Id., § 38.002. Under Texas law, a creditor who makes an excessive-demand on a debtor is not entitled to attorney's fees for litigation required to recover the debt. Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981); Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 308 (Tex. App.—Dallas 2011, pet. filed). A demand is not excessive simply because it exceeds the amount the factfinder later determines to be due. Barnes, 358 S.W.3d at 308 (citing Hernandez v. Lautensack, 201 S.W.3d 771, 777 (Tex. App.—Fort Worth 2006, pet. denied)).
Under Texas law, a creditor who makes an excessive demand on a debtor is not entitled to attorneys' fees for litigation required to recover the debt. Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981); Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 308 (Tex. App.—Dallas 2011, pet. filed). A demand is not excessive simply because it exceeds the amount the factfinder later determines to be due.
However, if a demand is an integral part of the cause of action, or a condition precedent to sue, the statute does not begin to run until demand is made unless the demand is waived or is unreasonably delayed. See Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 307 (Tex. App.—Dallas 2011, pet. denied); Foreman v. Graham, 363 S.W.2d 371, 372 (Tex. Civ. App.—Beaumont 1962, no writ). What is a reasonable time for delay is ordinarily a question of fact. However, in the absence of mitigating circumstances, a time coincident with the running of the statute of limitations will be deemed reasonable, and if the demand is not made within that period the cause of action will be barred.
Although "a creditor who makes an excessive demand on a debtor is not entitled to attorney[s'] fees for subsequent litigation required to recover the debt," a demand is not excessive simply because it is greater than what the jury later determines is actually due. See Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981); Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 308 (Tex. App.—Dallas 2011, pet. denied). While it may be persuasive evidence of an excessive demand, "it cannot be the only criterion for determination . . . especially where the amount due is unliquidated."
“A demand is not excessive, however, simply because it is greater than what the factfinder later determines is actually due.” Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 308 (Tex. App. 2011, pet. denied). Instead, “a demand is excessive [where] the creditor acted unreasonably or in bad faith.” Id.
"A demand is not excessive, however, simply because it is greater than what the factfinder later determines is actually due." Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 308 (Tex. App.—Dallas 2011, pet. denied). Instead, "a demand is excessive [where] the creditor acted unreasonably or in bad faith."
We have not addressed the issue since then. See, e.g.,Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 307 (Tex.App.–Dallas 2011, pet. denied); Lyle, 365 S.W.3d at 355; Headington Oil Co., L.P. v. White, 287 S.W.3d 204, 214 (Tex.App.–Houston [14th Dist.] 2009, no pet.); F.D. Stella Prods. Co. v. Scott, 875 S.W.2d 462, 465–66 (Tex.App.–Austin 1994, no writ); Dvorken v. Lone Star Indus., Inc., 740 S.W.2d 565, 567 (Tex.App.–Fort Worth 1987, no writ).We need not reach the general issue of the measure of damages for breach of an alternative contract.
"When recovery is sought on an obligation payable in installments, a separate cause of action accrues for each missed payment and a separate limitations period runs against each installment from the time it becomes due." Barnes v. LPP Mortg., Ltd. 358 S.W.3d 301, 307 (Tex. App.-Dallas 2011, pet. denied). Accordingly, we conclude that Boswell raised a genuine issue of material fact on Pappy's limitations defense.
Id.See also U.S. Loan Liquidators I, Ltd v. Pate, No. 14-96-00591-CV, 1997 WL 251346, at *4 (Tex. App.-Houston [14th Dist.] May 15, 1997, pet. denied) (not designated for publication) (citing Jackson v. Thweatt, 883 S.W.2d 171 (Tex. 1994), and EKA Liquidators v. Phillips, 883 S.W.2d 178 (Tex. 1994), and holding that six-year statute of limitations in 12 U.S.C. § 1821(d)(14) applied to suit on guaranty); cf. Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 305 (Tex. App.-Dallas 2011, pet. denied) (citing Jackson and EKA Liquidators and holding that similar six-year statute of limitations in 28 U.S.C. § 2415(a) applied to assignees of Small Business Administration in suit on guaranty). Batzri acknowledges the opinions in Jackson and EKA Liquidators, but argues, in essence, that these cases were wrongly decided in that they "improperly elevate a common-law rule over statutes," and therefore, we should not follow them.
Where demand is a prerequisite to a right of action, the injured party must make the demand within a reasonable time after it may lawfully be made.... The reasonableness of the delay is normally a fact question, but in the absence of mitigating circumstances, the law will ordinarily consider a reasonable time as being coincident with the running of the statute, and an action will be barred if a demand is not made within that period. Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 306 (Tex.App.-Dallas 2011, pet. denied) (quoting Stevens v. State Farm Fire & Cas. Co., 929 S.W.2d 665, 671 (Tex.App.-Texarkana 1996, writ denied) ).Assuming, for the sake of argument, that HSBC did in fact breach the security agreement by charging fees in excess of three percent of the loan amount, the breach occurred on the date the excessive fees were charged. The Woods referred to certain itemized charges in the HUD–1 settlement statement as evidence that HSBC assessed excessive fees.