Sevostiyanova v. Tempest Recovery Services, Inc.
307 Ga. App. 868
| Ga. Ct. App. | 2011Background
- Sevostiyanova obtained a loan in March 2004 and purchased a 2001 Toyota Corolla.
- Tempest recovered the car in July 2005 after default and sold it, seeking a deficiency of about $2,445.
- Tempest filed a deficiency suit in January 2007; Sevostiyanova disputed service and alleged lack of notice of sale.
- Sevostiyanova later filed bankruptcy (discharged March 2008); Tempest did not dismiss its deficiency claim after discharge due to a miscommunication.
- In September 2009 the trial court dismissed Tempest's claim for lack of prosecution; Sevostiyanova added counterclaims for negligent infliction of emotional distress, abusive litigation, and libel.
- The bench trial in December 2009 resulted in judgments for Tempest on Sevostiyanova’s counterclaims; Sevostiyanova appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sevostiyanova’s sale damages are barred by judicial estoppel | Sevostiyanova argues Tempest’s sale undervalued the car and seeks the surplus. | Tempest contends the claim is precluded by judicial estoppel due to pre-bankruptcy accrual and failure to disclose. | Claim barred; Sevostiyanova judicially estopped. |
| Whether Sevostiyanova properly proved the car’s value at sale | Sevostiyanova testified to value based on research; she argues admissible opinion of value. | Tempest contends foundation for the value opinion was inadequate; testimony relied on hearsay. | Trial court acted within discretion; value testimony inadequate. |
| Whether the sale notice requirements were satisfied | Sevostiyanova claims improper notice of sale violated OCGA requirements. | Tempest maintains notice issues were waived by pre-existing bankruptcy notice and other defaults. | Resolved against Sevostiyanova for unchanged reasoning from Division 1. |
| Whether Sevostiyanova’s abusive litigation and libel claims survive | Sevostiyanova asserts Tempest acted with malice and libeled her in filings. | Tempest argues lack of malice and timely, privileged statements; improper notice for abusive litigation claim. | Abusive litigation claim failed for lack of malice and improper notice; libel claim untimely and privileged. |
| Whether the trial court was required to enter findings of fact and conclusions of law | Sevostiyanova requested findings under OCGA 9-11-52. | Bereft of error, the court did not abuse discretion in not issuing findings. | No abuse; findings of fact and conclusions of law were not mandatory here. |
Key Cases Cited
- National Building Maintenance Specialists v. Hayes, 288 Ga.App. 25 (Ga. Ct. App. 2007) (bankruptcy assets not disclosed may become property of estate; creditors unaffected)
- Kittle v. ConAgra Poultry Co., 247 Ga.App. 102 (Ga. Ct. App. 2000) (undisclosed asset in bankruptcy can bar claim)
- Reagan v. Lynch, 241 Ga.App. 642 (Ga. Ct. App. 1999) (creditor protection in bankruptcy contexts)
- Period Homes v. Wallick, 275 Ga. 486 (Ga. 2002) (creditor claims paid in bankruptcy may affect estoppel considerations)
- Department of Transportation v. Southeast Timberlands, 263 Ga.App. 805 (Ga. Ct. App. 2003) (test for admissibility and foundation of lay opinion on market value)
- Crowell v. Williams, 273 Ga.App. 676 (Ga. Ct. App. 2005) (standard of review for trial court findings; plain error vs. factual issues)