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FORT PECK TRIBAL COURT OF APPEALS
ASSINIBOINE AND SIOUX TRIBES
FORT PECK INDIAN RESERVATION
WOLF POINT, MONTANA
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| NATIONAL COLLECTION SERVICES,
INCORPORATED, Plaintiff/Appellee, vs. VIRGINIA M. ADAMS, Defendant/Appellant. |
Appeal No. 145 DISSENTING OPINION |
I concur with the statement of facts of the majority opinion. It does appear that the notice of sale here specified a time after which a private sale would occur, and in fact a public sale occurred. Appellee’s brief, Page 11, Lines 7-9. The question is whether the notice of sale given here was a reasonable notice.
In examining the record here, it is clear that Appellant Adams received ample and sufficient notice of intended sale. Even if one disregards a nearly two year history of refinancing attempts, during which time Appellant Adams had possession of the vehicle, there was an additional opportunity after notice of sale to protect the purchaser’s interest.
The purpose of the notice requirement is stated in Lilly vs. Terwillinger, 244 MT. 93, 796 P.2d 199 (1990) as:
(to insure that) "persons entitled to receive it will have sufficient time to take appropriate steps to protect their interest by taking part in the sale or other disposition if they so desire."
The cases which have found insufficient notice generally rely on either a short notice, or little opportunity to participate in sale. See Bank of Sheridan vs. Devers, 702 P.2d 1388 (1985). (notice had wrong date).
The other issue regarding reasonableness of sale is the assurance of getting a competitive price. Wippert vs. Blackfeet Tribe 695 P2d 461. In Wippert, a sale of livestock occurred four days after the repossession order. The Court concluded that a letter to the debtors not specifying time and place of sale... "precluded (the debtor) from taking action to assure that a competitive price is obtained..." Page 465. The Court went on to rule the insufficient notice precluded the creditor’s right to obtain a deficiency judgment. Page 465.
There is nothing in this record which indicates that Appellant Adams' presence at the public auction would have in any manner changed the commercial reasonableness of the sale. Here, the Appellee showed reasonable and substantial efforts to sell the vehicle privately (Appellee brief, page 13) and then finally proceeded with a competitive public sale in a recognized auto market.
The main argument of Appellant here is with the amount of deficiency judgment. REF. Motion for Relief from Judgment, February 7, 1991, file. I agree that the deficiency here is substantial, but was based on a computation which appears correct and supported by evidence. REF. file affidavits.
Where reasonable commercial standards of resale are met, even through the notice was technically incorrect, a deficiency judgment should be allowed. See Otterson vs. Rubick 803 P.2d 1066, particularly ... [W]hen a deficiency judgment is barred, it sometimes suggests that the creditor is proceeding with unclean hands or without good faith. This is completely absent in this case..." (as well as the case at bar).
On these grounds, I cannot conclude that the trial judge’s findings of fact and conclusion of law were clearly erroneous. I would affirm the Tribal Court’s Order granting deficiency judgment to Appellee.
DATED this _____ day of June, 1992.
Respectfully submitted,
BY THE COURT OF APPEALS
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Gerard M. Schuster,
Chief Justice