law-material-terms-of-loan-contract | money lending | interest rate | usury usurious interest | note suit |
meeting of the minds element of contract formation |
MATERIAL TERMS ON A LOAN CONTRACT / LOAN AGREEMENT
In a contract to loan money, the material terms also include the amount to be loaned, the maturity date of the loan,
the interest rate, and the repayment terms. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221
(Tex.1992).
See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992)).
T.O. Stanley Boot, 847 S.W.2d at 221 (holding that interest rate is material term in context of contract to loan
money) T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992)).
Barajas v. Harvest Credit Management VI-B, LLC (Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(Guzman) (credit
card debt suit, summary judgment for debt collector reversed, contract terms not proven)
Tonkin v. Amador (Tex.App- Houston [1st Dist.] May 21, 2009)(Alcala)
(attorney fee litigation, promissory note, material terms of note, evidence of reasonableness of attorney's fees
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Judge Wilson, Justices Alcala and Hanks
01-07-00496-CV Ronald H. Tonkin v. Lee Roy Amador
Appeal from County Civil Court at Law No 3 of Harris County
Trial court judges: Linda Storey; Visiting Judge Ed Landry
Wright v. Atlantic Credit and Finance, Inc. (Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(Alcala)
(failure to plead statute of limitations)(deemed admissions and Atlantic's uncontroverted summary judgment
evidence conclusively establish Atlantic's entitlement to recover on breach of contract and its entitlement to
attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-09-00135-CV Darryl G. Wright v. Atlantic Credit and Finance, Inc.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
The essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or
tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained as a
result of the breach. Williams v. Unifund CCR Partners Assignee of CitiBank, 264 S.W.3d at 235-36 (citing
Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.-Houston [1st Dist.] 2007, no
pet.)). "Parties form a binding contract when the following elements are present: (1) an offer, (2) an acceptance in
strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party's consent to the terms, and
(5) execution and delivery of the contract with the intent that it be mutual and binding." Id. at 236 (citing Winchek,
232 S.W.3d at 202). "To be enforceable, a contract must be sufficiently certain to enable a court to determine the
rights and responsibilities of the parties." Id. (citing Winchek, 232 S.W.3d at 202). "The material terms of a
contract must be agreed upon before a court can enforce the contract, and the interest rate is a material term." Id.
(citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).
Williams v. Unifund CCR Partners Assignee of CitiBank 264 S.W.3d 231 (2008)(Tex.App.- Houston [1st Dist.] Feb.
7, 2008)(Keyes) (consumer credit card debt suit, judgment reversed, sworn account not proper for credit card
debt collection, attorney's fees)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
01-06-00927-CV Edward Williams v. Unifund CCR Partners Assignee of CitiBank
Appeal from County Civil Court at Law No 3 of Harris County (Judge Lynn Bradshaw-Hull)
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