Haley v. Pagan Lewis Motors, Inc., 1985CV

• Decision Date: 18 November 1982
• Docket Number: No. 1985CV,1985CV
• Citation: 647 S.W.2d 319
• Parties: Al HALEY, Appellant, v. PAGAN LEWIS MOTORS, INC., Appellee.
• Court: Texas Court of Appeals

Page 319

647 S.W.2d 319

Al HALEY, Appellant, v. PAGAN LEWIS MOTORS, INC., Appellee.

No. 1985CV.

Court of Appeals of Texas Corpus Christi.

Nov. 18, 1982.

Rehearing Denied Jan. 13, 1983.

Robert W. Johnson, Jr., Corpus Christi, for appellant.

Steve T. Hastings, Law Office of Guy Allison, C.M. Henkel, III, Corpus Christi, for appellee.

Before NYE, C.J., and YOUNG and GONZALEZ, JJ.

OPINION

YOUNG, Justice.

Alleging violations of Tex.Rev.Civ.Stat.Ann. Art. 5069-7.01 et seq., part of an act generally known as the Consumer Credit Code, Al Haley brought suit against Pagan-Lewis Motors, Inc. Haley appeals from a take nothing judgment rendered by the trial court after a trial without a jury. We affirm.

The evidence shows that Haley purchased a 1975 Lincoln automobile from Pagan-Lewis Motors on March 10, 1978. Pagan-Lewis, which stipulated that it is a retail seller as defined by the Consumer Credit Code, arranged for financing with Corpus Christi National Bank. As it usually did, the Bank supplied the form contract to Pagan-Lewis, which filled in the appropriate blanks. The parties make no complaint about the Bank in their appeal. The amount financed was $5,238.08 and the time price differential was $1,473.22. The parties stipulated that in the event that Haley would become entitled to recover attorney's fees, a reasonable amount of such fees would be $750.00 for trial and $3,000.00 for appeal to the Court of Civil Appeals.

Appellant has brought forward seven points of error. We have carefully considered points one, two, three, five and seven which generally assert Consumer Credit Code violations. We deem all of those points without merit, and we overrule all of them. A closer issue is presented by point four which complains that the contract violates Article 5069-7.07(6). That provision is about precluding the buyer from assertion of claims or defenses. Point six asserts that attorney's fees should have been granted to appellant. Even so, we overrule points four and six for reasons set out in our discussion that follows.

Stated on the obverse side of the contract in question, among other things, is the following:

"Rights Exclusive of Default: (1) This Security Agreement, Secured Party's rights hereunder and the indebtedness hereby secured may be assigned, and in any such case the Assignee shall be entitled to all of the rights, privileges and remedies granted in this Security Agreement to Secured Party, and Debtor will assert no claims or defenses he may have against Secured Party against the Asignee (sic), except those granted in the Security Agreement." (Emphasis supplied.)

The appellant argues that although there is language which provides that the debtor can assert against a holder the claims he has against the seller, the contract is silent as to what claims and defenses the debtor may assert. Thus, according to the appellant, the clause which prohibits the debtor from asserting any claims except for those granted in the agreement would operate to preclude the debtor from asserting any claims against an assignee. See Knight v. International Harvester Credit Corporation, 627 S.W.2d 382, 388 (Tex.1982...