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Imbody v. Fifth Third Bank

Court of Appeals of Indiana

June 27, 2014

ROBERT IMBODY, Appellant-Defendant,
v.
FIFTH THIRD BANK, Appellee-Plaintiff

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable David J. Dreyer, Judge. Cause No. 49D10-1206-CC-22570.

ROBERT IMBODY, APPELLANT, Pro se, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: FRANKLIN S. YUDKIN, Franklin S. Yudkin and Associates, PSC, Louisville, Kentucky.

NAJAM, Judge. VAIDIK, C.J., and BROWN, J., concur.

Page 944

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Robert Imbody appeals the trial court's judgment in favor of Fifth Third Bank (" the Bank" ) on the Bank's complaint alleging breach of a promissory note secured by a motor vehicle. The Bank repossessed the vehicle, charged off the balance of the note, and ultimately sold the vehicle at auction. The Bank sued Imbody for the deficiency balance. The question presented on appeal is whether the Bank's complaint is barred by the applicable statute of limitations. We hold that the Bank's repossession of the collateral accelerated payment on the note, which triggered the six-year statute of limitations, and that the Bank's complaint is time-barred.

We reverse.

FACTS AND PROCEDURAL HISTORY

On July 23, 2004, Imbody obtained a loan from the Bank for the purchase of a 2004 Chevrolet Trailblazer (" the truck" ). The Simple Interest Note and Security Agreement (" the Agreement" ) executed by Imbody provided in relevant part that the purchase price for the truck was $35,906.28, and Imbody agreed to make eighty-four monthly payments of $541.38 each beginning September 6, 2004. The Agreement also provided that, in the event of a default, the Bank had the option " to accelerate without notice or demand the final maturity of all of the obligations secured." Appellant's App. at 21.

Imbody made scheduled payments according to the terms of the Agreement until March 3, 2006, when his payment made on that date was returned for insufficient funds. On May 31, 2006, the Bank repossessed the truck and charged off[1] the remaining balance of $31,396.32. The Bank then sold the truck at auction for $16,500. The deficiency balance was $14,896.32 plus various accrued fees, and Imbody agreed to pay the Bank $100 per month toward the debt.[2] But Imbody made only about fourteen of those payments, and he made his final payment on the deficiency balance on February 29, 2008.

On June 5, 2012, the Bank filed its complaint against Imbody alleging breach of contract and seeking damages of $24,940.57, pre-judgment interest, and attorney's fees. Following a bench trial, the trial court entered judgment in favor of the Bank in the amount of $24,939, plus court costs. Imbody ...


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