Q-- What can be done if my contract is unconscionable? If a portion of the contract, or the entire contract, is found to be unconscionable, the court has several choices: Refuse to enforce the entire contract Sever out the unconscionable portion from the contract Limit the application of the unconscionable provision Q—Is a Waiver a [...]
Today’s Blog addresses the Texas debt collections issue of QUANTUM MERUIT—an equitable theory of recovery, intended to prevent unjust enrichment, when there is AN IMPLIED AGREEMENT TO PAY FOR SERVICES RECEIVED. In re Kellogg Brown 166 SW3d 732 (Tex. 2005), also Barnett v. Coppell 123 SW3d 804 (Dallas, 2003). If an express written agreement covers [...]
Q- what sort of defenses should I expect him to try? Defenses sometimes asserted include Limitations, unclean hands, voluntary payment by Plaintiff, or pleading that the money is stolen money, even from a good-faith purchaser for value. Texas Bank v. Custom Leasing 498 SW2d 243 (Tyler 1973), and also ‘Unclean hands’, may include factors showing [...]
This cause of action, in Texas collections, used to be called ‘assumpsit’. It is an equitable claim that usually should be pleaded in the alternative to another claim such as ‘conversion’ which will be discussed later. This theory is usually applied to prevent unjust enrichment, and is based on a debt not evidenced by a [...]
I was about to get a contract signed, but another company then ‘interfered’; can I sue that other company that caused the contract to not be entered into?
Closely related, is a cause of action based upon tortious interference with prospective relations. Under this theory, there will be shown a reasonable probability that the creditor would have entered into a business relationship with a third person, but the Defendant intentionally interfered with such relationship and such conduct was independently tortious or unlawful, also [...]
Switching gears a bit from fraud is the cause of action for “tortious” interference with existing contract. The general elements of such cause of action are as follows: A valid contract 2) that the Defendant willfully and intentionally interfered with, 3) proximately causing injury to Plaintiff and 4) the Plaintiff incurred actual damage or loss. [...]
Next is the element of” intent.” Defendant must intend that the creditor or factor rely on the representation. Many Texas collection cases, and in addition, the treatise known as the Restatement of Torts, states that to prove intent, the creditor must establish that the Defendant desired to cause the consequences of its act or believes [...]
An opinion may also be fraudulent if the Defendant knows that the statement of opinion is false, or if the opinion stated is based upon or supported with false statements of fact, that is intertwined with misstatements of fact, or if the opinion is based upon the Defendant’s special knowledge and the Defendant should have [...]
I think my customer’s agent defrauded me; is my customer still liable for that? What is meant by “a material misrepresentation”?
Q—I think my customer’s agent defrauded me; is my customer still liable for that? Obviously, the creditor should establish that Defendant is responsible for the false representation. Almost always, the named Defendant will be the person actually making the representation, but there are also a few limited situations where an employer may be vicariously liable, [...]
We last discussed factoring agreements and breach of contract claims, in relation to Texas debt collection attorneys. Related to the factoring agreement, in collection on the contract, in the context of Texas debt Collection actions, the creditor will often discover fraud, sometimes referred as” fraudulent misrepresentation” or “fraudulent inducement”. First, let’s set forth the elements [...]