Consumer Portfolio Services, Inc. v. Judith Obregon

Court of Appeals of Texas

Consumer Portfolio Services, Inc. v. Judith Obregon

Court of Appeals of Texas·Decided November 4, 2010·No. 13-09-00548-CV·Published

Opinion

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<CENTER>NUMBER 13-09-00548-CV</CENTER>

<CENTER>COURT OF APPEALS</CENTER>

<CENTER>THIRTEENTH DISTRICT OF TEXAS</CENTER>

<CENTER>CORPUS CHRISTI - EDINBURG </CENTER>

CONSUMER PORTFOLIO SERVICES, INC., Appellant,

JUDITH OBREGON, Appellee.

On appeal from the County Court at Law No. 2

of Hidalgo County, Texas.

MEMORANDUM OPINION

<CENTER>Before Justices Yañez, Rodriguez, and Garza </CENTER>

<CENTER>Memorandum Opinion by Justice Rodriguez</CENTER>

This appeal arises from a dispute over compliance with the parties' Rule 11

settlement agreement. See Tex. R. Civ. P. 11. At issue is the trial court's denial of

appellant Consumer Portfolio Services, Inc.'s (CPS) motion for summary judgment and

granting of appellee Judith Obregon's motion for summary judgment. By three issues,

CPS argues that the trial court erred in: (1) granting Obregon's motion for summary

judgment based on CPS's alleged breach of the settlement agreement by failing to make

payment of $3,000.00 within twenty days of December 5, 2008; (2) denying CPS's motion

for summary judgment based on Obregon's alleged breach of the settlement agreement

by repudiation and refusal to execute a release of liability upon tender; and (3) awarding

attorney's fees to Obregon. We affirm in part, reverse in part, and remand for further

proceedings. I. Background

On November 28, 2007, Obregon filed her original petition against Rio Grande

Valley Motors, Inc. (RGVM) and CPS, alleging claims arising out of the purchase of a

motor vehicle from RGVM. In her subsequent amended complaints on September 8, 2008

and November 20, 2008, Obregon claimed RGVM failed to inform her that the vehicle she

purchased had been previously damaged and that CPS, a consumer finance company that

was assigned the retail sales installment contract executed between RGVM and Obregon,

engaged in unfair debt collection practices by misrepresentation of the status of a

consumer debt.

In early December 2008, CPS gave RGVM written authority to negotiate a

settlement agreement on its behalf with Obregon. On December 4, 2008 and December

5, 2008, a series of fax transmissions were exchanged between RGVM and Obregon in

an attempt to reach a settlement agreement. Fax #1 was sent on December 4, 2008, from

RGVM to Obregon, offering the following:

On behalf of my client and CPS, Inc. we hereby extend a joint settlement

offer of $12,000.00. CPS will wipe out the deficiency and delete the trade

line from the credit report. A tri-party release will be executed by all.

On December 5, 2008, Obregon counteroffered with Fax #2:

In response to the Defendants' joint offer, we counter at $12,500.00 plus

deletion of trade line/clearance/release of any debt balance, payable within

20 days. I believe $12,500.00 represents the midpoint of Plaintiff's demands

and Defendants' last offer.

RGVM responded on December 5, 2008, to the counteroffer with Fax #3:

This Rule 11 Agreement will confirm we have reached a settlement between

Defendants and your client Judith Obregon in the amount of $12,500.00 plus

deletion of trade line/clearance/release of any debt balance. This settlement

shall be payable within 20 days. If this confirms our agreement, please sign

below and return via fax.

Obregon signed a copy of RGVM's response and returned it via Fax #4. RGVM and CPS

agreed that RGVM would be responsible for payment of $9,500.00 and CPS would be

responsible for $3,000.00.<A HREF="#N_1_"> (1)</A>

On December 11, 2008, RGVM sent a check to Obregon for the sum of $9,500.00

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