Bmw Financial Services Na, LLC v. Deloach

2017 WL 1832250 (2017)

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Nature of the Case

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Facts

D leased a 2013 BMW from Shelly BMW. At the time of the lease, the odometer displayed 4,293 miles. D did not make his payments, and the car was repossessed. At that time, the odometer displayed 94 miles, and inspection revealed that the odometer had been tampered with, in violation of state and federal laws. P sued D for breaching the lease and for tampering with the odometer. P took a default judgment April 20, 2015. The BMW was sold at auction for $25,000. Because of the odometer tampering, the vehicle had to be sold with a TMU (true mileage unknown) designation, which impaired its value. D's account was sent to a collection agency, Firstsource. Firstsource contacted D to collect the balance of the account, which stood at approximately $24,000. D's father negotiated a settlement with Firstsource for a complete release in exchange for $14,000. Firstsource confirmed the settlement in writing and thereafter confirmed, not only the receipt of the $14,000, but also 'that our client has agreed to accept less than the full balance due as settlement on the above mentioned account.' On August 13, 2015, the trial court entered a default judgment in favor of P and against D for $114,677. Most of the judgment, $81,296, was for treble damages for the odometer tampering. D asserted that the settlement was entered into by mistake and purporting to rescind it by returning the $14,000. D moved to compel acknowledgement of satisfaction of judgment. P explained to the court that the account was turned over to collection by error in that it was not flagged internally by P as being involved in litigation. D has presented an email and letter from Firstsource stating 'Upon receipt and clearance of your payment as agreed, we will notify our client to update its records accordingly regarding this settlement.' The next day, Firstsource sent D a letter stating, 'This letter serves as confirmation that our client has agreed to accept less than the full balance due as settlement on the above mentioned account.' Firstsource had a preauthorized settlement authority range, and the ultimate settlement of $14,000 was within that range. The court issued the default judgment for $118,296 on August 13, but P did not learn about it until after the settlement had been concluded. P found out about the mistake in mid-September when D called its counsel about the settlement agreement. P sent a letter dated September 15 repudiating the settlement. The court granted D's motion to compel satisfaction of judgment. P appealed.