Court of Appeal (Cal.) Says in Unpublished Decision that ASFA Requires that NOI be “Mailed”, not “Received” within 15 Days of Sale; “Last Known Address” is Address on File, Not Where Vehicle Was Repossessed

In Baseline Financial Services, Inc. v. Hobbs, 2016 WL 7243531, at *4–6 (Cal.App. 4 Dist., 2016), the Court of Appeal in an unpublished decision found that an automobile lender complied with the mailing requirements of the ASFA.

It is undisputed that Bank of the West sold the vehicle on March 18, 2010. Baseline presented in evidence an NOI with respect to the vehicle, dated February 22, 2010, addressed to James. The settled statement provides that Drury testified that the NOI “was mailed out on February 22, 2010.” Such evidence constitutes substantial evidence that Bank of the West sent an NOI to James more than 15 days prior to the sale of the vehicle. (See, e.g., Estate of Teed, supra, 112 Cal.App.2d at p. 644 [defining substantial evidence as that which a reasonable person “might accept as adequate to support a conclusion”].)   In support of their contention that Bank of the West mailed the NOI to James less than the required 15 days prior to the sale of the vehicle, the Hobbses refer to evidence that James received the NOI on March 17, 2010.⁹ The fact that there is evidence in the record that James received the NOI less than 15 days prior to the sale does not establish that the record lacks substantial evidence that Bank of the West mailed the NOI more than 15 days prior to the sale. (See, e.g., Tribeca, supra, 239 Cal.App.4th at p. 1102 [in conducting substantial evidence review, appellate court considers all evidence in the light most favorable to the prevailing party].) Further, the Hobbses do not contend that section 2983.2, subdivision (a) requires that the buyer receive the NOI more than 15 days prior to the disposition of a repossessed vehicle. Rather, they contend that the evidence in the record demonstrates that Bank of the West “mailed it well short of the required 15 days prior to the sale ….” (Italics added.) However, as discussed above, there is substantial evidence in the record that Bank of the West mailed the NOI on February 22, which is more than 15 days before the March 18 sale.  The Hobbses also contend that Bank of the West did not provide Rosalie with proper notice under section 2983.2, subdivision (a) because it failed to send an NOI to Rosalie at her “last known address” (§ 2983.2, subd. (a)) as statutorily required, but instead, sent an NOI to an address at which Rosalie had previously lived.   Baseline introduced in evidence an NOI with respect to the vehicle, dated February 22, 2010, addressed to Rosalie at an address on East Country Drive. The settled statement provides that Drury testified that the NOI was mailed to “ ‘the last known address Bank of the West had on file for [Rosalie], and in order for them to update an address, Bank of the West needed her to fill out a change of address form.’ “ When Baseline’s counsel asked Drury at trial whether Bank of the West had ever sent mail addressed to Rosalie to an address on Via Rancho San Diego—which is the address to which Bank of the West sent James his NOI and the location at which the vehicle was repossessed—Drury responded, ” ‘No. The last known address we had on file for her was [to an address on East Country Drive] where we sent the [NOI] marked as “Exhibit 9.” ‘ “The settled statement also provides, “due to not updating her address with Bank of the West, Ms. Drury testified that [Rosalie’s] last known address was [on East Country Drive], therefore that is where Bank of the West mailed the [NOI] marked as ‘Plaintiff’s Exhibit 9’ to Rosalie ….” This evidence constitutes substantial evidence that Bank of the West mailed the NOI to Rosalie’s “last known address,” as required pursuant to section 2983.2., subdivision (a). (See, e.g., Estate of Teed, supra, 112 Cal.App.2d at p. 644 [defining substantial evidence].)  The Hobbses argue, “Bank of the West indisputably failed to comply with [section 2983.2., subdivision (a) ] as applied to … Rosalie … because Bank of the West did not mail the required [NOI] to Rosalie … at her last known address.” In support of this contention, the Hobbses contend that “her last known address was … the location where the Bank of the West picked up the [recreational vehicle] and mailed notice to her husband, and co-defendant, James.” Neither the fact that the vehicle was repossessed at the Via Rancho San Diego location nor the fact that Bank of the West sent James an NOI at the Via Rancho San Diego location establishes that Rosalie’s “last known address,” (§ 2983.2, subd. (a)) was on Via Rancho San Diego. In addition, while the Hobbses refer in their brief to Rosalie’s testimony that: 1) she informed Bank of the West, prior to the date of the mailing of the NOI, that her address was on Via Rancho San Diego; 2) she received correspondence from Bank of the West at the Via Rancho San Diego address on January 4; and 3) she never received the NOI sent to the East Country Drive address marked as Exhibit 9, it was up to the trial court to consider the credibility and weight of this testimony and determine whether the Bank of the West sent the NOI to Rosalie’s “last known address.” (§ 2983.2, subd. (a).) (See, e.g., Tribeca, supra, 239 Cal.App.4th at p. 1102 [appellate court reviewing the record for substantial evidence may not weigh the evidence or make credibility determinations].)  In sum, we conclude that there is substantial evidence in the record that Bank of the West timely sent James an NOI with respect to the vehicle, and that Bank of the West sent Rosalie an NOI with respect to the vehicle at her last known address. Accordingly, we conclude the trial court did not err in entering a judgment for a deficiency balance in favor of Baseline.