AT&T Family Federal Credit Union v. Beaty Wrecker Service, Inc.

WALKER, Judge. Defendant brings forward two assignments of error for this Court to consider on appeal. It contends (1) the trial court erred in granting plaintiffs motion for summary judgment because a genuine issue of material fact existed and (2) the trial court erred in awarding damages, interest and attorney fees against defendant since there are issues of material fact as to damages which must be determined by a trier of fact. N.C.G.S. § 44A-4 states with specificity the procedures which must be followed in order for a lienor such as defendant to enforce its lien on a motor vehicle by sale. Pursuant to this statute, the lienor must give notice within the requisite time period to the Division of Motor Vehicles (DMV) that a lien is asserted and that a sale is proposed. N.C.G.S. § 44A-4(b)(l). DMV shall then issue notice by registered or certified mail to the person having legal title to the property if reasonably attainable. Id. If DMV notifies lienor that this notice has been returned as undeliverable, lienor may institute a special proceeding by application to the clerk in the county where the vehicle is held for authorization to sell said vehicle. Id. However, lienor must still comply with the requisite statutory procedures for the purposes of conducting a public or private sale, including notice requirements. In Re Ernie’s Tire Sales & Service v. Riggs, 106 N.C.App. 460, 417 S.E.2d 75 (1992). In support of plaintiff’s motion for summary judgment in the instant case, plaintiff’s verified complaint alleges that defendant Beaty sold and purchased the vehicle in question at a private sale [614] pursuant to N.C.G.S. § 44A-4(c). Additionally, the affidavit of Bill Warren asserts that: 8. Plaintiff received no notice of the lien asserted by Beaty, of the amount of the lien, of the sale procedures initiated by Beaty, or any other information regarding the whereabouts or possession of the vehicle until it received a notice to surrender the title from the North Carolina Division of Motor Vehicles on or about August 23, 1989. N.C.G.S. § 44A-4(c) mandates that where the property upon which the lien is claimed is to be sold at private sale, “the lienor shall cause notice to be mailed ... to each secured party or other person claiming an interest in the property who is actually known to the lienor or can be reasonably ascertained.” Thus, insofar as plaintiffs interest was noted on the Certificate of Title and easily ascertained, defendant’s admission in its answer that it did not give notice of the sale to plaintiff would be dispositive of this issue should it be determined the sale was private. Contrarily, defendant’s answer and the affidavit of Shirley Jones state that the vehicle was sold to defendant at public sale, presumably under N.C.G.S. § 44A-4(e). Although N.C.G.S. § 44A-4(e)(l)al directs lienor to mail notice to a secured party, it provides that compliance with N.C.G.S. § 44A-4(e)(l)b, whereby a copy of the notice of sale is posted at the courthouse door in the county where the sale is to be held and is also published in a newspaper of general circulation in the county once a week for two consecutive weeks, may be sufficient for such notice requirement. Therefore, where the vehicle is sold at public sale, the fact that defendant did not cause notice to be served on plaintiff may be of no consequence. Our review of the record, however, fails to reveal any evidence that defendant complied with either of these notice requirements mandated by N.C.G.S. § 44A-4(e). N.C.G.S. § 1A-1, Rule 56 provides that summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits disclose no genuine issue of material fact, entitling the moving party to judgment as a matter of law. See Town of West Jefferson v. Edwards, 74 N.C.App. 377, 329 S.E.2d 407 (1985). Though there is no dispute as to defendant’s compliance with N.C.G.S. § 44A-4(a)-(b), we find a genuine issue of material fact exists as to whether the vehicle was sold pursuant to private or public sale, and whether the relevant statutes were [615] complied with thereunder. Summary judgment was therefore improper. On remand, the question of whether the vehicle was sold pursuant to public or private sale is to be determined by the trial court as a matter of law, and will dictate the relevant statutory notice provisions to which defendant should have complied. If the court concludes that defendant bought the vehicle at private sale, N.C.G.S. § 44A-4(c) mandates that “such a sale to the lienor shall be voidable.” If, however, the court determines that defendant conducted a public sale, then it must show compliance with the provisions of N.C.G.S. § 44A-4(e) et seq. In this regard, N.C.G.S. § 44A-4(g) provides: If the lienor fails to comply substantially with any of the provisions of this section, the lienor shall be liable to the person having legal title to the property or any other party injured by such noncompliance in the sum of one hundred dollars ($100.00), together with a reasonable attorney’s fee as awarded by the court. Damages provided by this section shall be in addition to actual damages to which any party is otherwise entitled. Where there is sufficient evidence to raise an inference, this Court has indicated that a determination of whether defendant failed to substantially comply with the provisions of either N.C.G.S. § 44A-4(c) or N.C.G.S. § 44A-4(e) in conducting the sale is a factual issue reserved for the jury. Drummond v. Cordell, 73 N.C.App. 438, 326 S.E.2d 292, superseding 72 N.C.App. 262, 324 S.E.2d 301 (1985), aff'd, 315 N.C. 385, 337 S.E.2d 850 (1986). REVERSED and REMANDED. Judges COZORT and GREENE concur.