Auto Credit of Nashville v. Melissa Wimmer - Dissenting ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 18, 2005 Session
AUTO CREDIT OF NASHVILLE v. MELISSA WIMMER
Appeal from the Circuit Court for Sumner County
No. 23298-C C. L. Rogers, Judge
No. M2005-00978-COA-R3-CV - Filed on August 31, 2006
FRANK G. CLEMENT , JR., J., dissenting.
I respectfully dissent from the majority’s conclusion that Auto Credit failed to give Ms.
Wimmer reasonable notice of the scheduled sale of the collateral.
The Uniform Commercial Code provides that a person “notifies” or “gives” a notice or
notification to another “by taking such steps as may be reasonably required to inform the other in
ordinary course whether or not such other actually comes to know of it.” Tenn. Code Ann. § 47-1-
201 (26).
Auto Credit placed the notice in the U. S. Mail with sufficient postage properly addressed
to the current home address of Ms. Wimmer. The notice was placed in the U.S. Mail twenty days
prior to the scheduled sale of the collateral. The UCC deems ten days a reasonable time for
notification. Tenn. Code Ann. § 47-9-612(b). When the sale occurred, Auto Credit was unaware Ms.
Wimmer had not received the notice.
The fact Auto Credit was unaware when the sale occurred that Ms. Wimmer had not received
the notice is significant because it distinguishes this case from Mallicoat v. Volunteer Finance &
Loan Corp., 415 S.W.2d 347 (Tenn. Ct. App. 1966), cited by the majority. In Mallicoat, the creditor
knew prior to the sale that the debtor had not received notice. The Mallicoat court found that
significant. “[Volunteer Finance] not only failed to show a compliance with the Act but . . . the
record affirmatively shows a lack of compliance and a conscious disregard of the debtor’s right to
notice.” Mallicoat, 415 S.W.2d at 350.
As the majority notes, proof of actual notice to or receipt by the debtor is not required, R &
J of Tennessee, Inc. v. Blankenship-Melton Real Estate, Inc., 166 S.W.3d 185, 205 (Tenn. Ct. App.
2004), and the creditor is not “forced to take responsibility for lost mail or the debtor’s refusal to
accept properly delivered mail.” Id. Although it would be an entirely different scenario if Auto
Credit had learned prior to the sale that Ms. Wimmer had not received notice, as was the case in
Mallicoat, that isn’t the case here.
In my view, Auto Credit acted in good faith pursuant to Tenn. Code Ann. § 47-1-203, in a
commercially reasonable manner pursuant to Tenn. Code Ann. § 47-9-607 and -610, and the steps
it took constituted reasonable notification pursuant to Tenn. Code Ann. § 47-9-612(b) and Tenn.
Code Ann. § 47-47-1-201 (26).
For the foregoing reasons I would affirm the trial court.
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FRANK G. CLEMENT, JR., JUDGE
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