Rayos v. Chrysler Credit Corp.
| Decision Date | 16 January 1985 |
| Docket Number | No. 08-84-00248-CV,08-84-00248-CV |
| Parties | Angel RAYOS, Appellant, v. CHRYSLER CREDIT CORPORATION, Appellee. |
| Court | Texas Court of Appeals |
Al Melendez, El Paso, for appellant.
Temple B. Ingram, Jr., Studdard, Melby, Schwartz, Crowson & Parrish, El Paso, for appellee.
Before WARD, OSBORN and SCHULTE, JJ.
This appeal from a summary judgment involves the meaning of the words "vehicle insurance" in an automobile retail installment contract. We conclude that the Appellee has failed to meet its burden to establish that an automobile extended service plan is vehicle insurance. We reverse and remand.
On May 11, 1983, Angel Rayos purchased a new Dodge Aries automobile from Airway Dodge, Inc. and signed a retail installment contract which provided for forty-eight monthly payments of $242.79 each. Included in the total amount financed was $495.00 paid to Chrysler Corporation for its extended service plan. This provided an extended service plan on the vehicle for five years or 50,000 miles. After being notified the service plan was effective, Mr. Rayos requested cancellation of the service plan. On July 18, 1983, Chrysler Service Contract Company wrote to Mr. Rayos that the protection plan contract had been cancelled and a check sent to the dealer. He endorsed the check made payable to him and Chrysler Credit for $495.00, and it was his intention that the check be applied to his monthly payments for August and September with Chrysler Credit. Instead, Chrysler Credit applied the payments as a credit to the last two installments due under his retail installment contract. In October, the car was repossessed because of a default in making the August and September payments. Rayos then filed this suit for conversion of his automobile.
The sole question on this appeal is whether Chrysler Credit Corporation was authorized to credit the $495.00 check to the last two installments under the retail installment contract, in which event there was a default authorizing a repossession, or whether the check should have been credited to the next two payments becoming due, in which event there would have been no default.
Chrysler Credit, the moving party in the summary judgment proceeding, was required to establish at least one element necessary to plaintiff's cause of action did not exist, or establish as a matter of law a defense to the alleged cause of action. Menchaca v. Menchaca, 679 S.W.2d 176 (Tex.App.--El Paso 1984, no writ); Mostek Corporation v. Chemetron Corporation, 642 S.W.2d 20 (Tex.App.--Dallas 1982, no writ). In this case, Chrysler was required to show a default which authorized the repossession of the vehicle, and the question of default turns upon when the check for $495.00 was required to be credited on the installment contract.
The installment contract provides in paragraph G of the "Additional Terms and Conditions:"
Buyer agrees to keep the property insured at Buyer's expense against substantial risk of damage, destruction, or loss for so long as any amount remains unpaid on this contract, with loss payable to the Creditor as its interest may appear, and that Buyer will deliver all such...
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