OPINION
Appellant, Felix Earl Knight, appeals from the granting of a deficiency judgment in favor of appellee, General Motors Acceptance Corporation (GMAC), the holder of a security interest by virtue of a retail installment contract.
We reverse and render judgment for Knight.
The trial below was to the court. The judge entered a judgment against Knight which awarded appellee $1,300.63, plus prejudgment interest in the amount of $513.70 and $1,000.00 in attorney’s fees.
On July 30, 1979, Knight purchased a 1980 Pontiac from Bill McDavid Pontiac, Inc. He paid $900.00 down and signed a retail installment contract to finance the remaining balance due on the car, as well as insurance and other fees. The contract bore an annual percentage rate of 13.61% and obligated Knight to make 42 monthly payments of $216.63. The seller retained a security interest in the vehicle. McDavid Pontiac subsequently assigned the contract and its security interest to GMAC.
In late 1981, the Pontiac developed mechanical problems and Knight left it at McDavid’s for repairs. A dispute arose over who was responsible for the repairs. GMAC eventually repossessed the car after Knight failed to make the payments.
On December 21, 1981, GMAC wrote Knight to inform him it had taken the Pontiac. This letter also outlined what would be done with the car if the past due payments, late charges, and expenses were not paid. Knight did not pay the amount requested by GMAC. Subsequently, the car was sold at a private sale to a third party. GMAC then sued Knight to recover the difference between the amount he still owed on the vehicle and what it had sold for at the private sale. GMAC also sought interest and its expenses from the sale in this deficiency action.
In several points of error, Knight now alleges there was no evidence or insufficient evidence to support the trial court’s conclusion of law number seven that GMAC sold or otherwise disposed of the vehicle in a manner which was consistent with the terms of the retail installment contract.
Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s verdict upon special issues.
City of Clute v. City of Lake Jackson,
In determining a “no evidence” point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary.
See Larson v. Cook Consultants, Inc.,
After the car was repossessed, GMAC sent Knight the following letter:
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GMAC argues on appeal that the above notice is sufficient under TEX.BUS. & COM.CODE ANN. sec. 9.504(c) (Vernon Supp.1987), 1 which governs the disposition of collateral upon default. This section states in part:
Unless collateral is perishable ... reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor....
Id.
A plain reading of section 9.504(c) indicates it provides for two types of nonjudicial sales of repossessed collateral and two methods of informing the debtor of the disposition of his property. BAGGETT, GENERAL CONSIDERATION IN TEXAS *483 FORECLOSURE LAW AND PRACTICE secs. 3.28, 3.33, 3.34 (1984). If collateral is to be disposed of at a public sale, the Code requires that the secured party notify the debtor of the time and place of the sale. BAGGETT, supra, sec. 3.33. However, if the collateral is to be sold at a private sale, the debtor must be notified of the time after which the collateral may be disposed of at such a sale. BAGGETT, supra, section 3.34; TEX.BUS. & COM.CODE ANN. sec. 9.504(c).
GMAC maintains since Knight’s Pontiac was disposed of at a private sale and notice was mailed at least ten days prior to the disposition of the collateral, it has complied with section 9.504 of the Code. Knight argues that, pursuant to the security agreement, GMAC consented to inform him of the time and place of any sale or intended disposition of the Pontiac. Here, the retail installment contract under which Knight purchased the Pontiac specifically provides how GMAC must satisfy its obligation to give “reasonable notification” of the time and place of any public or private sale. The third paragraph, section 6, sets forth the seller’s rights in the event of the buyer’s default, as follows:
The requirement of reasonable notification of the time and place of any public or private sale or other intended disposition shall be met if notice thereof is mailed, postage prepaid, to the buyer at his last known address and any other person entitled thereto ten (10) days prior to such sale or other disposition of the property. [Emphasis added.]
Section 1.102 of the Code specifically provides that parties may agree to determine the standards by which the performance of obligations such as providing “reasonable notice” are to be measured, so long as such standards are not “manifestly unreasonable”.
See
TEX.BUS. & COM. CODE ANN. sec. 1.102 (Vernon 1968); TEX.BUS. & COM.CODE ANN. sec. 9.501 (Vernon Supp.1987);
see also Taylor v. Banks,
In cases where the secured creditor fails to give reasonable notice to the debtor of its intention to dispose of the property, the creditor may elect to retain the collateral in complete satisfaction of the debt.
See
TEX.BUS. & COM.CODE ANN. sec. 9.505(b) (Vernon Supp.1987);
Tanenbaum v. Economics Laboratory Inc.,
Under TEX.R.APP.P. 80(b) and 81(b), when we sustain a “no evidence” point it is our duty to render judgment for the appellant because that is the judgment the trial court should have rendered.
See Vista Chevrolet, Inc. v. Lewis,
Notes
. All references are to the Business and Commerce Code Annotated ("Code").