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GARY P. DUNGAN AND JUDY DUNGAN v. DICK MOORE

FEBRUARY 13, 1985

GARY P. DUNGAN AND JUDY DUNGAN
v.
DICK MOORE, INC.



BEFORE WALKER, P.J., HAWKINS AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This brouhaha arises out of a secured transaction under which the seller has repossessed and sold a mobile home said, ineffectually, by the buyer to have 52 identifiable defects. The proceedings move from the unusual to the bizarre as at practically every step - service of replevin process, the purported redemption of the mobile home, the proceeding under what was formerly known as a writ of inquiry - errors were committed (although in fairness to the trial judge it readily appears that in these somewhat intricate areas of the law he received little or no help from counsel). In the end, having regard only for the points properly preserved for appeal and the assignments of error presented, the judgment below which is to the effect that the buyers are entitled to no damages as a result of the alleged wrongful repossession of their mobile home must be affirmed.

 II.

 On August 7, 1981, Gary P. Dungan and Judy Dungan, husband and wife, (sometimes hereinafter" Dungans "), purchased from Dick Moore, Inc., a corporation having its principal place of business in Memphis, Tennessee, (sometimes hereinafter" Moore "), one Del Rio mobile home. The Dungans were Defendants below and are Appellants here. Dick Moore, Inc. was the original Plaintiff below and is the Appellee here.

 The Dungans made a downpayment of $5,860.00. The balance of the purchase price was financed via a mobile home retail installment contract executed between Moore and the Dungans and providing for the payment of the unpaid balance of $14,089.76 in 95 monthly installments of $288.72 each. The contract provided that Moore held a security interest in the mobile home to secure performance by the Dungans of their obligations under the retail installment contract.

 Shortly thereafter, the Dungans took delivery of the

 mobile home and occupied it as their place of residence near Enid in rural Yalobusha County, Mississippi. After the Dungans had made only one of the installment payments called for by the contract, a dispute arose between the parties regarding the condition of the mobile home. The Dungans stopped making their monthly payments and claimed that there were at least 52 identifiable defects in the mobile home for the repair of which Moore was responsible. Moore denied this but nevertheless attempted to make repairs. As a result neither party has been satisfied, and, indeed, they have gravitated to the point where a barely civil state of warfare exists.

 By February 1982 the Dungans were six months in arrears in their payments. Invoking rights secured to it by law and by its agreement with the Dungans, Moore took steps to enforce its security interest. *fn1 On February 17, 1982, Moore commenced this civil action by filing its complaint for replevin in the Circuit Court of Yalobusha County, Mississippi. The record reflects that prior to this time the Dungans had moved out of the trailer and were living in rental housing in Memphis.

 On March 1, 1982, the Circuit Court entered a default judgment in favor of Moore and against the Dungans in the replevin action. Shortly thereafter, Moore physically obtained possession of the mobile home and moved it to Memphis. On March 30, 1982, Moore sent a registered letter to the Dungans advising them of the amount owed and indicating that liquidation was imminent. Immediately thereafter, the Dungans filed a motion to set aside the default judgment. They did not, however, seek to enjoin or restrain the sale. Despite actual knowledge that the default judgment in replevin was being contested, Moore sold the mobile home on April 9, 1982, for the sum of $11,200.00.

 Some two months later the motion to set aside the default judgment was heard. At the hearing it developed that the process upon which the judgment had been predicated was defective. On May 31, 1982, the Circuit Court entered its order vacating the default judgment the effect of which was to reinstate Moore's original complaint for replevin. That matter was then set for hearing on its merits on June 3, 1982.

 Prior to the June 3 hearing, the Dungans, purporting to act under the authority of Miss. Code Ann. 89-1-59 (Supp. 1984), tendered to Moore all amounts due and owing as of that date under the retail installment contract. The Circuit Court regarded this tender as having redeemed the mobile home and, on June 14, 1982, entered an order dismissing Moore's complaint for replevin and further provided, in pertinent

 part:

 10. That the Plaintiff [Dick Moore, Inc.] shall return, within five (5) days of this date, unto Defendants the 1981 Del Rio 80" OVA 76 "FLR x 14, 3T2 Twimscs 11354 Mobile Home which was taken from Defendants by Plaintiff on or about 8 March 1982.

 11. That in the alternative, if Plaintiff fails to return Defendant's [the Dungans] 981 Del Rio 80' OVA 76" FLR x 14 3T2 Twimscs 11354 Mobile Home, the Court order Plaintiff to pay unto Defendants the reasonable value of said Mobile Home.

 The June 14, 1982 order further provided that a hearing would be held via a writ of inquiry to determine what damages may have accrued to the Dungans.

 The mobile home which was the subject of the contract was, as indicated above, a 1981 Del Rio mobile home. The testimony was undisputed that when repossessed it was in a damaged condition although who was responsible for the damage was hotly disputed. In any event, within five (5) days of the June 14, 1982 order, Moore tendered to the Dungans a new 1982 Del Rio mobile home of the same size, shape, design and floor plan, and comparably furnished and equipped. It is undisputed that the 1982 mobile home tendered was in better condition and was of greater value than the 1981 home. This tender was refused by the Dungans.

 The hearing *fn2 on the matter of the Dungan's damages was held in the Circuit Court of Yalobusha County, Mississippi, on August 18, 1982. At that hearing the Dungans established that between February and June of 1982 they had been living in Memphis and had been paying a monthly rental of $270.00. They had also incurred a charge for the storage of furniture in the amount of $26.00 a month. The Dungans offered no testimony that they had ...


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