OPINION
Cоnrad Schmid, defendant below, appeals a summary judgment granted for Texas Commerce Bank — Fort Worth, N.A., which had sued Schmid on a notе secured by shares of stock. In two points of error, Schmid claims: (1) the trial court incorrectly granted Texas Commerce’s motion for summary judgment on the note because there were genuine issues of material fact and the bank was not entitled to summary judgment аs a matter of law; and (2) the trial court erred in granting summary judgment for the bank denying Schmid’s counterclaim. Because we find no material facts were in question and that the bank was entitled to judgment as a matter of law, we affirm.
BACKGROUND
Schmid borrowed $114,000.00 from Texas Commerce Bank and secured the note with 7,892 shares of Landmark Financial Group, Inc. stock. The pledge agreement gave Texas Commerce “sole and uncontrolled discretion” to sell the shares at public or private sale and at such prices “as may seem bеst.” The loan was due, and Schmid defaulted on, May 1, 1990. Texas Commerce chose not to sell the stock shares, but retained them in its pоssession. Texas Commerce sued to recover the balance owed and moved for summary judgment on January 19, 1994. On March 3, 1994, Schmid filed а counterclaim, alleging conversion of the stock pledged to secure the note and failure to dispose of the stоck in a commercially reasonable manner. The bank’s summary judgment as to its suit on the note was granted. The bank then moved for summary judgmеnt as to the counterclaim, and this summary judgment was granted as well.
ELECTION OF REMEDIES
The primary issue before us is whether the bank was required under article 9 of the Business and Commerce Code to sell or otherwise dispose of the pledged stock prior to maintaining an action to recover a judgment against Schmid for the balance owed under the promissory note.
Although Schmid argues that there were disputеd fact questions, he fails to highlight any that precluded summary judgment. Instead, he contends that the bank should have sold the stock collatеral before suing him on the note. In his brief, he asserts that the bank should have, but failed to, dispose of the collateral in a commеrcially reasonable manner, citing
Carroll v. Gen. Elec. Credit Corp.,
Section 9.501(a) of the Texas Business and Commerce Code allows a secured party to reduce its claim to judgment, foreclose or enforce the security interest by any available judicial procedure. Tex.Bus. & Com.Code Ann. § 9.501(a) (Vernon 1991). We also remind Schmid that section 9.504 of the Business and Commerce Code, a provision on which he relies heavily, does not require but rather allows a secured party to sell the collateral.
The bank, in its brief, properly distinguishes the authorities relied on by Schmid from the instant facts.
Carroll, Karnes, Plato,
and
Adams
all involved situations where the cоllateral was sold or otherwise disposed of. The language used in
Tanenbaum
and
*847
Daniell
establishes that the collateral was sold, because in еach of those eases, the courts discuss whether the sale held was commercially reasonable.
Tanenbaum,
SUMMARY JUDGMENT
In a summary judgment ease, the issue оn appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that movant is entitled to judgment as a matter of law.
See
Tex.R.Civ.P. 166a(c);
Cate v. Dover Corp.,
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true.
Montgomery v. Kennedy,
The bank filed its motion for summary judgment claiming that it was the sole owner and holder of the note signed by Schmid, that Schmid defaulted, and that the bank demanded payment. In his response to the bank’s Motion for Summary Judgment, Schmid claimed: (1) that the bank suing him was not the one which had originally agreed to the loan; (2) that the attornеy fees sought by the bank were unreasonable; (3) that the supporting affidavit was inadequate; and (4) that the bank should have sold the stock pledged to secure the note to either pay the note or substantially reduce Schmid’s indebtedness. In its reply to Schmid’s response, the bank clarified that it was the successor in interest of the original lender, answered questions raised regarding its supporting affidavit, and challenged Schmid’s assertion that it should have sold the collateral to pay the note. Specifically, the bank notеd that Schmid’s affidavit provided no authority for his contention that the stock sale would have retired his debt and cited
Brownlee v. Brownlee,
In its Motion for Summary Judgment as to Schmid’s counterclаim, the bank claimed that Schmid pledged the stock to secure the debt, voluntarily tendered the stock to the bank, the bank perfected its security interest by taking possession of the stock, and the bank did not foreclose on the stock. It is undisputed that the bank is in pоssession of, and has not disposed of, the stock shares. In fact, the bank consensually took possession of the collatеral when the loan was made so that it could perfect its security interest. Pledged stock continuously in the possession of the lеnder has not been “disposed of.”
Floyd,
Points of error one and two are overruled. The judgment of the trial court is affirmed.