Saturday, March 19, 2005
A defendant who wants to argue that a creditor’s sale under UCC § 2A-523 is unreasonable and that a lessor’s calculation of late fees and penalties are invalid under § 2A-504 may have a tough row to hoe in Ohio, under a new decision from the Court of Appeals.
The defendant defaulted on her automobile lease with GMAC, which repossessed the car and ultimately sold it. She made payments under an agreed-upon repayment schedule, but later defaulted again and GMAC sued. The company moved for summary judgment based on affidavits by its record keeper, claiming that the total amount owed was now $7,512. The defendant argued that the this amount was in dispute, since GMAC used different figures in its summary judgment motion, its complaint, and the affidavit submitted in support, and did not explain how the various payments had been credited. She also argued that there was no evidence that the sale had been done in a reasonable manner.
That wasn’t enough to raise an issue of fact for the court. Although GMAC did not explain the discrepancy, the court speculated that it might have been due to the different times at which the documents were prepared, reflecting different balances. Similarly, there was no evidence that the sale was not reasonable—there was no evidence at all on the point—and therefore summary judgment was appropriate.
GMAC v. Ferguson, No. 04AP-795, 2005 Ohio 899, 2005 Ohio App. LEXIS 896.