Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, May 9, 2012

Suit to enforce guaranty agreement upon default on promissory note or other contract by maker or obligor

 
NATURE OF GUARANTY AND ELEMENTS OF CLAIM BASED ON IT

WHAT IS A GUARANTY AGREEMENT?
  
“A guaranty creates a secondary obligation whereby the guarantor promises to answer for the debt of another and may be called upon to perform once the primary obligor has failed to perform.” Dann v. Team Bank, 788 S.W.2d 182, 183 (Tex. App.-Dallas 1990, no writ).
 
ELEMENTS OF PROOF
 
To recover under a guaranty, a claimant must prove (1) the existence and ownership of the guaranty agreement, (2) the terms of the underlying contract by the holder, (3) the occurrence of the conditions upon which liability is based, and (4) the guarantor's failure or refusal to perform the promise. Marshall v. Ford Motor Co., 878 S.W.2d 629, 631 (Tex. App.-Dallas 1994, no writ).
 
SOURCE: DALLAS COURT OF APPEALS - 05-10-00693-CV - 5/8/2012