Shell v. Tidewater Finance Co.
318 Ga. App. 69
| Ga. Ct. App. | 2012Background
- Shell appeals a grant of summary judgment to Tidewater in Tidewater's suit to collect a deficiency after repossession of Shell's vehicle.
- Tidewater sued on a 2008 retail installment contract financing the 2006 Chevrolet Trailblazer, later assigned to Tidewater.
- Shell defaulted; Tidewater repossessed in September 2010 and sent a certified mail notice of repossession and right to redeem.
- Notice was mailed to 611 Preston Park Drive, Duluth, GA, a designated address Tidewater claimed Shell had designated after signing the contract.
- The vehicle sold at auction for $2,500; Tidewater seeks the remaining deficiency.
- Shell contends notice was not sent to the correct address under OCGA § 10-1-36(a); Shell's affidavit states her actual address was White Grass Way, Grayson, GA, not Preston Park Drive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Tidewater mail notice to the designated address as required? | Shell designated the Duluth address for notices. | Tidewater mailed to the designated address or the contract address; the designation is valid. | Genuine issue of material fact on designation precluded summary judgment. |
| Is there a factual dispute over whether Tidewater complied with OCGA § 10-1-36(a) notice requirements? | Affidavits show notice mailed to the designated address; no conflict if designation valid. | Shell denies designation; relied on without corroboration; record lacks proof of designation. | Yes; summary judgment reversed due to factual conflict. |
| Is Tidewater's identity as assignee via d/b/a Tidewater Motor Credit inconsistent with its party status? | Assignee identity is clear as Tidewater Motor Credit is Tidewater Finance Co.'s d/b/a. | No substantive dispute; d/b/a designation bears on party identity but not materiality here. | No error; designation is persuasive but not outcome-determinative. |
Key Cases Cited
- Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 ((1997)) (context on appellate review of summary judgment standards)
- Brack Rowe Chevrolet Co. v. Walls, 201 Ga. App. 822 ((1991)) (notice requirements under OCGA § 10-1-36 mandatory for recovery)
- Crossing Park Properties v. Archer Capital Fund, 311 Ga. App. 177 ((2011)) (address designations and notices in context of OCGA § 10-1-36)
- Peach Blossom Dev. Co. v. Lowe Elec. Supply Co., 300 Ga. App. 268 ((2009)) (trial court cannot discount self-serving affidavits in summary judgment)
- First Nat. Bank of Gainesville v. Loggins, 207 Ga. App. 814 ((1993)) (consideration of notices and affidavits in summary judgment)
- Wilson Marine Sales &c. v. Fireman’s Fund Ins. Co., 133 Ga. App. 220 ((1974)) (d/b/a entities and real party in interest considerations)