Summary
In Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 597 S.E.2d 367 (2004), the Georgia Supreme Court, pursuant to a question certified by the Eleventh Circuit Court of Appeals, determined whether, under Georgia law, legal title or any other ownership interest that would give a right of possession, passed to a creditor under Georgia law upon repossession of an automobile subsequent to a debtor's default on an automobile installment loan contract, or whether such legal title or other ownership interest remained in the debtor.
Summary of this case from In Matter of DierkesOpinion
S04Q0360.
DECIDED JUNE 7, 2004.
Certified question from the United States Court of Appeals for the Eleventh Circuit.
Marchetti Lomax, Robert R. Lomax, for appellant.
William A. Edwards, Jr., Brace W. Luquire, for appellee.
The question certified by the Eleventh Circuit in this case is whether, under Georgia law, ownership of collateral passes from a debtor to a creditor upon repossession. For the reasons that follow, we hold that ownership remains with the debtor until the creditor disposes of or elects to retain the collateral in accordance with the procedures of the Georgia Uniform Commercial Code.
On August 8, 2002, creditor Motors Acceptance Corporation (MAC) repossessed an automobile from debtor Derryl Rozier for nonpayment under the terms of their installment loan sales contract. On August 12, 2002, Rozier filed for Chapter 13 bankruptcy and sought to regain possession of the vehicle. MAC agreed to return the vehicle to Rozier, but argued that it was not legally required to do so. The United States Bankruptcy Court for the Middle District of Georgia held that the vehicle was part of Rozier's bankruptcy estate under Georgia law and that return of the vehicle to Rozier was proper. MAC appealed, and the United States District Court for the Middle District of Georgia affirmed. MAC appealed to the Eleventh Circuit, which certified the question before us now.
The contract was originally entered into by Rozier and Charles Levy's MotorMax, which later assigned its interest to MAC. See In re Rozier, 283 B.R. 810, 811-812 (Bankr. M.D. Ga. 2002).
Id. at 813. The bankruptcy court also held MAC in willful contempt of the automatic stay for failing to return the vehicle after Rozier presented his post-petition plan for paying MAC. Id.
Motors Acceptance Corp. v. Rozier, 290 B.R. 910 (Bankr. M.D. Ga. 2003).
Motors Acceptance Corp. v. Rozier, 348 F.3d 1305 (11th Cir. 2003).
1. Consistent with prior decisions from the Court of Appeals of Georgia and the Georgia bankruptcy courts, we hold that ownership of such collateral does not pass to a creditor upon repossession for nonpayment under an installment loan sales contract. Revised Article 9 of the Georgia Uniform Commercial Code (OCGA § 11-9-101 et seq.) governs our analysis.
Jeweler's Fin. Svcs. v. Chapes, Ltd., 181 Ga. App. 872, 872-873 ( 354 SE2d 200) (1987).
Am. Honda Fin. Corp. v. Littleton, 220 B.R. 710, 715 (Bankr. M.D. Ga. 1998).
OCGA § 11-9-109 (a) (1) ("this article applies to . . . a transaction, regardless of its form, that creates a security interest in personal property . . . by contract").
The UCC's statutory framework makes clear that repossession alone is not enough to extinguish the debtor's ownership in the collateral, but that a creditor must go through additional steps after repossession to obtain ownership. For example, OCGA §§ 11-9-610 to -614 provide the procedure by which a creditor may dispose of collateral after default, and OCGA § 11-9-610 (c) specifically provides that the "secured party may purchase [the] collateral." The creditor would not need to purchase the collateral if it already owned it. Also, OCGA §§ 11-9-620 to -622 allow a creditor to accept the collateral in full or partial satisfaction of the debt with the debtor's consent. These provisions would also be meaningless if the creditor already owned the collateral. "This Court is to construe the statute to give sensible and intelligent effect to all of its provisions and to refrain from any interpretation which renders any part of the statute meaningless."
State v. English, 276 Ga. 343, 348 ( 578 SE2d 413) (2003).
MAC argues that a debtor has only one right after repossession, the right of redemption under OCGA § 11-9-623, and that this right is insufficient to constitute ownership. The right of redemption is an important right, but MAC is incorrect that it is a debtor's only right after repossession. Under the UCC, a debtor's rights also include: to demand that the creditor act with due care to preserve the collateral (OCGA § 11-9-207 (a)); to be notified before the creditor disposes of the collateral (OCGA §§ 11-9-611 to -614); to remittance of any surplus from sale of the collateral (OCGA § 11-9-615 (d) (1)); and to damages for the creditor's failure to comply with the UCC's provisions (OCGA § 11-9-625). These rights further reveal the UCC's intention to treat the debtor as the owner of the repossessed collateral until the creditor complies with the statutory procedures for disposition or retention of the collateral. The vast majority of courts have also reached this conclusion.
See In re: Sanders, 291 B.R. 97, 102 (Bankr. E.D. Mich. 2003) ("`the vast majority of courts have concurred that where repossession of a vehicle has occurred prepetition, but the vehicle has not yet been sold, a Chapter 13 debtor retains a sufficient interest in the vehicle so that turnover [to the debtor's bankruptcy estate] may be appropriate'"), quoting Spears v. Ford Motor Credit Co., 223 B.R. 159, 162 (Bankr. N.D. Ill. 1998).
2. MAC asks us to adopt the Eleventh Circuit's holdings in Bell-Tel Federal Credit Union v. Kalter and Lewis v. Charles R. Hall Motors, which held that repossessed collateral was not part of the debtor's bankruptcy estate under Florida law and Alabama law, respectively.
292 F.3d 1350 (11th Cir. 2002).
137 F.3d 1280 (11th Cir. 1998).
However, those decisions do not conflict with our holding in the present case, nor do they warrant extension to Georgia law. Neither of those cases were decided under the UCC. Kalter was decided under the Florida Certificate of Title Act, and Lewis was decided under Alabama's common law of conversion.
In addition, relevant provisions of UCC Article 9 have been revised since those decisions. The court in Kalter based its decision on Florida's Certificate of Title statute, but Georgia's revised Article 9 makes clear that the Georgia Motor Vehicle Certificate of Title Act (OCGA § 40-3-1 et seq.) does not alter the substantive rights of the parties and thus does not control the question before us. Moreover, if it were considered, it would only support our holding. As the bankruptcy court in the present case correctly stated, OCGA § 40-3-34 (b) "clearly recognizes that [debtor's] ownership is not terminated until the sale of the collateral by the secured creditor or by legal process, neither of which has happened in this case."
New section OCGA § 11-9-619 (c) provides that the transfer of legal title "is not of itself a disposition of collateral under this article and does not of itself relieve the secured party of its duties under this article."
283 B.R. at 813. OCGA § 40-3-34 (b) provides that "[i]f the interest of the owner is terminated, whether the vehicle is sold pursuant to a power contained in a security agreement or by legal process at the instance of the holder either of a security interest or lien, the transferee shall . . ." (emphasis supplied).
There is another important difference between the present case and Kalter. Under the UCC, when a creditor disposes of repossessed collateral, the rights acquired by the transferee are "all of the debtor's rights in the collateral." Because the transferee obtains ownership of the collateral, it follows that this was one of the debtor's rights. The court in Kalter gave no weight to this provision, however, because Florida's pre-revision definition of "debtor" was broad enough to include the creditor who had repossessed. Georgia's revised UCC, on the other hand, makes clear that the definition of "debtor" cannot include such creditors, and thus this provision also supports our holding.
In Georgia, this provision is OCGA § 11-9-617 (a) (1).
OCGA § 11-9-102 (a) (29) ("debtor" defined as "a person having an interest, other than a security interest . . .").
For the reasons above, we hold that ownership of collateral does not pass to a creditor upon repossession, but remains with the debtor until the creditor complies with the disposition or retention procedures of the Georgia UCC.
Question answered. All the Justices concur.