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



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


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.

5 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
    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?

      • Connie says:

        TO Cheryl Hill (@southerngenteel) I need to talk to you bad. I am facing a lot of what you have described, but with BOA……having a conventional loan, illegal & defective foreclosure (I had not missed any payments at all), and getting an eviction letter posted at my address saying this property belongs to Fannie Mae. My loan was not gov.-backed. I paid private mortgage insurance for over 7 yrs before I was finally able to drop it. How did Fannie Mae have any rights to my property?

        BOA was not my original lender in yr 2002 but supposedly became the owner of mortgage in yr. 2008 after getting it from Countrywide in yr 2004. In yr 2009 BOA began their illegal foreclosure and breached the NOTE by not following proper notice and proper procedure. Since then they’ve dragged it out with fake offers of modification. Then they get real sloppy & I get a notice of sale date when it has been almost 2yrs since I received the improper foreclosure notice the first time. They would not tell me who was the owner of the note. I got one letter stating it was BOA. But in yr 2011 I get a letter from Fannie Mae saying they own the mortgage. When I told BOA my loan was a “non-conforming conventional loan” they lied and argued with me about it. I told them it stated conventional loan on every monthly statement. But they denied it and from that point on my statements did not state what kind of loan any longer.

        They have added on $29,000 in bogus extra fees. There’s $100,000 owed on the mortgage. According to taxes I paid, it appraised at $180,000 counting the 5 acres & they appraised just the house at $124,000. So someone is eager to steal my equity.

        I have made all my payments. When I got a letter of approval to drop the PMI I did so and sent them a letter stating based on Federal law allowing me to pay taxes & insurance separately that I would no longer keep an escrow with them. I began sending them the principle & interest payment each month along with a copy of my receipt for the taxes & insurance payment. But they ignored it and claims each payment is only a partial payment because it doesn’t include $400 each month for escrow.

        Now I have no choice but to either let them steal it all or file suit against them in court on Dec.22 or 23, 2014. I haven’t been able to find any lawyer in my area in TN that has the guts or interest in filing against a big bank. So I’m having to go Pro-Se and need all the help I can get, especially in writing the complaint.

        I checked the records office for all assignments. They are a joke….not correct, dates are off by years, and there is no mention of Fannie Mae. I’m fairly sure mine went into MERS at some point before it went to Fannie Mae. But I can’t find any mention of it on paperwork.

        I thought about going to file the lack of standing route…..but then I know someone who won against a bank with a jury trail for the bank breaching the Note by not following proper procedure in foreclosure. I’d like to put both in as complaints but I need assistance in the wording of the complaint itself. Please tell me how I can find out if the Title Insurance co. has paid off my home to anyone & when it took place. Thank you. Any information you or anyone might can pass on to me is very much appreciated.

        Has anyone read where several BOA branches in the southeast will become First Tennessee banks after Dec. 2014. It states it will keep the same employees. It’s not unlawful, but should be, for them to hide under another name in SEC filings.

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