                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 02-3811
AUTOMOTIVE FINANCE CORPORATION,
                                               Plaintiff-Appellee,
                                v.

SMART AUTO CENTER, INC. AND CARL SCHWIBINGER,
                                    Defendants-Appellants.
                         ____________
           Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
         No. 00 C 556—Larry J. McKinney, Chief Judge.
                         ____________
       ARGUED MAY 19, 2003—DECIDED JULY 2, 2003
                    ____________


 Before EASTERBROOK, ROVNER, and EVANS, Circuit Judges.
   EVANS, Circuit Judge. This case arises out of the ef-
forts of Automotive Finance Corporation (AFC) to collect
on loans it made to Carl Schwibinger, a used car dealer,
and Smart Auto Center, Inc., his dealership. Before filing
suit, AFC tried a little self-help—repossessing a number
of Smart Auto cars and attempting to take others that
Schwibinger purchased individually. Smart Auto and
Schwibinger (whom we’ll refer to together as Schwibinger)
filed counterclaims based on these previous collection
efforts and, after a bench trial, won about $12,000 in
damages. AFC may have lost a couple of battles to
2                                              No. 02-3811

Schwibinger, but it won the war when the district court
awarded it roughly $165,000 for the balance of the
loans and costs associated with the collection action.
Schwibinger appeals.
  The agreement between the parties was fairly simple.
AFC issued Schwibinger a line of credit to purchase used
cars at auto auctions. Each car purchase was treated as a
separate loan for the purposes of calculating payment due
dates. Schwibinger had to either pay the balance of each
loan within 45 days or pay a “curtailment” to extend the
loan another 45 days. Once Schwibinger sold a vehicle, he
had to repay the loan within 48 hours. If he failed to do
so, the vehicle was considered to be “out of trust.”
  Apparently the used car business was not going well
for Schwibinger and, around November 1999, he was be-
hind in his payments and some of his vehicles were out
of trust. In December 1999, two representatives from AFC
paid him a visit to discuss getting his account current. AFC
arranged a “swap out,” taking the titles to 11 vehicles
that Schwibinger owned outright in exchange for a new
loan. The new loan was used to pay off the out-of-trust
vehicles and put a second curtailment on the past-due
vehicles. AFC did not otherwise alter the payment terms
of the note. During the meeting, Schwibinger told AFC
that he was selling his dealership and inventory to an-
other car dealer in mid-January.
  By the end of December, Schwibinger was again in de-
fault and AFC believed that more vehicles were out of
trust. Schwibinger attempted to put off AFC’s collection
efforts. He sent AFC a check that bounced (although he
later made good on it), and he made promises (which he
didn’t keep) that he would wire AFC payments, deliver
cashier’s checks, send confirmation of the sale of the
dealership, and fax copies of payment checks. AFC’s
regional manager, Chad Hopkins, told Schwibinger to
No. 02-3811                                                3

relinquish possession of the vehicles that served as collat-
eral for the loans. Although Schwibinger initially agreed, he
later changed his mind.
  At this point, AFC decided to take matters into its own
hands. On January 18, 2000, it sent America Auto Recov-
ery (AAR) to Schwibinger’s lot to repossess vehicles.
Schwibinger arrived on the scene after AAR had taken 16
vehicles. While his wife called the police, Schwibinger
pursued a more confrontational strategy. He blocked the
driveway with his car and confronted the AAR tow truck
drivers. An altercation ensued and, once the sheriff’s
department arrived, Schwibinger was arrested for disor-
derly conduct. AAR repossessed 4 more vehicles for a
total of 20. Because the repossessed vehicles didn’t cover
the outstanding loan balance, AFC also attempted to
take four vehicles in North Dakota that Schwibinger
owned individually.
  In March 2000, Schwibinger tried to settle his differ-
ences with AFC, offering it roughly $265,000 to cover the
amount owed on the vehicles and fees for the repossession.
The money was to come from the sale of Smart Auto,
and Schwibinger wanted AFC to give his attorney the
vehicles under a bailment agreement until the deal
closed. AFC requested a hold harmless clause in the
agreement for any claims based on the repossession, but
Schwibinger refused. Ultimately, the deal fell through.
  AFC sold nine of the repossessed vehicles at auto auc-
tions. As it turns out, the 11 other vehicles had odometer
or title problems because they were from Canada. These
vehicles would not have fetched a good price at an auc-
tion because they would have had to be sold “mileage
unknown.” Therefore, AFC sold these cars to a dealer (with
whom it had a lending relationship) who knew how to
handle Canadian vehicles with unknown mileage. AFC
received $160,000 for all of the vehicles, leaving a loan
balance due of $117,000.
4                                                No. 02-3811

   AFC brought suit to recover the remaining balance on
the loans plus costs and fees associated with collection.
Schwibinger responded that he had not defaulted on the
loans and AFC failed to mitigate its damages by refusing
to allow him to redeem his vehicles and then selling
them for too low a price. He also counterclaimed that AFC
had repossessed the vehicles over his objection and inter-
fered with his ownership of other vehicles. Following
a bench trial, the district court found that AFC was en-
titled to repossess the vehicles because Schwibinger had
been in default on the loans and that it had properly
handled the vehicles after repossessing them. Schwibinger
was entitled to damages, however, for the four cars
that AAR had taken over his objection and for AFC’s
attempt to take the North Dakota cars that Schwibinger
had purchased individually. Schwibinger appeals both
the court’s holding as to AFC’s claim and its deter-
mination of the amount of damages to award him on his
claims.
   We review the district court’s findings of fact for clear
error and its legal conclusions de novo. See Cerros v. Steel
Tech, Inc., 288 F.3d 1040, 1044 (7th Cir. 2002). To set
aside a finding of fact, we must have “a definite and
firm conviction that a mistake has been committed.” Cohen
Dev. Co. v. JMJ Prop., Inc., 317 F.3d 729, 735 (7th Cir.
2003) (citations omitted). In a case arising under our
diversity jurisdiction, we apply the law of the forum
state, Merrill v. Trump Indiana, Inc., 320 F.3d 729, 731
(7th Cir. 2003), and here that’s Indiana.
  We’ll start with Schwibinger’s arguments relating to
AFC’s claim. Schwibinger says that he didn’t default on
the loans and, even if he did, AFC did not properly han-
dle the vehicles that it repossessed. We can quickly
put Schwibinger’s first contention, that he was not in
default on the loans, to rest. The gist of this theory is that
AFC told Schwibinger that his payment deadlines were
No. 02-3811                                              5

extended to January 20, 2000, and, under the doctrine of
equitable estoppel, AFC should be barred from relying
on an earlier payment deadline or enforcing the 48-hour
payment rule for sold vehicles.
  To be successful on an equitable estoppel defense,
Schwibinger must show, among other things, that AFC
either concealed or made a misrepresentation regarding
the payment deadlines, that he was ignorant of the pos-
sibility that AFC would enforce the earlier payment
deadlines, and that he relied on AFC’s misrepresenta-
tions to his detriment. See Clark v. Crowe, 778 N.E.2d 835,
840 (Ind. Ct. App. 2002) (setting out elements of equi-
table estoppel). The district court found that AFC didn’t
say it was changing the note’s repayment terms and
that Schwibinger’s attempts to pay off the loans prior
to January 20, 2000, show that he knew he had to pay
before that date. We agree. Chad Hopkins, the AFC re-
gional manager who visited Schwibinger in December, said
that he didn’t verbally agree to alter the payment terms
of the note, and the note itself says that it can only be
modified in writing. The only writings that Schwibinger
points to are an email from Brian Geitner, AFC’s vice-
president of operations for the Midwest, approving the
swap-out agreement and a December 6, 1999, AFC docu-
ment discussing the details of Schwibinger’s account. The
Geitner email said that the swap-out gave Schwibinger
an extra 30 days to move his inventory—which would
have changed the payment dates to early January, not
January 20. The December 6, 1999, AFC document did
say that payments were due on January 20, but those
dates were created as a result of a glitch in AFC’s com-
puter systems. AFC sent Schwibinger a corrected docu-
ment the next day. Even if these writings showed
that payments on unsold vehicles had been extended,
Schwibinger doesn’t point to any writing or represen-
tation from AFC giving him more than the standard 48
6                                             No. 02-3811

hours to pay off loans on the vehicles that he sold.
In addition, the district court heard testimony that
Schwibinger promised to pay off vehicles on several occa-
sions prior to the repossession and agreed to voluntarily
relinquish some vehicles in January—showing that he
knew that his account was delinquent. These facts don’t
add up to equitable estoppel. Schwibinger was in default
on the loans.
  Schwibinger next argues that, even if he was in default
on the loans, he is entitled to a new trial on damages
because AFC mishandled the repossessed vehicles. First,
Schwibinger contends that AFC wrongly rejected his
offer to buy the cars back because he refused to add a
hold harmless clause to the agreement for any claims
arising from the repossession. Under the Indiana Uni-
form Commercial Code, a debtor can redeem collateral
by tendering the full amount due. See Ind. Code § 26-1-9.1-
623. While the Indiana Supreme Court, in an opinion
that is a little less than clear, seems to indicate that a
creditor may not defeat a debtor’s right to redeem his
collateral by insisting that redemption be contingent
upon signing a release, see Star Bank, N.A. v. Laker, 637
N.E.2d 805, 807 (Ind. 1994), a debtor must nevertheless
tender the full amount due. Schwibinger never did that
as his offer was contingent on the sale of his dealership,
Smart Auto. He essentially only offered to enter into a
new agreement extending his payment time on the loans.
What he did falls short of “tendering payment” which
requires more than a new promise to perform an exist-
ing promise. “Tendering payment” means offering “pay-
ment in full of all monetary obligations then due and
performance in full of all other obligations then matured,”
Ind. Code § 26-1-9.1-623, comment 2. Since Schwibinger
never tendered payment, AFC was not required to re-
lease the vehicles.
No. 02-3811                                              7

   Schwibinger also argues that AFC mishandled the
repossessed vehicles by failing to dispose of them in a
commercially reasonable manner as required by Ind. Code
§ 26-1-9.1-610(b). The heart of Schwibinger’s argument
is that AFC didn’t get enough money for the vehicles. Even
if that is true, it doesn’t entitle Schwibinger to victory—
AFC did not have to get the best possible price for the
collateral. “The fact that a greater amount could have
been obtained . . . is not of itself sufficient to pre-
clude the secured party from establishing that the col-
lection, enforcement, disposition, or acceptance was
made in a commercially reasonable manner.” Ind. Code
§ 26-1-9.1-627(a). AFC sold nine of the vehicles at auc-
tion—its normal method of disposing of repossessed vehi-
cles. This was commercially reasonable because a se-
cured party is protected if it does something in its usual
manner on a recognized market, see Ind. Code § 26-1-9-
627(b)(1), and, under Indiana law, auctions are typically
found reasonable, see LaSalle Motor Car Sales, Inc. v.
Calumet Nat’l Bank, 440 N.E.2d 9, 12 (Ind. Ct. App. 1982).
AFC also acted reasonably with regard to the Canadian
vehicles. An auction wouldn’t have yielded a good price
for them because of their mileage problems, so AFC
sold them to someone who knew how to deal with such
vehicles. That AFC had a prior relationship with the
dealer, without more, does not make the disposal com-
mercially unreasonable. See id. at 13.
  We now turn to the district court’s assessment of
Schwibinger’s damages. Part of Schwibinger’s damages
award came from AAR’s repossession of some of the vehi-
cles over his objection. The district court determined
that Schwibinger arrived at the lot around 10 p.m., after
AAR had taken 16 vehicles, and objected to the reposses-
sion at that point. AAR should have stopped taking vehi-
cles when Schwibinger objected, but it proceeded to re-
possess four more. Citing the testimony of AAR’s owner,
8                                            No. 02-3811

Eric Pedersen, Schwibinger contends that he and AAR
both arrived at the lot around 10 p.m., so AAR didn’t have
any vehicles under its control before he objected. It’s
true that Pedersen said that he arrived at the lot at
10 p.m. But Pedersen also said that he had been work-
ing for an hour before Schwibinger arrived. It seems a
little fishy for Schwibinger to rely on Pedersen’s helpful
evidence (his arrival time) while discounting his harmful
evidence (the number of cars he had taken before
Schwibinger’s arrival). Furthermore, Schwibinger him-
self wasn’t certain he arrived at 10 p.m. He thought it
was closer to 10 p.m. than 11 p.m., but he said that the
time was “[j]ust a guess.” Schwibinger’s statement that
AAR was “getting ready to remove my cars from the
premises” when he arrived does not negate Pedersen’s
testimony that he had already taken some cars and, in
any event, the district court could have chosen to find
this testimony not credible. Schwibinger characterizes
Pedersen’s testimony as ambiguous, but we don’t see
anything ambiguous about it. It was not clearly errone-
ous for the district court to conclude that 16 of 20 vehi-
cles were repossessed before Schwibinger arrived and
lodged his objection.
  The remainder of Schwibinger’s damages award came
from AFC’s attempt to take vehicles that he owned individ-
ually. He also says that AFC stopped auctions from selling
to him. His damages expert, Margaret Suralik, testified
that Schwibinger lost $170,000 due to these actions be-
cause he couldn’t restock his dealership. The district
court awarded him $5,078.32 for AFC’s wrongful attempt
to repossess the four vehicles, but Schwibinger faults
the court for not making any specific findings regard-
ing damages that AFC’s actions may have caused him in
terms of restocking his dealership. It’s true that Federal
Rule of Civil Procedure 52(a) requires the district court
to “find the facts specially” and the district court did
No. 02-3811                                              9

not address Schwibinger’s restocking argument head-on.
But we may consider a trial court’s failure to make find-
ings of fact nonreversible error if it can be ascertained
from the record that the prevailing party was clearly
entitled to judgment. See Donaldson v. Taylor Prod. Div. of
Tecumseh Prod. Co., 620 F.2d 155, 158 (7th Cir. 1980); see
also Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d
1234, 1246 (10th Cir. 2001). That’s the situation in this
case. There’s no evidence that AFC controlled whether
auction houses sold cars to Schwibinger. One auction
house said that it barred Schwibinger from buying
cars because he had a reputation as a slow payer and
someone who bounced checks. As to the roughly one-
month delay in getting the four North Dakota cars, we
think it is wholly implausible that this alone caused
Schwibinger to lose $170,000 when he sold his dealer-
ship. The failure of the district court to make specific
findings on this subject constitutes nonreversible error.
  For all these reasons, the judgment of the district court
is AFFIRMED. One final matter remains: AFC is entitled
to appellate attorney fees under its contract with
Schwibinger. Within 15 days, AFC should submit a state-
ment of the attorney fees it incurred in connection with
this appeal. Schwibinger may, if desired, file an opposing
brief within 10 days thereafter.
                                                AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit


                   USCA-02-C-0072—7-2-03
