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Gangelhoff v. Transamerica

District Court of Appeal of Florida, Second District
Jan 13, 1993
611 So. 2d 1333 (Fla. Dist. Ct. App. 1993)

Summary

holding that under Weiner, the secured creditor would only be entitled to a deficiency judgment if it could overcome the presumption by showing that the amount actually received at the sale was equal to the fair market value at the time of repossession and that the proceeds of the sale were less than the debt

Summary of this case from Comerica Bank v. Mann

Opinion

No. 92-00241.

January 13, 1993.

Appeal from the Circuit Court, Pinellas County, Frank H. White, J.

William W. Wilhelm, Clearwater, for appellants.

John C. Dew and Gail F. Moulds of Harris, Barrett, Mann Dew, St. Petersburg, for appellee.


David Gangelhoff, the owner of Gulf Marine of Florida, has appealed from a final summary judgment in favor of Transamerica Commercial Finance Corporation. The court awarded Transamerica a deficiency judgment of over $100,000, together with interest, costs, and attorney's fees, for a total judgment of $133,817.87. This judgment was entered after Transamerica sold the collateral it had repossessed from Gulf Marine. Because there exists an issue of fact concerning the commercial reasonableness of the sale, we reverse.

Gulf Marine sold boats and engines. Gangelhoff, as owner of Gulf Marine, had executed an inventory security agreement and personal guaranty with Borg Warner Acceptance Corporation, the predecessor of Transamerica Commercial Finance Corporation. When Gangelhoff defaulted under the agreement, Transamerica sought to replevy the property. The court entered an order authorizing a writ of replevin and granted a break order. The collateral was repossessed and eventually sold. When Transamerica sought a deficiency judgment, Gangelhoff filed two affidavits in opposition, alleging that Transamerica had not notified him of the sale and that the price received by Transamerica represented only 39% of the wholesale value of the goods.

In the summary final judgment the court states that there is no genuine issue as to any material fact. Under the circumstances before us, however, Gangelhoff's affidavit was sufficient to raise the question of whether the sale was commercially reasonable under section 679.504, Florida Statutes (1989). Transamerica's failure to give Gangelhoff notice raises a presumption that the sale was commercially unreasonable. CSI Service, Ltd. v. Hawkins Concrete Construction Co., 516 So.2d 337 (Fla. 1st DCA 1987). Moreover, a further presumption is that the fair market value of the collateral at the time of repossession was equal to the total secured debt. Weiner v. American Petrofina Marketing, Inc., 482 So.2d 1362 (Fla. 1986). According to Weiner, the creditor would be entitled to a deficiency judgment if it could overcome that presumption by showing that the amount actually received was equal to fair market value and that the proceeds of the sale were less than the debt. See Ford Motor Credit Co. v. Jones, 584 So.2d 205 (Fla. 2d DCA 1991).

Thus, our review of the record indicates that genuine issues of material fact surround the commercial reasonableness of the sale and summary judgment was improper.

We reverse and remand for further proceedings consistent with this opinion.

DANAHY, A.C.J., and CAMPBELL, J., concur.


Summaries of

Gangelhoff v. Transamerica

District Court of Appeal of Florida, Second District
Jan 13, 1993
611 So. 2d 1333 (Fla. Dist. Ct. App. 1993)

holding that under Weiner, the secured creditor would only be entitled to a deficiency judgment if it could overcome the presumption by showing that the amount actually received at the sale was equal to the fair market value at the time of repossession and that the proceeds of the sale were less than the debt

Summary of this case from Comerica Bank v. Mann
Case details for

Gangelhoff v. Transamerica

Case Details

Full title:DAVID J. GANGELHOFF, D/B/A GULF MARINE OF CLEARWATER, AND DAVID J…

Court:District Court of Appeal of Florida, Second District

Date published: Jan 13, 1993

Citations

611 So. 2d 1333 (Fla. Dist. Ct. App. 1993)

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