Monday, March 3, 2014
Breach of Note Claim - Which elements must the lender / holder / assignee prove?
ELEMENTS OF BREACH OF PROMISSORY NOTE
“To collect on a promissory note, a plaintiff must establish: (1) the existence of the note in question, (2) the defendant signed the note, (3) the plaintiff is the owner and holder of the note, and (4) a certain balance is due and owing on the note.” Cadle Co. v. Regency Homes, Inc., 21 S.W.3d 670, 674 (Tex. App.—Austin 2000, pet. denied); see Clark v. Dedina, 658 S.W.2d 293, 295 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d).
OWNERSHIP OF NOTE AND RIGHT-TO-SUE ISSUE IMPLICATES THE MERITS OF THE CLAIM [not a standing issue in the jurisdictional sense]
“[T]he question of whether a party is entitled to sue on a contract is sometimes informally referred to as an issue of standing.” Ashford Partners, Ltd. v. Eco Res., Inc., No. 01-09-00809-CV, 2010 WL 2991118, at *3 (Tex. App.—Houston [1st Dist.] July 29, 2010, pet. filed); see Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th Dist.] 2007, no pet.). “Nevertheless, . . . the issue does not affect the court’s jurisdiction, [and] it is not truly one of standing, but one on the merits of the contract claim itself.” Ashford Partners, 2010 WL 2991118, at *3 (citing Criaco, 225 S.W.3d at 898). Because ownership of the promissory note was an essential element of Wells Fargo’s right to collect on it, see Cadle, 21 S.W.3d at 674; Clark, 658 S.W.2d at 295, the [...] District Court’s determination that Wells Fargo did not own the promissory note is a determination on the merits, not one of jurisdiction. See Ashford Partners, 2010 WL 2991118, at *3; Criaco, 225 S.W.3d at 898.
SOURCE: Houston Court of Appeals for the First District - 01-10-00020-CV 5/12/12