Stringer, Bob & Ruth v. Modesta Perales

Court of Appeals of Texas·Decided April 10, 2003·No. 01-02-00281-CV·Published

Opinion


Opinion issued April 10, 2003





In The

Court of Appeals

For The

First District of Texas


NO. 01-02-00281-CV

____________

BOB STRINGER AND RUTH STRINGER, Appellants

V.

MODESTA PERALES, Appellee


On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 00-17312


MEMORANDUM OPINION

          A jury found Bob and Ruth Stringer, appellants, breached the contract for deed, violated the Deceptive Trade Practices Act (DTPA) , and committed fraud, theft, and usury when they evicted Modesta Perales, appellee, from her home. The jury awarded Perales $1.3 million in damages, including attorneys’ fees, mental anguish, and exemplary damages. The trial court added a usury penalty of $241,000.

          The Stringers argue that the evidence does not support the jury findings of (1) DTPA violations, fraud, and theft or (2) damages for lost profits, relocation expense, and lost personal property. The Stringers also contend that there is no basis for usury penalties. We affirm.

Factual and Procedural Background

          The Stringers agreed to sell their home to Perales under a contract for deed for $105,000. Perales made a $20,000 down payment, and the Stringers financed the remaining $85,000 at nine percent interest. Perales was to make 120 monthly payments of $1076.74 and to pay all property taxes and insurance. Under the contract terms, if a payment was in default for more than 15 days, the Stringers had the right to repossess the property and consider all previous payments to be rent.

          Over the next 59 months, Perales made only 37 payments, but many of the payments were for more than her scheduled payment amounts, and her balance of $41,519 was actually less than she would have owed had she paid only the designated payment each month. The Stringers argued that Perales was contractually obligated to make at least one payment a month. If she chose to make more, that would shorten the length of the loan, but she was required to make a payment each month. Perales, however, contended that, because her balance was less than it would have been had she paid only the monthly payments, she was not in default. Furthermore, Perales testified that when she gave Mrs. Stringer one of the lump payments, Perales told Mrs. Stringer she wanted “to make some months ahead.”

          The relevant dates and events are as follows:

August 23, 1993

Stringers and Perales enter into contract for deed; 10 year amortized payment schedule providing for payment of 120 monthly installments of $1076.74 

October 1994

Perales made $12,000 payment Stringers did not credit to payment schedule; instead, Ruth Stringer, unilaterally, shortened loan term from 120 months to 97 months

February 6, 1996

Stringer notified Perales she was three payments behind

March 3, 1996

Stringer notified Perales she was four months behind

July 9, 1997

Charles Tiemann, Stringers’ lawyer, sent Perales default notice (Perales actually $14,550 ahead of schedule)

October 29, 1997

Stringer notified Perales her payments were four months past due

December 19,1997

Tiemann sent another default notice (Perales $17,586 ahead)

early 1998

Money Mortgage approved Perales for loan to pay off balance of contract

June 10, 1998 

mortgage company’s surveyor issued survey showing Perales’s garage encroached onto another lot

Stringers served Perales with a notice to vacate

June 25, 1998

Stringers filed “Complaint for Forcible Detainer” in justice court for $46,575.50

July 15, 1998

Perales called Stringer and was told not to worry about forcible detainer because Tiemann was out-of-town

July 22, 1998

Stringers obtain default

August 4, 1998

Tiemann sent mortgage company figures for payoff good until August 14

Tiemann told mortgage company Stringers would not foreclose

August 10, 1998

mortgage company notified Tiemann that documents were signed and loan would be funded upon receipt of warranty deed

justice court issued an eviction order

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Stringer, Bob & Ruth v. Modesta Perales, (Tex. Ct. App. 2003).

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