Alexander v. Heritage Corp.

332 S.E.2d 667 | Ga. Ct. App. | 1985

Banke, Chief Judge.

The appellee sued the appellants to recover the balance allegedly due on a “retail installment contract” for the sale of a used motor vehicle. The appellants denied liability and counterclaimed for damages for the alleged wrongful repossession of the vehicle. This appeal is from the grant of the appellee’s motion for summary judgment. Held:

The contract called for the appellants to pay the indebtedness in weekly installments of $50, beginning on February 14, 1984, with no provision for any delinquency charges in the event of late payments. The appellants were declared in default, and the automobile was repossessed, 25 weeks thereafter. The record indicates that the appellants had paid a total of $1,359 on the indebtedness as of that date, or $139 more than they were obligated to have paid under the terms of the contract. It would thus appear from the record that the appellants were not in fact in default when the balance due on the contract was accelerated and the automobile repossessed. It follows that the trial court erred in granting the appellee’s motion for summary judgment. See generally OCGA § 9-11-56 (c); Colonial Stores v. Turner, 117 Ga. App. 331, 333-334 (160 SE2d 672) (1968).

Decided June 5, 1985. Jay W. Bouldin, for appellants. Charles T. Day III, for appellee.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.