-9-504(3) (1987), and appellee is therefore barred from obtaining a deficiency judgment against appellant. Accord First State Bank of Morrilton, supra, 291 Ark. at 41-42, 722 S.W.2d at 556-57.\nWe point out, however, that we do not agree with appellant\u2019s argument that appellee\u2019s failure to send notice to Lennie C. Miller bars its right to obtain a deficiency judgment against appellant. Indeed, none of the cases cited by appellant support his argument; they hold that a secured party who has failed to comply with the requirement that a guarantor be notified of the sale of collateral may not recover a deficiency judgment against him. See Hallmark Cards, Inc. v. Peevy, 293 Ark. 594, 598, 739 S.W.2d 691, 694 (1987); First Nat\u2019l Bank of Wynne v. Hess, 23 Ark. App. 129, 134-35, 743 S.W.2d 825, 827 (1988).\nReversed.\nCracraft and Jennings, JJ., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Victor L. Hill, East Arkansas Legal Services, for appellant.", "Butler, Hicky & Long, by: Philip Hicky II, for appellee." ], "corrections": "", "head_matter": "Lennie R. MILLER v. FIRST NATIONAL BANK of Eastern Arkansas\nCA 89-285\n780 S.W.2d 589\nCourt of Appeals of Arkansas Division I\nOpinion delivered December 6, 1989\nVictor L. Hill, East Arkansas Legal Services, for appellant.\nButler, Hicky & Long, by: Philip Hicky II, for appellee." }, "file_name": "0247-01", "first_page_order": 273, "last_page_order": 279 }