* District Judge of the Eastern District of Texas, sitting by

designation.

1 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, a nd BROWN *

, District Judge.

ROBERT M. PARKER, Circuit Judge:

Plai ntiff 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 Co m munity

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 Ch arles Curry Company, both1 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 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 agreeme nt, 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 an d Curry

submitted them to defendant Verex with applic ations for mortgage

insurance. The documents submitted to Verex regarding the Anderson2 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 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 regard ing

the source of the money that would be used to make the down

payments.

Based on its revie w of these documents, Verex agreed to

provide mortg age 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

v alue, 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 assignment4

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

ind i vidual 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 G MAC 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

o f Removal and filed a Motion to Transfer Venue and B rief 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 Deceptive5

Trade Practic es Act, and requested attorneys' fees. Defendant

Verex asserted, inter alia, the defenses of conditions precedent,

f raudulent 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 Anders on 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 quest ion. 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 t he first time on appeal, THA argues that the district6

court did not have jurisdiction to decide the present case. Before

this Court can reach the merits of an ap peal, we must determine

t hat the district court had subject matter jurisdiction over the

case. Z iegler v. Champion Mortgage Co., 913 F.2d 2 28, 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

jurisdicti on 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." T radigrain, 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 ess ential 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 whet her 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 agency3 The Texas Housing Agency Act, Tex.Rev.Civ.Stat.Ann., Art.

1269 l -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 by the state courts, this cou rt 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 primari ly 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 sug gest 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

p arty 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 th ere is nothing in the Constitution of the

State of Texas or the State's case-law which directly ad dresses

THA's status. Therefore, we begin our inquiry with the agency's

enabling statute. Tex.Rev.Civ.Stat.Ann., Art. 1269 l -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 and8

use property, and the right to sue and be sued in its corporate

n ame, 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 consider ed 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 th e 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 debts4 THA also argues that it "has the authority to issue bonds

that are the general obligation of the State." Art. 1269 l -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 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. 1269 l -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,

t h at 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, the10

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, f ocusses 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 w ith 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

author ity to hold and use property, the authority to sue and be

sued in its corporate name, the power to ente r 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

o wn 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 t hat 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.11

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." H ohenberg 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 liabil ity or obligation on the

promisor and there can be no breach o f 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 clearly5 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 erroneous. We will address these arguments in order.

In order to determi n e 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 conditio nal, a term

such as "if", "provid ed that", "on condition that", or some

similar phrase of conditional lan guage 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 constru ing 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

o r 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. Europea n Crossroads Shopping Ctr., Ltd., 792 S.W.2d

945, 948 (Tex.1990) (intern al 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 to13

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 insu red 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 r emain 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:

you r 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 th e following

terms and conditions....

Beneath this language on each of the commitments appeared

information identifying th e loan and the terms of the coverage.

The certificates of i n surance contained less information, but

similarly identified the insured loan and i ndicated 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 requi red6 810 S.W.2d 416 (Tex.Ct.App.—Dallas, 1991, no writ).

14 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 so me similar phrase of

conditional langu age must normally be included." C riswell, 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 C ommitment and of this policy." The

c ritical 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 cond itions." Although these phrases do not

mirror those spec ifically listed in C riswell, we believe they do

constitute the type of conditional language the Texas Supreme Court

would find sufficient to create a condition precedent. Indeed, the15

conditional language employed by Verex is s usceptible 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. L ane 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, howeve r, 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 the16

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 price17

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 evi dence 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 conclus ion 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 prope rty. The fact that Chris Abbott obtained a

portion of the required down payment by borrowing it from his

e mployer does not change that fact so as to somehow c reate a

failure of the sales price or loa n-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 representati on 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,18

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 alter native 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 c ommon 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 invo lved 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. S ee 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 applicat ion19

that the down payment was to come from "cash assets" and that no

p art 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.