SAC Fin., Inc. v. Deaton

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2126

Case Date: 05/24/2013

Plaintiff: SAC Fin., Inc.

Defendant: Deaton

Preview:[Cite as SAC Fin., Inc. v. Deaton, 2013-Ohio-2126.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
SAC FINANCE, INC.                                                                        :
                                                                                         :   Appellate Case No. 2012-CA-4
Plaintiff-Appellant                                                                      :
                                                                                         :   Trial Court Case No. 11-CVF-001-1118
v.                                                                                       :
                                                                                         :
TAMARA DEATON, et al.                                                                    :   (Civil Appeal from Darke County
                                                                                         :   (Municipal Court)
Defendant-Appellees                                                                      :
:
O P I N I O N
Rendered on the 24th day of May, 2013.
PAUL WAGNER, Atty. Reg. #0067647, The Hanes Law Group. Ltd., 111 North Bridge Street,
Post Office Box 315, Gettysburg, Ohio 45328
Attorney for Plaintiff-Appellant
TAMARA and MELVIN DEATON, 217 Lindwood Drive, Greenville, Ohio 45331
Defendants-Appellees, pro se
FAIN, P.J.
{¶ 1}     Plaintiff-appellant SAC Finance, Inc. appeals from a judgment entry rendered

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against it on its complaint for a deficiency judgment against defendants-appellees Tamara and
Melvin Deaton for amounts allegedly due under a retail installment contract.   SAC Finance
contends that the trial court erred by requiring proof that the Deatons actually received a notice of
disposition of collateral required by R.C. 1317.16.
{¶ 2}     We agree with SAC Finance that it was merely required to prove that it sent the
statutory notice by certified mail, return receipt requested, not that the notice was, in fact,
received by the debtors.   Accordingly, the judgment of the trial court is Reversed, and this cause
is Remanded for further proceedings consistent with this opinion.
I.   The Course of Proceedings
{¶ 3}     SAC Finance brought this action against the Deatons for a deficiency judgment
for sums due under a retail installment contract and security agreement financing the Deatons’
purchase of a 2000 Pontiac Sunfire.   After SAC Finance’s motion for summary judgment was
overruled, the matter was tried to the court.
{¶ 4}     At trial, SAC Finance offered as Exhibit L, a notice allegedly sent to the Deatons
of its plan to sell the car, which it had repossessed.   The notice included the following language:
The money that we get from the sale (after paying our costs) will reduce
the amount you owe.   If we get less money than you owe, you (will or will not, as
applicable) still owe us the difference. * * *
{¶ 5}    Joni Holder, an employee of SAC Finance who was familiar with its business
records, testified that a notice of disposition of the collateral, Exhibit L, was sent to each of the
Deatons, individually, by certified mail.   Tamara Deaton, pro se, on cross-examination, asked

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Holder if she had a copy of the return receipt card evidencing the Deatons’ receipt of the notice.
Holder responded: “I do not have that with me, but we send all Ohio’s notice of plan to sell by
certified mail.”
{¶ 6}    At the conclusion of Tamara Deaton’s cross-examination of Holder, the trial
court asked Holder:
But you didn’t bring with you or provide copies of the green card returns
for the other letters [which included the notice of disposition of collateral]?
THE WITNESS: I didn’t have that in my file, no.
{¶ 7}    Concerning the notice of disposition of collateral, Tamara Deaton testified:
Okay.    In  regards  to  the  Plaintiff’s  Exhibit  L,  the  letters  that  were
supposedly sent, we were never informed of the intent of sale.   And according to
the ORC 1317.16, the disposition of collateral, we were required to be notified ten
days prior.   We were never notified.   I’ve never seen this letter. * * *
{¶ 8}    Following the trial to the court, the trial court took the matter under submission.
In its judgment entry, the trial court held:
It was determined at the hearing and thru [sic] testimony that defendants
did not receive notice of disposition of collateral required pursuant to ORC
§1317.16.    Certified mail, return receipt requested was not proven in court.
Therefore, based upon this information, deficiency judgment will not be rendered
for plaintiff against defendants.
{¶ 9}    From the judgment rendered against it, SAC Finance appeals.

[Cite as SAC Fin., Inc. v. Deaton, 2013-Ohio-2126.]
II.   The Trial Court Erred by Requiring Proof
of Receipt of the Notice of Disposition
{¶ 10}   SAC Finance’s sole assignment of error is as follows:
WHETHER THE COURT ERRORED [sic] ON IT’S [sic] JUDGMENT
ENTRY  BY  REQUIRING  APPELLANT  TO  PROVE  AT  TRIAL  THAT
APPELLEE’S [sic] ACTUALLY RECEIVED THE NOTICES REQUIRED BY
OHIO REVISED CODE SECTION 1317.16.
{¶ 11}   R.C. 1317.16(B) provides, in pertinent part:
At least ten days prior to sale the secured party shall send notification of
the time and place of such sale and of the minimum price for which such collateral
will be sold, together with a statement that the debtor may be held liable for any
deficiency resulting from such sale, by certified mail, return receipt requested, to
the debtor at the debtor’s last address known to the secured party * * * .
{¶ 12}   The statute merely requires that the notice of disposition of the collateral be sent
to the debtor by certified mail, return receipt requested; it does not require proof that the notice of
disposition was actually received. Ford Motor Credit Co. v. Potts, 47 Ohio St.3d 97, 548 N.E.2d
223 (1989).   In that opinion, which addressed both the notices required by R.C. 1317.16 and the
notices required by R.C. 1309.47, the Supreme Court of Ohio held that: “Contrary to the court of
appeals’ opinion, the statutes [R.C. 1309.47 and R.C. 1317.16] nowhere require the secured party
to delay its sale until return of the certified mail receipt. * * * In fact, no statute or controlling
case law specifies that the debtor must actually sign the notice, indicating actual receipt.”   Id. at
99.

[Cite as SAC Fin., Inc. v. Deaton, 2013-Ohio-2126.]
{¶ 13}   The trial court erred when it based its judgment upon a finding that SAC Finance
had failed to prove that the Deatons had actually received the notice.
{¶ 14}   At trial, SAC Finance offered proof that it sent a notice to the Deatons at their
last-known address by certified mail, return receipt requested.   SAC Finance asks us “to find that
the proper notice was sent.”   But the trial court’s judgment entry is ambiguous on this subject.
It includes the sentence:  “Certified mail, return receipt requested was not proven in court.”
Because this sentence immediately follows the trial court’s finding that the Deatons did not
receive the notice, it may merely be a recapitulation of that finding.   But it could be a finding by
the trial court that it did not credit Holder’s testimony that the notice was sent by certified mail.
{¶ 15}   We can safely determine, from the judgment entry, that the trial court erred, as a
matter of law, by concluding that proof of receipt of the notice was required.    We cannot
determine that this error was harmless, because it is not clear that the trial court discredited
Holder’s testimony and found that the notice was not sent.   Therefore, the only course open to us
is to reverse the judgment and remand this cause for further proceedings.
{¶ 16}   SAC Finance’s sole assignment of error is sustained.
III.   Conclusion
{¶ 17}   SAC Finance’s sole assignment of error having been sustained, the judgment of
the trial court is Reversed, and this cause is Remanded for further proceedings consistent with the
opinion.
DONOVAN and WELBAUM, JJ., concur.

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Copies mailed to:
Paul Wagner
Tamara and Melvin Deaton
Hon. Julie L. Monnin

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