GENERAL MOTORS ACCEPTANCE CORPORATION, A CORPORATION, APPELLANT,
v.
BLANCHE S. HURST, APPELLEE
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General Motors Acceptance Corporation appealed a judgment dismissing its deficiency action after repossessing a financed automobile. The court reversed, holding that the 1961 amendment to Florida's Motor Vehicle Sales Finance Act abrogated the common-law doctrine of election of remedies, permitting a conditional vendor to pursue both repossession and a deficiency judgment.
The doctrine of election of remedies was abrogated by the 1961 amendment to Section 520.11, Florida Statutes. A conditional vendor who complies with the statutory requirements for repossession and sale may pursue a deficiency judgment for any balance remaining after the sale proceeds are applied to the contract debt.
“a conditional vendor of personalty may not pursue both the property and the debt upon default by the vendee even though a provision in the sales contract expressly authorizes resort to both remedies”
Describes the pre-1961 common law rule of election of remedies that the court rejected
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Join FLexlaw to unlock all legal intelligenceGMAC financed an automobile sale to Blanche Hurst under the Motor Vehicle Sales Finance Act. Upon default, GMAC repossessed the vehicle and conducted …
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This is an appeal from a final judgment dismissing with prejudice appellant’s action for a deficiency judgment for the balance due after the repossession and public sale, in the statutorily prescribed manner, of an automobile sold under the Motor Vehicle Sales Finance Act, Section 520.11, Florida Statutes, 1961, F.S.A.
The judgment here under review reflects on its face that the trial court rested its decision squarely on the pronouncement of our Supreme Court in Voges v. Ward, 98 Fla. 304, 123 So. 785 (1928), and like cases holding that a conditional vendor of personalty may not pursue both the property and the debt upon default by the vendee even though a provision in the sales contract expressly authorizes resort to both remedies. The reasoning for the holding in Voges, supra, was that under the doctrine of election of remedies, the election of one operated as a waiver of the other. To like effect, see Baer v. General Motors Acceptance Corp., 101 Fla. 913, 132 So. 817, and Colonial Finance, Inc. v. All Miami Ford, Inc., 112 So.2d 857 (Fla.App.3d 1959).
Appellant concedes that prior to 1961 when Section 520.11, Florida Statutes, F.S.A., was amended, the controlling law in this State on the subject here under consideration was as reflected in the cases cited above. He urges, however, that Voges, supra, no longer controls the right to a deficiency judgment upon default in an automobile sales contract entered into pursuant to the provisions of Section 520.-11, Florida Statutes, 1961, F.S.A., because said statutory enactment had the effect of abrogating the doctrine of election of remedies as to motor vehicle sales made in conformance with that statute’s provisions. We agree.
This Court has heretofore recognized that the act upon which appellant rests his case provides for a deficiency judgment in cases where the provisions of the statute have been followed. See General Finance Corp. of Jacksonville v. Stratton, 156 So.2d 664, 666, where we said of the act:
“It is provided that the proceeds of the sale be applied to the amount due under the contract and that the buyer shall remain liable for any balance remaining unpaid after such application.” (Citing Section 520.11(5), Florida Statutes, 1961, F.S.A.)
No appearance was made by the appellee either before the trial court or this court on appeal. Since there is no showing or contention on the record before us that appellant failed to meet the statutorily required steps as a prerequisite to exercise of its rights, the judgment appealed is
Reversed.
RAWLS, Acting C. J., and JOHNSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Encore, Inc. v. Olivetti Corp. OF Am., 326 So. 2d 161 (Fla. 1976)…modern decisions based on the Code respondent could repossess the property and sell it, then apply the proceeds to the satisfaction of the purchase price and, if there was a deficiency, sue for the balance. General Motors Acceptance Corp. v. Hurst, 212 So. 2d 335 (Fla.App.1st 1968); Swindel v. General Finance Corp., 265 So. 2d 393 (Fla.App.1st 1972); contra, Nat’l City Truck Rental Co. v. Southern Mill Creek Products Co., 213 So. 2d 261 (Fla.App.2d 1968) (the Court noted, however, that the case was governed…
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Swindel v. Gen. Fin. Corp. OF Fla., 265 So. 2d 393 (Fla. 1st DCA 1972)…and free from error. Certiorari is accordingly denied and the petition dismissed. SPECTOR, C. J., and JOHNSON, J., concur. . Bill Smith, Inc. v. Cox (Fla.App.1964), 166 So. 2d 497. . General Motors Acceptance Corporation v. Hurst (Fla.App.1968), 212 So. 2d 335. . Straight v. James Tolcott, Inc. (10th Cir. 1964), 329 F. 2d 1.…
Authorities Cited
- Voges v. Ward, 98 Fla. 304 (Fla. 1929)
- Baer v. Gen. Motors Acceptance Corp., 101 Fla. 913 (Fla. 1931)
- Colonial Fin., Inc. v. ALL Miami Ford, Inc., 112 So. 2d 857 (Fla. 3d DCA 1959)
- Gen. Fin. Corp. OF Jacksonville v. Stratton, 156 So. 2d 664 (Fla. 1st DCA 1963)