Betterton v. First Interstate Bank Of Arizona

800 F.2d 732 (8th Cir. 1986)

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Nature of the Case

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Facts

In 1982, Betterton (P) bought a Peterbilt tractor and a utility trailer. P financed both purchases through First Interstate Bank (D). P executed a promissory note and a security agreement with D for each purchase. The note on the tractor was for $38,000, and the note on the trailer was for $13,900. P also got an unsecured loan for $5,000, which P used to pay for truck taxes and licenses. P had difficulty making his loan payments and missed a number of them and was declared in default. Negotiations extended the terms of the notes and P still failed to meet the revised terms. Eventually, D ordered repossession of the assets. On February 15, 1984, the parties met again, and D handed P a letter demanding payment in full and that if not received D would take whatever action it deemed necessary to collect the debt. P made a suggestion to ensure payments to D with P’s broker withholding the payments from P and sending them to D. D then phoned the broker, and that party agreed to cooperate in taking the payments out of what was due P and sending them to D for the loan service. P claims that D then phoned him and if the payments were made D would forego repossession. Because the truck was in the shop, P then got the repairs made. D did not tell P that repossession had already been ordered by D and D did not cancel that order after reaching the alleged new agreement with P. The next day the truck was repossessed. The assets were sold at foreclosure and the proceeds applied to the three loans. The trial court granted summary judgment to D. P appealed.