This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-799

Olympic Financial Ltd.,

Respondent,

vs.

David E. Byers,

Defendant,

Cheryl Jean Golden,

Appellant.

Filed October 22, 1996

Affirmed

Lansing, Judge

Hennepin County District Court

File No. 9418549

David G. Hellmuth, Chad A. Johnson, Hellmuth & Johnson, P.A., 300 Cabriole Center, 9531 West 78th Street, Eden Prairie, MN 55344 (for Respondent)

James P. Young, Lundquist Law Offices, P.A., 400 South Fourth Street, 1012 Grain Exchange Building, Minneapolis, MN 55415 (for Appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

The district court granted creditor Olympic Financial's motion for summary judgment on its claim against debtor Cheryl Golden for deficiencies on an installment contract that Golden co-signed. Because the parties stipulated that there were no genuine issues of material fact and the district court did not err in the application of the law presented to it, we affirm.

FACTS

Cheryl Golden co-signed with David Byers an installment contract for the purchase of a 1991 Chevrolet S10 Blazer on October 17, 1992. The seller subsequently assigned all of its rights under the contract to Olympic Financial. The contract provided for sixty monthly installments of $371.95. In addition it provided that, in the event of default, Olympic Financial could accelerate the debt, repossess and sell the vehicle, and collect deficiencies, court costs, and attorneys' fees.

Starting shortly after the purchase of the vehicle, Byers, who was in possession of the vehicle, repeatedly defaulted on the payments and the payments were covered for a period by Golden. After a series of defaults, late payments, and allegations that the vehicle was missing, Olympic Financial ultimately notified Golden by letter on April 7, 1994, that the account was in default and that she would have until April 18, 1994, to bring all payments current ($1,115.85 at the time) after which Olympic would pursue means of collecting on the entire debt, including repossession of the vehicle. In response, on April 11, 1994, Golden transmitted a facsimile to Olympic Financial stating that she did not know where the car was and did not intend to make any more payments on it.

Meanwhile, Byers, who was in possession of the vehicle, voluntarily surrendered the vehicle to Olympic Financial. The surrender occurred on April 11, 1994, the same day that Golden sent her fax indicating that she would not pay the defaulted amount.

On April 12, 1994, one day after receiving both the truck and Golden's fax, Olympic Financial sent a letter to Golden stating that it had possession of the truck and would sell it after April 22, 1994, but that Golden could redeem by paying the outstanding balance of $14,783.15 before the sale date.

Golden failed to redeem and the vehicle was sold on June 9, 1994. Olympic Financial was granted summary judgment on its claim for the deficient amount on the loan less the amount received in the sale plus costs and attorneys' fees. Golden appealed.

D E C I S I O N

The reviewing court asks two questions in an appeal from summary judgment: (1) whether any genuine issues of material fact exist, and (2) whether the district court correctly applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Because Olympic Financial and Golden agreed at the district court hearing that there were no genuine issues of material fact, our review is limited to whether the district court correctly applied the law argued before it.

Minnesota Statutes, sections 336.9-503 to -504 (1994), provisions of the Uniform Commercial Code, authorize repossession and sale of collateral by a secured party in the event of default unless otherwise agreed by the parties. Olympic Financial explicitly retained those rights in its contract with Golden.

Golden correctly points out that in Minnesota a strict interpretation of the repossession provisions of the U.C.C. has been abandoned when creditors have repeatedly accepted late payments. Cobb v. Midwest Recovery Bureau Co., 295 N.W.2d 232 (Minn. 1980). In Cobb, the supreme court held that a secured party with a contractual right to repossess property who repeatedly accepted late payments must notify the debtor of a requirement of strict compliance with the contract terms before the property may be lawfully repossessed. Id. at 237. The court reasoned that "the secured party is estopped from asserting his contract rights because his conduct had induced the justified reliance of the debtor in believing that late payments were acceptable." Id. at 236.

But this is not a case where the secured party has attempted to repossess the vehicle or accelerate the debt without giving the required notice. Notice of Olympic Financial's intent to take all measures necessary to collect on the debt, including repossession of the vehicle, was indisputably sent to Golden on April 7, 1994. Thus, Olympic complied with the mandates of Cobb, and Golden's argument to the district court that Cobb created a duty beyond the notice requirement which Olympic Financial subsequently breached is without merit. The district court properly rejected Golden's attempt to base her defense to liability on Cobb.

Golden also made arguments based on waiver and estoppel. The district court concluded that the arguments were without merit, and we agree. Absent a basis on which Golden can assert that the April 7 letter placed an obligation on Olympic Financial to keep its offer open for ten days, the estoppel argument fails. See Anderson v. Minnesota Ins. Guar. Ass'n, 534 N.W.2d 706, 709 (Minn. 1995) (reliance on statements contrary to unambiguous contract language unreasonable as a matter of law). Similarly, there is no evidence to support Golden's argument that Olympic Financial waived its right to repossess the vehicle and collect in full on the loan upon default. See Anderson v. Twin City Rapid Transit, 250 Minn. 167, 181-82, 84 N.W.2d 593, 603 (1957) (defining waiver as specific relinquishment of legal position).

Because issues of contract modification or amendment under the original agreement were not presented or developed at the district court level, we do not have a record that permits a more comprehensive review. Our review is limited to consideration of the issues presented to and considered by the district court. Thayer v. American Financial Advisers, 322 N.W.2d 599, 604 (Minn. 1982).

Because, as stipulated by the parties, there were no genuine issues of material fact and because the district court did not err in applying the law argued by the parties on the summary judgment motion, we affirm.

Affirmed.