law-personal-guaranty-promissory-note debt | personal liability for corporate debt business obligations
Elements of claim against guarantor
To recover for breach of the guaranty agreement, [ Plaintiff ] had to establish (1) the existence and
ownership of the guaranty agreement, (2) the terms of the underlying contract by the holder, (3) the
occurrence of the conditions upon which liability is based, and (4) the failure or refusal to perform
the promise by the guarantor. Escalante v. Luckie, 77 S.W.3d 410, 416 (Tex. App.—Eastland
2002, pet. denied).
A secured party is not required to dispose of the collateral through foreclosure before suing on the
underlying obligation. Christian v. Univ. Fed. Sav. Ass’n, 792 S.W.2d 533, 535 (Tex. App.—
Houston [1st Dist.] 1990, no writ). Where a guaranty agreement so provides, a lender need not
liquidate its collateral before obtaining judgment against a guarantor. Fed. Deposit Ins. Corp. v.
Coleman, 795 S.W.2d 706, 709-710 (Tex. 1990).
To obtain summary judgment on a guaranty agreement, a party must conclusively prove: (1) the existence
and ownership of the guaranty contract, (2) the performance of the terms of the contract by plaintiff, (3) the
occurrence of the condition on which liability is based, and (4) guarantor's failure or refusal to perform the
promise. Barclay v. Waxahachie Bank & Trust Co., 568 S.W.2d 721, 723 (Tex.Civ. App.-Waco 1978, no
writ). Corona v. Pilgrim's Pride Corp., 245 S.W.3d 75, 80 (Tex.App.-Texarkana 2008, pet. denied).
PERSONAL GUARANTEE OF DEBT, PROMISSORY NOTE
09-0663 MICHAEL G. BYBOTH v. WOOD LIMITED PARTNERSHIP; AMS STAFF LEASING, INC.; AND
CHARLES D. WOOD, JR.; from Collin County;
5th district (05-08-00915-CV, ___ SW3d ___, 05-21-09)(breach of promissory note, personal guaranty)
Also see:
Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
Texas Caselaw Topics Pages | Texas Opinions homepage |