CR Trade Financing, LLC v. Juan Diego Zelaya Aguilar, 04-24-00765-CV

CR Trade financed Alnost Honduras through a factoring arrangement, and after later learning Mi Pulpe was rejected for credit insurance, it sought a personal continuing guaranty from Zelaya. ¹
Zelaya and another Alnost Honduras contact signed the continuing guaranty on August 3, 2022, after which the June 27, 2022 invoice remained unpaid and CR Trade sued for breach. ²
At trial, Zelaya defended on lack of consideration, arguing the underlying agreement had terminated and CR Trade’s alleged forbearance was illusory. ³
The trial court entered a take-nothing judgment and concluded the guaranty needed independent consideration, the underlying agreement had terminated, and forbearance was not valid consideration. ⁴
The court of appeals reviewed those legal conclusions de novo and held Zelaya failed to prove lack of consideration. ⁵
The appellate court held the underlying agreement had not terminated under its default clause because Alnost Honduras, the seller, had not committed an event of default. ⁶

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the underlying agreement terminate before the guaranty was signed? ⁷	CR Trade said only Alnost Honduras’s default could trigger termination.	Zelaya said Mi Pulpe’s problems triggered automatic termination.	No; the agreement had not terminated. ⁸
Did the guaranty require independent consideration? ⁹	CR Trade said Beltran controls and the guaranty’s recital sufficed.	Zelaya said a post-dated guaranty needed separate consideration.	No; Beltran controls and separate consideration was unnecessary. ¹⁰
Was CR Trade’s forbearance valid consideration? ¹¹	CR Trade said it actually forwent remedies before suing.	Zelaya said any promise to forbear was illusory.	Yes; the delay in suing constituted actual forbearance. ¹²
Was Zelaya liable for breach of the guaranty and fees? ¹³	CR Trade said it proved breach and the fee-shifting clause entitled it to fees.	Zelaya said no breach meant no fees.	Yes; judgment rendered for CR Trade and fees remanded for determination. ¹⁴

Beltran v. Groos Bank, N.A., 755 S.W.2d 944 (Tex. App.—San Antonio 1988) (written guaranty reciting consideration is enforceable without probing the recital ¹⁵)
Fourticq v. Fireman’s Fund Ins. Co., 679 S.W.2d 562 (Tex. App.—Dallas 1984) (post-dated guaranty may require consideration distinct from the primary debt ¹⁶)
First Commerce Bank v. Palmer, 226 S.W.3d 396 (Tex. 2007) (post-dated guaranties can be supported by prior arrangement or forbearance ¹⁷)
Lakeway Co. v. Leon Howard, Inc., 585 S.W.2d 660 (Tex. 1979) (lack of consideration is an affirmative defense ¹⁸)
Petroleum Workers Union of the Republic of Mexico v. Gomez, 503 S.W.3d 9 (Tex. App.—Houston [14th Dist.] 2016) (party asserting lack of consideration bears the burden of proof ¹⁹)
Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 534 S.W.3d 558 (Tex. App.—San Antonio 2017) (findings after bench trial are reviewed for evidentiary support ²⁰)
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (conclusions of law are reviewed de novo ²¹)
Sundown Energy LP v. HJSA No. 3, Ltd. P’ship, 622 S.W.3d 884 (Tex. 2021) (contract construction is reviewed de novo and language should be harmonized ²²)
Doncaster v. Hernaiz, 161 S.W.3d 594 (Tex. App.—San Antonio 2005) (actual forbearance can constitute consideration ²³)
Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022) (horizontal stare decisis binds later panels to materially indistinguishable decisions ²⁴)