Chief Justice BENDER delivered the Opinion of the Court.
¶ 1 In this appeal, we review the order of the Jefferson County District Court upholding the county court's determination that the six-year statute of limitations contained in section 13-80-103.5(1)(a), C.R.S. (2011), did not bar respondent Account Brokers of Larimer County, Inc.'s claim against petitioner Daniel Shane Hassler. Account Brokers v. Hassler, No. 2009CV444 (Jefferson Cnty. Dist. Court May 19, 2009).
¶ 2 Hassler financed the purchase of a vehicle by entering into a security agreement with Account Brokers' predecessor-in-interest, Norlarco Credit Union, in which the vehicle served as collateral. The security agreement provided that the balance of the loan plus the attendant interest would be repaid in monthly installments. When Hassler later defaulted on his loan, Norlarco first repossessed the vehicle and then later sold it at auction. Norlarco applied the proceeds of the auction to the balance of the loan. The proceeds, however, were insufficient to cover the balance, and thus Hassler remained indebted for the deficiency. Norlarco eventually
¶ 3 We reverse. The relevant legal inquiry under the statute of limitations is the date that the debt was made liquidated or determinable but rather the date that the debt accrued, which section 13-80-108, C.R.S. (2011), entitled "When a cause of action accrues," defines as the date that the debt became due. § 13-80-108(4). We hold that under Colorado law and the express terms of the parties' security agreement, the present debt became due when it was accelerated following Norlarco's repossession of the vehicle and demand for full payment on the debt, which occurred more than six years before the initiation of the present suit. Accordingly, the action is barred by the statute of limitations.
¶ 4 Construing sections 13-80-103.5(1)(a) and 13-80-108(4), we conclude that the six-year statute of limitations for an action based upon the rights set forth in a security agreement begins to run on the date that the cause of action accrues, which is the date that the debt first becomes due. For a security agreement that is to be repaid in installments, the debt for each installment becomes due on the date that each installment is missed. Once an installment security agreement is validly accelerated, however, the entirety of the remaining balance becomes due and therefore the cause of action to collect the entire debt accrues.
¶ 5 In this case, Norlarco invoked the security agreement's optional acceleration clause by repossessing Hassler's vehicle on October 30, 2001, and sending him a letter shortly thereafter demanding that he repay the entirety of his debt. Because Account Brokers, Norlarco's successor-in-interest, filed its claim to collect the remainder of the debt on May 7, 2008, which was more than six years later, we hold that the present claim is barred by the statute of limitations. Thus, we remand the case to the district court to be returned to the county court for proceedings consistent with this opinion.
¶ 6 In October 2000, Hassler financed the purchase of a vehicle for $28,565.25 through Norlarco Credit Union. A security agreement, entitled "Open-End Voucher and Security Agreement," set forth the terms of the parties' agreement. The security agreement obligated Hassler to pay monthly installments of $523.00 beginning on November 19, 2000, and gave Norlarco a security interest in the vehicle Hassler purchased.
¶ 7 The security agreement defined default as "break[ing] any promise you make under this agreement." Paragraph 10 of the security agreement, entitled "What Happens if You Are in Default," specified the consequences of default to borrowers in different states. For Colorado borrowers, the security agreement authorized Norlarco to accelerate the loan and to require immediate payment of the outstanding balance at its option after the expiration of any statutory right to cure the default, stating:
(Emphasis added.) Paragraph 10 of the security agreement also included a repossession
¶ 8 Hassler made his last payment on the loan on April 21, 2001. He attempted to make payments in May 2001 and June 2001, but Norlarco reversed these credits in July 2001 because Hassler had insufficient funds to cover the payments. Norlarco repossessed the vehicle on October 30, 2001. At or around the time that Norlarco repossessed the vehicle, Norlarco sent Hassler an undated letter, entitled "NOTICE OF OUR INTENT TO SELL PROPERTY," which gave notice that it had repossessed the vehicle and that it intended to sell the vehicle sometime after November 10, 2001. The letter stated that the amount obtained from the vehicle's sale would reduce the amount Hassler owed and that Hassler would be liable for any deficiency remaining after the sale. The letter also notified Hassler that he could get his vehicle back before it was sold by paying Norlarco the full amount owed on the loan. It stated, "You can get the property back at any time before we sell it by paying us the full amount you owe (not just the past due payments), including our expenses." (Emphasis added.) The wording used in the letter was identical to the model language set forth in the "safe-harbor" provision found in section 4-9-614, C.R.S. (2011), which requires a creditor to provide a debtor with notice of the right to redeem the repossessed collateral before disposing of it.
¶ 9 After a failed attempt to sell the vehicle through a consignment agreement with a car dealership, Norlarco sold the vehicle at auction on June 4, 2002. The vehicle sold for $17,500, and those proceeds were applied to the outstanding balance, which resulted in a deficiency of $11,637.11. In a letter dated June 4, 2002, Norlarco notified Hassler that he owed a deficiency balance in the amount of $11,637.11 and that this amount was due to Norlarco within five days, unless Hassler contacted Norlarco and agreed to a new installment plan.
¶ 10 Hassler did not pay, and in March 2008, Norlarco assigned Hassler's debt to Account Brokers for collection.
¶ 11 In its December 2008 order, the county court magistrate ruled that the statute of limitations did not bar Account Brokers' action because the cause of action did not accrue until June 5, 2002, the day after the vehicle was sold, which was less than six years before Account Brokers filed its complaint. The court reasoned that the debt, which in this case was the deficiency balance, was not liquidated or determinable until the vehicle was sold or, alternatively, that Hassler made his last payment on the debt when the vehicle was sold. The court found for
¶ 12 On appeal, the district court affirmed the county court's judgment, also concluding that the cause of action accrued the day after the vehicle was sold because, until then, the debt was not liquidated or determinable:
Based on this reasoning, the district court concluded that Account Brokers timely filed its claim within the six-year statute of limitations contained in section 13-80-103.5(1)(a).
¶ 13 Hassler petitioned this court for further review, and we granted certiorari.
¶ 14 Upon review, we disagree with the district court and hold that this action was time-barred because the balance sought by Account Brokers became due when Norlarco unilaterally accelerated the debt by repossessing the vehicle and demanding repayment in full in the undated repossession letter. We reach this conclusion by first interpreting the six-year statute of limitations in section 13-80-103.5, which in turn is defined in part by section 13-80-108(4) (defining when a cause of action for a debt accrues), and hold that the statute of limitations for the recovery of a debt under a security agreement is triggered whenever the debt "becomes due" by the terms of the agreement. Next, we hold that, pursuant to the parties' security agreement, the remaining balance of Hassler's debt became due when Norlarco invoked its option to accelerate the debt, as evidenced through the unequivocal act of repossessing the vehicle and demanding repayment in full. Under both the relevant statutes and the express terms of the parties' security agreement, Norlarco was entitled to invoke its unilateral option to accelerate the present debt and did so when it informed Hassler that he could only retake possession of his repossessed property by paying the entire balance of the loan—and not merely the outstanding balance of the lapsed monthly installments. Accordingly, because this acceleration occurred more than six years before the initiation of the present action, we hold that the present claim is time-barred.
¶ 15 Initially, we must interpret the statutory scheme to determine when the relevant statute of limitations was triggered in the instant case. Statutory interpretation involves a question of law, which we review de novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.2010). When construing a statute, our goal is to determine and give effect to the intent of the General Assembly. People v. Perez, 238 P.3d 665, 669 (Colo.2010). Before resorting to canons of statutory interpretation, we look to the plain and ordinary meaning of the words in a statute. Id. If the statutory provisions are
¶ 16 Of the several statutes relevant to this case, we begin with the statute of limitations set forth in section 13-80-103.5(1)(a). That section applies a six-year statute of limitations to specified types of actions to recover a debt, including all actions to enforce the rights set forth in an instrument securing the payment of debt:
§ 13-80-103.5(1)(a) (emphasis added). By its terms, section 13-80-103.5(1)(a) states that the six-year statute of limitations for an action based upon the rights set forth in an instrument securing the repayment of a loan is triggered on the date that "the cause of action accrues." Id.; see also Nagy v. Landau, 807 P.2d 1227, 1228 (Colo.App. 1990) (stating that section 13-80-103.5 requires "all actions of debt founded upon any contract. . . to be commenced within six years after the cause of action accrued").
¶ 17 To determine when the present cause of action accrued, we next turn to section 13-80-108, which sets forth multiple provisions that establish the accrual date for different types of civil actions. Pertinent here, subsection 13-80-108(4) applies to causes of action to recover a "debt, obligation, money owed, or performance" and states that such actions "shall be considered to accrue on the date such debt, obligation, money owed, or performance becomes due." § 13-80-108(4) (emphasis added).
¶ 18 Hence, construing sections 13-80-103.5(1)(a) and 13-80-108(4) together, the statute of limitations for a debt owed pursuant to the rights set forth in a security instrument for the repayment of debt begins to run when the action accrues, which occurs on the date that the debt becomes due. Therefore, in order to determine when the statute of limitations began to run in the present matter, we must ascertain when the remaining balance of the debt that Hassler owed to Norlarco became due.
¶ 19 Here, our analysis departs from that of the district court. The district court correctly held that section 13-80-103.5(1)(a) is the appropriate statute for determining when the present statute of limitations period began to run. However, in determining when this "cause of action accrue[d]," rather than look to section 13-80-108(4), the district court erroneously applied the first clause of section 13-80-103.5(1)(a), which pertains to "[a]ll actions to recover a liquidated debt or an unliquidated, determinable amount of money due." Thus, instead of asking when the present debt "became due," the district court incorrectly looked to see when the present debt became either liquidated or determinable. This was in error because the present action was not one to recover a liquidated or determinable debt, but was instead an action to enforce a debt secured under an instrument, as contemplated by the second clause of section 13-80-103.5(1)(a).
¶ 20 Although no Colorado appellate court has ever explicitly parsed the clauses of section 13-80-103.5(1)(a), the plain meaning of the statutory text indicates that this action is one "for the enforcement of rights set forth in [an] instrument securing the payment of or evidencing [a] debt" and thus falls under the category of actions included in the second clause. See § 13-80-103.5(1)(a). This claim is an attempt by Account Brokers to recover the debt that Hassler incurred to purchase the vehicle under the parties' loan and security agreement. This instrument was executed contemporaneously with the purchase of the vehicle to memorialize the total amount that Hassler owed to Norlarco. See Mortg. Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176, 1184-85 (Colo.2003) (applying, with no discussion, the second clause of section 13-80-103.5(1)(a) to a debt secured under
¶ 21 Thus, the date on which the present action accrued does not depend on whether Hassler's debt was liquidated or determinable.
¶ 22 Accordingly, we now turn to the question of when the portion of Hassler's debt that is now sought by Account Brokers "became due." As the framework for our analysis, we begin by acknowledging the manner in which a statute of limitations must be applied to obligations that are to be repaid in installments. The general rule provides that "[a] separate cause of action arises on each installment, and the statute of limitations runs separately against each." 31 Richard A. Lord, Williston on Contracts § 79:17 (4th ed. updated 2011); see also In re Church, 833 P.2d 813, 814-15 (Colo.App.1992); Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 208-09, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997). However, if an obligation that is to be repaid in installments is accelerated either automatically by the terms of the agreement or by the election of the creditor pursuant to an optional acceleration clause—the entire remaining balance of the loan becomes due immediately and the statute of limitations is triggered for all installments that had not previously become due. See Lord, supra, at §§ 79:17,:18; In re Church, 833 P.2d at 815; Bay Area Laundry, 522 U.S. at 208-09, 118 S.Ct. 542.
¶ 23 Both Hassler and Account Brokers agree that the security agreement contained an optional acceleration clause that could be unilaterally invoked by the creditor following default and the expiration of the debtor's right to cure. Thus, the relevant inquiry for determining when the present action accrued is whether Norlarco exercised its option to accelerate Hassler's debt. If Norlarco did accelerate the debt, then the ultimate issue becomes on what date did this occur and trigger the statute of limitations governing the present action. Hassler argues that Norlarco invoked the optional acceleration clause by repossessing the vehicle and demanding full payment on the entire balance of the loan in its undated repossession letter. Conversely, Account Brokers contends that acceleration did not occur until the repossessed vehicle was sold and Norlarco sent Hassler a demand for the deficiency balance.
¶ 24 "In the case of an acceleration provision exercisable at the option of the [creditor], the [creditor] must perform some clear, unequivocal affirmative act evidencing his intention to take advantage of the accelerating provision." Moss v. McDonald, 772 P.2d 626, 628 (Colo.App.1988). Colorado appellate courts have only considered this issue on two prior occasions, and in each instance the actions of the creditor were held not to amount to an unequivocal act of acceleration. In Moss v. McDonald, a panel of the court of appeals held that, despite the fact that that case involved an acceleration provision that by its own terms allowed for the debt to be accelerated "without demand or notice," some affirmative act was still required on the part of the creditor to put the debtor on
¶ 25 Although neither Moss nor McDonald contained significant analysis of why a clear, unequivocal act is necessary to invoke an optional acceleration clause, this principle is consistent with that adopted by a majority of other states. See, e.g., Am.Jur.2d, Bills and Notes § 170; U.S. v. Feterl, 849 F.2d 354, 357 (8th Cir.1988); KIXX, Inc. v. Stallion Music, Inc., 610 P.2d 1385, 1388-89 (Utah 1980); State Sec. Sav. Co. v. Pelster, 207 Neb. 158, 296 N.W.2d 702, 706 (1980). These jurisdictions require that the "exercise of the option . . . be made in a manner so clear and unequivocal as to leave no doubt as to the holder's intention and to apprise the maker effectively of the fact that the option has been exercised." 5 A.L.R.2d 968, § 4[a].
¶ 26 At the county court, the parties stipulated that Norlarco repossessed the vehicle on October 30, 2001, and sent Hassler an undated letter on or shortly after the date of repossession.
¶ 27 Account Brokers makes three alternative arguments as to why Norlarco's repossession and demand for full payment did not amount to acceleration: (1) the undated letter merely parroted the sample "safe-harbor" language provided in section 4-9-614(a)(3) and, thus, its adherence to this legal obligation cannot be used to evince a subjective intent to accelerate; (2) any attempt to accelerate could not have been valid because the record does not contain evidence that Norlarco first provided Hassler with notice of the right to cure as required by the Uniform Consumer Credit Code (UCCC) and the terms of the parties' security agreement; and (3) even if the repossession and the undated letter evinced an intent to accelerate, Norlarco's actions were equivocal as evidenced by the monthly statements that it
¶ 28 First, Account Brokers argues that the demand for full payment on Hassler's debt in the undated repossession letter cannot be considered a manifestation of its unequivocal intent to accelerate because the language in the letter was copied from section 4-9-614(a)(3). Section 4-9-614(a)(3) sets forth sample language that a creditor may use to fulfill its duty under the UCC to provide a debtor with notice of his or her right to redeem before a creditor may dispose of collateral. In contrast to the right to cure, which we discuss below, the right to redeem requires that a debtor be given the opportunity to pay off any outstanding balance and retake possession of repossessed collateral before the creditor sells it. § 4-9-614(a)(1). As explained in official comment 3 to section 4-9-614, this so-called "safe-harbor" language does not need to be included in a valid notice of the right to redeem; instead, the language is merely included in the statute as an aid to creditors to provide certainty that the form of notice they use will not later be found to have been insufficient. See § 4-9-614(a)(2) ("A particular phrasing of notification is not required.").
¶ 29 Account Brokers argues that the inclusion of the "safe-harbor" language in the undated letter to Hassler cannot be viewed as evidence of Norlarco's subjective intent to accelerate Hassler's debt because Norlarco included the language solely to comply with its UCC duty to provide Hassler with notice of his right to redeem. Account Brokers contends that the letter did not amount to a demand for full payment, but instead merely informed Hassler of his right to redeem.
¶ 30 Irrespective of Norlarco's unknown subjective intent, we fail to see a distinction between a demand for full payment and notice that Hassler could only retake possession of his vehicle by paying the entire amount owed on the loan. With respect to the invocation of an optional acceleration clause, nothing in our case law nor the persuasive authority from other jurisdictions suggests that acceleration turns on the subjective intent of the creditor. Instead, whether acceleration is unequivocal should be viewed from the perspective of the debtor. See 5 A.L.R.2d 968, § 4[a] (explaining that the act must be so clear and unequivocal as "to leave no doubt" in the mind of the debtor that the creditor has elected to accelerate the debt).
¶ 31 Account Brokers claims that this is an unfair result because Norlarco was merely complying with its statutory duty to provide Hassler with notice of his right to redeem the repossessed collateral. Account Brokers contends that if providing notice of the right to redeem amounts to acceleration, then no creditor can ever foreclose on collateral without first accelerating the underlying debt, which it claims is antithetical to the flexibility that the UCC provides a creditor in selecting its remedy. This argument, however, ignores the fact that the "safe-harbor" language in section 4-9-614(a)(3) is merely provided as a model, and thus there is no statutory prohibition precluding a creditor from fulfilling its obligation of providing notice of the right to redeem under section 4-9-614 without acceleration.
¶ 32 Second, Account Brokers argues that even if Norlarco attempted to accelerate the debt, any attempt to do so was improper under the terms of the parties' agreement and the UCCC requirement that a debtor receive notice of the right to cure at least twenty days before a debt repayable in installments may be accelerated. The acceleration clause in the parties' security agreement, found in Paragraph 10, stated: "When you are in default and after expiration of any right you have under applicable state law to cure your default, we can require immediate payment of your outstanding balance under the Plan without giving you advance notice." (Emphasis added). Thus, under the express terms of the parties' security agreement, Norlarco could not require payment of the remaining balance that had yet to become due until (1) Hassler defaulted and (2) Hassler's statutory right to cure the default expired. In other words, although the parties stipulate that Hassler was in default in May 2001, the remaining installments that had yet to become due could not be validly accelerated and would not become due until Hassler's statutory right to cure had expired.
¶ 33 The requirement that Hassler be afforded an opportunity to cure his default prior to acceleration, as set forth in the parties' acceleration clause, is consistent with Colorado law, which requires that all consumer debtors receive such protection. § 5-5-111, C.R.S. (2011). Under the UCCC, which applies in this case,
¶ 34 Thus, Account Brokers argues that Norlarco could not have validly accelerated Hassler's debt because the record does not reflect whether Norlarco provided Hassler with notice of his right to cure his default, as required by section 5-5-111(1), before repossessing the vehicle or accelerating the debt. This unknown fact, however, is irrelevant to the resolution of the present matter because, irrespective of whether Norlarco provided Hassler with notice of his right to cure, Account Brokers' present claim would be barred by the statute of limitations. If Norlarco did provide Hassler with notice of his right to cure, then Norlarco would have been entitled, under Colorado law and the terms of the parties' agreement, to accelerate the remaining debt when it did so in its undated letter. Conversely, if Norlarco failed to provide Hassler with notice of his right to cure, any subsequent attempt to accelerate was wrongful under both section 5-5-111(1) and the explicit terms of the parties' security agreement, and it would be improper to allow Norlarco's successor-in-interest to benefit from such wrongful conduct by now claiming that the debt was never properly accelerated and thus never accrued.
¶ 35 Moreover, because this issue was not raised by Account Brokers before the county court, we hold that it was not preserved for appeal and accordingly decline to address it. Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 514
¶ 36 Finally, Account Brokers argues that even if Norlarco's repossession and mailing of the undated foreclosure letter evinced an intent to invoke its contractual option to accelerate, the monthly statements that it continued to send Hassler showing that it had not accelerated rendered any prior attempt to accelerate equivocal—and thus legally ineffective. While the county court was presented with evidence that Norlarco sent monthly loan statements to Hassler following repossession for billing on the missed monthly installments, we hold that this later conduct was insufficient to reverse Norlarco's prior acceleration. To determine whether the invocation of the acceleration clause was unequivocal, we look to see whether some act of the creditor amounted to a clear manifestation of its intent to accelerate. Moss, 772 P.2d at 628 ("[T]he obligee must perform some clear, unequivocal affirmative act evidencing his intention to take advantage of the accelerating provision."). Accordingly, the creditor's course of conduct following acceleration is irrelevant. Again, following repossession and receipt of the repossession letter, Hassler was on notice that he could only retake possession of his vehicle by repaying the entire amount owed on the loan. Any contradictory action that Norlarco may have later taken was insufficient to un-ring this bell.
¶ 37 Thus, we hold that Norlarco accelerated the remaining balance on the loan by demanding full payment in the repossession letter that it sent to Hassler shortly after repossessing his vehicle on October 30, 2001.
¶ 38 Having determined the approximate date that Norlarco accelerated the remaining balance of the loan, we decline to address whether Norlarco's claim for the accelerated debt accrued on the date that the debt was accelerated or on the date that Norlarco was first permitted to accelerate the debt. This issue is irrelevant to the resolution of the present matter because the undated letter was sent more than six years before the initiation of the present action on May 7, 2008. Therefore, because either date was more than six years prior to the filing of the present action, we need not determine the precise date on which the present action accrued. Consequently, we reserve this issue for another day.
¶ 40 For these reasons, we reverse the district court's order. We remand the case to the district court to return it to the county court for proceedings consistent with this opinion.
Justice MÁRQUEZ dissents.
¶ 41 I agree with the majority that a party's cause of action on installment debt accrues on the date the debt "becomes due" under the parties' agreement, and not when the debt was liquidated or became determinable. See Maj. op. ¶¶ 4, 16-21; § 13-80-108(4), C.R.S. (2011) (stating that a cause of action on a "debt, obligation, money owed, or performance" shall "accrue on the date such debt, obligation, money owed, or performance becomes due"); see also § 4-3-118, C.R.S. (2011). I further agree that the debt for each installment becomes due when an installment payment is missed, unless the entire debt obligation is validly accelerated under the parties' agreement. Maj. op. ¶¶ 4, 22; see also § 4-3-118; Currigan v. Stone, 136 Colo. 326, 331, 317 P.2d 1044, 1047 (1957) (stating that causes of action accrue separately on the dates when each missed installment payment became due); In re Church, 833 P.2d 813, 815 (Colo.App.1992). Finally, I agree with the majority that to invoke an optional acceleration provision, a creditor must perform some clear, unequivocal affirmative act evidencing the creditor's intention to accelerate a debt. Maj. op. ¶¶ 24-25; see also Padilla v. Ghuman, 183 P.3d 653, 659 (Colo.App.2007) ("Where an acceleration provision is exercisable at the option of the [creditor], the [creditor] must perform some clear, unequivocal affirmative act evidencing the [creditor's] intention to take advantage of the acceleration provision." (emphasis added)).
¶ 42 I write separately because I disagree with the majority's conclusion in Part III.B that, as a matter of law, Norlarco acted unequivocally to accelerate all future installment payments owed under the loan by (1) exercising its right as a secured party to repossess the car pursuant to Colorado's version of the Uniform Commercial Code (U.C.C.), coupled with (2) sending notice to Hassler of its intent to dispose of the collateral, as required by section 4-9-614, C.R.S. (2011) of the U.C.C., using language adopted by the General Assembly as sufficient to inform a consumer debtor of the right to redeem collateral under section 4-9-623, C.R.S. (2011). See Maj. op. ¶ 26. The majority's conclusion is unsupported by the parties' loan agreement, and ignores that a consumer loan and a lien give rise to distinct legal rights that can be enforced independently under separate statutory schemes. Even where, as here, an entity is both a creditor and a secured party in a particular transaction, the entity's mere exercise of its legal remedies under Article 9 of the U.C.C. as a secured party does not, without more, establish as a matter of law that it has simultaneously invoked an independent contractual right as a creditor to accelerate the debt in accordance with Colorado's Consumer Credit Code. See, e.g., Rogers v. Assocs. Commercial Corp., 129 Ariz. 499, 632 P.2d 1002, 1003, 1007 (Ariz.Ct.App.1981).
¶ 43 I believe the relevant inquiry for determining whether Account Brokers' cause of action is time-barred is not whether Norlarco did or did not exercise its option to accelerate Hassler's debt, see Maj. op. ¶ 23, but rather, whether it did so on or before May 7, 2002 (or six years before it filed its claim in this case on May 7, 2008), and if not, whether Account Brokers' claim seeks to recover any unaccelerated debt that had "become due" on or before May 7, 2002. In my view, the record supports the district court's conclusion that Norlarco proceeded solely as a secured party under the U.C.C. and never exercised its right as a creditor to accelerate
¶ 44 The "Loanliner" open-end voucher and security agreement that Hassler entered into contained both loan and security interest provisions. Paragraph 10 of the agreement set forth the consequences of default. Specifically, this paragraph permitted Norlarco to accelerate all future installment payments owed under the loan without notice to Hassler so long as Norlarco complied with applicable state law to cure:
(Emphasis added.) Under section 5-5-111(1), C.R.S. (2011), of Colorado's Consumer Credit Code, Norlarco could not accelerate the debt under this contractual provision until twenty days after giving Hassler a notice of the right to cure in section 5-5-110. Section 5-5-110 expressly requires such notice to conspicuously state the "name, address and telephone number of the creditor to which payment is to be made, a brief identification of the credit transaction, the right to cure the default, and the amount of payment and date by which payment must be made to cure the default." § 5-5-110(2), C.R.S. (2011) (emphasis added). The record here does not reflect that Norlarco ever sent Hassler such notice.
¶ 45 Paragraph 10 also provided that if Hassler defaulted on the loan, Norlarco could take possession of the car, sell it, and then "apply the money [from the sale] to any amounts you owe us."
¶ 46 The district court concluded that Norlarco proceeded merely as a secured party by exercising its rights under the secured transaction provisions of the U.C.C. and did not accelerate the debt. The record supports this conclusion. Specifically, Norlarco repossessed the car pursuant to section 4-9-609. Then, in an undated letter that tracked virtually verbatim the safe-harbor notice provided in section 4-9-614, Norlarco informed Hassler of his legal rights to redeem the repossessed collateral. See §§ 4-9-614, -623, C.R.S. (2011). Upon the sale of the car, the June 2002 month-end account statement reflects that, as required by the parties' agreement and section 4-9-615(a) of the U.C.C., Norlarco applied the sale proceeds to reduce the loan balance, which necessarily included the "delinquent amount" (i.e., the unpaid portion of the loan balance then delinquent) and the "repayment amount" (i.e., the unpaid portion of the loan balance currently due but not yet delinquent).
¶ 47 The majority nevertheless interprets Norlarco's efforts to exercise its remedies under the U.C.C.—repossession coupled with sending the safe-harbor notice required prior to disposition of the collateral—as acts that unequivocally invoked Norlarco's separate contractual right under the loan agreement to accelerate all future installment payments.
¶ 48 In this case, Norlarco's undated letter to Hassler was titled "NOTICE OF OUR PLAN TO SELL PROPERTY." It then tracked, almost verbatim, the statutory safe-harbor language
(Second emphasis added.)
¶ 49 The majority holds that a secured party's use of the recommended statutory language emphasized above serves, as a matter of law, as the party's unequivocal invocation of a wholly independent contractual right to accelerate the entire debt obligation. This language, however, was adopted by the General Assembly as recommended standard form language that satisfies the notice requirements of section 4-9-614 before disposition of collateral. It is purposefully ambiguous as to whether acceleration of all future loan payments has in fact occurred, allowing it to be used in a variety of factual situations (and thus rendering it a useful safe harbor). The critical phrase "full amount you owe" does not necessarily mean "the entire balance of the loan," Maj. op. ¶¶ 14, 30-31, as the majority incorrectly infers. Rather, this phrase can cover situations in which the entire debt has not been accelerated. For example, depending on the parties' agreement, the phrase "full amount you owe" can refer to the debtor's missed monthly payments plus the presently due monthly payment; the missed monthly payments plus the expenses associated with repossession; the missed monthly payments plus other monies owed by the debtor under the parties' loan agreement (e.g., taxes, fees, insurance premiums);
¶ 50 In my view, any possible doubt that the safe-harbor notice contained in section 4-9-614 does not automatically accelerate the debt is eliminated by official comment to section 4-9-623. Section 4-9-623 provides that to redeem repossessed collateral, the debtor "shall tender ... [f]ulfillment of all obligations secured by the collateral." Official comment 2 elaborates:
(Emphasis added.) This comment clarifies that the phrase "[f]ulfillment of all obligations secured by the collateral" can encompass situations in which the underlying debt has not been accelerated; otherwise the comment regarding acceleration would not be written in the conditional. Thus, the mere use of the corresponding safe-harbor language in section 4-9-614 to inform a debtor of his right to redeem the collateral under section 4-9-623 by "paying us the full amount you owe," does not necessarily mean that the entire debt, in fact, has been accelerated. The majority's conclusion to the contrary imports a meaning into the safe-harbor language of section 4-9-614 that is wholly unsupported by the statutory language and scheme.
¶ 51 Finally, I note that the series of monthly statements received by Hassler after the car was repossessed and the safe-harbor notice issued further undermine the majority's conclusion that Norlarco unequivocally accelerated the entire debt obligation. None of these subsequent monthly account statements suggested that either the "delinquent amount" on the loan (i.e., the amount of the loan that has become past due) or the "repayment amount" owed (i.e., the amount of the loan that has "become due" but not yet delinquent) equaled the entire outstanding loan balance. Rather, these statements continued to reflect a "delinquent amount" based on installment payments missed to that point, and a "repayment amount" of the $523 monthly installment under the agreement.
¶ 52 For these reasons, I disagree with the majority's conclusion that Norlarco's mere act of repossessing the collateral pursuant to section 4-9-609, coupled with sending the safe-harbor notice required by section 4-9-614(a)(3), unequivocally invoked its independent contractual right under the loan agreement to accelerate the entire debt obligation secured by the collateral.
¶ 53 I now turn to whether Account Brokers' cause of action, filed on May 7, 2008, is barred by the applicable six-year statute of limitations. § 13-80-103.5(1)(a); § 4-3-118. Account Brokers' claim would be time-barred to the extent it includes any debt that had "become due" (i.e., the cause of action accrued) on or before May 7, 2002. See § 13-80-108(4), C.R.S. (2011). In other words, if Norlarco accelerated the debt on or before that date, or alternatively, if Account Brokers' claim seeks to recover any installment payments that had become due on or before May 7, 2002, then any claim for such debt is time-barred. The record shows that neither is true.
¶ 55 Because Norlarco did not accelerate the debt on or before May 7, 2002, Account Brokers' claim would be time-barred, and only partially so, only if the claim seeks to recover any installment payments that had "become due" on or before May 7, 2002. The uncontroverted record evidence establishes, however, that Account Brokers' claim does not include any such payments. The June 2002 month-end account statement shows that as of June 1 the "delinquent amount" (i.e., the missed payments that had "become due") was at most $6035. The same statement reflects, however, that on June 4, following the sale of the collateral, Norlarco applied the $17,500 in proceeds to reduce the loan balance, which necessarily included the full amount that had "become due."
¶ 56 Accordingly, I would affirm the district court's order that Account Brokers' lawsuit was not barred by the statute of limitations.
Following an initial round of briefing and oral arguments, we requested additional supplementary briefing on the following issues:
In the present matter, Hassler is an individual who purchased a car for personal use pursuant to a security agreement from Norlarco, a commercial creditor, for $28,565.25 in financing. Consequently, the transaction was a "consumer credit sale" and is therefore subject to the regulations and protections set forth in the UCCC, including the statutory right to cure.
Under the majority rule, the cause of action for such accelerated debt accrues on the date that the creditor elects to accelerate. See, e.g., Bay Area Laundry, 522 U.S. at 209 n. 5, 118 S.Ct. 542 (interpreting federal law to hold that "[t]he statute of limitations on an accelerated debt runs from the date the creditor exercises its acceleration option, not earlier"); United States v. Agri Servs., Inc., 81 F.3d 1002, 1005 (10th Cir.1996) (interpreting New Mexico law to hold that "accrual occurs upon acceleration"). In contrast, in 1909, we held that, where a creditor elects to accelerate the entire debt, the accrual of the cause of action relates back to the date that the creditor was first lawfully permitted to accelerate the debt. Lovell, 101 P. at 74-75.
Under both the statutory scheme and the terms of the parties' agreement, following default, Norlarco would have been entitled to accelerate at any time following twenty days after providing Hassler with notice of his right to cure under section 5-5-111(1) of the UCCC. Of course, in the present matter, because the record does not contain any evidence of whether Norlarco provided Hassler with notice of his right to cure, the date on which Norlarco was first entitled to accelerate the present debt is unknown. However, because the date that Norlarco was first entitled to accelerate the loan necessarily occurred before Norlarco did in fact accelerate the loan, which we hold occurred shortly after October 30, 2001, the statute of limitations for the present action would have expired under either the Lovell rule or the rule applied by a majority of jurisdictions in the wake of their adoption of the UCC.
§ 4-9-614(a)(3) (Fourth emphasis added.)