General Motors Acceptance Corp. v. Uresti, 1010

• Decision Date: 30 June 1977
• Docket Number: No. 1010,1010
• Citation: 553 S.W.2d 660
• Parties: GENERAL MOTORS ACCEPTANCE CORPORATION, Appellant, v. Alberto URESTI, Appellee.
• Court: Texas Court of Appeals

Page 660

553 S.W.2d 660

GENERAL MOTORS ACCEPTANCE CORPORATION, Appellant, v. Alberto URESTI, Appellee.

No. 1010.

Court of Civil Appeals of Texas, Tyler.

June 30, 1977.

Rehearing Denied July 28, 1977.

George H. Spencer, Robert J. Rosenbach, Clemens, Spencer, Welmaker & Finck, San Antonio, for appellant.

Barry Snell, Bayne & Snell, LeLaurin, Adams, Eichelbaum & Sanders, San Antonio, for appellee.

DUNAGAN, Chief Justice.

This is an appeal from a summary judgment rendered on appellee, Alberto Uresti's, counterclaim of usury. Appellant, General Motors Acceptance Corporation (hereinafter referred to as "GMAC") brought an action against appellee, Alberto Uresti (hereinafter referred to as "Uresti"), for an alleged default on Uresti's part in the payment of monthly payments for a truck. Uresti's counterclaim alleging that GMAC, by not rebating any unearned time-price differential in its suit, had charged in excess of twice the amount of time-price differential permitted by statute. Uresti filed a motion for partial summary judgment, based upon GMAC's sworn petition, affidavit for sequestration, and the deposition of GMAC's special collector manager, E. L. Koehlor. The trial court, upon considering the motion for partial summary judgment, pleadings, Koehlor's deposition and his affidavit for sequestration granted summary judgment finding therein that GMAC had "accelerated the entire unpaid balance due on the contract made the basis of this suit, and did not rebate unearned time-price differential"; and that "by accelerating the balance and filing suit for the entire amount of unpaid principal plus unearned time-price differential, GMAC had, as a matter of law, charged time-price differential in excess of double the amount authorized by law." GMAC has appealed.

The facts of this case are undisputed. On January 14, 1975, Uresti purchased a GMC truck-trailer from San Antonio Truck Sales, executing a written contract under which he agreed to pay the balance in 48 monthly installments of $580.08 each. The contract was assigned by the dealer to GMAC. Uresti became disabled and stopped making payments on his contract. The contract provided for disability insurance benefits, but the benefits were limited to $250.00 per month and were insufficient to keep the payments current. On August 7, 1975 (approximately 8 months from the inception of the contract) GMAC filed suit, alleging as follows:

"Pursuant to the terms of said contract, Plaintiff has declared the total balance of said contract due and payable and the Defendant is hereby indebted to Plaintiff in the principal sum of TWENTY FIVE THOUSAND, FIVE HUNDRED TWENTY-THREE AND 52/100 DOLLARS ($25,523.52), together with FIVE HUNDRED AND NO/100 DOLLARS ($500.00) as reasonable attorneys' fees."

GMAC has filed an affidavit for sequestration, executed by Mr. E. L. Koehler who was special collection manager for GMAC. In the affidavit, Mr. Koehler stated under oath that:

"The amount of said indebtedness secured by said lien is TWENTY FIVE THOUSAND, FIVE HUNDRED TWENTY-THREE AND 52/100 DOLLARS ($25,523.52), together with reasonable attorney fees in the amount FIVE HUNDRED AND NO/100 DOLLARS ($500.00); that all of said indebtedness is just and unsatisfied and is now due." (Emphasis added).

Uresti answered, and thereafter, the deposition of Mr. Koehler was taken by Uresti's attorney. Mr. Koehler testified that it was his job to prepare delinquent accounts for litigation. He also testified that he had in fact signed the sequestration affidavit, and that the facts in it were correct. He specifically stated that when he swore that the indebtedness in the amount of "TWENTY FIVE THOUSAND, FIVE HUNDRED TWENTY-THREE AND 52/100 DOLLARS ($25,523.52)" was due, he was sure he was correct. He acknowledged that he had checked the figures. He testified that he had arrived at the figures by careful computation, just the way he always does.

Thereafter, Uresti amended his answer and asserted a counterclaim against GMAC, alleging that GMAC, by suing for and demanding the unearned portion of the time-price differential, was charging time-price differential in the amount of $6,306.50, when in fact the maximum amount to which GMAC was entitled was $1,082.25. After receiving Uresti's counterclaim, GMAC amended its petition. It continued to demand $25,523.52, but added the phrase "subject to a refund credit as provided in the retail installment contract which is Exhibit A hereto and as provided in Article 5069-7.04 Texas Revised Civil Statutes." Mr. Koehler's affidavit for sequestration was similarly amended. An affidavit was also filed by Mr. Koehler in opposition to Uresti's motion for summary judgment, in which he stated that GMAC has never "denied the right of the Defendant, Alberto Uresti, to receive a refund credit at the time of prepayment in full of the total indebtedness." The affidavit goes on to explain that the amount of the prepayment would be computed in accordance with the "Rule of 78ths." ¹

Mr. Koehler never disavowed his previous sworn statements and never contended that they were inadvertently made. GMAC continued to demand the total amount of the indebtedness, including the unearned time-price differential, stating only that a rebate would be made in accordance with the Rule of 78ths when Uresti actually prepaid the indebtedness.

GMAC brings forward three points of error:

(1) the court erred in holding that GMAC's original pleadings alone constituted an illegal charge of time-price differential where the original pleadings incorporated the contract provisions for statutory rebate and the pleadings were amended to specifically tender any rebate required by law;

(2) the court erred in holding that Art. 5069-7.04, which provides for a refund upon full payment by a buyer, requires a refund credit on acceleration...