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Unconscionability, Waiver, Limitation Of Liability: Part III

Q—What is the ‘discharge’ defense? Another sticky area of contract defenses is the area of discharge, on account of plaintiff’s repudiation of the contract or plaintiff’s own material breach of the contract.  If plaintiff repudiates a dependent promise or materially breaches the contract itself, then the defendant will allege that it has been discharged from [...]

By |2019-03-14T18:54:52+00:00March 14th, 2019|Uncategorized|Comments Off on Unconscionability, Waiver, Limitation Of Liability: Part III

Unconscionability, Waiver, Limitation Of Liability: Part I

Q--‘Unconscionability’ sounds like fraud; what is it? Texas Collection attorneys will sometimes see the defense called ‘unconscionability’. Generally either in collection or factoring litigation, a contract can be deemed unconscionable if it is unfair because of the overall or gross one-sidedness of the contract terms.  There are two main issues associated with unconscionability, being first, how [...]

By |2019-02-15T23:25:10+00:00February 15th, 2019|Uncategorized|Comments Off on Unconscionability, Waiver, Limitation Of Liability: Part I

Accord Satisfaction and Novation

LAW OFFICES OF SAM EMERICK, P.C. Q- I was sued, but I settled the matter, now the creditor is coming back, wanting more. What can I do? Today’s subject as used by Texas collection attorneys is the defense of accord and satisfaction. Accord and satisfaction is an affirmative defense and rests on a new contract [...]

By |2019-01-31T22:16:44+00:00October 17th, 2018|Uncategorized|Comments Off on Accord Satisfaction and Novation

Estoppel Defenses: Part 2

This week we're finishing up a subject relating to different ‘defenses’ available to Defendants in Texas collection cases, and specifically, doctrines known as “estoppel by misrepresentation”, also known as equitable estoppel, and on the other hand, the claim of quasi-estoppel, also known as “estoppel by conduct”. Another equitable theory not often used, but which will [...]

By |2017-11-28T20:40:50+00:00November 28th, 2017|Uncategorized|Comments Off on Estoppel Defenses: Part 2

Estoppel Defenses: Part 1

Today’s subject relates to different ‘defenses’ available to Defendants in Texas collection cases, and specifically, doctrines known as “estoppel by misrepresentation”, also known as equitable estoppel, and on the other hand, the claim of quasi-estoppel, also known as “estoppel by conduct”. First, equitable estoppel, contains the following elements: Defendant made a false representation to, or [...]

By |2017-11-16T18:15:04+00:00November 16th, 2017|Uncategorized|Comments Off on Estoppel Defenses: Part 1