 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
UMLIC VP LLC v. T&M Sales and Environmental Systems9/15/2005
efendant is the maker of the note, and (4) a certain balance is due and owing on the note. Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.-Houston [14th Dist.] 1994, no writ). Once a holder establishes these facts, he is entitled to recover only if the maker of the note fails to establish a defense. Id. (citing Groschke v. Gabriel, 824 S.W.2d 607, 610 (Tex. App.-Houston [14th Dist.] 1991, writ denied)).
As we stated above, the trial court received into evidence, without objection, the promissory note, the deed of trust, and the guaranty agreement. At trial, the parties stipulated that UMLIC is the holder and owner of the note, and that as of November 19, 1998, the principal balance remaining on the note was $49,602.24. Appellees never disputed their signatures on the note, deed of trust, or guaranty agreement. UMLIC argues that appellees failed to plead or prove a viable affirmative defense.
In response, appellees assert that they adequately pleaded and proved that UMLIC wrongfully foreclosed on the property. Wrongful foreclosure is an appropriate affirmative defense to a suit to collect on a note. Cf. Shearer v. Allied Live Oak Bank, 758 S.W.2d 940, 943-44 (Tex. App.-Corpus Christi 1988, writ denied) (noting that the affirmative defense of wrongful foreclosure must be raised at trial). We have already determined that wrongful foreclosure was adequately pleaded and supported by sufficient evidence. Further, in determining actual damages for wrongful foreclosure, the remaining balance due on the indebtedness was deducted from the fair market value of the property. Appellant's first issue is overruled.
E. CAUSES OF ACTION IN TORT
In its twenty-first issue, UMLIC contends a mortgagee owes no independent duty of good faith and fair dealing to a mortgagor. In its seventeenth issue, UMLIC complains the trial court erred in submitting an ordinary negligence claim to the jury.
A tort obligation is a general obligation imposed by law "apart from and independent of promises made and . . . the manifested intentions of the parties, to avoid injury to others." Southwestern Bell Tel. Co. v. Delanney, 809 S.W.2d 493, 496 (Tex. 1991) (quoting W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS§ 92 at 655 (5th Ed. 1984)). To establish a negligence cause of action, a party must show (1) the existence of a legal duty, (2) breach of that duty, and (3) damages proximately resulting from the breach. San Benito Bank & Trust Co. v. Landair Travels, 31 S.W.3d 312, 317 (Tex. App.-Corpus Christi 2000, no pet.) (citing Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998)). In order to establish liability, a complaining party must prove the existence and violation of a duty, San Benito Bank & Trust, 31 S.W.3d at 317 (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)), a legally enforceable obligation to conform to a particular standard of conduct. Valley Shamrock v. Vasquez, 995 S.W.2d 302, 306 (Tex. App.-Corpus Christi 1999, no pet.). The existence of a duty is a threshold question of law for the court, to be decided from the particular facts surrounding the case in question. Valley Shamrock, 995 S.W.2d at 302 (citing Mitchell v. Mo.-Kan.-Tex. R.R., 786 S.W.2d 659, 662 (Tex. 1990)).
1. Duty of Good Faith and Fair Dealing
In its twenty-first issue, UMLIC contends a mortgagee owes no independent duty of good faith and fair dealing to a mortgagor. The Texas Supreme Court has declined to impose an implied duty of good faith and fair dealing in every contract, though it has recognized that such a duty may arise as a result of "a special relationship between the parties governed or created by a contr
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|