FILED
`DALLAS COUNTY
`10/3/2019 2:49 PM
`FELICIA PITRE
`DISTRICT CLERK
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`Martin Reyes
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`BROOKE ARMBRISTER
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`IN THE DISTRICT COURT
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`CAUSE NO. DC-19-00406
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`Plaintiffs,
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`vs.
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`SANTANDER CONSUMER USA and
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`CLAY COOLEY CHEVROLET,
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`Defendants.
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`WWDWJOOOCMWWWDWJOOO
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`DALLAS COUNTY, TEXAS
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`9st“ JUDICIAL DISTRICTCOURT
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`DEFENDANT SANTANDER CONSUMER USA INC.’S
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`MOTION FOR SUMMARY JUDGMENT
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`TO THE HONORABLE JUDGE OF SAID COURT:
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`COMES NOW, Defendant Santander Consumer USA Inc. (“SC” or “Defendant”) in the
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`above-referenced cause, and files this,
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`its Motion for Summary Judgment, and would
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`respectfully show the Court the following:
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`1. Procedural and Factual Background
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`Plaintiff has filed this Civil Action for Claim of Relief (“Claim”) asserting a vehicle she
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`bought from Clay Cooley Chevrolet was over—valued and the contract memorializing her
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`purchase was unsigned by Defendant Clay Cooley Chevrolet. Therefore, the contract is in some
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`way unenforceable. Further, Plaintiff, pursuant to her Second Amended Petition, claims that SC
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`did not provide her with the notices as required under the Texas Business and Commerce Code,
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`Occupations Code and Finance Code. As detailed herein, that is simply not the case. At its
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`heart, Plaintiff’ 5 claim stems from buyer’s remorse and her unilateral efforts to unwind the car
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`purchase. After not being able to renegotiate the previously agreed upon terms of the purchase,
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`Plaintiff simply chose to drop the vehicle Off with the service department of defendant Clay
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`Cooley and made no payment to Defendant Santander Consumer USA Inc. Plaintiff now
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 1
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`demands removal of the tradeline from her credit while also arguing she is capable of paying off
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`the loan.
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`Plaintiff, through her original Claim, asserts she is:
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`“under neural communication with The FBI in downtown Dallas and
`Washington D.C., and secret agents advised prior to return the overpriced car,
`the car began to have mechanical malfunctions and it was a safe automobile to
`all of us.”
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`Plaintiff goes on to state that:
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`“Because the automobile is on my credit still, and I have permission from The
`FBI in Downtown Dallas and Washington D.C., to use my Federal
`Government Federal Reserve Bank account, I wanted to pay the automobile off
`and I have no current statements to base any fees this is where I need an
`intermediary of the courts to assist in Grant of relief, I want them removed
`from my credit reports or else acceptance of payment in full with my
`accounting details I can furnish the courts in exchange for the Collateral and
`Title for the unit.
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` I
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` had to wait for permission to use my Federal Government Federal Reserve
`Bank account before accepting full responsibility for the Collateral, to which I
`now possess on record.”
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`See Plaintiff’s Claim at pp. 1-2.
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`This is not Plaintiff’s only Claim where she alleges to be under “neural communications
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`with the FBI.” Similarly, Plaintiff has brought a suit under Cause No. DC-19-00400, which was
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`pending in the 160TH District Court of Dallas County, Texas and styled Brooke Armbrister v.
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`Honda Financial Services. In that case, she alleges the Defendant improperly rejected her
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`attempts to pay off the vehicle. However, like the present case, she made no payment on that
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`vehicle.
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`In the second suit, Plaintiff states:
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`“I am entitled to use my Federal Government Federal Reserve Bank account
`under neural communication with The FBI in Downtown Dallas and
`Washington D.C, and other Government Agencies attending along with The
`Federal Reserve in Downtown Dallas and Chicago. I am in Federal Court and
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`DEFENDANT SANTANDER CONSUMER USA, INC.’S MOTION FOR SUMMARY JUDGMENT
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`PAGE 2
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`I do not want you to place this case for public record please seal this case. I
`received permission from The UCC CONTRACT TRUST DIVISION in
`Washington DC, on behalf of my UCC financial statement I. I can use this
`account
`to pay all of my bills,
`that Honda is aware and Mr. Demetri
`Anastasiadis is Leading The UCC Fraud DIVISION here in Austin, Texas
`apart of The Attorney General's Office.”
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`See Plaintiff’ 5 Civil Action for Claim of Relief under DC-l9-OO400.‘
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`In addition to these frivolous claims, Plaintiff has sent various correspondences to Honda
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`Financial Services wherein she represented, inter alia, that:
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`-
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`She is working with the Federal Bureau of Investigations, the Central Intelligence
`Agency, and the Federal Reserve Bank;
`Her "team with the FBI is I Love Chicken;"
`She is "the Queen of Canada, North America, and South America," and
`"Artificial Intelligence" is her "preferred method of contact."
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`Lastly, she previously brought suit as to the US Department of Education Loan Servicing,
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`et a1. under Cause No. DC—18—04926 in the 298Th Judicial District Court of Dallas County and on
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`the face Of the Complaint, states she is “registered private banker” and claims the defendants
`9’
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`“failed to honor her Medallion Guaranteed Stamped Promissory Note.
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`This case was
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`subsequently removed to the Northern District of Texas and assigned Civil Action No. 3: 1 8—CV—
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`1207-G where, on November 16, 2018, Plaintiffs claims were dismissed with prejudice as to
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`Defendants pursuant to a properly filed Motion to Dismiss given the baseless nature of the
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`claims.
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`Given the statements made in the two cases now pending in Dallas County as well as the
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`Federal Court case, it is obvious that Plaintiff 5 pattern and practice is to prey on dealerships (or
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`those that extend credit) and obtain credit and possession of a vehicle (or some tangible benefit),
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`not pay for same and then sue the dealer and/or finance company alleging some baseless and
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`frivolous claim for relief.
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`1 This case was disposed of under TRCP 91a and Defendant was awarded fees and costs. Armbrister has since filed
`an appeal which is pending in the 5th Court of Appeals, Dallas County, Texas.
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 3
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`For the reasons set forth herein, summary judgment must be granted as there is no basis
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`in law in or fact upon which Plaintiff can pursue her Claim or causes of action as alleged.
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`II. SC’s Evidence In Support
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`SC attaches hereto as Exhibit 1 and incorporates by reference herein the Affidavit Of
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`James Cooper, Manager for the Recovery and Reinstatements Department
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`for Santander
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`Consumer USA Inc. and relevant account file materials including: Retail Installment Sales
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`Contract, Payment History and Redacted Account Activity Notes and Plaintiff’s CFPB
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`Complaint and SC’s Response as well as the notices sent to Plaintiff. SC attaches hereto as
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`Exhibits 2 and 3 and incorporates by reference herein, correspondence exchanged with Plaintiff’ s
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`counsel and attaches as Exhibit 4, and incorporates by reference herein, the Affidavit of Brent W.
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`Martinelli, as counsel for SC. SC attaches as Exhibit 5 and incorporates by reference the
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`unanswered discovery requests, namely requests for admissions, which are now deemed
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`admitted.
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`111. Standard of Review Summa
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`Jud ment
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`A.
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`No Evidence Standard
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`A court should grant a no-evidence motion for summary judgment if the movant can
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`show that adequate time for discovery has passed and the non-movant has no evidence to support
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`one or more essential elements of its claim or defense.2 The non—movant must bring forth more
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`than a scintilla Of probative evidence to raise a genuine issue Of material fact to defeat a no-
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`evidence motion for summary judgment.3 “Less than a scintilla Of evidence exists when the
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`ev1dence is ‘so weak as tO do no more than create a mere surmise or susprcron’ Of a fact.”
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`4
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`2 TEX. R. Civ. P. 166a(i).
`3 See Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).
`4 King Ranch v. Chapman,
`1 18 S.W.3d 742, 750 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 9650 S.W.2d 61,
`63 (Tex. 1983)).
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 4
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`Furthermore, a no-evidence motion for summary judgment is timely if the non-movant
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`has had an adequate time for discovery.5 An adequate time for discovery does not mean that
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`discovery must be completed before a party may file a no—evidence motion for summary
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`judgment.6 Rather, courts look to the following factors to determine if the non-movant has had
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`an adequate time for discovery: (1) the nature of the claim, (2) the evidence necessary to
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`controvert the motion, (3) the length of time the case was on file, (4) the length of time the no—
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`evidence motion was on file, (5) whether the movant requested stricter deadlines for discovery,
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`(6) the amount of discovery already conducted, and (7) whether the discovery deadlines in place
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`were specific or vague.7 An adequate time for discovery has passed and this no—evidence motion
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`for summary judgment is ripe for disposition.8
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`B.
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`Traditional Standard
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`Under Texas Rule of Civil Procedure l66a(c), the movant for summary judgment has the
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`burden of showing that no genuine issue of material fact exists and he is entitled to judgment as a
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`matter of law.9 “A defendant who conclusively negates at least one of the essential elements of
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`each of plaintiff’s causes of action or who conclusively establishes all Of the elements Of an
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`affirmative defense is entitled to summary judgment.”10 Once the movant has established a right
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`to summary judgment, the non-movant has the burden to respond to the motion for summary
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`judgment and present to the trial court any material issues Of genuine fact that would preclude
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`5 TEX. R. CIV. P. 166a(i); Specialty Retailers, 29 S.W.3d at 145 (holding that sixteen months was an adequate
`amount of time to conduct discovery); Restaurant Teams, Int’l v. MG Sec. Corp, 95 S.W.3d 336, 339-40 (Tex.
`AppiDallas 2002, no pet.) (holding that seven months was an adequate amount of time to conduct discovery);
`Wolfe v. Fairbanks Capital Corp, No. 2-03-100-CV, 2004 WL 221212 at *1 (Tex. App—Fort Worth Feb. 5, 2004,
`no pet.) (holding that eleven months was an adequate amount of time to conduct discovery especially when plaintiff
`failed to initiate any discovery during that time).
`6 Restaurant Teams, 95 S.W.3d at 339-40.
`71d. at 339;
`8 Lame v. ChiefOil & Gas, L.L.C., 167 S.W.3d 866, 872 (Tex. App—Fort Worth 2005, no pet).
`9 Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).
`1° Cathey v. Booth, 900 S.W.Zd 339, 341 (Tex. 1995).
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 5
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`summary judgment.11 Proof so weak that it only creates a surmise or suspicion of a fact is not
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`enough. 12 Rather, the evidence must “rise to a level that would enable reasonable and fair-
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`minded people to differ in their conclusions.”13
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`IV.
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`Authorities and Argument (No-evidence and
`Traditional Motion for Summary Judgment)
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`As set forth in Affidavit of James Cooper, pursuant to the Retail Installment Sales
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`Contract, on or about June 30, 2018, Plaintiff purchased a 2018 Chevrolet Sonic from Clay
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`Cooley Chevrolet.14 Plaintiff negotiated the terms of the contract with Clay Cooley and
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`evidenced her agreement by signing the contract. The contract was signed by Defendant Clay
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`Cooley and subsequently assigned to SC.15 Plaintiff was to make 72 monthly payments of
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`$559.85 to SC beginning on August 14, 2018.16 As the payment history reflects, this was not
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`done as no payments were ever made. Plaintiff thereafter unilaterally tried to return the vehicle
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`to Defendant Clay Cooley.l7 The vehicle was repossessed and sold and as of April 16, 2019,
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`there remains a balance owed to SC by Plaintiff in the amount of $14,795.18.18
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`Given the failure of Plaintiff to make any payments, collections efforts were instituted by
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`SC. Pursuant to the Account Activity Notes, she was advised to contact the dealer for a possible
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`unwind on July 18, 2018.19 On July 25, 2018, she called in to state she had purchased another
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`car. Plaintiff thereafter stated that because she no longer has the car due to it being dropped off
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`at the dealer, she is not responsible for the account. She was advised that until the account is
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`“ Nixon, 690 S.W.2d at 548-49.
`12Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 146 (Tex. AppiHouston [14th Dist.] 2000, pet. denied) (citing
`Kindred v. Con/Chem, Inc, 650 S.W.2d 61, 63 (Tex. 1983)).
`13 Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
`14 See Exhhibits 1, l-A.
`15 Id.
`1" Id.
`17 Id.
`18 Id.
`19 Id.
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 6
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`paid off, Plaintiff is responsible for the payments.20 Given her displeasure in the operation of the
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`basic tenets of vehicle financing, Plaintiff, on September 20, 2018, filed a baseless complaint
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`with the Consumer Financial Protection Bureau alleging the same complaints as raised in the
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`present Claim and including questionable allegations to which SC responded on or about
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`October 1, 2018.21
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`A.
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`Defendant is Entitled to Summary Judgment on Plaintiff’s Texas Business and
`Commerce Code, Texas Finance Code and Occupations Code Violations.
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`Plaintiff makes baseless allegations that SC failed to comply with the relevant code
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`provisions surrounding the repossession and disposition of the vehicle. However, as is proved up
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`by the affidavit and exhibits attached hereto, Plaintiff was in fact provided all notices as required.
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`On September 19, 2018, SC sent to Plaintiff a Notice of Intent to Accelerate and Requirement of
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`Strict Compliance (“lSt Notice”).22
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`Thereafter, Plaintiff’s vehicle was towed from the Clay
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`Cooley dealership to an impound lot and SC was notified of its location. SC incurred additional
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`charges to preserve its interest in the vehicle and have it released from impound. 23 Thereafter,
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`Plaintiff was provided SC’s Notice of Our Plan to Sell Property (“211d Notice”) which set forth
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`when and in what manner the vehicle would be disposed of and the steps needed to be taken by
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`Plaintiff to redeem or otherwise take the vehicle back.24 This was not done. As such, SC then
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`sent Plaintiff an Explanation Of Calculation of Surplus or Deficiency on or about April 16, 2019
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`(“3rd Notice”).25 Pursuant to the 3rd Notice, Plaintiff remains indebted to Defendant in the
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`amount of $14,795.18.26 Because SC sent Plaintiff all required notices surrounding the
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`repossession and disposition of the vehicle, there simply is no fact issue which would preclude
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`2° Id.
`2] Id.
`22 Id. at Exhibit l-A Bates label SANTANDER 000010.
`23 See Exhibit 1.
`24 Id. at Exhibit l-A Bates label SANTANDER 000032.
`:5 Id. at Exhibit l-A Bates label SANTANDER 000034.
`6 Id.
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 7
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`Defendant from relief on these claims. There is no evidence to create a fact issue or refute this.
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`Further, Plaintiff was sent discovery requests and failed to respond to same.27 Pursuant to the
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`deemed admissions, there is no fact issue with regard to her statutory/code violation claims as the
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`following facts have been conclusively established:
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`1.
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`Plaintiff had no intention of reinstating the car following her decision to leave it at
`Clay Cooley (RFA 7).
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`Plaintiff had no intention of paying on the contract following her leaving the vehicle
`at the Clay Cooley dealership (RFA 8).
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`Plaintiff had no personal belongings in the vehicle when she left it at Clay Cooley
`(RFA 10).
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`Plaintiff made no effort tO regain possession of the vehicle following her decision to
`leave the vehicle at Clay Cooley (RFA 11).
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`installment contract with Clay Cooley, which was
`Plaintiff entered into a retail
`assigned to this Defendant (RFA 12).
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`Plaintiff was to pay $559.85 per month beginning on 8/14/2018 (RFA 16).
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`Plaintiff did not make her first monthly payment (RFA 13).
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`Plaintiff made no monthly payment following her taking possession of the vehicle
`(RFA 17).
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`Plaintiff surrendered possession of the vehicle (RFA 18).
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`10.
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`11.
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`12.
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`13.
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`Plaintiff made no arrangements with either Clay Cooley or SC to return the vehicle to
`Clay Cooley and place the keys in the service drop box (RFA 14).
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`Plaintiff, following her placement of the vehicle on the Clay Cooley lot, took no
`efforts to regain possession of the vehicle (RFA 20).
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`Plaintiff received the letter identified as Bates Label Santander 000010 et seq. on or
`about 9/19/18 (1 S‘ Notice)(RFA 23).
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`Plaintiff received the letter identified as Bates Label Santander 000032 et seq. on or
`about 3/8/19 (2nd Notice)(RFA 24).
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`27 The Court is asked to take judicial notice of Defendant’s Motion to Compel filed on or about August 7, 2019 to
`which Plaintiff never responded. See Exhibit 5 attached hereto.
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 8
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`14. Plaintiff received the letter identified as Bates Label Santander 000034 et seq. on or
`about 4/16/18 (3rd Notice)(RFA 25).28
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`Therefore, SC is entitled to summary judgment on Plaintiff’s claims that SC in some way
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`violated the Texas Business and Commerce Code, Texas Finance Code and Occupations Code.
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`Further, and in the alternative, Plaintiff can put forth no fact that would negate SC’s right to
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`judgment on these claims.
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`B.
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`Defendant is Entitled to Summary Judgment on Plaintiff’s Breach of Contract
`Cause of Action.
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`SC is entitled to summary judgment on Plaintiffs equally as meritless breach of contract
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`claim. Incorporating by reference the facts and arguments in See. A, supra, Plaintiff’s breach of
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`contract fails as a matter of law.
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`SC provided her with requisite notices which negate this
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`baseless claim. As such, summary judgment in favor of SC is warranted.
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`C.
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`Defendant is Entitled to Summary Judgment on its Breach of Contract Claims
`(Deficiency Balance/Settlement Agreement).
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`Plaintiff owes SC $14,795.18, which is the deficiency balance due and owing on the
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`account following the sale of the repossessed vehicle.29 Plaintiff’ s liability for the balance owed
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`is created by the valid and enforceable retail installment contract entered into by Plaintiff and
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`Defendant Clay Cooley and assigned to SC. SC paid Clay Cooley for the contract and Plaintiff
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`agreed to pay SC the charges as set forth under same. Plaintiff did not.30 Further, there is no
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`credible evidence that Plaintiff did not breach the underlying contract or is someway excused
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`fiom paying the deficiency balance.
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`28 See Exhibit 5. Plaintiff was served the requests and to date has yet to respond despite repeated requests and the
`filing of a motion to compel and the admissions are now deemed.
`29 See Exhibits 1, l-A, see also deemed admissions.
`3° Id.
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 9
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`Defendant SC is also entitled to summary judgment on its breach of contract claim as it
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`pertains to the settlement agreement. Again, SC respectfully requests the Court take judicial
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`notice of the Motion to Enforce Settlement previously filed with the Court. Pursuant to the
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`Motion to Enforce, Plaintiff failed to respond to Defendant’s First Set of Written Discovery and
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`Defendant filed a Motion to Compel, which was set for hearing on August 14, 2019. On
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`August 13, 2019, on the eve of the hearing, Plaintiff, by and through her counsel, contacted
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`Defendant via telephone to inquire if the previously extended settlement offer was on the table
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`and, if it was, Plaintiff accepts same. To make certain all were on the same page, Plaintiff was
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`contacted via email correspondence immediately thereafter to confirm the previously offered
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`settlement terms and Plaintiff confirmed that the email accurately reflected the previously
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`relayed settlement terms/offer. After confirming with Defendant, the undersigned relayed to
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`Plaintiff that the previously extended offer was still available and “still on the table” and a series
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`of emails were exchanged memorializing the agreement that the parties had resolved the case.
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`The relevant terms of the settlement were that Plaintiff would dismiss the present action as to
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`Defendant with prejudice and in exchange, Defendant would release Plaintiff from any further
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`obligation under her vehicle retail installment contract with Defendant, waive any deficiency
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`balance due and owing stemming from the repossession and subsequent sale of the subject
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`vehicle and delete the trade line associated with the account.
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`As a result of the agreement reached, the hearing on Defendant’s Motion to Compel was
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`pulled down, as the Motion to Compel and relief sought therein was rendered moot by the
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`settlement agreement reached by and among counsel. Defendant prepared a formal Settlement
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`Agreement and appropriate Motion to Dismiss with Prejudice and Order in line with the
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`agreement reached with counsel and incorporating the terms set forth above. On April 15, 2019,
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`DEFENDANT SANTANDER CONSUMER USA, INC.’S MOTION FOR SUMMARY JUDGMENT
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`PAGE 10
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`the undersigned was notified that Plaintiff Armbrister no longer desired to resolve the case,
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`despite the written email communications previously exchanged by and among counsel for the
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`parties which resulted in a “complete, valid and binding contract” enforceable under Rule 11 of
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`the Texas Rules of Civil Procedure.
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`The emails exchanged with Plaintiff’s counsel to memorialize the settlement are attached
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`hereto as Exhibit 2 and incorporated by reference. The email sending the more formal settlement
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`agreement and Motion to Dismiss and Order are attached hereto as Exhibit 3 and incorporated by
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`reference (attachments omitted until in-camera inspection to preserve the confidentiality of the
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`Settlement Agreement). Defendant therein requested Plaintiff sign the Release and execute the
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`dismissal pleadings as the agreement contemplated. Plaintiff’s failure to comply with the terms
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`of the settlement are without justification.
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`If the parties reach a settlement and execute a written agreement disposing of the dispute,
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`the agreement is enforceable in the same manner as any other written contract. 31 Such terms
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`may be enforced as contract rights. 32 The agreement becomes a contract when it is executed.
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`33An email or a series of emails can constitute a writing (enforceable under TRCP 11), so long as
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`the email(s) is/are “‘complete within itself in every material detail, and which contains all of the
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`essential elements of the agreement
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`”.34 That is what we have here as evidenced by the
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`Exhibits attached hereto. 35
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`Further, what has transpired in the present suit is analogous to Williamson v. Bank ofNew
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`York Mellon, 947 F.Supp.2d 704 (ND. Tex 2013), wherein the attorneys for the parties
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`3] Compania Financiara Libano, SA v. Simmons, 53 S.W.3d 365, 367 (Tex. 2001), citing TEX. CIV. PRAC. & REM.
`CODE § 154.07l(a).
`32 Id.
`33 Coale v. Scott, 331 S.W.3d 829, 832 (Tex. App—Amarillo 2011, no pet.).
`34 John A. Broderick, Inc. v. Kaye Bassman Int’l Corp, 333 S.W.3d 895, 904-905, 909 (Tex. App—Dallas 2011, no
`pet.) (quoting Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)).
`35 See Exhibits 2 & 3.
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`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
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`PAGE 11
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`exchanged emails regarding settlement terms and reached an agreement. After the emails were
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`exchanged, the plaintiff fired her attorney and refused to abide by the terms of the negotiated
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`settlement. The defendant filed the emails with the court and sought to enforce the agreement
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`pursuant to Texas Rule of Civil Procedure 11. The issue before the court was whether the emails
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`constituted a signed written agreement between the attorneys. In finding that the emails
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`constituted a signed written agreement, the court applied the Texas Uniform Electronic
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`Transactions Act and concluded that the plaintiff’s former attorney’s act of signing his email
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`with his typed name was sufficient to create a contract under the Act. Specifically, the court
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`held, “A typed name at the end of an email is similar to a ‘signature’ on a telegram, the latter of
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`which can satisfy the statute of frauds.” Id. at 709. As such, Defendant moves to enforce the
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`agreement as reflected in the emails.
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`Defendant requests the Court enforce the parties’ written agreement under both Rule 11
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`of the Texas Rules of Civil Procedure and the Texas Uniform Electronic Transactions Act, set
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`forth under Chapter 322 of the Texas Business & Commerce Code, by requiring Plaintiff to
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`execute the reasonable Release agreement and the dismissal pleadings as provided by
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`Defendant’s counsel on August 13, 2019, and further dismiss this lawsuit based on the parties’
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`agreement. There was no change in settlement terms from the time the offer was originally made
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`by Defendant, or during the telephone call with Plaintiff’s counsel accepting the terms, or during
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`the emailed correspondence back and forth confirming the settlement reached. Furthermore, as
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`the emails exchanged indicate, at least one email from Plaintiff’s counsel was not signed by an
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`automatically affixed signature, but rather her name, indicating an expression of being “glad “ to
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`be resolved and reiterating her acceptance of the previously relayed terms.
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`DEFENDANT SANTANDER CONSUMER USA, INC.’S MOTION FOR SUMMARY JUDGMENT
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`Because the Release agreement contains a confidentiality clause, Defendant therefore
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`does not file a complete copy Of the written agreement with this motion, but rather, will present a
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`copy for private in—camera inspection if needed by the Court at the time Of a hearing in this
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`matter. Defendant does not intend to waive the confidentiality of the settlement agreement by
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`this motion, but rather, seek to enforce the agreement reached with counsel and Plaintiff’ s
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`execution Of the more formal settlement agreement and release and the filing Of a motion to
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`dismiss and order.
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`D.
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`SC is Entitled to Recover Attorney’s Fees.
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`Pursuant to the contract, SC is entitled to fees and costs incurred in defending and pursuing
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`this claim.
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`36
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`SC has incurred fees and costs in the total amount of $17,490.00 for the
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`preparation of various pleadings, motions, discovery (propounding and responding to same),
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`motions to compel, motions to enforce, settlement and communications with the Court, counsel
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`and SC. These fees are reasonable and necessary as set forth in the attached affidavit.37 Further,
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`SC is entitled to fees and costs incurred with enforcement Of the settlement agreement as allowed
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`by the Court.
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`V. Conclusion
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`Given the valid contract, account history and actions on the part Of Plaintiff, there is
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`simply no claim made upon which relief would be granted in favor Of Plaintiff. She remains
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`liable under the contract and neither SC nor Clay Cooley is under any obligation to renegotiate
`
`the terms Of the contract or rectify her buyer’s remorse.
`
`In the alternative, SC has conclusively
`
`established the existence of a valid contract and Plaintiffs failure to pay per same and ultimate
`
`36 See Exhibits 1, l-A, Installment Contract at para. G
`37 See Exhibit 4
`
`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
`
`PAGE 13
`
`

`

`ongoing responsibility for the obligations created under the contract.38 Further, all requisite
`
`notices were provided which serve to negate Plaintiff’ s statutory violation claims. Additionally,
`
`should the Court find that SC is not entitled to summary judgment on its breach of contract
`
`claims as they relate to Plaintiff’s obligations under the contract, SC seeks summary judgment on
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`its breach of contract claims as they relate to the settlement of the claims as set forth herein. SC
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`has had to retain counsel to present this motion and seeks reimbursement of its fees and costs for
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`having to do so.39
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`WHEREFORE, PREMISES CONSIDERED, Defendant prays that upon final hearing
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`and/or trial of this cause Plaintiff recovers nothing by way of her suit against Defendant SC.
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`Defendant SC prays that Plaintiff’s suit be dismissed and further prays that it recover all
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`damages as set forth herein and costs of Court and fees incurred in the defense and prosecution
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`of this matter given the non—viability of Plaintiff” s claims. Defendant further prays for such other
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`and further relief, both at law and in equity, to which Defendant may show itselfjustly entitled.
`
`Respectfully submitted,
`
`QUINTAIROS, PRIETO, WOOD & BOYER, P.A.
`
`By:
`
`/s/ Brent W. Martinelli
`BRENT W. MARTINELLI
`
`State Bar No. 24037037
`
`1700 Pacific Avenue, Suite 4545
`
`Dallas, Texas 75201
`
`Telephone: (214)754—8755
`Facsimile:
`(214)754— 8744
`
`Email: brent.martinelli@qublaw.com
`
`ATTORNEYS FOR DEFENDANT
`
`SANTANDER CONSUMER USA INC.
`
`38 See Exhibits 1, l-A
`3" See Exhibit 4.
`
`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
`
`PAGE 14
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`

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`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on the 3rd day of October 2019, a true and correct copy
`Of the foregoing document was served on the Plaintiff and all counsel through the e—flle system.
`
`
`/3/ Brent W. Martinelli
`
`BRENT W. MARTINELLI
`
`DEFENDANT SANTANDER CONSUMER USA, INC.’s MOTION FOR SUMMARY JUDGMENT
`
`PAGE 15
`
`

`

`Exhibit 1
`
`

`

`CAUSE N0. DC-l9—00406
`CAUSE NO. DC-19-00406
`
`BROOKE ARMBRISTER
`BROOKE ARMBRISTER
`
`Plaintiffs,
`Plaintiffs,
`
`vs.
`vs.
`SANTANDER CONSUMER USA and
`SANTANDER CONSUMER USA and
`CLAY COOLEY CHEVROLET,
`CLAY COOLEY CHEVROLET,
`Defendants.
`Defendants.
`
`IN THE DISTRICT COURT
`IN THE DISTRICT COURT
`
`DALLAS COUNTY, TEXAS
`DALLAS COUNTY, TEXAS
`
`§
`§
`§
`§
`g
`§
`§
`g
`§
`§
`g
`§
`§
`§
`95m JUDICIAL DISTRICTCOURT
`951" JUDICIAL DISTRICTCOURT
`§
`g
`AFFIDAVIT 0F JAMES COOPER
`AFFIDAVIT OF JAMES COOPER
`
`STATE OF TEXAS
`§
`STATEOFTEXAS
`§
`COUNTY OF DALLAS
`§
`COUNTY OF DALLAS
`§
`BEFORE ME, the undersigned official, 0n this date, appeared James Cooper, who is
`BEFORE ME, the undersigned official, on this date, appeared James Cooper, who is
`personally known to me, and after having been duly sworn upon his oath, deposed and stated as
`personally known to me, and after having been duly sworn upon his oath, deposed and stated as
`
`§§
`
`follows:
`follows:
`“My name is James Cooper. I am over the age 0f twenty-one years, have never been
`"My name is James Cooper. I am over the age of twenty-one years, have never been
`convicted 0f a felony 0r crime involving moral rurpitude, and am otherwise fully competent t0
`convicted of a felony or crime involving moral turpitude, and am otherwise fully competent to
`make this Affidavit. I have personal knowledge 0f all the facts stated herein, and they are tmc
`make this Affidavit. l have personal knowledge of all the facts stated herein, and they are true
`
`and correct.
`and correct.
`I am a Manager for the Recovery and Reinstatements department for Santander
`I am a Manager for the Recovery and Reinstatements department for Santander
`Consumer USA Inc. (sometimes referred to herein as “‘SC"). In this position, my duties and
`Consumer USA Inc. (sometimes referred to herein as "SC"). In this position,, my duties and
`responsibilities involve determining the appropriate plan Io assist with the- pursuit 01' defense 0f
`responsibilities involve determining the appropriate plan to assist with the pursuit or defense of
`
`certain litigation matters.
`certain litigation matters.
`
`The Retail Installment Sales Contract, Payment History, pre-and post-repossession
`The Retail Installment Sales Contract, Payment History, pre-and post-repossession
`notices and redacted Account Activity Notes attached hereto as Exhibit A and incorporated by
`notices and redacted Account Activity Notes attached hereto as Exhibit A and incorporated by
`reference, were made at the time 01’ the transaction by persons with knowledge 0f the event
`reference, were made at the time of the transaction by persons with knowledge of the event
`recorded and are maintained in the regular course and scope 0f business 0f SC and are in fact
`recorded and are maintained in the regular course and scope of business of SC and are in fact
`
`

`

`regularly maintained by Plaintiff. They arc either originals 0r exact duplicates 0f the. originals
`regularly maintained by Plaintiff. They are either originals or exact duplicates of the originals
`and regularly relied upon by SC in its normal daily business activities.
`and regularly relied upon by SC in its normal daily business activities.
`
`Pursuant to the Retail Installment Sales Contract, 0n 0r about June 30, 2018,
`Plaintiff
`Pursuant to the Retail Installment Sales Contract, on or about June 30, 2018, Plaintiff
`
`Brooke Annbrister purchased a 2018 Chevrolet Sonic from Clay Cooley Chevrolet. Plaintiff
`Brooke Armbrister purchased a 2018 Chevrolet Sonic from Clay Cooley Chevrolet Plaintiff
`
`negotiated the terms 0f the c