Texas Dept. of Housing and Community Affairs v. Verex Assur., Inc. ( 1995 )


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  •                    United States Court of Appeals,
    Fifth Circuit.
    No. 94-10794.
    TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS, f/k/a Texas
    Housing Agency, Plaintiff-Appellant,
    v.
    VEREX ASSURANCE, INC., et al., Defendants, Verex Assurance, Inc.,
    Defendant-Appellee.
    Nov. 9, 1995.
    Appeal from the United States District Court for the Northern
    District of Texas.
    Before HIGGINBOTHAM      and    PARKER,   Circuit   Judges,   and    BROWN*,
    District Judge.
    ROBERT M. PARKER, Circuit Judge:
    Plaintiff Texas Department of Housing and Community Affairs
    appeals the district court's judgment in favor of Defendant Verex
    Assurance, Inc.    We affirm in part, vacate in part, and remand.
    I. BACKGROUND
    The plaintiff, Texas Department of Housing and Community
    Affairs, formerly known as Texas Housing Agency ("THA"), is an
    official governmental agency of the State of Texas.                  THA was
    created to provide mortgage financing to low to moderate income,
    first-time home buyers.         THA does not originate or underwrite
    loans,   but   instead   contracts   with   certain   lenders   to    do   so
    according to THA's guidelines.
    Norwest Mortgage, Inc. and the Charles Curry Company, both
    *
    District Judge of the Eastern District of Texas, sitting by
    designation.
    1
    mortgage lenders, entered into an "Origination, Sale, and Servicing
    Agreement" with THA, whereby Norwest and Curry agreed to originate
    certain loans, sell them to THA, and service them on behalf of THA.
    Under this agreement, Norwest made two loans relevant to this
    appeal:   one to Jimmy and Queenie Anderson and one to Theodore
    Newhouse, both in connection with the purchase of real property in
    Fort Worth, Texas.     Also relevant to this appeal, Curry made a loan
    to Jeffrey and Chris Abbott in connection with the purchase of real
    property in Arlington, Texas.
    THA's guidelines required Norwest and Curry to obtain private
    mortgage insurance on each loan originated.          To comply with this
    guideline,   Norwest    and   Curry   obtained    pre-qualification   from
    Defendant Verex Assurance, Inc., a private mortgage insurer, in the
    form of master policies for insurance.           The master policies gave
    Norwest and Curry the ability to apply for mortgage insurance from
    Verex on individual loans.      These master policies provided that in
    return for the payment of premiums, and after review and approval
    of the application for mortgage insurance on a particular loan,
    Verex would insure the loan against default by the borrower.1
    As the applications and supporting documents on the Anderson,
    Newhouse, and Abbott loans were collected, Norwest and Curry
    submitted them to defendant Verex with applications for mortgage
    insurance. The documents submitted to Verex regarding the Anderson
    1
    The policies at issue in the present        case covered 25% of
    the amount due the insured in the event of        loss. Plaintiff THA
    was also insured against loss under a pool        insurance policy from
    Verex which is not at issue in the present        case.
    2
    loan indicated that the sales price and appraised value of the
    property was $29,000 and that the principal amount of the new loan
    was $27,500.     The documents submitted regarding the Newhouse loan
    indicated that the sales price and appraised value of the property
    was $26,000 and that the principal amount of the new loan was
    $24,700.      With regard to the Abbott loan, the documents indicated
    that the sales price was $65,950, the appraised value was $66,000,
    and the principal amount of the new loan was $62,650.                   The loan
    documents     also   indicated   the   size      of   the   down   payments   the
    purchasers were to make, and contained representations regarding
    the source of the money that would be used to make the down
    payments.
    Based on its review of these documents, Verex agreed to
    provide mortgage insurance on the Anderson, Newhouse, and Abbott
    loans and thus issued commitments for insurance on the respective
    loans    to   Norwest   and   Curry.       The   certificates      of   insurance
    identified the loans being insured and indicated the terms of the
    transaction, including the loan amount, sales price, appraised
    value, and the loan-to-value ratio.2             A Certificate of Insurance
    was attached to each commitment for the lender's representative to
    sign and return with the appropriate premium after the transaction
    was consummated.        Each of the loans was consummated, and the
    required premiums were tendered to Verex.             Shortly after each loan
    was consummated, it was transferred to THA along with an assignment
    2
    Loan-to-value ratio is defined in the industry as the loan
    amount divided by the lesser of the sales price or appraised
    value of the property in question.
    3
    of the insurance policies obtained from Verex.       Each of the loans
    defaulted.   At the time of the defaults, plaintiff THA was the
    holder of the mortgage loans.           Notice of default was properly
    given, and claims were filed with Verex within the time allowed by
    the master policies.
    As a result of the claims for coverage, Verex began an
    investigation which included investigating the accuracy of the
    representations made on the documents tendered to Verex by Norwest
    and Curry.   Based on the discovery of certain misrepresentations,
    Verex denied coverage. Consequently, Verex did not pay any amounts
    on the claims for coverage on the Anderson, Newhouse, and Abbott
    loans.   Instead, Verex notified THA that it was rescinding the
    individual mortgage insurance policies.          Verex re-tendered to
    Norwest, Curry, and THA all premiums tendered to it for insurance
    on these three loans.
    In 1989, THA filed suit against Verex and GMAC Mortgage
    Company, a party subsequently dismissed from the lawsuit, in state
    court in Travis County, Texas.          GMAC removed the action to the
    United States District Court for the Western District of Texas
    based on diversity of citizenship.        Verex joined in GMAC's Notice
    of Removal and filed a Motion to Transfer Venue and Brief in
    Support to have the case transferred to the Northern District of
    Texas.   That motion was granted.
    The case was tried to the court on plaintiff THA's Third
    Amended Complaint beginning May 31, 1994.        THA asserted causes of
    action for breach of contract and violation of the Texas Deceptive
    4
    Trade Practices Act, and requested attorneys' fees.         Defendant
    Verex asserted, inter alia, the defenses of conditions precedent,
    fraudulent or negligent misrepresentation, and mutual mistake of
    fact.     The district court granted judgment as a matter of law
    against THA on its DTPA claims.   In addition, during the trial, the
    district court held that Verex had not given proper notice under §
    21.17 of the Texas Insurance Code of the misrepresentations related
    to the Anderson and Newhouse loans, and that as a result the
    misrepresentation defense as to those two loans was statutorily
    barred.    The district court took the remaining claims and defenses
    under advisement.
    On June 30, 1994, the district court entered an opinion and
    order in favor of defendant Verex.       Specifically, the district
    court held that under Texas law the sales prices, appraised values,
    and loan-to-value ratios reflected in the commitments for insurance
    issued by Verex were conditions precedent to the formation of the
    insurance contracts in question.      The district court found that
    because down payments had not been made as represented, the sales
    prices were lower than represented and thus the loan-to-value
    ratios exceeded the specified limit.       Therefore, the court held,
    certain conditions precedent had not been met, and THA was not
    insured for default on the loans in question.      THA's claims were
    dismissed with prejudice, and this appeal followed.
    II. ANALYSIS
    A. SUBJECT MATTER JURISDICTION
    For the first time on appeal, THA argues that the district
    5
    court did not have jurisdiction to decide the present case. Before
    this Court can reach the merits of an appeal, we must determine
    that the district court had subject matter jurisdiction over the
    case.   Ziegler v. Champion Mortgage Co., 
    913 F.2d 228
    , 229 (5th
    Cir.1990).   This action was removed to federal district court on
    the basis of federal diversity jurisdiction under 28 U.S.C. § 1332.
    In an action where a state is a party, there can be no federal
    jurisdiction on the basis of diversity of citizenship because a
    state is not a citizen for purposes of diversity jurisdiction.
    Likewise, state agencies that are the alter ego of the state are
    not citizens for the purposes of diversity jurisdiction.       "On the
    other hand, if the agency is an independent one, separate and
    distinct from the state, the district court can properly proceed to
    the merits." Tradigrain, Inc. v. Mississippi State Port Authority,
    
    701 F.2d 1131
    , 1132 (5th Cir.1983).        THA now contends that it is
    the alter ego of the State of Texas.
    In determining whether the agency is an alter ego of the
    state or an independent agency, the essential question is
    whether the state is the real party in interest in the
    lawsuit. The resolution of this question is a matter of state
    law.
    *   *   *       *    *   *
    If the agency's status is unclear, the court must look to
    any and all available sources for guidance. The court should
    consider whether the agency has been granted the right to hold
    and use property, whether it has the express authority to sue
    and be sued in its corporate name, the extent of its
    independent management authority, and "a factor that subsumes
    all others," the treatment of the agency by the state courts.
    When examining the extent of the agency's independent
    management authority, the court should look to whether the
    agency has the power to make its own hiring decisions, the
    power to enter into its own contracts, and the power to engage
    its own counsel. When examining the treatment of the agency
    6
    by the state courts, this court has taken note of the fact
    that the state has sued the agency in its own courts, and of
    a state court holding that the statute of limitations, which
    did not normally run against the state itself, ran against the
    agency. Other relevant factors might include: (1) whether
    the state is responsible for the agency's debt; (2) whether
    the agency is primarily concerned with local, as opposed to
    statewide problems; and (3) the degree of general financial
    autonomy of the agency. The source material for the court's
    analysis is found in the state's constitutional, statutory and
    decisional law.
    In a typical situation, some factors will suggest that
    the agency is a "citizen" while others will just as strongly
    suggest that the agency is merely an alter ego of the state.
    The court must balance these against each other in reaching
    its conclusion. It must never, however, lose sight of the
    primary question involved:   whether the state is the real
    party in interest in the lawsuit nominally brought [by or]
    against the agency.
    
    Tradigrain, 701 F.2d at 1132-33
    (internal citations omitted).
    We note that there is nothing in the Constitution of the
    State of Texas or the State's case-law which directly addresses
    THA's status.    Therefore, we begin our inquiry with the agency's
    enabling    statute.    Tex.Rev.Civ.Stat.Ann.,   Art.   1269l-6   (West
    1987)3.    THA concedes that under the enabling statute in effect at
    the time of removal to federal court it had the right to hold and
    3
    The Texas Housing Agency Act, Tex.Rev.Civ.Stat.Ann., Art.
    1269l-6 (West 1987), expired September 1, 1991, by its own terms.
    The Texas Housing Agency and the Texas Department of Community
    Affairs were abolished and their powers were transferred to the
    Texas Department of Housing and Community Affairs by Tex. Acts
    1991, 72nd Leg., ch. 762, § 1, and the statutes that governed the
    abolished agencies were amended and transferred to a new statute,
    Tex.Civ.Stat.Ann., Art. 4413(501) (West 1992), effective
    September 1, 1991. This statute was repealed by Tex. Acts 1993,
    73rd Leg., ch. 268, § 46(1) and its provisions were amended and
    recodified at Tex.Gov't Code Ann. § 2306.001, et seq. (West
    Supp.1995), effective September 1, 1993. However, our
    determination of THA's status for purposes of removal
    jurisdiction depends on the enabling statute that was in effect
    at the time the action was commenced and removed. See Jackson v.
    Allen, 
    132 U.S. 27
    , 
    10 S. Ct. 9
    , 
    33 L. Ed. 249
    (1889).
    7
    use property, and the right to sue and be sued in its corporate
    name, and that the State of Texas was not responsible for the
    agency's debts.     In addition, Verex points out that THA was
    responsible for issuing its own bonds, preparing its own budget,
    and handling its own finances.       THA also had the power to make
    contracts, adopt by-laws, maintain offices, and make employment
    decisions.   Thus, under the enabling statute, THA was granted some
    of the generally recognized powers of an independent agency.    See
    
    Tradigrain, 701 F.2d at 1133
    .
    Nevertheless, THA argues that it should be considered the
    alter ego of the state.   In support of this contention, THA points
    out that the agency's directors are appointed by the governor and
    that the director chosen to serve as chairman does so only at the
    governor's pleasure.   In addition, the agency is required to file
    its annual budget and an audit of its books and accounts with the
    governor and the state legislature each fiscal year.   The enabling
    statute also exempts the income and property of the agency from
    taxation by the state and all public agencies.    However, THA fails
    to explain how these provision make it the alter ego of the State
    rather than an independent agency.    THA also points out that it is
    authorized to request and accept appropriations of the state
    legislature. However, it is clear that under the enabling statute,
    the legislature is not required to make such appropriations, nor is
    the state treasury required to provide funds for the agency's debts
    8
    or operations.4
    Finally, THA claims that the language of the enabling statute
    creating the Texas Housing Agency clearly indicates that it is the
    alter ego of the State.     Section 3(a) of Art. 1269l-6 provides
    There is hereby created and established a public and official
    governmental agency of the state, to be known as the Texas
    Housing Agency, and the state shall act by and through the
    agency in carrying out all the powers and duties conferred by
    this Act. The exercise by the agency of all powers and duties
    conferred by this Act shall constitute and be deemed and held
    to be an essential public and official governmental function
    and purpose of the state, acting by and through the agency, in
    promoting the general welfare and prosperity of the state and
    all its citizens.
    This provision, however, merely serves to confirm what is conceded,
    that THA was created by the State of Texas to exercise its
    authority and discretion in performing certain functions on behalf
    of the state.     THA argues that such language was crucial to our
    holding in Tradigrain that the Mississippi State Port Authority was
    the alter ego of the State of Mississippi.       However, the language
    of   the   Mississippi   statute   also   indicated   the   legislature's
    intention that the port authority enjoy sovereign immunity except
    to the extent of liability insurance carried.          In addition, the
    4
    THA also argues that it "has the authority to issue bonds
    that are the general obligation of the State." Art. 1269l-6, §
    21(a). However, THA does not cite § 48 of the same enabling
    statute which provides that "Subsection (a) of Section 21 of this
    Act, to the extent it authorizes the issuance of general
    obligation bonds, takes effect if and when the Texas Constitution
    is amended to permit the issuance of such bonds as contemplated
    by that provision of this Act." THA does not address if or when
    the Texas Constitution was amended to make § 21(a) effective, but
    acknowledges that THA is limited to issuing bonds permitted by
    the Constitution of the State of Texas. Because we have not
    located any provision of the Texas Constitution allowing THA to
    issue general obligation bonds, we will not consider this
    apparently contingent agency power.
    9
    statute provided that the title to any property acquired by the
    port authority vested in the State of Mississippi and that the
    bonds issued to provide funds for the port authority became the
    general obligations of the State of Mississippi.
    THA's argument, essentially, focusses on the aspects of its
    creation and existence that make it an agency of the State of
    Texas.    Although there are, necessarily, many ties between THA and
    the State, this would be true with any state created agency no
    matter how independent.        One factor that weighs in favor of a
    finding that THA is the alter ego of the state is that the agency
    was concerned    with    a   problem   that   was   statewide   rather   than
    primarily local.        However, the fact that the agency had the
    authority to hold and use property, the authority to sue and be
    sued in its corporate name, the power to enter into its own
    contracts, and the power to make its own hiring decisions, and the
    fact that it managed its own finances and was responsible for its
    own debts weigh in favor of finding that THA is an independent
    agency.     Given THA's relative independence in controlling its
    operations and managing its finances, we hold that the state was
    not the real party in interest, and that THA is indeed a citizen
    for purposes of our diversity jurisdiction.
    B. CONDITIONS PRECEDENT UNDER TEXAS LAW
    Because the district court's jurisdiction in this case was
    based on diversity of citizenship, it correctly held that it was
    bound to apply the substantive law of the State of Texas under Erie
    R. Co. v. Tompkins, 
    304 U.S. 64
    , 78, 
    58 S. Ct. 817
    , 822, 
    82 L. Ed. 10
    1188 (1938).     In ascertaining the law of the forum state, a federal
    court "is bound to apply the law as interpreted by the state's
    highest court."     Ladue v. Chevron U.S.A., Inc., 
    920 F.2d 272
    , 274
    (5th Cir.1991).     However, a decision by an intermediate appellate
    state court "is a datum for ascertaining state law which is not to
    be disregarded by a federal court unless it is convinced by other
    persuasive data that the highest court of the state would decide
    otherwise."     West v. American Tel. & Tel. Co., 
    311 U.S. 223
    , 237,
    
    61 S. Ct. 179
    , 183, 
    85 L. Ed. 139
    (1940).
    To   succeed   with    the   affirmative   defense   of   conditions
    precedent, the defendant must establish (1) that the contract
    creates a condition precedent, and (2) that the condition precedent
    was not performed.      Conditions precedent are those acts or events
    that must occur before a contract arises or before performance
    under an existing contract is required. In other words, conditions
    precedent may "relate either to the formation of contracts or to
    liability under them."         Hohenberg Bros. Co. v. George E. Gibbons &
    Co., 
    537 S.W.2d 1
    , 3 (Tex.1976).            "When a promise is subject to a
    condition precedent, there is no liability or obligation on the
    promisor and there can be no breach of the contract by him until
    and unless such condition or contingency is performed or occurs."
    Reinert v. Lawson, 
    113 S.W.2d 293
    , 294 (Tex.Civ.App.—Waco, 1938, no
    writ).
    THA contends that the contracts for insurance in question did
    not contain conditions precedent, and, in the alternative, that the
    district court's finding that the conditions weren't met is clearly
    11
    erroneous.   We will address these arguments in order.
    In order to determine whether a condition precedent
    exists, the intention of the parties must be ascertained; and
    that can be done only by looking at the entire contract. In
    order to make performance specifically conditional, a term
    such as "if", "provided that", "on condition that", or some
    similar phrase of conditional language must normally be
    included.   If no such language is used, the terms will be
    construed as a covenant in order to prevent a forfeiture.
    While there is no requirement that such phrases be utilized,
    their absence is probative of the parties['] intention that a
    promise be made, rather than a condition imposed.
    In construing a contract, forfeiture by finding a
    condition precedent is to be avoided when another reasonable
    reading of the contract is possible. When the intent of the
    parties is doubtful or when a condition would impose an absurd
    or impossible result, the agreement will be interpreted as
    creating a covenant rather than a condition. Because of their
    harshness in operation, conditions are not favorites of the
    law.
    Criswell v. European Crossroads Shopping Ctr., Ltd., 
    792 S.W.2d 945
    , 948 (Tex.1990) (internal citations omitted).     Contracts for
    insurance are generally subject to the same rules of construction
    as are other contracts and will be enforced as written where the
    wording used can only be given one reasonable interpretation.
    Ambiguous insurance contracts, however, will be interpreted against
    the insurer.   National Union Fire Ins. Co. v. Hudson Energy Co.,
    Inc., 
    811 S.W.2d 552
    , 555 (Tex.1991).
    The master policies issued by Verex to each lender, and the
    commitments for insurance and certificates of insurance issued on
    the individual loans make up the contracts between THA and Verex.5
    The master policies begin with the language "Verex ... agrees to
    5
    The district court   held that these documents taken together
    constituted the relevant   contracts and that the master policies
    and commitments were not   merged into the certificates of
    insurance. THA does not    challenge this holding on appeal.
    12
    pay ... any loss by reason of the default in payments by a borrower
    ... subject to the following conditions...."                         Among the listed
    conditions were the following:
    1. APPLICATION AND COMMITMENT—The insured shall furnish the Company
    with an Application in connection with each mortgage loan for
    which coverage under this policy is desired.... Approval of
    the Application ... shall be in the form of a Commitment
    prescribing the terms of the coverage.
    2. NOTICE AND CERTIFICATE—Within five (5) days after consummation
    of the mortgage loan transaction the insured shall forward
    notice thereof to the Company ... and the Company shall
    immediately issue and forward a Certificate to the insured,
    binding the Company according to the terms and conditions of
    the Commitment and of this policy.
    *      *     *        *     *      *
    4. TERMINATION BY COMPANY—The Company shall remain liable under
    this policy with respect to such Commitments or Certificates
    issued to the insured, as long as the terms and conditions
    herein contained are fully complied with.
    The commitments issued on each of the mortgages state:
    your application has been examined, and the Company hereby
    issues to you a Commitment for Insurance and tenders you a
    Certificate of Insurance for the loan herein described
    pursuant to the terms and conditions of your Verex Assurance,
    Inc. Master Policy, identified below, under the following
    terms and conditions....
    Beneath     this   language    on    each        of    the       commitments   appeared
    information identifying the loan and the terms of the coverage.
    The certificates of insurance contained less information, but
    similarly identified the insured loan and indicated that the
    coverage was "subject to the terms and conditions of the Master
    Policy specified below."
    The    specific   "terms       and        conditions"        Verex   claims   are
    conditions precedent to coverage under the contracts for insurance
    are   the    sales    price,     appraised            value,       and   the   required
    13
    loan-to-value ratio.       Although there are no reported opinions of
    the Texas     Supreme    Court   which   address    precisely    the    type    of
    contract in question, at least one Texas Court of Appeals has held
    that these terms and conditions did constitute conditions precedent
    to coverage.    In Life Insurance Company of the Southwest v. Verex
    Assurance, Inc.,6 the court held that the sales price, loan amount,
    and loan-to-value ratio were preconditions to coverage under the
    insurance policy.       THA argues, however, that we should not follow
    this intermediate appellate court decision because it is clear that
    the Texas Supreme Court would decide differently.               See Ladue, 
    920 F.2d 272
    .    We disagree.
    The Texas Supreme Court has said that "[i]n order to make
    performance    specifically      conditional,      a   term   such     as   "if',
    "provided that', "on condition that', or some similar phrase of
    conditional language must normally be included."                
    Criswell, 792 S.W.2d at 948
    .      In the present case, the master policy clearly
    indicated that Verex intended to be bound only "according to the
    terms and conditions of the Commitment and of this policy."                    The
    critical information regarding the value of the property and the
    loan-to-value ratio was printed on the commitment immediately below
    language that stated that the commitment was issued "under the
    following terms and conditions."          Although these phrases do not
    mirror those specifically listed in Criswell, we believe they do
    constitute the type of conditional language the Texas Supreme Court
    would find sufficient to create a condition precedent. Indeed, the
    6
    
    810 S.W.2d 416
    (Tex.Ct.App.—Dallas, 1991, no writ).
    14
    conditional    language    employed   by   Verex   is     susceptible    of   no
    reasonable construction other than that the parties intended that
    the policy stand or fall on the literal truth or falsity of the
    described terms. Lane v. Travelers Indem. Co., 
    391 S.W.2d 399
    , 402
    (Tex.1965).     Therefore, we will follow the holding of the Texas
    Court of Appeals in Life Insurance Co. of the Southwest and hold
    that the sales prices, appraised values, and loan-to-value ratios
    specified in the contracts for insurance in the present case
    constituted conditions precedent.
    THA contends, however, that even if the specified terms
    constituted conditions precedent, the district court's finding that
    they failed is clearly erroneous.            With regard to the Anderson
    loan, the district court found that the Andersons made no down
    payment to the seller, and that as a result the sales price was
    less than specified.      The fact that the sales price was less than
    specified also caused the actual loan-to-value ratio to exceed 95%.
    With regard to the Newhouse loan, the district court found that the
    down payment made to the seller was exaggerated by $1,050.00, and
    that as a result the sales price was lower than specified.              As with
    the Anderson loan, the district court found that the loan-to-value
    ratio exceeded 95%.
    Jimmy    Anderson    testified   that    he   made    no   down   payment.
    Theodore Newhouse testified that he paid only $250 as a down
    payment.     In addition to the loan amounts, the respective sellers
    were to receive down payments of $1500 and $1300 as a part of the
    specified sales price.      Nothing in the record indicates that the
    15
    respective sellers received these down payments from or on behalf
    of Anderson or Newhouse.         On this record, the district court was
    justified in concluding that the respective sellers did not in fact
    receive the specified sales price, and that because the real sales
    price was lower than represented, the actual loan-to-value ratio
    was greater than the 95% specified.               These findings show the
    failure of conditions precedent, and we cannot say that they are
    clearly erroneous. Thus, the district court's judgment with regard
    to   THA's   claims   on   the   Anderson   and   Newhouse    loans   must   be
    affirmed.
    With regard to the Abbott loan, the district court found that
    the borrowers made a down payment of only $3,192.50.             THA contends
    that this finding has no support in the record.              According to the
    district court's opinion, this amount was revealed by Verex's
    investigation. However, it is not apparent from the record how the
    district court arrived at this figure.             Indeed, on appeal Verex
    offers no support for the district court's calculation. Finding no
    support in the record, we agree with THA that this finding must be
    deemed clearly erroneous.
    Verex contends, however, that a portion of the Abbotts' down
    payment was borrowed from Chris Abbott's employer, and that the
    sales price and loan-to-value ratio conditions precedent failed as
    a result.     We may assume without finding that a portion of the
    Abbotts' down payment was borrowed.               Verex's argument assumes
    rather than explains a logical or definitional relationship between
    the source of the borrower's down payment and the sales price
    16
    received by the seller.       On the other hand, THA contends, without
    dispute, that the seller in this transaction in fact received the
    represented down payment, whether or not a portion of that amount
    was borrowed.
    The   evidence    regarding      the   Anderson   and   Newhouse   loans
    supported a finding that the required down payments were not made
    to the sellers from any source.             Rather, the evidence indicated
    that the sellers accepted less than the specified sales price as a
    result of the reduced or nonexistent down payments.            This evidence
    supported the conclusion that the sales price and loan-to-value
    ratio conditions precedent failed as to the insurance coverage on
    those loans. The same conclusion does not follow from the evidence
    regarding the Abbott loan.
    It apparently is undisputed that the seller in the Abbott
    transaction actually received $65,950.00, the specified sales price
    for the subject property.       The fact that Chris Abbott obtained a
    portion of the required down payment by borrowing it from his
    employer does not change that fact so as to somehow create a
    failure of the sales price or loan-to-value ratio conditions
    precedent.      In other words, the source of the borrower's down
    payment    is   not   an   inherent   element    of    the   sales   price   or
    loan-to-value ratio conditions precedent expressed in the insurance
    policy.    The loan application signed by the Abbotts, and thus the
    documents provided to Verex, contained a representation that the
    source of the down payment was to be "cash assets" of the borrowers
    and that no part of the down payment was borrowed.            This, however,
    17
    is not sufficient to make the source of the borrowers' down payment
    a condition precedent to the insurance coverage.      Therefore, the
    district court's judgment with regard to the Abbott loan cannot be
    affirmed on this basis.
    C. MUTUAL MISTAKE
    As an alternative basis for affirming the district court's
    judgment, Verex urges on appeal the affirmative defense of mutual
    mistake.   "Ordinarily, a mutual mistake sufficient to justify
    rescission exists when both of the parties are laboring under the
    same misconception as to a common fact, as ... when the parties
    contract on the assumption of a matter material to the contract but
    not expressed in it, and their common assumption is incorrect."
    Volpe v. Schlobohm, 
    614 S.W.2d 615
    , 617-18 (Tex.Civ.App.—Texarkana,
    1981, no writ).   "The mistake must relate to the subject matter of
    the contract involved and not to a matter that is collateral or
    incidental to that contract."   Durham v. Uvalde Rock Asphalt Co.,
    
    599 S.W.2d 866
    , 870 (Tex.Civ.App.—San Antonio, 1980, no writ).
    Application of the defense of mutual mistake in this case is
    complicated by the fact that two distinct contracts were involved
    in each transaction:    the contract between the borrower and the
    lender and the contract between the lender, and its assigns, and
    the insurer Verex.   See 
    Durham, 599 S.W.2d at 870
    .   We do not read
    Texas law to rule out application of the defense in this context.
    However, the relevant inquiry must be framed very carefully.    With
    regard to the Abbott loan in particular, the question must be
    whether the borrowers' representations in their loan application
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    that the down payment was to come from "cash assets" and that no
    part of the down payment was borrowed became mutual incorrect
    assumptions material to the substance of the contract for insurance
    between Curry and Verex.
    Because of its disposition, the district court did not address
    this alternative defense and, therefore, did not make sufficient
    findings of fact to allow this Court to conduct an appropriate
    review.   Thus, with regard to Verex's liability on the Abbott loan
    a remand is required.
    III. CONCLUSION
    For the foregoing reasons, the judgment of the district court
    is AFFIRMED as to THA's claims regarding the Anderson and Newhouse
    loans, VACATED as to THA's claims regarding the Abbott loan, and
    REMANDED for further proceedings consistent with this opinion.
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