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

Collection of a Promissory Note - Multiple Instruments pertaining to the obligationa

Collection of a Promissory Note: Essential elements the creditor must prove 

To collect on a promissory note, a plaintiff m ust establish: (1) that the note exists; (2) that the defendant signed the note; (3) that the plaintiff is the owner and holder of the note; and (4) that 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 also Clark v. Dedina, 658 S.W.2d 293, 295–96 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d).

Business and Commerce Code Section 3.117

Business and commerce code section 3.117, titled “Other Agreements Affecting Instrument,” states in relevant part that

the obligation of a party to an instrument to pay the instrument may be modified, supplemented, or nullified by a separate agreement of the obligor and a person entitled to enforce the instrument, if the instrument is issued or the obligation is incurred in reliance on the agreement or as part of the same transaction giving rise to the agreement. To the extent an obligation is modified, supplemented, or nullified by an agreement under this section, the agreement is a defense to the obligation.

Tex. Bus. & Com. Code Ann. § 3.117 (West 2002). “The separate agreement might be a security agreement . . . that contradicts the terms of the instrument.” Id. § 3.117 cmt. 1 (West Supp. 2010)

Multiple instruments / documents can be given effect as if they were one

Additionally, where two or more instruments, executed contemporaneously or at different times, pertain to the same transaction, the instruments will be read together, even though they do not expressly refer to each other. Bd. of Ins. Comm’rs v. Great S. Life Ins. Co., 150 Tex. 258, 267, 239 S.W.2d 803, 809 (1951); see also Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (stating that it is “well-established law that instruments pertaining to the same transaction may be read together to ascertain the parties’ intent”).

SOURCE: Fort Worth Court of Appeals - 02-10-00296-CV - 8/4/11

Elements of promissory note suit, suit on note

To recover for a debt on a promissory note, a party must establish that it is the legal holder of the note, the debtor’s execution of the note, and that an outstanding balance is due and owing. Austin v. Countrywide Homes, 261 S.W.3d 68, 72 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). SOURCE: McShaffry v. Amegy Bank N.A. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Bland) (promissory note suit, extinguishment by guarantor)