Enforcing personal guaranty signed together with business customer's credit application

 
ELEMENTS OF CLAIM BASED ON GUARANTY, SUCH AS PERSONAL GUARANTY OF CORPORATE / BUSINESS DEBT BY THE OWNER
 
The elements of a breach of a guaranty claim are: (1) the existence and ownership of the guaranty; (2) performance of the underlying contract by the holder;   See Footnote 2  (3) the occurrence of the conditions upon which liability is based; and (4) the failure or refusal to perform the promise by the guarantor. See Wiman v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex. App.-Dallas 1994, no writ); see also Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 107 (Tex. App.-Dallas 1987, writ ref'd n.r.e.) (stating that when a guaranty is in writing and signed by the guarantor, the guaranty's existence presumes consideration).
 

SOURCE: DALLAS COURT OF APPEALS - 05-10-01128-CV - 7/17/12

  

COURT OF APPEALS FINDS PERSONAL GUARANTY SIGNED BY OWNER OF SMALL BUSINESS ON CREDIT APPLICATION TO VENDER FOR SALE ON OPEN ACCOUNT BINDING AND ENFORCEABLE    
    

      The summary judgment proof establishes that in exchange for Motheral providing goods and services to Envy on an open account, Long offered to guaranty the payment of all indebtedness within five days of notice that the account was past due. Motheral accepted Long's offer by providing goods and services to Envy on an open account as shown by the invoices. See Cobb v. Tex. Distributors, Inc., 524 S.W.2d 342, 345 (Tex. Civ. App.-Dallas 1975, no writ) (sale of goods on credit to principal debtor in reliance on guaranty is sufficient acceptance). Thus, Motheral proved an offer and acceptance.

        Furthermore, the terms of the personal guaranty are sufficiently certain to be enforceable. Personal guaranties in credit applications with similar language have been enforced by other courts.   See Footnote 3  There is nothing uncertain or indefinite about the terms of the personal guaranty. As in Austin Hardwoods, the credit application “clearly evidences application for credit by a corporation guaranteed by the individual signing the application.” 917 S.W.2d at 323. The language waiving notice of the rearrangement or extension of the terms does not make the guaranty uncertain. This language is designed to prevent the discharge of the guarantor by alteration of the original terms of the debt. See Lenamond, 667 S.W.2d at 287 (guarantor agreed that alteration would not result in discharge by agreeing that terms of debt could be altered without notice).

        Long contends there was no meeting of the minds because he never signed the application in his individual capacity. He stated in his affidavit, “I never intended to personally, individually, guarantee any debts of any corporation, including Envy Publications, Inc.” However, the law presumes a party signing a contract understands and agrees to the contents of the contract. See In re Int'l Profit Associates, Inc., 274 S.W.3d 672, 679 (Tex. 2009) (per curiam). “[P]arties to a contract have an obligation to protect themselves by reading what they sign and, absent a showing of fraud, cannot excuse themselves from the consequences of failing to meet that obligation.” In re Lyon Fin. Services, Inc., 257 S.W.3d 228, 233 (Tex. 2008) (per curiam). The instrument alone will be deemed to express the intention of the parties because it is the objective, not subjective, intent that controls. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968).

        Long signed the two-page document twice, once indicating that his title was “President & CEO” and the other without indicating a title. The second, untitled, signature was after the personal guarantee paragraph, which includes statements that “I personally guarantee all indebtedness hereunder” and “I will within five (5) days from the date of notice that the account is past due, pay the amount due.” Long did not indicate this signature was in any representative capacity.

        Here, the language of the personal guaranty paragraph creates a personal obligation in addition to the application for credit on behalf of the corporation. Long signed the credit application and guaranty twice, once indicating his title and once without. Even if he had signed the guaranty indicating his corporate office, that would not change his individual liability on the guaranty.   See Footnote 4  The guaranty would be meaningless if the corporation was purporting to guaranty its own open account. Dann v. Team Bank, 788 S.W.2d 182, 184-85 (Tex. App.-Dallas 1990, no writ) (guaranty securing a corporate debt will be rendered meaningless if the primary debtor is found to be the sole party liable thereunder). A corporate designation in this case would be only descriptive of his position; it would not change the capacity in which he signed. Id. (corporate designations appearing after signatures on guaranty are considered to be only descriptio personae, i.e., descriptive of the person intended).

        Long next argues the guaranty was not signed by Motheral and it does not list the address where he may mail a revocation of the guaranty. The guaranty does not indicate the parties intended the guaranty to be conditioned on Motheral's signature. The absence of a party's signature does not necessarily destroy an otherwise valid contract.   See Footnote 5  And the guaranty was a unilateral offer by Long that Motheral accepted by extending credit to Envy.   See Footnote 6  The written guaranty also does not show that the parties intended the address for delivery of a revocation was a vitally important element of their bargain.   See Footnote 7

        Long's final attack on the guaranty is based on a lack of consideration. He contends he received no personal benefit from the contract. As mentioned above, the written guaranty signed by Long creates a presumption of consideration.   See Footnote 8  The burden was on Long to plead and prove the absence of consideration.   See Footnote 9  Lack of consideration is an affirmative defense and Long had the burden to produce summary judgment evidence sufficient to raise an issue of fact on all elements of the defense.   See Footnote 10

        Consideration for a guaranty agreement consists of either a detriment to the creditor or a benefit conferred on the primary debtor. Hargis v. Radio Corp. of Am., Elec. Components, 539 S.W.2d 230, 232 (Tex. Civ. App.-Austin 1976, no writ). “It is not necessary that consideration for the guarantee pass to the guarantor, . . . for it is sufficient consideration if the primary debtor receives some benefit.” Id.; Coleman Furniture, 405 S.W.2d at 648 (actual delivery of goods in return for a promise of guaranty of payment is itself sufficient consideration).

        Here, Motheral conferred a benefit on Envy, the primary debtor, by extending credit to it on an open account. Not only is this sufficient consideration for Long's guaranty, but Long would personally benefit as a majority owner and officer of Envy. We conclude Long failed to produce any summary judgment evidence rebutting the presumption of consideration or raising a material issue of fact on his affirmative defense of no consideration.

        We overrule Subparts D and E of Long's second issue.

        We affirm the trial court's summary judgment.

SOURCE: DALLAS COURT OF APPEALS - 05-10-01128-CV - 7/17/12

Statute of Frauds as to real estate transactions: What kind of description of the property is sufficient?

   

ADEQUACY - or otherwise - OF PROPERTY DESCRIPTION TO SATISFY THE STATUTE OF FRAUDS

  

The statute of frauds does not require that a complete description of the land to be conveyed appear in a single document. See Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)) (holding that series of letters between parties satisfied statute of frauds). A property description is sufficient if the writing furnishes within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. See AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008). The description of the land may be obtained from documents that are prepared in the course of the transaction, even if those documents are prepared after the parties’ contract for sale. See Porter v. Reaves, 728 S.W.2d 948, 949 (Tex. App.—Fort Worth 1987, no writ) (description of land as “1/2 of 20-acre tract” satisfied statute of frauds because location of tract was not disputed, the parties referenced a drawing of the tract in their contract, and seller was required to furnish “current survey” of land after contract was executed); see also Adams v. Abbott, 254 S.W.2d 78, 80 (Tex. 1952) (description furnished by exchange of correspondence between the parties)

   

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00460-CV – 5/25/12 

General Metal Fabricating Corporation v Stergiou (Tex.App.- Houston [1st Dist.] May 24, 2012)

One bite only: Res judicata doctrine stops second bite at the proverbial apple

 

The one-bite rule – as applicable to courthouse apple chumping rather than your neighbor’s dog

 

FROM LOFTY LATIN TO PLAIN ENGLISH: THE NO-TWO-BITES AT-THE-APPLE METAPHOR

 

Res judicata bars assertion of a claim in a subsequent case when (1) there is a prior final determination on the merits by a court of competent jurisdiction; (2) the parties in the second action are the same or in privity with those in the first action; and (3) the second action is based on the same claims as were raised or could have been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Res judicata precludes the relitigation of claims that were finally adjudicated “as well as related matters that, with the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1991). Texas follows the transactional approach to res judicata barring claims arising out of the transaction or occurrence that is the subject matter of the first suit. State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001).

As the Texas Supreme Court has explained, “[m]odern rules of procedure obviate the need to give parties two bites at the apple … to ensure that a claim receives full adjudication.” Barr, 837 S.W.2d at 631.

  

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00122-CV – 5/23/12

  

[T]he court’s order was a public record which was on file for four years and which Nancy could have discovered with the use of diligence. See Barr, 837 S.W.2d at 628 (stating res judicata bars related matters that, with the use of diligence, should have been litigated in prior suit).

PS: If you came to this page through a search enging, but were looking for the other one-bite rule, here is a link: http://www.johnneeselaw.com/news/texas-dog-laws-understanding-the-one-bite-rule 

When is guaranty agreement [not] enforceable?

 

GUARANTY AND INVALIDATION OF GUARANTY BY MATERIAL ALTERATION OF THE UNDERLYING CONTRACT WITHOUT THE GUARANTOR’S CONSENT

  

“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.” Anderton v. Cawley, No. 05-10-00693-CV, 2012 WL 1606665, at *5 (Tex. App.-Dallas May 8, 2012, no pet. h.) (quoting Dann v. Team Bank, 788 S.W.2d 182, 183 (Tex. App.-Dallas 1990, no writ)). To recover under a guaranty, a claimant must prove (1) the existence and ownership of the guaranty contract, (2) the terms of the underlying contract, (3) the occurrence of the conditions upon which liability is based, and (4) the guarantor's failure or refusal to perform the promise. Id.; Marshall v. Ford Motor Co., 878 S.W.2d 629, 631 (Tex. App.-Dallas 1994, no writ). 

A guarantor may require that the terms of his guaranty be strictly followed, and the guaranty may not be extended by construction or implication beyond the precise terms of the contract. Reece v. First State Bank of Denton, 566 S.W.2d 296, 297 (Tex. 1978); Marshall, 878 S.W.2d at 631; Beal Bank, SSB v. Biggers, 227 S.W.3d 187, 192 (Tex. App.-Houston [1st Dist.] 2007, no pet.). A guarantor is discharged by a material alteration of the underlying contract that lacks the consent of the guarantor and harms the guarantor. Beal Bank, SSB, 227 S.W.3d at 192; Austin Hardwoods Inc. v. Vanden Berghe, 917 S.W.2d 320, 325 (Tex. App.-El Paso 1995, writ denied); see also McKnight v. Va. Mirror Co., 463 S.W.2d 428, 430 (Tex. 1971).

A material alteration is an alteration of the underlying contract between a creditor and principal debtor that either injures or enhances the risk of injury to the guarantor. United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360, 365-66 (Tex. 1968); Fed. Deposit Ins. Corp. v. Attayi, 745 S.W.2d 939, 944 (Tex. App.-Houston [1st Dist.] 1988, no writ).

To be entitled to discharge from liability on the guaranty, the guarantor must prove (1) a material alteration of the underlying contract; (2) made without the guarantor's consent; (3) which is to the guarantor's detriment. Vastine v. Bank of Dallas, 808 S.W.2d 463, 464-65 (Tex. 1991) (per curiam); Byboth v. Wood Ltd. P'ship, No. 05-08-00915-CV, 2009 WL 1416768, at *2 (Tex. App.-Dallas May 21, 2009, pet. denied) (mem. op.).

SOURCE: DALLAS COURT OF APPEALS - 05-11-00211-CV – 5/22/12

Limitations on Cancellation and Rescission

A. Limitations on Cancellation and Rescission

  

"In equity, rescission allows for the forced termination of an agreement and the restoration of benefits or consideration previously transferred." See Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 696 (Tex. App.-Austin 1989, no writ). At common law, a party seeking the equitable remedy of rescission must first satisfy several requirements, which include (1) giving timely notice to the seller that the contract is being rescinded; and (2) tendering or offering to tender the property received and the value of any benefit derived from its possession back to the seller. Id. (citing David McDavid Pontiac, Inc. v. Nix, 681 S.W.2d 831, 836 (Tex. App.-Dallas 1984, writ ref'd n.r.e.)). The party seeking equitable rescission bears the burden of proof on the issues of notice and tender. Id. (citing Nix, 681 S.W.2d at 836).

  

Morton argues in Issue 4 that these common-law limitations implicitly are incorporated into the express statutory remedy of cancellation and rescission authorized under the Texas Property Code, and that the Nguyens are not entitled to cancellation and rescission because they failed to tender or offer to tender the value of their almost three-year possession of the property back to Morton.[8]

  
In support of this argument, Morton cites to a line of cases from the Fifth Court of Appeals analyzing the similar statutory remedy of "restoration of consideration" under the DTPA. These cases hold that the DTPA remedy of "restoration of consideration" is "a statutory recognition" of the equitable remedy of rescission and restitution, as well as the common-law limitation that the complaining party "surrender any benefits received" before electing to avoid the contract and "recover that [which] he parted with." Smith v. Kinslow, 598 S.W.2d 910, 915 (Tex. App.-Dallas 1980, no writ); see also TEX. BUS. & COM. CODE ANN. § 17.50(b)(3) ("In a suit filed under this section, each consumer who prevails may obtain . . . orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this subchapter."). In other words, the Fifth Court of Appeals has held that the statutory remedy of "restoration of consideration" under the DTPA incorporates the common-law notice and tender requirements applicable to the equitable remedy of rescission and restitution. See, e.g., Nix, 681 S.W.2d at 835-36 (purchaser was not entitled to "restoration of consideration" under DTPA because limitation on remedy of rescission requires and record contained no evidence of "tender, or offer of tender" of value of benefits received from using the product approximately one month); see also Chubb Lloyds Ins. Co. of Tex. v. Andrew's Restoration, Inc., 323 S.W.3d 564, 580-81 (Tex. App.-Dallas 2010, pet. granted) (consumer was not entitled to "restoration of consideration" under DTPA because consumer failed to show that he complied with prerequisite of surrendering benefits received from other parties), aff'd in part, rev'd in part, —S.W.3d—, No. 10-0995, 2012 WL 1370851 (Tex. Apr. 20, 2012). Cf. Schenck v. Ebby Halliday Real Estate, Inc., 803 S.W.2d 361, 366-67 (Tex. App.-Tyler 1990, no writ) (jury's finding that consumer acted negligently or wrongfully constituted equitable bar to "restoration of consideration" under DTPA under equitable doctrine requiring claimant seeking equitable relief to have "unclean hands"). Morton argues that these cases from the Fifth Court of Appeals should guide our analysis of the similar statutory remedy of "cancellation and rescission" under subchapter D of chapter 5 of the Texas Property Code.
  
The Texas Supreme Court recently considered the position taken by the Fifth Court of Appeals and rejected it in Cruz v. Andrews Restoration, Inc., —S.W.3d—, No. 10-0995, 2012 WL 1370851, at *7-8 (Tex. Apr. 20, 2012). Reiterating its prior holding from Smith v. Baldwin, 611 S.W.2d 611, 616-17 (Tex. 1980), in which the court stated that "[t]he DTPA does not represent a codification of the common law" and was intended "to provide consumers a cause of action for deceptive trade practices without the burden of proof and numerous defenses encountered in a common law fraud or breach of warranty suit," the court held in Cruz: "[C]ompliance with [the] requirements [of notice and tender] is unnecessary under the DTPA. Instead, we adopt the Restatement approach and conclude that notice and restitution or a tender of restitution are not prerequisites to a remedy under [the DTPA] . . . ." Cruz, 2012 WL 1370851, at *8. This holding weighs against a conclusion that the statutory remedy of cancellation and rescission under the Texas Property Code incorporates the same common-law limitations.
  
With respect to the history and purpose of subchapter D of chapter 5, the following explanation illuminates our discussion:
  
In 1995, the Legislature amended chapter 5 of the Texas Property Code to address serious abuses in the acquisition of homes in the colonias. The colonias are substandard, generally impoverished, rural subdivisions that typically lack basic utilities and other infrastructure. Concentrated along the Texas border with Mexico, colonia residents almost always acquire residential lots through executory contracts called "contracts for deed" or "contracts for sale" . . . .
  
The Legislature found that purchasers had little legal protection under the contract-for-deed financing arrangement and no statutory right to critical information about the colonia property being purchased. Sellers have sold individual lots to two or more purchasers, sold lots without written contracts, and placed liens on lots subsequent to the sale without informing the purchasers and colonia residents. Colonia residents also complain that sellers frequently misrepresent the availability of water, sewer service, and other utilities, and that the residents are often not informed when property being sold lies in a flood plain or is otherwise unsuitable for habitation.
  
Although the Legislature considered a prohibition of contract-for-deed conveyances to end these abuses, it determined that many residents building homes in these areas need this method of financing because they do not have access to traditional mortgage financing. The contract-for-deed arrangement, however, allows low-income persons to purchase property and build homes on the property.
  
To address the fraudulent and abusive conduct, the Legislature amended the statute in 2001, substantially increasing the monetary penalties and applying the protections statewide.
  
Flores, 185 S.W.3d at 434-35 (Wainwright, J., concurring) (emphasis added, citations omitted). Subchapter D, therefore, provided new grounds to rescind a contract for deed that previously had been unavailable to purchasers at risk of being misled by incomplete disclosures regarding the nature of the purchased property. Accordingly, no common-law remedies were codified by the Legislature's enactment of subchapter D. In fact, to read the statute as incorporating common-law limitations into the statutory remedy would frustrate the very purpose of these sections, which were designed to "address the fraudulent and abusive conduct" of sellers. See id. at 435 (Wainwright, J. concurring). The Legislature could have included express limitations on the remedy of cancellation and rescission for these new grounds, but did not do so. We overrule Morton's Issue 4.[9]
 
B. Equitable Defenses of Quasi-Estoppel and Laches 
  
Morton argues in Issues 5-8 that the equitable defenses of quasi-estoppel and laches apply to the statutory remedy of cancellation and rescission, and that he established such defenses.
 
Common-law defenses may not be used to defeat claims brought under a statute that was not designed to be a codification of the common law.

SOURCE: FOURTEENTH COURT OF APPEALS - No. 14-11-00126-CV - 5/17/12 (substituted opinion)

Statutory causes of actions and common-law defenses

Common-law defenses may not be used to defeat claims brought under a statute that was not designed to be a codification of the common law. See, e.g., Smith, 611 S.W.2d at 616 (DTPA not designed to be a codification of common law; DTPA was designed to "provide consumers a cause of action for deceptive practices without the burden of proof and numerous defenses encountered in a common law fraud or breach of warranty suit"); Diversified, Inc. v. Gibraltar Sav. Ass'n, 762 S.W.2d 620, 623 (Tex. App.-Houston [14th Dist.] 1988, writ denied) ("[I]t is well established that the DTPA was not designed to be a codification of the common law and any common law defenses may not be used to defeat a claim under it." (emphasis in original)); Joseph v. PPG Indus., Inc., 674 S.W.2d 862, 865 (Tex. App.-Austin 1984, writ ref'd n.r.e.) (common-law defenses "cannot be used to defeat claims under the DTPA" because DTPA was not designed to codify common law); see also Frank B. Hall & Co v. Beach, Inc., 733 S.W.2d 251, 264 (Tex. App.-Corpus Christi 1987, writ ref'd n.r.e.) (applying rule from Smith and Joseph to preclude common-law defenses to claims brought under Texas Insurance Code). We already have determined that the sections of the Texas Property Code at issue in this case do not constitute a codification of the common law.[10] Therefore, we conclude that these common-law defenses are not available to defeat claims under the statute, and we overrule [Appellant's] Issues 4-8.[11


SOURCE: FOURTEENTH COURT OF APPEALS - HOUSTON - No. 14-11-00126-CV - 5/17/12 (substituted opinion)

Attorney fee segregation requirement not necessarily enforced by the court

  
Opposing party may waive complaint about failure to segregate recoverable from unrecoverable fees by failing to object in a timely fashion


Because an award of attorney's fees must be authorized by statute or contract, a party presenting more than one claim in a single cause must segregate attorney's fees between claims for which attorney's fees are or are not recoverable. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006).
  
However, if no one objects to the fact that the attorney's fees are not segregated as to specific claims, the objection is waived. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (citing Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988)); Pitts & Collard, L.L.P. v. Schechter, —S.W.3d—, No. 01-08-00969-CV, 2011 WL 6938515, at *14 (Tex. App.-Houston [1st Dist.] Dec. 29, 2011, no pet. h.) (objection to request for attorney's fees "must be made before the trial court renders judgment"). Morton failed to object at the trial court that the Nguyens should be required to segregate their request for attorney's fees, and such failure waived this issue for appellate review. See Red Rock Props. 2005, Ltd. v. Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037, at *6-7 (Tex. App.-Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (objection that attorney's fees were not segregated was not preserved in trial court); Fortenberry v. Cavanaugh, No. 03-07-00310-CV, 2008 WL 4997568, at *11-12 (Tex. App.-Austin Nov. 26, 2008, pet. denied) (mem. op.) (same); see also TEX. R. APP. P. 33.1(a)(1). We overrule Morton's Issue 16.

SOURCE: FOURTEENTH COURT OF APPEALS - HOUSTON - No. 14-11-00126-CV - 5/17/12 (substituted opinion)

EXCEPTION TO SEGREGATION REQUIREMENT IN CASE OF MULTIPLE PARTIES REPRESENTED BY SAME ATTORNEY

"When a lawsuit involves multiple claims or parties, the proponent of attorney's fees must segregate recoverable fees from those incurred by parties or on claims for which fees are not recoverable." Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 143 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006)). Attorney's fees that relate solely to a claim for which fees are unrecoverable must be segregated. Chapa, 212 S.W.3d at 313. The Supreme Court of Texas has held that attorney's fees are recoverable only as provided by contract or statute, and it "eliminated the exception for fees incurred solely on separate but arguably intertwined claims." Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (citing Chapa, 212 S.W.3d at 313). But the Supreme Court did not require that all fees be segregated even when incurred by co-defendants jointly represented by the same counsel and when such fees are incurred as a result of the same discrete tasks and work.

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014  

Lack of consideration vs. failure of consideration: important differences

     

THIS ISSUE OF CONSIDERATION IN THE CONTEXT OF A CONTRACT DISPUTE

  

A want or lack of consideration is different from a failure of consideration. A lack of consideration occurs when a contract, at its inception, does not impose obligations on both parties. See Burges v. Mosley, 304 S.W.3d 623, 628 (Tex. App.-Tyler 2010, no pet.). Without a mutuality of obligation, a contract is unenforceable. Id. In contrast, a failure of consideration occurs when, because of some supervening cause arising after the contract is formed, the promised performance fails. Id.

 

In this case, there is no dispute that the lease, as written, imposed obligations on both parties; Cheung-Loon was required to provide Primo's with use of the parking lot at 3321 McKinney Avenue and appellees were required to, among other things, pay rent for Primo's use of the lot. Appellees provided no evidence that the contract was unenforceable due to a lack of consideration at its inception.  Accordingly, the trial court erred in failing to grant Cheung-Loon a no-evidence summary judgment on the affirmative defense of want of consideration.

 

A failure of consideration occurring after a contract's inception constitutes a defense to an action on the written agreement. See McGraw v. Brown Realty Co., 195 S.W.3d 271, 276 (Tex. App.-Dallas 2006, no pet.). The affirmative defense defeats summary judgment if the nonmovant presents evidence that it did not receive the consideration set forth in the agreement. Id. 
  
A failure of consideration may be either partial or total. A total failure of consideration is ground for cancellation or recission of the contract. See Food Mach. Corp. v. Moon, 165 S.W.2d 773, 775 (Tex. Civ. App.-Amarillo 1942, no writ). 
  
A partial failure of consideration will not invalidate the contract and prevent recovery thereon, but is a defense pro tanto. See Huff v. Speer, 554 S.W.2d 259, 263 (Tex. Civ. App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.).

 

The dispute here centers on whether Primo's was able to use the parking lot to the extent it bargained for. Appellees provided evidence that, one year into the lease term, Cheung-Loon's other tenants began using most, if not all, of the parking spaces in the lot Primo's leased for its own use. Even if Primo's was not entitled to exclusive use of the lot, which we do not decide, the lease clearly entitled it to use the lot for its customers' parking. Because appellees provided some evidence showing it was either totally or partially prevented from using the lot, we conclude appellees raised a fact issue on failure of consideration. Accordingly, the trial court correctly denied Cheung-Loon's motion for a no-evidence summary judgment on this affirmative defense. Furthermore, because appellees raised a fact issue on this affirmative defense, the trial court correctly denied Cheung- Loon's motion for summary judgment on its claim for breach of contract.

 

SOURCE: DALLAS COURT OF APPEALS - 05-10-01171-CV – 5/15/12

ADDITIONAL CASELAW SNIP ON CONSIDERATION AND FAILURE OF CONSIDERATION 

"Consideration is defined as `either a benefit to the promisor or a loss or detriment to the promisee.'" Northern Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998) (quoting Receiver for Citizen's Nat'l Assurance Co. v. Hatley, 852 S.W.2d 68, 71 (Tex. App.-Austin 1993, no writ)). A promissory note given "for value" is supported by adequate consideration and is therefore enforceable. Suttles v. Thomas Bearden Co., 152 S.W.3d 607, 615 (Tex. App.-Houston [1st Dist.] 2004, no pet.). 
  
A promissory note is issued for "value" if it is issued as payment of, or as security for, an antecedent claim against any person, whether or not the claim is due. Id.; see also Ward v. Vaughn, 298 S.W.2d 862, 866-67 (Tex. Civ. App.-Galveston 1957, no writ) (explaining that forbearance of antecedent debt was sufficient consideration for note). 
  
Failure of consideration occurs when, "after an agreement has been reached, the promised performance fails." Bassett v. American Nat'l Bank, 145 S.W.3d 692, 696 (Tex. App.-Fort Worth 2004, no pet.) (holding that failure to pay amount promised by note constituted failure of consideration).  
  

When is turnover relief warranted to enforce a money judgment?

  

REQUIREMENTS FOR GRANT OF TURNOVER ORDER

  

A turnover order is proper if the conditions of section 31.002 of the Texas Civil Practice and Remedies Code are met. See Suttles v. Vestin Realty Mortg. I, Inc., 317 S.W.3d 412, 416 (Tex. App.-Houston [1st Dist.] 2010, no pet.). Among the requirements of section 31.002 is that the creditor must show that the debtor owns property, including present or future rights to property, that cannot readily be attached or levied on by ordinary legal process. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002(a) (West 2012); see also Europa Int'l, Ltd. v. Direct Access Trader Corp., 315 S.W.3d 654, 656-57 (Tex. App.-Dallas 2010, no pet.).

  
SOURCE: DALLAS COURT OF APPEALS - 05-10-01161-CV – 5/16/12 

In this case, Barclay presented no evidence to show that HSM had any present or future rights to the property it sought to have turned over.

 

Tim Cole Act Compensation Claim for Innocents who ended up in jail as a result of wrongful conviction - In re Allen (Tex. 2012)

 
In re Billy Frederick Allen (Tex. May 18, 2012) (State Comptroller ordered to pay compensation to exonerated former inmate, who was wrongfully convicted and imprisoned)

This Supreme Court decision is bound to be all over the news nationwide. Here is the essence of what the statutory remedy for exonerated former inmates is all about [excerpt from today’s opinion], followed by a similar snippet from an earlier Tex. Sup. Ct. case, and the text of the relevant legislation, as codified in the Texas Civil Practice and Remedies Code.   

CLAIM FOR COMPENSATION FOR WRONGFUL IMPRISONMENT

Under the Tim Cole Act (Act or TCA), formerly known as the Texas Wrongful Imprisonment Act, a wrongfully imprisoned person may seek compensation from the state for the period of wrongful imprisonment. TEX. CIV. PRAC. & REM. CODE § 103.001(a). A person is entitled to compensation if the person 1) has served in whole or in part a sentence in prison under the laws of this state, and 2) has been granted habeas relief on a court determination that he is “actually innocent” of the crime for which he was sentenced.2 TEX. CIV. PRAC. & REM. CODE § 103.001(a)(1), (a)(2)(B). Additionally, the applicant’s supporting documentation must clearly indicate on its face that the person is entitled to compensation. TEX. CIV. PRAC. & REM. CODE § 103.051 (b-1).

For the reasons that follow, we hold that Billy Frederick Allen is entitled to compensation under the TCA, and we conditionally grant the petition for writ of mandamus.

[…]

The statute’s namesake, Timothy Cole, was convicted and sentenced to twenty-five years in prison for aggravated sexual assault. He maintained his innocence, but died of an asthma attack in 1999 while incarcerated. He was exonerated years later by DNA evidence, and in 2010, Governor Rick Perry granted him the state’s first posthumous pardon. See In re Smith, 333 S.W.3d 582, 583 n.1 (Tex. 2011); Act of May 27, 2009, 81st Leg., R.S., ch. 180, § 1, 2009 Tex. Gen. Laws 523 (naming the Act after Tim Cole).

[…]

We do not read the Court of Criminal Appeals’ opinion as indicating it failed to find actual innocence as to Allen’s conviction. Therefore, because the Court of Criminal Appeals granted habeas relief on a Schlup claim, Allen’s court order clearly indicates on its face that relief was based on actual innocence.

[…]

The petition for writ of mandamus is conditionally granted, and we instruct the Comptroller to comply with this opinion and compensate Allen under the terms of the Tim Cole Act. A writ of mandamus will issue only upon the failure to do so.

SOURCE: SUPREME COURT OF TEXAS – No. 10-0886 – 5/18/2012

EXCERPT FROM PRIOR TEXAS  SUPREME COURT OPINION

Under the Texas Wrongful Imprisonment Act, which is now known as the Tim Cole[1] Act, a wrongfully-imprisoned person may seek compensation from the state for the period of wrongful imprisonment. TEX. CIV. PRAC. & REM.CODE § 103.001(a). Application is made to the Texas Comptroller of Public Accounts, who is authorized to determine eligibility and the amount owed to the claimant. Id. § 103.051(b). The amount owed is determined by multiplying a fixed amount, currently set at $80,000 per year, by the period of wrongful imprisonment. Id. § 103.052(a)(1). In calculating the wrongful-imprisonment period, the Act excludes any period for which the claimant was serving a concurrent sentence. Id. § 103.001(b).

SOURCE: TEXAS SUPREME COURT - In re Smith, 333 S.W.3d 582, 585 (Tex. June 21, 2011).

STATUTUORY TEXT:

CIVIL PRACTICE AND REMEDIES CODETITLE 5. GOVERNMENTAL LIABILITYCHAPTER 103. COMPENSATION TO PERSONS WRONGFULLY IMPRISONED 

SUBCHAPTER A. ELIGIBILITY; NOTICE OF ELIGIBILITY

Sec. 103.001.  CLAIMANTS ENTITLED TO COMPENSATION AND HEALTH BENEFITS COVERAGE.  (a)  A person is entitled to compensation if:(1)  the person has served in whole or in part a sentence in prison under the laws of this state; and(2)  the person:(A)  has received a full pardon on the basis of innocence for the crime for which the person was sentenced;(B)  has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent  of the crime for which the person was sentenced; or(C)  has been granted relief in accordance with a writ of habeas corpus and:(i)  the state district court in which the charge against the person was pending has entered an order dismissing the charge; and(ii)  the district court's dismissal order is based on a motion to dismiss in which the state's attorney states that no credible evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state's attorney states that the state's attorney believes that the defendant is actually innocent of the crime for which the person was sentenced.(b)  A person is not entitled to compensation under Subsection (a) for any part of a sentence in prison during which the person was also serving a concurrent sentence for another crime to which Subsection (a) does not apply. (c)  If a deceased person would be entitled to compensation under Subsection (a)(2) if living, including a person who received a posthumous pardon, the person's heirs, legal representatives, and estate are entitled to lump-sum compensation under Section 103.052.(d)  Subject to this section, a person entitled to compensation under Subsection (a) is also eligible to obtain group health benefit plan coverage through the Texas Department of Criminal Justice as if the person were an employee of the department.  This subsection does not entitle the person's spouse or other dependent or family member to group health benefit plan coverage.  Coverage may be obtained under this subsection for a period of time equal to the total period the claimant served for the crime for which the claimant was wrongfully imprisoned, including any period during which the claimant was released on parole or to mandatory supervision or required to register under Chapter 62, Code of Criminal Procedure.  A person who elects to obtain coverage under this subsection shall pay a monthly contribution equal to the total amount of the monthly contributions for that coverage for an employee of the department.(e)  Notwithstanding Section 103.053(c), annuity payments may be reduced by an amount necessary to make the payments required by Subsection (d), and that amount shall be transferred to an appropriate account as provided by the comptroller by rule to fund that coverage.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 2, eff. September 1, 2009.Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 2, eff. June 17, 2011.Acts 2011, 82nd Leg., R.S., Ch. 1107, Sec. 1, eff. September 1, 2011.Acts 2011, 82nd Leg., R.S., Ch. 1107, Sec. 2, eff. September 1, 2011.

Sec. 103.002.  NOTICE TO WRONGFULLY IMPRISONED PERSON.  (a)  In this section:(1)  "Department" means the Texas Department of Criminal Justice.(2)  "Penal institution" has the meaning assigned by Article 62.001, Code of Criminal Procedure.(3)  "Wrongfully imprisoned person" has the meaning assigned by Section 501.091, Government Code, as added by Chapter 1389 (S.B. 1847), Acts of the 81st Legislature, Regular Session, 2009.(b)  The department shall provide to each wrongfully imprisoned person information, both orally and in writing, that includes:(1)  guidance on how to obtain compensation under this chapter; and(2)  a list of and contact information for nonprofit advocacy groups, identified by the department, that assist wrongfully imprisoned persons in filing claims for compensation under this chapter.(c)  The department must provide the information required under Subsection (b):(1)  at the time of the release of the wrongfully imprisoned person from a penal institution; or(2)  as soon as practicable after the department has reason to believe that the person is entitled to compensation under Section 103.001(a).

Added by Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 3, eff. June 17, 2011.

Sec. 103.003.  LIMITATION ON TIME TO FILE.  A person seeking compensation under this chapter must file an application with the comptroller for compensation under Subchapter B not later than the third anniversary of the date:(1)  the person on whose imprisonment the claim is based received a pardon as provided by Section 103.001(a)(2)(A);(2)  the person's application for a writ of habeas corpus was granted as provided by Section 103.001(a)(2)(B); or(3)  an order of dismissal described by Section 103.001(a)(2)(C) was signed.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 3, eff. September 1, 2009.Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 4, eff. June 17, 2011.

SUBCHAPTER B. ADMINISTRATIVE PROCEEDING

Sec. 103.051.  APPLICATION PROCEDURE.(a)  To apply for compensation under this subchapter, the claimant must file with the comptroller's judiciary section:(1)  an application for compensation provided for that purpose by the comptroller;(2)  a verified copy of the pardon, court order, motion to dismiss, and affidavit, as applicable, justifying the application for compensation;(3)  a statement provided by the Texas Department of Criminal Justice and any county or municipality that incarcerated the person on whose imprisonment the claim is based in connection with the relevant sentence verifying the length of incarceration;(4)  if applicable, a statement from the Department of Public Safety verifying registration as a sex offender and length of registration;(5)  if applicable, a statement from the Texas Department of Criminal Justice verifying the length of time spent on parole; and(6)  if the claimant is applying for compensation under Section 103.052(a)(2), a certified copy of each child support order under which child support payments became due during the time the claimant served in prison and copies of the official child support payment records described by Section 234.009, Family Code, for that period.(b)  The comptroller shall determine:(1)  the eligibility of the claimant;  and(2)  the amount of compensation owed to an eligible claimant.(b-1)  In determining the eligibility of a claimant, the comptroller shall consider only the verified copies of documents filed under Subsection (a)(2).  If the filed documents do not clearly indicate on their face that the person is entitled to compensation under Section 103.001(a)(2), the comptroller shall deny the claim.  The comptroller's duty to determine the eligibility of a claimant under this section is purely ministerial.(c)  The comptroller must make a determination of eligibility and the amount owed as required by Subsection (b) not later than the 45th day after the date the application is received.(d)  If the comptroller denies the claim, the comptroller must state the reason for the denial.  Not later than the 30th day after the date the denial is received, the claimant must submit an application to cure any problem identified.  Not later than the 45th day after the date an application is received under this subsection, the comptroller shall determine the claimant's eligibility and the amount owed.(e)  If the comptroller denies a claim after the claimant submits an application under Subsection (d), the claimant may bring an action for mandamus relief.(f)  To apply for coverage through the Texas Department of Criminal Justice under Section 103.001(d), the claimant must file with the department:(1)  an application for coverage provided for that purpose by the department; and(2)  a statement by the comptroller that the comptroller has determined the claimant to be eligible for compensation under this subchapter.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.  Amended by Acts 2003, 78th Leg., ch. 1310, Sec. 1, eff. June 20, 2003.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 1, eff. September 1, 2007.Acts 2007, 80th Leg., R.S., Ch. 1388, Sec. 2, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 5.003, eff. September 1, 2009.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 4, eff. September 1, 2009.Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 5, eff. June 17, 2011.Acts 2011, 82nd Leg., R.S., Ch. 1107, Sec. 3, eff. September 1, 2011.

Sec. 103.052.  LUMP-SUM COMPENSATION.  (a)  A person who meets the requirements of Section 103.001 is entitled to compensation in an amount equal to:(1)  $80,000 multiplied by the number of years served in prison, expressed as a fraction to reflect partial years; and(2)  compensation for child support payments owed by the person on whose imprisonment the claim is based that became due and interest on child support arrearages that accrued during the time served in prison but were not paid.(b)  A person who, after serving a sentence in a Texas prison for which the person is entitled to compensation under Subsection (a)(1), was released on parole or required to register as a sex offender under Chapter 62, Code of Criminal Procedure, is entitled to compensation in an amount equal to $25,000 multiplied by the number of years served either on parole or as a registered sex offender, expressed as a fraction to reflect partial years.(c)   The amount of compensation under Subsection (a)(2) to which a person is entitled shall be paid on the person's behalf in a lump-sum payment to the state disbursement unit, as defined by Section 101.0302, Family Code, for distribution to the obligee under the child support order.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 2, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 5, eff. September 1, 2009.

Sec. 103.053.  ANNUITY COMPENSATION.  (a)  A person entitled to compensation under Section 103.001(a) is entitled to annuity payments, based on a present value sum equal to the amount to which the person is entitled under Sections 103.052(a)(1) and (b).(b)  The annuity payments under this section are payable in equal monthly installments for the life of the claimant and must be based on a five percent per annum interest rate and other actuarial factors within the discretion of the comptroller.(c)  The annuity payments may not be accelerated, deferred, increased, or decreased.  The applicant may not sell, mortgage or otherwise encumber, or anticipate the payments, wholly or partly, by assignment or otherwise.

Added by Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 6, eff. September 1, 2009.

Sec. 103.054.  PAYMENT OF CERTAIN TUITION AND FEES.  If requested by the claimant before the seventh anniversary of the relevant date described by Section 103.003, tuition for up to 120 credit hours, including tuition charged under Section 54.0513, Education Code, or any other law granting an educational institution discretion to set the tuition rate, and any mandatory fees associated with attendance at the institution, charged by a career center or public institution of higher education shall be paid on behalf of the claimant.

Added by Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 6, eff. September 1, 2009.Amended by: Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 6, eff. June 17, 2011.

SUBCHAPTER C.  FEES

Sec. 103.101.  FEES LIMITED; PREREQUISITES TO FEE AGREEMENT.  (a)  A person, including an attorney, may not charge or collect a fee for preparing, filing, or curing a claimant's application under Section 103.051 unless the fee is based on a reasonable hourly rate.(b)  An attorney may enter into a fee agreement with a claimant for services related to an application under Section 103.051 only after the attorney has disclosed in writing to the claimant the hourly rate that will be charged for the services.(c)  An attorney may not collect a fee for preparing, filing, or curing a claimant's application under Section 103.051 before a final determination is made by the comptroller that the claimant is eligible or ineligible for compensation under this chapter.

Added by Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 7, eff. June 17, 2011.

Sec. 103.102.  SUBMISSION OF FEE REPORT.  (a) Together with an application for compensation under this chapter or not later than the 14th day after the date the application or cured application is filed, a person seeking payment for preparing, filing, or curing the application must file a fee report with the comptroller's judiciary section.(b)  A fee report under this section must include:(1)  the total dollar amount sought for fees;(2)  the number of hours the person worked preparing, filing, or curing the application; and(3)  the name of the applicant.(c)  A fee report under this section is public information subject to Chapter 552, Government Code.

Added by Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 7, eff. June 17, 2011.

SUBCHAPTER D. PAYMENTS AND LIMITATIONS

Sec. 103.151.  ADMINISTRATIVE PAYMENT OF COMPENSATION.  (a)  The comptroller shall make the compensation due a claimant under Section 103.052 and the lump-sum payment, if any, to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, under Subchapter B, to the extent that funds are available and appropriated for that purpose, not later than the 30th day after the date the comptroller grants the application.  A claim for lump-sum compensation payable under Section 103.052(a) or (b) shall survive the death of the claimant in favor of the heirs, legal representatives, and estate of the claimant.(b)  The comptroller shall begin making annuity payments to a claimant under Section 103.053(a) on the first anniversary of the date of payment of the compensation due under Section 103.052.(c)  If appropriated funds are insufficient to pay the amount due a claimant and the amount to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, money shall be paid under the procedure described by Section 103.152.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 5, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 7, eff. September 1, 2009.

Sec. 103.152.  PAYMENT OF COMPENSATION.  (a)  Not later than November 1 of each even-numbered year, the comptroller shall provide a list of claimants entitled to payment under Subchapter B and the amounts due for each claimant to the governor, the lieutenant governor, and the chair of the appropriate committee in each house of the legislature so that the legislature may appropriate the amount needed to pay the amount owed to each claimant and the amount to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, on the claimant's behalf.(b)  Not later than September 1 of the year in which an appropriation under this chapter has been made by the legislature, the comptroller shall pay the required amount to each claimant and the state disbursement unit, as defined by Section 101.0302, Family Code.(c)  Repealed by Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 12(3), eff. September 1, 2009.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 6, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 8, eff. September 1, 2009.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 12(3), eff. September 1, 2009.

Sec. 103.153.  EMPLOYEES NOT LIABLE AFTER PAYMENT OF COMPENSATION.  (a)  In this section, "employee" and "governmental unit" have the meanings assigned by Section 101.001.(b)  A person who receives compensation under this chapter may not bring any action involving the same subject matter, including an action involving the person's arrest, conviction, or length of confinement, against any governmental unit or an employee of any governmental unit.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.

Sec. 103.154.  TERMINATION OF PAYMENTS.  (a)  Except as provided by Subsection (c), compensation payments to a person under this chapter terminate if, after the date the person becomes eligible for compensation under Section 103.001, the person is convicted of a crime punishable as a felony.  Compensation payments terminate under this subsection on the date of the subsequent conviction.(b)  Annuity payments to a person under Section 103.151(b) terminate on the date of the person's death.  Any payments scheduled to be paid after that date are credited to the state and may not be paid to any other person, including the person's surviving spouse, heirs, devisees, or beneficiaries under the person's will, or to the person's estate.(c)  This section does not apply to compensation for child support payments and interest on child support arrearages to be paid on a person's behalf under this chapter to the state disbursement unit, as defined by Section 101.0302, Family Code.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 7, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 9, eff. September 1, 2009.

[No] Legal standing to complain: Texas Supreme Court nixes citizen's suit to challenge balloting process that favors political parties as unconstitutional

 
SUPREMES SAY WOULD-BE ELECTION-SYSTEM REFORMER WHO TOOK A STAND AGAINST PARTISAN BALLOTING DID NOT HAVE STANDING
    
Honorable Hope Andrade v. [Average Joe tax-paying Citizen] Don Veneable (Tex. May 18, 2012)
  

In an anonymous per curiam opinion, the Texas Supreme Court this morning disposed of a Dallas resident's constitutional challenge to partisan identification of candidates and straight-ticket voting option on the general election ballot on standing grounds. The challenged feature of the general election ballot process allows voters to vote for all candidates of the same political party simultaneously rather than making a choice between competing candidates in each race. The straight-ticket option, no doubt, strengthens the parties. [Texas uses nonpartisan ballots in some local elections].   

NO SPECIAL INTEREST

The Supremes, who are among those elected on partisan ballots in Texas, collectively conclude that the election system critic who brought the underlying suit in Dallas County was no different from any other Mr. Joe Public, and that he did not satisfy the requirements for tax-payer standing under existing precedent either. Holding that the citizen had no special interest, the justices render judgment for the election official who defended the status quo.  

  

OPINION EXCERPT

  
Don Venable seeks to enjoin Dallas County from identifying candidates’ political party affiliations and providing a “straight-party” option on general election ballots. We must decide whether Venable has standing to pursue these claims. Because Venable has no interest distinct from that of the general public and has not established taxpayer standing under Williams v. Lara, 52 S.W.3d 171, 179 (Tex. 2001), we reverse in part the court of appeals’ judgment and render judgment dismissing Venable’s claims against Secretary of State Hope Andrade.
  

Venable has not pleaded facts showing that measurable and significant public funds were being spent on the activity he challenges, and thus, has failed to affirmatively demonstrate taxpayer standing. Because Venable has no interest distinct from that of the public generally, and his claims fall outside the narrow taxpayer exception to the bar against generalized grievances, he lacks the requisite and particularized stake to warrant standing. Accordingly, we grant the petition for review, and without hearing oral argument, we reverse in part the court of appeals’ judgment and render judgment dismissing Venable’s claims against Andrade. TEX. R. APP. P. 59.1, 60.2(c).

SOURCE: TEXAS SUPREME COURT - Honorable Hope Andrade v. Don Veneable, No. 11-0008  (Tex. May 18, 2012) Petition for Review from Dallas County; 5th district (05‑10‑00303‑CV, ___ SW3d ___, 11‑15‑10)
 

PER CURIAM OPINION

Is there a cause of action for predatory lending?

 
CAN YOU SUE A CREDITOR FOR PREDATORY LENDING?

  

Federal judge in Texas says ‘No’ in suit against JPMorgan Chase Bank, N.A. involving a loan made on stated-income, and declines Plaintiff’s invitation to create such a cause of action. Chase, as successor servicer to EMC Mortgage LLC f/k/a EMC Mortgage Corporation ("EMC"), removed the borrower’s action from state court and secures dismissal for failure to state a claim.  

  

Predatory Lending Claim: no such thing, at least not yet    

  

EXCERPT FROM OPINION BY HON. JOHN McBRIDE, DISTRICT JUDGE  

  

The main thrust of plaintiff's predatory lending claim is that" [d]efendants engaged in predatory lending practices by, among other things, failing to make necessary disclosures to Plaintiff regarding their loan." Compl. at 7. Specifically, plaintiff alleges that defendants failed to provide certain disclosures allegedly required by TILA and RESPA three days after some initial meeting or submission of his loan application. Id. at 3, 7. Plaintiff, however, then alleges that he did receive disclosures at the loan's closing. Id. at 3, 7, 9. Plaintiff alleges that he "received some of these disclosures," without specifying which disclosures he received and which he did not. Id.

  

Plaintiff has not cited any state or applicable federal law, precedential or statutory, that creates a cause of action for "predatory lending." See, e.g., Brown v. Aurora Loan Servs., LLC, No. 4:11-CV-111, 2011 WL 2783992, at *4 (E.D. Tex. June 7, 2011), report and recommendation adopted at 2011 WL 2728384. Plaintiff even acknowledges that "predatory lending is not a recognized cause of action at this time." Compl. at 6.

 

Plaintiff argues that "predatory lending should be a recognized cause of action and this, a case of first impression subject to review by the Texas Supreme Court, is necessary, in order to lay the groundwork for future predatory lending claims." Id. The court is not persuaded by plaintiff's argument, as the court has found no case law in support of a cause of action for predatory lending. The court is not inclined to create a cause of action not previously recognized in Texas or federal law.

Moreover, plaintiff's conclusory allegations fail to allege sufficient facts to support his claim for "predatory lending." Plaintiff has not even stated what disclosures were not allegedly provided to him. Id. at 7. Accordingly, plaintiff's predatory lending claim must be dismissed.

SOURCE: United States District Court, N.D. Texas, Fort Worth Division. Civil Action No. 4:11-CV-812-A. DONALD BITTICK, Plaintiff, v. JPMORGAN CHASE BANK, NA, ET AL., Defendants. MEMORANDUM OPINION and ORDER of JOHN McBRYDE, District Judge. April 18, 2012. 

No wrongful foreclosure claim without actual foreclosure and proof of low selling price

   
ELEMENTS OF Wrongful Foreclosure UNDER TEXAS LAW
  

To succeed on a claim for wrongful foreclosure under Texas law, a plaintiff must show: (1) a defect in the foreclosure sale; (2) a grossly inadequate selling price; and (3) a causal connection between the defect in the sale and the grossly inadequate selling price. Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex.App.-Houston [14th Dist.] 1989, writ denied).

 

"A claim for `wrongful foreclosure' is not available based merely on showing a defect in the foreclosure process; it is also necessary that there be an inadequate selling price resulting from the defect. Texas courts have yet to recognize a claim for `attempted wrongful foreclosure'" Biggers v. BAC Home Loans Servicing, LP, 767 F.Supp.2d 725, 729 (N.D. Tex. 2011) (citing Port City State Bank v. Leyco Constr. Co., 561 S.W.2d 546, 547 (Tex.Civ.App. 1977, no writ); Peterson v. Black, 980 S.W.2d 818, 823 (Tex.App. 1998, no pet.). Because an inadequate selling price is a necessary element of a wrongful foreclosure action, "a foreclosure sale is a precondition to recovery." Biggers, 767 F.Supp.2d. at 730.

 

SOURCE:  United States District Court, Northern District of Texas, Dallas Division - May 9, 2012. Civil Action No. 3:11-CV-00603-M (BF) - FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE PAUL D. STICKNEY.

  

Here, there is no allegation that a foreclosure sale actually occurred. Instead, Plaintiff alleges a lack of standing on behalf of Defendants to foreclose on her property and defects in the notices of sale and acceleration. Plaintiff is, in fact, still residing at the property which is the subject of this lawsuit. Because Plaintiff only alleges defects in the foreclosure process, and not an actual foreclosure sale, Plaintiff cannot prove a necessary element of wrongful foreclosure. See Biggers, 767 F.Supp.2d at 729-30. Moreover, the Court finds that Defendants do have standing to foreclose on Plaintiff's property, as MERS assigned the Deed of Trust to RFC, and Defendants were acting on behalf of RFC in initiating foreclosure. There is no genuine issue of material fact that exists for trial, and thus, Plaintiff's claim of wrongful foreclosure fails as a matter of law.
  

Wrongful Foreclosure Claim - Dismissal of Claim Reversed by the Fifth Circuit in 2015

Another snippet with case law on Civil Claim for Wrongful Foreclosure       
   

The elements of wrongful foreclosure are: (1) a defect in the foreclosure sale proceeding; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price. Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex.App.-Houston [14th Dist.] 1989, writ denied). A wrongful foreclosure claim does not always require proof of a grossly inadequate selling price if another substantive injury to the mortgagor exists. Id. Under Texas law, "a deed of trust is a mortgage with a power to sell on default." Starcrest Trust v. Berry, 926 S.W.2d 343, 351 (Tex.App.-Austin 1996, no writ) (internal quotation omitted). Mortgages, and therefore deeds of trust, are construed like contracts. Id. at 351-52. "Further, `[t]he note and deed of trust on . . . property should be construed together and effectively regarded as one instrument.'" Id. (quoting Chapa v. Herbster, 653 S.W.2d 594, 600 (Tex.App.-Tyler 1983, no writ)).
  

SOURCE: United States District Court, S.D. Texas, Houston Division. Civil Action H-11-3298. ORDER of GRAY H. MILLER, District Judge, January 9, 2012.

The court construes [PLAINTIFF-HOME OWNER’S] arguments to revolve around the ability of MERS to assign the note and the deed of trust. Because, she argues, the assignments were invalid, the note and the deed of trust became "bifurcated," in effect splitting the lien on the property away from the loan. As a result, [PLAINTIFF-HOME OWNER]  asserts that the previously secured loan became unsecured, extinguishing the right of foreclosure under the deed of trust. She offers no authority for her "bifurcation" theory and the court has found none.

  

Arguably, MERS had the right to assign the note to BAC. Texas law dictates that the note and deed of trust should be construed as a single document. The deed of trust expressly grants to MERS, as nominee for the lender (or note holder), all rights the lender had under the deed of trust. It would follow that since the documents are construed as a single document, MERS likely had the right to assign the note.
  

However, even if the note and the deed of trust became somehow separated, that does not affect the rights of the lien-creditor to foreclose based on the deed of trust. Well-established Texas law allows suit to be brought on the nonpayment of the note separate from suit for foreclosure of the lien without precluding a later suit for foreclosure. Stephens v. LPP Mortgage, Ltd., 316 S.W.3d 742, 746 (Tex.App.-Austin 2010, pet. denied) (citing Carter v. Gray, 125 Tex. 219, 81 S.W.2d 647, 648 (1935)). "When a debt is memorialized by a note that is secured by a lien, the note and lien constitute separate obligations." Id. at 747. The holder of a note and the lien-creditor hold different rights, may act at different times, and need not be the same entity. Id.; see also Athey v. Mortg. Elec. Registration Sys., Inc., 314 S.W.3d 161, 165-66 (Tex.App.-Eastland 2010, pet denied) (recognizing a nominee's authority under a deed of trust to authorize a mortgage servicer to proceed with a non-judicial foreclosure sale). MERS expressly held all rights of the Lender on the deed of trust, including the right to assign it. Accordingly, the "bifurcation" premise that is the basis of [PLAINTIFF-HOME OWNER’S] argument fails. 

   

 
Wrongful Foreclosure - One more case from a federal district court
 

CLAIM OF WRONGFUL FORECLOSURE REJECTED  

  

[PLAINTIFF-HOME OWNER] asserts a claim against these Defendants for wrongful foreclosure. Defendants maintain that summary judgment in their favor is appropriate because no, or insufficient, evidence exists to establish the requisite elements of this claim. (Dkt. No. 49 at 9-11).
  

To prevail on a wrongful foreclosure claim, a plaintiff must be able to establish that (1) there was a defect in the foreclosure proceedings, (2) the selling price at foreclosure was grossly inadequate, and (3) there is a causal connection between the defect in the foreclosure and the grossly inadequate selling price. Sauceda v. GMACMortgage Corp., 268 S.W.3d 135, 139 (Tex.App.-Corpus Christi 2008, no pet.).

  

Initially, [PLAINTIFF-HOME OWNER]  claims that the foreclosure must be set aside because there was a defect in the proceeding — namely, that he did not receive the notice of the sale. The law provides that notice is complete when it addressed to the debtor at that debtor's last known address as shown by the records of the holder of the debt and the notice is deposited in the mail. Tex. Prop. Code § 51.002(e). The evidence before the Court reflects that [PLAINTIFF-HOME OWNER] was sent the requisite notice of the January 5, 2010, foreclosure sale. (Dkt. No. 49, Ex. B). [PLAINTIFF-HOME OWNER]'s claim, therefore, lacks merit.[9] See, Adebo v. Litton Loan Servicing, L.P., No. 01-07-708-CV, 2008 WL 2209703, at * 4 (Tex. App.-Houston [1st Dist.] may 29, 2008, no pet.) (explaining that "[t]he dispositive inquiry under section 51.002(e) . . . is not receipt of notice, but, rather, service of notice.").[10] Nor does the evidence support [PLAINTIFF-HOME OWNER]'s other allegations that any defect existed in the notices.[11]

  

[PLAINTIFF-HOME OWNER] next alleges that the sale was wrongful because the Property was sold at foreclosure for a grossly inadequate price. In an attempt to support this claim, [PLAINTIFF-HOME OWNER] submits the valuation of the Property that was done after he entered into the purchase agreement with Trendmaker in 2006, but before he closed on the Property in February 2007. This is insufficient, however, to establish the value of the Property at the time of the foreclosure in 2010. Baker v. Countrywide Home Loans, Inc., No. 3:08-CV-0916-B, 2009 WL 1810336, at *4 (N.D. Tex. June 24, 2009). [PLAINTIFF-HOME OWNER] also attempts to shoulder his burden by pointing to posting on a website, however this evidence, unauthenticated and hearsay, is not sufficient to establish that the Property was sold at foreclosure in 2010 for a grossly inadequate price.

  

Finally, [PLAINTIFF-HOME OWNER] appears to suggest that the Property was wrongfully foreclosed in violation of Article 16, § 50 of the Texas Constitution. This claim has no merit. This provision in the Texas Constitution safeguards an individual's homestead from foreclosure for debts incurred, but it does not preclude a senior mortgagor from foreclosing on the Property, as was the case here, when the individual defaults on the note that purchased the homestead.

Accordingly, for all the reasons discussed, the Court concludes that Defendants' Motion must be granted on these claims.

SOURCE: United States District Court, S.D. Texas, Galveston Division. Civil Action No. G-10-304.

OPINION AND ORDER of JOHN R. FROESCHNER, Magistrate Judge. January 19, 2012.