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.
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
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
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!