usury claim in Texas

1994See Houston Sash & Door Co. v. Heaner, 577 S.W.2d 217, 222 (Tex.1979) (a guarantor could not interpose the maker’s usury defense on promissory note because usury defense remains personal to the debtor); Universal Metals & Mach., Inc. v. Bohart, 539 S.W.2d 874, 877-78 (Tex.1976) (a guarantor, who contracted as a primary, absolute, unconditional obligor, is not freed from liability because of the forged signature of the maker on a note); Willis, 90 Tex. at 621-22 , 40 S.W. at 396-97 ; Estrada, 116 S.W. at 113-14 .

1994(Emphasis added) The Texas Supreme Court, interpreting the same language (“shall forfeit to the obligor”) contained in TEX.REV.CIV.STAT.ANN. art. 5069-1.06 (1967), stated in Houston Sash and Door Company, Inc. v. Heaner, 577 S.W.2d 217 (Tex. 1979): Such language evidences the Legislature’s intent that the usury defense remain personal to the debtor.

2008While Bair Chase cites Pagel v. Whatley, 82 S.W.3d 571, 577 (Tex. App.—Corpus Christi 2002, pet. denied), in which a creditor cured alleged usury violations by deleting all interest charges and demanding only the principal amount due, nothing in Pagel indicates that such measures are required in order to successfully take corrective action.6 A federal bankruptcy court applying Texas law has suggested that correction of a usury violation is accomplished by “the adjustment or correction required in order to bring the transaction into compliance with the applicable usury standard.” In re Kemper,

2008While Bair Chase cites Pagel v. Whatley, 82 S.W.3d 571, 577 (Tex. App.—Corpus Christi 2002, pet. denied), in which a creditor cured alleged usury violations by deleting all interest charges and demanding only the principal amount due, nothing in Pagel indicates that such measures are required in order to successfully take corrective action.6 A federal bankruptcy court applying Texas law has suggested that correction of a usury violation is accomplished by “the adjustment or correction required in order to bring the transaction into compliance with the applicable usury standard.” In re Kemper,

2014First Bank v. Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex. 1994); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 96 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

2011We overrule this issue as to Tronics. loan but that the loan was not usurious because there was no absolute obligation to repay the loan. 70 First Bank v. Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex. 1994). 51 Regarding its claim against Leasing, Game Systems argues that ―[t]here can be no question as to whether‖ it produced evidence raising a fact issue as to the challenged elements.

2016See id. at 920 .

2015See id. at 920 .

2010Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex.1999) (per curiam).

2010Holland v. Wal-Mart Stores , 1 S.W.3d 91, 94 (Tex. 1999) (per curiam).

2010Co. v. Berryman, 729 S.W.2d 883, 888 (Tex. App.—Corpus Christi 1987, no writ) (“Every piece of real estate is unique, and if foreclosure were allowed before a full determination of the usury claim, appellee would be irreparably harmed.”).

2010Co. v. Berryman, 729 S.W.2d 883, 888 (Tex.App.-Corpus Christi 1987, no writ) (“Every piece of real estate is unique, and if foreclosure were allowed before a full determination of the usury claim, appellee would be irreparably harmed”).

2008However, “[u]sury statutes are 13 penal in nature and, as a result, they must be strictly construed in such a way as to give the lender the benefit of the doubt.” First State Bank v. Dorst, 843 S.W.2d 790, 794 (Tex. App.—Austin 1992, writ denied).

2008However, "[u]sury statutes are penal in nature and, as a result, they must be strictly construed in such a way as to give the lender the benefit of the doubt." First State Bank v. Dorst , 843 S.W.2d 790, 794 (Tex. App.--Austin 1992, writ denied).

2008While Bair Chase cites Pagel v. Whatley, 82 S.W.3d 571, 577 (Tex. App.—Corpus Christi 2002, pet. denied), in which a creditor cured alleged usury violations by deleting all interest charges and demanding only the principal amount due, nothing in Pagel indicates that such measures are required in order to successfully take corrective action.6 A federal bankruptcy court applying Texas law has suggested that correction of a usury violation is accomplished by “the adjustment or correction required in order to bring the transaction into compliance with the applicable usury standard.” In re Kemper,

2008While Bair Chase cites Pagel v. Whatley, 82 S.W.3d 571, 577 (Tex. App.—Corpus Christi 2002, pet. denied), in which a creditor cured alleged usury violations by deleting all interest charges and demanding only the principal amount due, nothing in Pagel indicates that such measures are required in order to successfully take corrective action.6 A federal bankruptcy court applying Texas law has suggested that correction of a usury violation is accomplished by “the adjustment or correction required in order to bring the transaction into compliance with the applicable usury standard.” In re Kemper,

2008See 851 S.W.2d at 929-30 .

2008See 851 S.W.2d at 929-30 .

2008However, “Texas law does not permit a guarantor to escape its obligation by asserting a usury defense based on a usurious principal obligation.” Ginsberg 1985 Real Estate P’ship v. Cadle Co., 39 F.3d 528, 534 (5th Cir.1994).

2008However, "Texas law does not permit a guarantor to escape its obligation by asserting a usury defense based on a usurious principal obligation." Ginsberg 1985 Real Estate P'ship v. Cadle Co. , 39 F.3d 528, 534 (5th Cir. 1994).

2007Marcus Cable Assocs., L.P. v. Krohn , 90 S.W.3d 697, 706 (Tex. 2002).

2007Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex.2002).

2007Hurley v. Nat'l Bank of Commerce, 529 S.W.2d 788, 790 (Tex.Civ.App.-Dallas 1975, writ refd n.r.e.) Hurley is relevant to the Parr defendants’ argument because the court rejected the debtor’s argument that "no cause of action for usury arises so long as the aggregate amount of the payments does not exceed the principal sum originally advanced because the lender may elect to treat all payments up to that time as return of principal and may forego the interest or reduce it to a lawful amount.” Id.

2007Hurley v. Nat'l Bank of Commerce, 529 S.W.2d 788, 790 (Tex.Civ.App.-Dallas 1975, writ refd n.r.e.) Hurley is relevant to the Parr defendants’ argument because the court rejected the debtor’s argument that "no cause of action for usury arises so long as the aggregate amount of the payments does not exceed the principal sum originally advanced because the lender may elect to treat all payments up to that time as return of principal and may forego the interest or reduce it to a lawful amount.” Id.

1990RepublicBank Dallas v. Shook, 653 S.W.2d 278, 281 (Tex. 1983); Houston Sash & Door Co. v. Heaner, 577 S.W.2d 217, 222 (Tex. 1979).

1990Republic-Bank Dallas v. Shook, 653 S.W.2d 278, 281 (Tex.1983); Houston Sash & Door Co. v. Heaner, 577 S.W.2d 217, 222 (Tex.1979).

1987Miro v. Allied Finance Co., 650 S.W.2d 938, 944 (Tex. App. — Houston [14th Dist.] 1983, no writ); see Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ.App. — Fort Worth 1977), modified and aff'd, 563 S.W.2d 572 (Tex.1978).

1987Miro v. Allied Finance Co., 650 S.W.2d 938, 944 (Tex. App.—Houston [14th Dist.] 1983, no writ); see Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ.App.—Fort Worth 1977), modified and aff'd, 563 S.W.2d 572 (Tex.1978).

1987Miro v. Allied Finance Co., 650 S.W.2d 938, 944 (Tex. App. — Houston [14th Dist.] 1983, no writ); see Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ.App. — Fort Worth 1977), modified and aff'd, 563 S.W.2d 572 (Tex.1978).

1987Miro v. Allied Finance Co., 650 S.W.2d 938, 944 (Tex. App.—Houston [14th Dist.] 1983, no writ); see Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ.App.—Fort Worth 1977), modified and aff'd, 563 S.W.2d 572 (Tex.1978).

1987Miro v. Allied Finance Co., 650 S.W.2d 938, 944 (Tex. App. — Houston [14th Dist.] 1983, no writ); see Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ.App. — Fort Worth 1977), modified and aff'd, 563 S.W.2d 572 (Tex.1978).

1987Miro v. Allied Finance Co., 650 S.W.2d 938, 944 (Tex. App.—Houston [14th Dist.] 1983, no writ); see Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ.App.—Fort Worth 1977), modified and aff'd, 563 S.W.2d 572 (Tex.1978).

1986Rick Furniture Distributing Co. v. Kirlin, 634 S.W.2d 738, 740 (Tex.App.—Dallas 1982, writ ref’d n.r.e.). “[T]he foundation of the statutory action ... is the independent, unilateral claim for usury made by the creditor and not any communication of that charge to the debtor....” Williams v. Back, 624 S.W.2d 272, 275 (Tex.App.—Austin 1981, no writ).

1986Rick Furniture Distributing Co. v. Kirlin, 634 S.W.2d 738, 740 (Tex.App.-Dallas 1982, writ ref'd n.r.e.). "[T]he foundation of the statutory action ... is the independent, unilateral claim for usury made by the creditor and not any communication of that charge to the debtor...." Williams v. Back, 624 S.W.2d 272, 275 (Tex.App.-Austin 1981, no writ).

1986Rick Furniture Distributing Co. v. Kirlin, 634 S.W.2d 738, 740 (Tex.App.—Dallas 1982, writ ref’d n.r.e.). “[T]he foundation of the statutory action ... is the independent, unilateral claim for usury made by the creditor and not any communication of that charge to the debtor....” Williams v. Back, 624 S.W.2d 272, 275 (Tex.App.—Austin 1981, no writ).

1986Rick Furniture Distributing Co. v. Kirlin, 634 S.W.2d 738, 740 (Tex.App.-Dallas 1982, writ ref'd n.r.e.). "[T]he foundation of the statutory action ... is the independent, unilateral claim for usury made by the creditor and not any communication of that charge to the debtor...." Williams v. Back, 624 S.W.2d 272, 275 (Tex.App.-Austin 1981, no writ).

1984Southwestern Investment Co. v. Hockley County Seed & Delinting, Inc., 516 S.W.2d 136, 137 (Tex.1974) (per cu-riam).

1980Southwestern Investment Co. v. Hockley County Seed & Delinting, Inc., 516 S.W.2d 136, 137 (Tex.1974).

2022Appellants argue that the trial court should not have dismissed their usury claim because they have “presented evidence that would allow a reasonable jury to find that they were charged a usurious interest rate” and “met the minimum evidentiary burden to survive summary judgment.” A. General Legal Principles A party appealing a summary judgment order “must negate all possible grounds upon which the order could have been based by either asserting a separate issue challenging each possible ground or asserting a general issue that the trial court erred in granting summary judgment and within that

2022See Simien v. Unifund CCR Partners, 321 S.W.3d 235, 244 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (explaining that business would suffer or fail if loan companies did not keep careful records of its customers’ debt and that third-party documents show trustworthiness because a lying witness would be “subject to criminal prosecution for submitting a false document”); see also Harpst v. Fleming, 566 S.W.3d 898, 910 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

2022See Simien v. Unifund CCR Partners, 321 S.W.3d 235, 244 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (explaining that business would suffer or fail if loan companies did not keep careful records of its customers’ debt and that third-party documents show trustworthiness because a lying witness would be “subject to criminal prosecution for submitting a false document”); see also Harpst v. Fleming, 566 S.W.3d 898, 910 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

2016See Hardwick v. Smith Energy Co., No. 07-15-00083-CV, 2016 Tex. App. LEXIS 6805, at *4-5 (Tex. App.—Amarillo June 27, 2016, no pet.) (stating that when a party raises the claim of factual insufficiency, we consider all the evidence and set aside the finding only if the evidence supporting the finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust).

2014First Bank v. Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex. 1994); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 96 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

2012See Hines v. Hash, 843 S.W.2d 464, 469 (Tex.1992).

2012Ass’n, 732 S.W.2d 300, 304 (Tex. 1987).

2010Ann. § 305.005); cf. Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 637-38 (Tex.App.Houston [1st Dist.] 2000, no pet.) (holding, pursuant to section 134.005(b) of the civil practice and remedies code which provides “each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney’s fees,” that the plaintiff who received zero damages on his Theft Liability Act claim was entitled to recover attorney’s fees because the jury found that the defendant committed civil theft); Nw.