Santander Consumer USA, Inc. v. Mario A. Mata Centroplex Automobile Recovery, Inc. Blake Thornton Vandusen, John F. Thompson D/B/A Centroplex Automobile Recovery, Inc. And Redshift Investigation, Inc.

February 17, 2015

No.03-14-00782-CV

IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS

SANTANDER CONSUMER USA, INC.
Appellant,

v.

MARIO A. MATA, CENTROPLEX AUTOMOBILE RECOVERY, INC.,
BLAKE THORNTON VANDUSEN, JOHN F. THOMPSON d/b/a
CENTROPLEX AUTOMOBILE RECOVERY, INC., and REDSHIFT
INVESTIGATION, INC.
Appellees.

Appealedfrom the
353rdJudicial District Court
Travis County, Texas
Cause No. D-l-GN-13-000677

BRIEF OF PLAINTIFF-APPELLEE, PRO SE

Mario A. Mata
111 Congress Avenue, Suite 400
Austin, Texas 78701 -4143
Telephone: (512) 681-4461
Facsimile: (512)682-2147
Email: mario.mata@privatewealthlaw.com
APPELLEE, Pro Se
 TABLE OF CONTENTS

TABLE OF CONTENTS i

INDEX OF AUTHORITIES ii

STATEMENT OF THE CASE 1

ISSUE PRESENTED 3

STATEMENT OF FACTS 3
ARGUMENT 4
I. Neither Santander nor any of the Cross-Defendants have not executed a
binding arbitration agreement 4
n. Neither Santander nor any of the Cross-Defendants have executed a binding
arbitration agreement 5
PRAYER 7

CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
 INDEX OF AUTHORITIES

Statutes
Texas Finance Code Section 348.116

u
 STATEMENT OF THE CASE

Mario A. Mata, the Appellee-Plaintiff Pro Se herein, filed a lawsuit against

Appellant Santander Consumer USA, Inc. and the Cross-Defendant Appellees herein

for tort, contract, and DTPA claims arising as a result of the acts of the Defendants,

either individually, collectively, or through their agents, when said Defendants

unlawfully trespassed onto Plaintiffs private residential homestead property for the

purpose of unlawfully repossessing Plaintiffs Suburban on February 23, 2011. The

unlawful entry onto Plaintiffs private homestead property occurred (a) eight (8) days

after Plaintiff-Appellee had caused to be delivered to Santander a Cashier's Check in

full and complete satisfaction of the indebtedness then held by Santander, and (b)

the unlawful repossession occurred just one (1) day after Santander released its

security interest and lien on Plaintiffs Suburban. On the day of the wrongful

foreclosure, Santander did not have a valid security interest in the Plaintiffs Suburban

as it had already been released.

Mata financed his purchase of the Suburban through a Motor

Vehicle Retail Installment Contract he executed with Capital Chevrolet. The Motor

Vehicle Retail Installment Contract was then transferred to Appellant-Defendant

Santander's predecessor on December 29, 2002. (See CR 71-72.) A modification

agreement to the original Motor Vehicle Retail Installment Contract was later

executed by Plaintiff Appellee on or about January 16, 2009 but the modification

agreement was never executed by Santander's predecessor as required by the terms of
1
the Motor Vehicle Retail Installment Contract and by applicable law. The

arbitration provision that is the subject of this inter-locutory appeal is included in

the modification agreement dated January 16, 2009 that was executed only by

Plaintiff Appellee and not Santander's predecessor as required by the statutory

language included in the original Motor Vehicle Retail Installment Contract. (CR

76-80.)

Mata filed suit against and served all of the Defendants. In the Joint

Brief of Appellee filed by the Cross-Defendant Appellees, they claim that Cross-

Defendants Centroplex Automobile Recovery, Inc. ("Centroplex") and

Centroplex president, John Thompson was never served. In fact, they were

served at the exact same time that they were served with Santander's Cross-claim

against Centroplex and Thompson. However, since the question of whether or not

Cross-Defendants Centroplex and Thompson were served is not narrow issue

raised by Plaintiff-Appellee herein, evidence of service on the two foregoing Cross

Defendants shall not be included herein but shall, under separate cover, be

provided to all other parties in this case.
 ISSUE PRESENTED

The Plaintiff-Appellee herein has not filed this Brief to argue the issue

of whether Santander can compel the Cross-Defendant Appellees to

arbitration. The Plaintiff-Appellee supports the argument of the Cross-

Defendant Appellees that they cannot be compelled to an Arbitration that

they are not a party to. Instead, the Plaintiff-Appellee has filed this Brief to

raise the narrower issue of whether or not an arbitration agreement even

existed. The relevant arbitration clause was included in a modification

agreement to the original Motor Vehicle Retail Installment Contract, (a

modification agreement that is dated January 16, 2009, not June, 2009 as

asserted by Cross-Defendant Appellees in their Joint Brief). The Motor

Vehicle Retail Installment Contract was, from inception, classified as a

Motor Vehicle Retail Installment Contract under Texas statutory law, thus

was at all times governed by Title 4, Chapter 348, entitled "Motor Vehicle

Installment Sales" and the accompanying Regulations found in Chapter 84

of the Texas Administrative Code.

STATEMENT OF FACTS

I. The Motor Vehicle Retail Installment Contract between
Mata and Santander and alleged Modification Agreement

Mata financed the purchase of his Chevrolet Suburban by

executing a Motor Vehicle Retail Installment Contract with Capitol
 Chevrolet the seller of the vehicle. The two parties executed the agreement

for sale and financing of the vehicle on December 28, 2002. (CR 71- 72.)

Mata then signed a modification agreement dated January 16, 2009 that

included the arbitration provision that Santander relies on to compel

arbitration against all of the Cross-Defendants and the Plaintiff. (CR 75-80.)

However, no evidence exists that modification agreement was ever executed

by Santander's predecessor as required by Motor Vehicle Retail Installment

Contract and applicable state law. Thus, one of the issues before this Court

of Appeals that can affect the outcome of this appeal is whether or not a

binding arbitration agreement even exists that can be used by Santander to

seek to compel the arbitration sought by Santander.

SUMMARY OF THE ARGUMENT

I. Neither Santander nor any of the Cross-Defendants have
executed a binding arbitration agreement.

The Motor Vehicle Retail Installment Contract, dated December 28,

2002, includes very plain and significant language located just above various

signatures on the contract that reads as follows:

"This contract contains the entire agreement between you and us
relating to this contract Any change to this contract must be in writing
and both you [Plaintiff] and we [CitiFinancial Auto, Ltd.] must sign it
No oral changes are binding."
To date, Santander has never produced a copy of the fully executed
Modification Agreement that is executed by both the Plaintiff Pro Se and

CitiFinancial Auto, Ltd. Had such a fully executed agreement existed, it

should have been presented by Santander for the trial proceedings and

certainly should have been made a part of the record in this case. However, no

such document has ever been produced by Santander. Thus Santander has

failed to prove that a binding agreement to arbitrate exist. Someone on behalf

of CitiFinancial Auto, Ltd would have had to execute the Modification

Agreement for it to be valid. If a fully executed copy of the document does

not exist, then the Modification Agreement is not valid and, hence, the

arbitration provisions in that Modification Agreement are not enforceable.

II. Plaintiff and Cross-Defendants also cannot be compelled to
arbitrate as no binding agreement exists.

Lacking an agreement to arbitrate, no party, including the

Cross-Defendants can be compelled into arbitration based on the Motor

Vehicle Retail Installment Contract executed by Plaintiff but never executed

by any other party. The purported Modification Agreement is the sole

document in the record that contains an arbitration agreement. It should be

clear that under a reading of all contractual documents relevant to this

litigation, the terms providing for arbitration must be agreed to and fully

executed in writing by both parties. The modification agreement of course

does provide for arbitration under certain specified circumstances, however,
 inasmuch as it is a modification of the underlying Motor Vehicle Retail

Installment Contract dated December 28, 2002, the modification agreement

must also comply with the terms of the December 28, 2002, agreement. The

2002 agreement specifically provides that:

"This contract contains the entire agreement between you and us
relating to this contract. Any change to this contract must be in
writing and both you and we must sign it. No oral changes are
binding."

Plaintiff acknowledges his signature to the Modification Agreement. He is not

aware of any signatures to the Modification made by Santander, CitiFinancial

Auto, Ltd., or any other entities or predecessors in interest. The Modification

Agreement with the Arbitration provision shown at Tab 2 to Appellant

Santander's Brief is all Santander has been able to produce. A copy of the

modification agreement, signed by both creditor and debtor, not been

produced by any party to this litigation. It is not apparent on the face of any

filings or exhibits yet present in the record of the Court, that Santander has

shown the necessary prerequisite under the Modification Agreementto enforce

its arbitration provision. A Modification Agreement signed only by Plaintiffis

insufficient to support Santander's position regarding arbitration. As the party

seeking the arbitration, Santander clearly bears the burden to show it actually

has the right to seek arbitration and has so far failed to meet that contractual

necessity.
 The Texas Finance Code is persuasive on this matter. Section

348.116 provides any amendment to a retail installment contract "must be

confirmed in a writing signed by the retail buyer," and that the holder "shall

(1) deliver a copy of the confirmation to the buyer; or (2) mail a copy...at the

buyer's most recent address shown on the records of the holder." Tex. Fin.

Code §348.116. While Chapter 348 appears to be largely regulatory in nature,

it clearly emphasizes the burden placed upon Santander in this litigation. A

confirmation must be provided regarding modification, and the provisions of

the Motor Vehicle Retail Installment Contract clearly mandate that a signature

from both parties must also be provided. Plaintiff Appellee Mata never

received a confirmation that the Modification Agreement had been signed by

CitiFinancial Auto, Ltd., or anyone else beyond Plaintiff himself. Absent both

the confirmation and the signature of both parties, the enforceability of the

Modification Agreement as a whole is thrown into question—hardly sufficient

to support and enforce mandatory arbitration.

PRAYER

For the foregoing reasons, Plaintiff Appellee Mario A. Mata

respectfully request that this Court reverse the finding of the trial court that

is based upon an arbitration agreement that in included in a Modification

Agreement signed by Mata but never executed the predecessor of Santander.

Therefore, by the express terms of the original Motor Vehicle Retail
7
Installment, without a fully executed Modification Agreement the

Modification Agreement that includes the new arbitration provision that is

the subject of this Inter-locutory appeal fails. Therefore, the Plaintiff-

Appellee Mario Mata, respectfully requests, for the foregoing reasons, that

the Court find that no binding arbitration provision exists, therefore the

entire proceeding should be remanded back to the trial court for continuation

of the case.

Respectfully submittc

Mario A.
111 Congress Avenue, Suite 400
Austin, Texas 78701-4143
Telephone: (512) 681-4461
Facsimile: (512)682-2147
Email: mario.mata@privatewealthlaw.com

APPELLEE, Pro Se
 CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft
Word 2010 and contains 2,145 words, as determined by the computer software's
word-count function, excluding the sections of the^rpument listed in Tex. R. App.
P-9.40X1).

MaficTA. Mata

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has
been served upon the following parties either electronically through an electronic
filing manager or in the alternative served by fax prior to 5:00 p.m., in person, by
mail, commercial delivery service, or email, on this 17* day of February, 2015,
to the parties or their counsel shown below.

Donald L. Turbyfill
State Bar of Texas # 20296380 dturbyfill@dntlaw.com [E-mail]
DEBORAH C. S. RIHERD
State Bar of Texas # 24038904 driherd@dntlaw.com [E-mail]
VICKI W. HART
State Bar of Texas # 24046037 vhart@dntlaw.com [e-mail]
4801 Woodway, Suite 420-West
Houston, Texas 77056-1805
(713) 622-8338 [Phone]
(713) 586-7053 [Facsimile]
ATTORNEYS FOR APPELLANT SANTANDER CONSUMER USA, INC.

John S. Kenefick JKenefick@MacdonaldDevin.com[e-mail]
John R. Sigety JSigety@MacdonaldDevin.com [e-mail]
MacDonald Devin, P.C.
3800 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2130
(214) 744-3300 [Phone]
(214) 747-0942 [Facsimile]
ATTORNEYS FOR APPELLEE BLAKE THORNTON VANDUSEN
David L. Treat dlt@lstlaw.com [e-mail]
Christopher A. Lotz clotz@lstlaw.com [e-mail]
Lindow Stephens Treat, LLP
The Vogue Building
600 Navarro Street, Sixth Floor
San Antonio, Texas 78205
(210) 227-2200 [phone]
(210)227-4602 [facsimile]
ATTORNEY FOR APPELLEES REDSHIFT INVESTIGATION INC.

Karen C. Burgess kburgess@richardsonburgess.com Te-mail]
Richardson + Burgess LLP
221 West 6th Street, Suite 900
Austin, Texas 78701-3445
(512)482-8808 [phone]
(512)499-8886 [Facsimile]
ATTORNEY FOR APPELLEES CENTROPLEX AUTOMOBILE
RECOVERY, INC. AND JOHN F. THOMPSON