1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The cour t, with concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 1 

# FILED
March 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

_______________________________________________________ ) FIRST AMERICAN N

ATIONAL ) Madison County Chancery Court BANK , ) No. 48389 ) Plaintiff/Appellee. ) HON. JOE C. MORRIS, ) CHANCELLOR VS. ) ) C.A. No. 02A01-9710-CH-00273 ) ALEXANDER SMITH and ) AFFIRMED AND REMANDED BETTY K. SMITH , ) ) OPINION FIL

ED: Defendants/App

ellants. ) ) Marcus M. Reaves, Jackson, Tennesse e, for Defenda

nts/Appellants. James Belew Webb , Milan, Tennessee, for Plaintiff/Appellee.

______________________________________________________________________________ MEMORANDUM OP

INION 1

______________________________________________________________________________ FARMER, J. Alexander Smith and Betty K. Smith appeal from a judgment entered aga inst them in fav or of Fi rst American National Bank (Bank). The Bank sued to recover the de ficiency owed
on a note executed by Mr. and Mrs. Smith after sale of the collateral, a 1990 Chevrolet van, and for interest and attorney’s fees as provided in the note. Th e Smiths filed a counterclaim alleging that the Bank breached its agreement to allow them to refinance and for the value of items of personal property and contracts which were in the van at the time it was repossessed and resulting loss of business due to loss of the contracts. The chancellor denied recovery on the counter complaint.

It is undisputed that Alex ande r Smith and Betty K. Smith entered int

o a retail installmentsalecontract

and security

agreement with

Casey Chevr

olet, Inc. wh

ich was assigne

d to Bank. The indebtedness was in the amount of $28,729.06 bearing interest at the rate of fourteen and2 He is identified as Nathan Duncan in the transcript, Nathan Buckley in the statement of the evidence and signed the Reaffirmation Agreement for the Ba nk as James Nathan Buckley. Therefore we will refer to him by the latter. 2 one-half perc ent (14 .5% ) paya ble in s ixt y mon ths at $ 675 .94 per m ont h be ginn ing M ay 1 7, 199 0.

It is f urther undisputed that Alexander Smith filed a petition in bankruptcy and th ereafter entered into a Reaffirmation Agreement whereby he was to pay the Bank the sum of $23,827.05 at the rate of twe lve and one-half

percent (12.5%) payable a t $536.18 per month beginning June 20, 1 991. On Februar y 24, 1993, B ank assigned to U nited Auto Recove

ry to repossess the collateral and it was repossessed on March 1, 1993.

The issues as pre

sented by Ap

pellants are as f

ollows:

1. Appellee is not

entitled to judgment against Appellants for breach of reta

il installment contr

act and security

agreement. 2. Appellants are e

ntitled to judgmen

t against Appell ee for damages caused by neglige nce in bailee-bailor relationship.

This matter was tried before the chancellor. As no findings of fact were made other than the rendering of the judgment, our review of this matter is de novo upon the record of the trial court.

James Nathan Buckley 2 testified that, following Mr. Smith’s execution of the ReaffirmationAgreement, Mr. Smith made three

payments,

one each in July, August and September of 1991. Mr. Smith had a discussion with Mr. Buckley, in December, 1991 at which point he told Mr. Smith that the only

way he could keep the van was to catch the payments up to date. No other payments were received.

EugeneDouglas, Assista

nt Vice President w

ith First America

n, testified that he is with the service c enter in Nashville and his responsibility at all times here pertinent was repo ssessions. When a borrower files bankruptcy, the bank transfers the files to the r ecovery3 The notice of private repossession sale states that “any personal belong ings not part of the collateral ma

y be recla imed within ten day

s. For any n

eeds or informat

ion regarding

this collateral or the sale, contact Eugene Douglas at First American Na tional Bank, Nashville, TN. Phone (615) 781-7341.” 3 department. He testified that there was a def ault on the loan after the bankruptcy and the Bank approved repossession. On February 24, it was assigne

d to United Auto Rec

overy in Mem

phis to repossess the collateral. It was repossessed on March 1 , 1993 and on March 3, 1993 a notice of private repossession of sa

le 3 was sent to the defendants. The notice of private repossession was mailed to Alexander Smith and Betty K. Smith, 70 Flint Drive, Jackson, Tennessee, advising them that the vehicle would

begin to be offe

red for sale

after March 13,

1993 and any

personal proper

ty could be reclaimed by

calling him

at the number set forth in the notice. A certified receipt bears the signature of B. Smith.

He further testifie

d that the sale was

conducted in

a commercially

reasonable manner andthe proceeds were applied to the debt. He testified that the balance owed including principal and interest through the date

of the trial was $2

3,528.97 and that th

e per diem intere

st was $ 4.7 5. $11,000 was realized from the sale of the van.

He tes tified on cross-examination that the file was turned over to him on February 23, 1993. He identifie

d an inventory

of personal prop

erty which

he received fr

om United Auto Recovery a

s follows:
1 gold ring 1 gold bridge - in safe Avon - After shave - deodorant Bible - Cap - Shades VCR - Tapes - Cass. Tapes Bag with Paper - Note pad Booster Cable - funnel T.V. in Van Vac. In Van Head phone in Van Cass. deck in back of Van & speaker

Gerald Andreoni testified that in February of 1993 he was employed by United Auto Rec ove ry. He prepared the personal proper

ty inventory. Th e gold ring and gold bridge were placed4

in the safe. The las t four items on the list were built into the van and stayed with the van. The personal property is boxed and put into a locked room where it is kept for 6 months. At the end of 6 month s if no one claims it, it is given to a charitable institution or disposed of. An employee named Chris and possibly one other individual did the actual repossession.

Alexander

Smith testified that, after reaffirming the debt, he mad e thr ee payments but “was not allowed to make any others. ” He testifie d that at the time the van w as repossessed it contained a tape

d commercial for

his business

which would cost $5,000 to replace, work clothing valuedat $200, telephone antenna $60, black leather jacket $200, Bible $60, 7 VHS tapesvalued at $250 each and a brief case valued at $75. He testified that the van also contained the originals and only copies of bids he had made on contracts for work.

Betty K. Smith testified that after the van was repossessed they received a certified letter from First American Bank stating that the van was in its possession. She also testified as t o the items which were left in the van at the time of repossession. She was unsure of the value of

the items. Neither Mr. or Mr

s. Smith testified as to any efforts they

made to obtain the p

ersonal propert

y in the van at the time of repossession.

Upon reviewing the record in this cause, we have determined that the evidence supports the judg

ment of the trial c

ourt that Bank wa

s entitled to recov

er against the D

efendants.

As to the second issue, a bailment is a delivery of

personalty

for a particula

r purpose
or on mere deposit, on a contract expressed or implied, that after the pu rpose has been f

ulfilled, it shallbe re-delivered

to the person who delivered it or otherwise dealt with according to his direction
or kept until he reclaims it. Merritt v. Nationwide Warehouse Co. , 605 S.W.2d 250, 252 (Tenn. App. 1980); Rhodes v. Pioneer Pa rking Lot, Inc. , 501 S.W.2d 569 (Tenn. 1973); Jernigan v. Ham , 691 S.W.2d 553 , 556 (Tenn. App. 1984). We do not agree with the appellants that the situation presented here constitutes

a bailment. The jud

gment of the tria

l court isaffirmed and the costs of this appeal are taxed to the appellants, Alex ande r Smith and Betty K. Smith and their surety, for whi ch ex ecut ion may i ssu e ifnece ssa ry.5 ____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)