 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Giles v. First Virginia Credit Services3/5/2002
institution would constitute waiver or estoppel." Plaintiffs contend that First Virginia had accepted late payments in the past from Joann Giles and that First Virginia's repossession of the automobile was unconscionable; therefore, First Virginia was estopped from repossessing her automobile on 27 June 1999.
Plaintiffs' reliance on Credit Co., however, is misplaced because the proposition stated by plaintiffs is taken from dicta in that case and is not binding on this Court in the case before us. Further, plaintiffs do not direct us to any evidence in the record supporting a conclusion that First Virginia intended to forbear plaintiffs' payments or that First Virginia acted unconscionably. In fact, Joann Giles agreed in the contract that acceptance of a late payment by First Virginia would not excuse a later default. Plaintiffs' argument of forbearance by First Virginia is without merit.
The trial court found, and we agree, that there is no genuine issue of material fact as to whether Joann Giles' account was in default when the automobile was repossessed. The trial court did not err in granting summary judgment to First Virginia on this issue.
Plaintiffs' first assignment of error is overruled.
III.
Plaintiffs next argue that the provisions of N.C. Gen. Stat. § 259-503 granting a secured party the right to take possession of collateral without judicial process, without notice and/or a right to be heard, are unconstitutional as applied to the facts in this case. They further argue that the waiver of notice in the contract Joann Giles signed with First Virginia deprived her of her constitutional rights under the Fourteenth Amendment to the United States Constitution.
Plaintiffs claim that the statutory scheme providing for non-judicial repossession under N.C. Gen. Stat. § 25-9-503 constitutes state action sufficient to evoke the protection of the due process clause of the Fourteenth Amendment of the United States Constitution. As support for their position, plaintiffs rely on Turner v. Blackburn, 389 F.Supp. 1250 (W.D.N.C. 1975). Turner, however, is distinguishable from the case before us because in Turner, the court's determination that state action was involved, thereby requiring application of the provisions of the Fourteenth Amendment, was based upon the direct participation of the clerk of court in the statutory procedure for foreclosure and sale under deed of trust. Id. at 1254-58. In the case before us, however, plaintiffs cite no participation on the part of any state official in First Virginia's self-help repossession, nor can we find any in our review of the record.
Plaintiffs argue the state action in this case, requiring our Court to declare N.C. Gen. Stat. § 25-9-503 unconstitutional, is based on our state's statutory scheme permitting the Department of Motor Vehicles to title a motor vehicle, to create and perfect a lien on a motor vehicle, to transfer title of a motor vehicle when the motor vehicle is sold pursuant to a repossession, and to transfer title absent the owner's signature. Further, plaintiffs argue state action is present through our statutory scheme which provides for repossession without judicial process, where payment of any surplus from sale of the repossessed vehicle is paid to the clerk of superior court who is liable on a bond for safekeeping the funds. Except for the reference to N.C. Gen. Stat. § 25-9-503, the statutes as recited by plaintiff, do not apply to this case and will not be addressed.
A majority of the federal circuit courts have considered the question before us and are in agreement that self-help repossession pursuant to UCC provisions does not constitute "state ac
Page 1 2 3 4 5 6 7 8 9 10 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|