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Comerica Bank v. Minchew

Court of Appeals of Texas, First District

July 13, 2017


         On Appeal from the County Court at Law No. 1 Fort Bend County, Texas Trial Court Case No. 15-CCV-054517

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.


          Sherry Radack Chief Justice.

         In this dispute over damages, appellant, Comerica Bank, argues that the trial court erred in awarding damages to appellee, John Minchew. In four issues on appeal, Comerica argues that (1) the damages are legally and factually insufficient; (2) Minchew does not qualify as a consumer under the Deceptive Trade Practices Act; (3) the trial court erred in awarding attorney's fees; and (4) it was entitled to a setoff.

         We reverse and render.


         In 2011, Minchew received a loan from Comerica for $30, 000 secured by a certificate of deposit (C.D.) in the same amount to help pay his business expenses for two of his companies. At the end of 2013, Minchew was making payments on the loan and had an outstanding balance of approximately $12, 000. After Minchew inquired about obtaining another $30, 000 loan from Comerica, Kaytona Ford, a banker for Comerica, told him that he would have to pay off the first loan and then he could enter into a new loan. Minchew stated that to pay off the new loan, he and his wife would transfer money from her IRA into Comerica. Minchew testified that Ford informed him that he did not need to complete any new paperwork for the new loan.

         Unbeknownst to Minchew, Comerica had cashed out his C.D. around the end of January 2014 without his authorization, paid off the balance on the loan, and deposited the remaining funds into Minchew's account. Minchew's wife also withdrew the funds from her IRA and transferred those funds into Minchew's account. Minchew later learned that Comerica had denied his request for a new loan. After his wife noticed that no loan payments were being deducted from their account, Minchew met with a manager at Comerica who informed him that Minchew did not have a loan with Comerica.

         Minchew testified that he sustained damages because he did not have a loan anymore, he did not have a C.D., and he lost $18, 000 "by [his wife] taking her savings and our savings of $30, 000 to purchase the C.D." Minchew's counsel agreed with the trial court that that his companies had no damages. Minchew stated that the $30, 000 from the cashing in of the C.D. was used on their businesses.

         Minchew agreed on cross-examination that approximately $13, 000 was deposited into his account in January 2014. He also agreed that his $30, 000 loan with Comerica had been fully paid off, that an $18, 000 deposit had been made into his account from another third-party account, that he had use of the funds in his account, and that the funds were still in his account or he had spent some of the funds. Minchew stated that he "already knew I had a new loan because the manager Ford said there w[ere] no applications."

         Minchew's wife testified that she did not authorize Comerica to cash in the C.D. She also testified that she cashed in her IRA for about $18, 000 to pay off the loan.

         Ford testified that at the time of Minchew's loan, she served as the Banking Center Manager for Comerica Bank. She testified that when Minchew asked her about getting a new loan, she told him that the existing loan needed to be paid off and then he could apply for a new loan. She further testified that Minchew had to apply for a new loan and that they completed an application for a new loan "via phone." She disagreed with Minchew's earlier testimony that he had been approved for the loan. Ford did not recall Minchew's wife cashing out her IRA to pay off the loan or her paying off the loan in any manner. She testified that she later called and left a voicemail for Minchew stating that they were not approved for the loan. She stated that the balance on the loan in January 2014 was $16, 939.49 and that a payment for the same amount came from the C.D. Ford testified that she had a discussion with Minchew about using the C.D. to pay the balance of the note and she disagreed with Minchew's testimony that he did not authorize cashing in the C.D. She also testified that it was common to start the process of cashing in a C.D. without the customer signing documentation. When asked how they were going to get collateral for the new loan, Ford said they had $16, 000 left over from the C.D. and they were adding to the checking account to bring it back to $30, 000 to obtain a new C.D. Ford insisted that she did not know how they were going to get their account back to $30, 000 for a new loan.

         The trial court rendered judgment for Minchew finding that Comerica owed $16, 922 in damages and $7, 000 in attorney's fees. Comerica filed a motion to vacate or reform the judgment along with a brief in support, arguing that Minchew presented no evidence of damages. Both parties filed requests for findings of fact and conclusions of law. After issuing findings of fact ...

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