599 S.W.2d 201 | Mo. Ct. App. | 1980
Plaintiff-respondent Jefferson Bank & Trust Co. brought suit against defendants-appellants Gilbert and Joanne Horst for deficiency judgment on a note secured by a mobile home. Defendants counterclaimed alleging duplicity by Jefferson Bank in its lending arrangements in conjunction with Manchester Mobile Homes, Inc., the seller of the mobile home. The trial court granted Jefferson Bank’s motion for summary judgment on its petition for the sum of $2,094 and against defendants on their counterclaim.
On appeal defendants assert that genuine issues of fact and law exist as to whether Jefferson Bank and Manchester Mobile Homes caballed and colluded to increase the price of the mobile home and the finance charges for its payment and as to whether Jefferson Bank took the requisite steps to obtain the best price for the repossessed mobile home in mitigation of damages. We affirm. In so affirming the trial court’s granting of summary judgment, we cognize that summary judgment is an extreme action which may only be granted when, after reviewing the record in the light most favorable to the appellants, there is no genuine issue as to any material fact nor any basis for their recovery. Cooper v. Yellow Freight System, Inc., 589 S.W.2d 643 (Mo.App.1979).
In 1974 defendants entered into negotiations with Manchester Mobile Homes, Inc. for the purchase of a mobile home. A price was quoted by a Manchester Mobile Homes salesman, and defendants were told that financing could be arranged through Jefferson Bank with payments running approximately $100 per month for twelve years. A bargain was struck, and defendants executed a “Retail Installment Contract Security Agreement” and a promissory note supplied by Manchester. A few spaces were left blank on the agreement and note, such as Manchester Mobile Homes’ name on the security agreement as the dealer selling the home and as payee on the note. But, except for these two items and the serial number for the mobile home, all other significant items on the agreement and note were completed at the time of the signing by the defendants: the cost of the mobile home, down payment and trade in allowance, sales tax, title fee, unpaid balance to be financed, the finance charge, total payments due, deferred payment price and the annual percentage rate.
After defendants took possession of the mobile home, Manchester Mobile Homes assigned the note to Jefferson Bank pursuant to an existing agreement between them.
Jefferson Bank brought suit against defendants for a deficiency judgment. Defendants counterclaimed, contending that the note was fraudulently procured as they believed that payee on the note was to be Jefferson Bank, not Manchester Mobile Homes; that the assignment of the note to Jefferson Bank caused them damage by reason of some alleged scheme to increase the ultimate cost of the mobile home by interest payments or otherwise. The trial court granted Jefferson Bank’s motion for summary judgment and denied defendants’ counterclaim.
We first consider the counterclaim. The pertinent elements in this case for fraudulent misrepresentation which must be proven by the parties asserting the fraud are: a representation; its falsity; its materiality; reliance on the truth of the representation; and consequent and proximate damage. Prudential Property and Casualty Ins. Co., Inc. v. Cole, 586 S.W.2d 433 (Mo.App.1979); O’Shaughnessy v. Ward Aircraft Sales & Service Co., Inc., 552 S.W.2d 730 (Mo.App.1977).
The defendants’ other challenge to the judgment relates to whether Jefferson Bank “took any reasonable steps to sell the repossessed mobile home for the best price obtainable and mitigate defendants’ dam
Disdaining reference to the Uniform Commercial Code, defendants rely solely on Regional Inv. Co. v. Willis, 572 S.W.2d 191 (Mo.App.1978), in their challenge to Jefferson Bank’s “reasonable efforts” to mitigate the damages. But Willis involving a trustee’s sale of real estate is manifestly not apt to this U.C.C. proceeding.
As to the sale, the trial court obviously determined that Jefferson Bank acted reasonably in applying its methods for the sale of the collateral and that the price obtained upon the sale was reasonable and that defendants suffered no compensable damage. We, too, considering the record before us concur in that determination. Wirth v. Heavey, 508 S.W.2d at 269.
The record sustains the commercial reasonableness of the sale of the security and thus the deficiency judgment against defendants after the sale was proper. There was no error in granting Jefferson Bank’s motion for summary judgment and in the denial of defendants’ counterclaim.
Judgment affirmed.
. Mr. Horst could not remember with certainty whether the annual percentage rate was complete before signing the agreement. But Mrs. Horst acknowledged that the item had been filled in. Her admission is sufficient to establish that all such items were complete prior to signing, as Mr. Horst’s uncertainty and equivocal answer would be of no probative value on that issue. Rossmann v. G.F.C. Corp. of Mo., 596 S.W.2d 469 (Mo.App.1980); Baker v. Brinker, 585 S.W.2d 256, 258 (Mo.App.1979).
. The other elements of fraudulent misrepresentation are: the speaker’s knowledge of the false representation, the hearer’s ignorance of the truth, intent that the representation be acted upon, the hearer’s ignorance of the falsity and the right to rely thereon.
. We will not delve into the law regarding blank spaces in a contract — whether the contract is incomplete or whether specific authority was given to complete the contract or whether the intention of the parties was not fulfilled by the completion of the blank space.
. There were, in fact, two bids.
. With regard to notice requirements, see: 1972 Wash. U.L.Q. 535. Jefferson Bank’s evidence was that notice of the proposed sale was given to defendants, who do not raise any issue of lack of notice. See: Alco Standard Corp. v. F & B Manufacturing Co., 132 Ill.App.2d 24, 265 N.E.2d 507 (1970) (requiring defendants to raise lack of notice as an affirmative defense).