Standing to Challenge Assignment of Security Interest – Texas Declaratory and Injunctive Relief Based on Wrongful Foreclosure, Trespass to Try Title and Quiet Title Miller et al v. Homecomings Financial LLC et al

CASE FILE Texas Declaratory and Injunctive Relief Based on Wrongful Foreclosure, Trespass to Try Title and Quiet Title Miller et al v. Homecomings Financial LLC et al

Analysis

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2. Standing to Challenge Assignment of Security Interest

Defendants’ final (and weakest) argument is that homeowners like plaintiffs “will not be prejudiced” if the chain of assignments from original lender to foreclosing entity were immune to debtor challenge. After all, the argument apparently goes, the Millers owe the money to somebody. In truth, the potential prejudice is both plain and severe - foreclosure by the wrong entity does not discharge the homeowner’s debt, and leaves them vulnerable to another action on the same note by the true creditor. Banks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank’s deed of trust. MasterCard has no right to sue for debts rung up on a Visa card, and that remains true even if MasterCard has been assigned the rights of another third party like American Express. Unless and until a complete chain of transactions back to the original lender is shown, MasterCard remains a stranger to the original transaction with no claim against the debtor. And that is a fair description of this case in its present posture.

In sum, a standing issue is lurking here , but only as to the defendants, not the plaintiffs. The court concludes that under Texas law homeowners have legal standing to

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challenge the validity or effectiveness of any assignment or chain of assignments under which a party claims the right to foreclose on their property. Accordingly, plaintiffs have properly stated claims for declaratory and injunctive relief based on wrongful foreclosure, trespass to try title and quiet title.

Comments
4 Responses to “Standing to Challenge Assignment of Security Interest – Texas Declaratory and Injunctive Relief Based on Wrongful Foreclosure, Trespass to Try Title and Quiet Title Miller et al v. Homecomings Financial LLC et al”
  1. Liz says:

    Gwen, may I ask you to share with me those answers? I think they will help in my case.
    Also, I read that in order to send discovery questions to the third party like MERS, you need to notify the main party to the suit and then wait 10-15 days for their reply.
    Thanks, Liz

  2. lies is all they tell says:

    what is not covered are frauds. TILA vilations, RESPA violations and inducement into default, aka manufactured forclosures. these all rescind the loan. they lose by default by fraud. note becomes null and void. contract broken
    i found out some new ifo related to tila violation
    see this post http://blog.alexanderhiggins.com/2012/08/07/nevada-foreclosure-fraud-stopped-felony-163211/
    scroll to comments and read what mark wrote
    its about SEC Form 424B5
    this form tells you who the actual owner is of your mortgage
    this is why the bank or servicer and the mill are debt collectors. they do not own the notes

  3. gwen caranchini says:

    This issue of “standing” has presented itself in what I consider a rather bizarre place–during discovery. I have done large scale litigation suing hte likes of GM and the FBI, Sprint, the Catholic Church and others over 35 years. NEVER have I seen the likes of discovery objections that I have seen in my own case against BOA/BAC/Wilshire/Countrywide/Merrell Lynch and Citi as Trustee as well as MERS/MERSCORP. I have to say you get answers from MERS for the most part–in fact very interseting answers and if anyone wants the answers they have sent to requests for production or admissions (there were over 150 requests of each) write me and I will send them to you as they are not covered by protective order. However, the rest of them should be shot. However, to the point here. The defendants claim I have NO STANDING to contest assignments and therefore no right to do discovery on any of these issues. That is bizarre. Not only is that contra my theory of the case (and I do get to do discovery on my theory of the case when they have not won or even filed a Motion to Dismiss abd they have not raised as an aff. defense lack of standing, but for god’s sake this is a quiet title action. These defs should be lined up and “shot” with sancctins–my way to exercise my second amendment rights!

    • Yes, I would like the answers. I am raising the issue of lack of standing/authority in my wrongful foreclosure case. against Federal National Mortgage (Fannie Mae) & Nationstar Mortgage, LLC. They have not brought up MERS per se–but, MERS is on my Deed of Trust and the private title insurance company referenced MERS. GMAC, my original lender named on my Deed of Trust upon original purchase of home in 2005.. Several years in 2008, I was contacted by Nationstar Mortgage who stated that they were my new loan servicer. After trying to obtain the opportunity to get a loan modification when we encountered economic challenges in February 2013. Nationstar dodged and would not respond so they could run the clock out enabling them to build the case of the 90-120 days delinquency, even though, they forsake their duty to work with a homeowner like the me the Plaintiff, to keep them in their home. They purposely avoided me to run the clock out so that they could foreclose upon me on June 4, 2013 carried forth by a Substitute Trustee Jack Palmer Subsequently, when Jack Palmer was appointed by NationStar to become a, what they thought, Substitute Trustee, but, yet, Jack Palmer was just only a Third Party what they thought, he had the power to sell. They were mistaken or perhaps they knew the truth; but, didn’t care because they thought no one else would know; least of all, not the Petitioner. Jack Palmer was simply, a Third party “conveying/selling” what he was not empowered to sell. It was a rogue act of thief of property. And those who orchestrated the creation of a faux Trustee Deed colluded to participate in a rouge act of thief of property. They submitted unprofessional appearing redacted Trustee Deed absent the address of the What they called, a Substitute was just a “Third Party”. Beginning with the month of September 2005 and thereafter, Texas
      Property Laws states that the address of even if one is a bonafied Substitute Trustee, is required to be revealed on the Trustee’s Deed. However, the Substitute Trustee’s address is not revealed on the Trustee Deed.

      Jack Palmer failed to put his address on the Trustee Deed to convey my property illegitimacy without authority. On the tax records my house was appraised at 100 thousand although upon purchase, it was 112 thousand. The house was newly built in 2004 more modern located in an underwater minority community whereby, the other houses were much older, smaller, etc. so my house was appraised higher but, the other homes were selling about 30 to 35 thousand less. At the foreclosure sale Nationstar claimed that they were unable to sell my home and credited it back to themselves for $72, 700 (actually this violates a Texas Property Rule pointing to a defective foreclosure. Because if the sell price indicates a deficit more than 25% that exemplifies a defective foreclosure and means the foreclosure should not have been carried forth. They applied a 548 bankruptcy code to cover up the defective foreclosure sale as if the Plaintiff was in bankruptcy when she was not. They, then, told me that they had given the house back to Fannie Mae. Well, they sent up an eviction letter on August 14,2013. When I called them to find out what date we would be going to court, they told me that the letter had gone out by mistake and they would get back to me. Well, they did not get back to me until November 13, 2013 with the same exact worded letter as they had issued on August 14, 2013. I wrote to ask them why they were sending me the exact same letter as they had mistakenly sent me in August? They never answered why. Something was amiss causing a re-do; but, to the logical mind. There was a lapse of time warranting a re-do to recover what was not theirs to have–my property. Iactually think it was a lag and a lapse of ownership claim for them.
      I later found out that in October 2013; the insurance company did mention MERS so MERS is in the mix somehow. Nationstar collected from my Title insurance company and was paid the full price of the original price of the home $112 thousand; plus attorney fees; plus foreclosure cost. On November 1, 2013, Nationstar sold my house to Fannie Mae for $10.Now, the more I thought about it I realized that upon purchase of my home, I had a conventional loan that was backed by a private title insurance and was not a government backed home like Fannie Mae, Freddie Mac, or Ginny Mae. So how could Nationstar give my house back to Fannie Mae? And, to that point, if the house and/or loan belonged to Fannie Mae why would Nationstar have to sell it to Fannie Mae, even if it was only $10?

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