One of the interesting things about the news media and its relationship with the Wall Street banks is that the real events happening out in the marketplace are completely disregarded by virtually everyone if the event would encourage similar efforts to challenge or replace the toxic mortgages that litter the landscape of the financial marketplace. One such series of events includes eminent domain. When it was first proposed it was quite a bit of publicity about it and if you relied upon the mainstream media reporting financial information you would have assumed that it was an idea that simply came and went.

Not so fast. Eminent domain has been  in use for at least one year as municipalities condemned the mortgage, and seize it for its real value. In some cases the banks are working to have the value declared as what the Federal Reserve is paying: 100%. In most cases the value is pegged lower and the savings are passed on to homeowner who now no longer need to leave their homestead and can pay a newly reconstituted mortgage that reflects economic reality, giving them the roof over their heads and the possibility of building equity again.

It will really get interesting when eminent domain results in questioning the ownership and the money trail establishing the value of the mortgage. It seems that at least one entity, Mortgage Resolution Partners LLC , has realized that there is value in this business plan as we have previously discussed on this blog several times.  The real value of the mortgages is probably zero or close to that amount. In fact it may well be that the value of the mortgages is actually negative as I have previously discussed in other articles on this blog.

That presents an unparalleled profit opportunity for intermediaries who create or promote a situation in which the old toxic mortgage gets “paid off” and a new mortgage is essentially created out of the old one but does not possess any of the toxic qualities of the securitized mortgages. The interesting part of this of course is that the new mortgages will probably be sold into the secondary market and securitized. Perhaps this time they will do it right. If this catches on in a big way despite bank efforts to hush it up, then the foreclosure crisis will be over.

Steven Gluckstern, who’s spent more than a year pushing local governments to seize mortgages from bond trusts to cut balances and help homeowners, is renewing attempts with backing from cities in California and Nevada.

To read the entire article, go to http://www.bloomberg.com/news/2013-07-17/eminent-domain-plan-decried-by-doubleline-sees-new-life.html

95 Responses

  1. ML, Constant control issues as you have stated are rampant and that is because control freaks are full of fear. That is why they control. Fear of you, the people of the U.S. It is estimated that Americans have over 600 million guns. Wow!! I think that Egypt had something to say by creating a petition through the Internet and social media to get rid of their government. It is ongoing. To top it all off, Congress DID NOT PASS the new law to rein in the NSA. That should tell you how afraid of us they are.

  2. Louise

    I am certainly willing to listen to any idea you might have to restore the quality of life that the people of this country are use to.

    I see all round me, that which Stripe is ranting about Control Control Control I lived in the property that was stolen from for over thirty two years, Now I keep moving along trying to get something decent with my dog My last two have been REAL ESTATE INVESTMENT TRUSTS They look okay but it is like training grounds for Fema camps

    The CEO of this REIT was involved in a banking scandal so he went into housing I’m on my way out of this one and today I found out if you think Credit Bureaus can be a pain, there is now something called RENTBUREAU started by Experian Credit that allows a landlord to get and give daily updates, to this rentbureau if your rent was paid on the first, daily updates if you are doing anything the landlord doesn’t like daily updates’ on everything

    Stripes is using the right word Control

    I am in a better position than most. And this new way of life stinks

    Do you have a better way to inform the country that it is not by accident that so many are having trouble with the banks , it is by plan . So many people having trouble with the Courts, not by accident but by plan. We find a Judge like Schack we cheer. We find an attorney like Neil everyone wants him to stick to their issue .

    I have a very simple issue I want this country and the courts to stick to our Constitution .

    The newspapers are apparently controlled already This should be on the front page daily .

    Give us a better idea how to get this issue noticed.

    As the saying goes the squeaky wheel gets the oil.

  3. No question, stripes but beating me over the head, not so much.

    Make no mistake I see the evil shit and it is shit…control of every facet, finance, housing, oil, electric, food, education, access to things we ALL need. It is diabolical and evil no question.

  4. “Any great teacher knows repetition is the key to great SUCCESS”.

    In some places they call it brainwashing and it works best on the young and vulnerable, stripes…most adults have enough information to make choices, it’s called freedom, which correctly you state we are losing. Why not take a chance most of us here can see the “control freaks” are out en masse….just saying?

  5. and your endless bullshit has nothing to do with foreclosure defense. you’re not a messenger of anything. you’re some sick little lonely person sitting at your computer making yourself feel important. go get a job or go shoot some squirrels, loser.

  6. If anyone has the strange idea that Stripes and I share a computer one of us has very long arms,or very long and fast legs I am in New York and she is in Chicago

    One more motion at the moment will not make a Judge Like Alice Schlesinger uphold her oath to the Constitution That is just not for me but anyone here filing a defense against a fraudulent stealing of our properties
    If our Constitutional rights were not being torn apart I doubt if any of us would spend so much time blogging to change things

    Several years back I came upon the below article while I was searching to find what could be done about a Judge that would not follow the Law of the Land that was decided by a US Supreme Court case Elliot v Piersol that article was startling then Now I see how common place it is for a Judge to refuse to follow the law

    Continuing Education Credit Prejudices Judges
    by June Wisniewski
    The Anti-Government Movement Handbook is a training manual for judges and court staff against pro se litigants, published in 1999 by the National Center for the State Courts (NCSC) in Williamsburg, Virginia. This book, along with Dealing With Common Law Courts: A Model Curriculum for Judges and Court Staff, published in 1997 by NCSC, was developed from an Institute for Course Management (ICM) course on dealing with common law courts, held in Scottsdale, Arizona, February 5-7, 1997.

  7. @elexquisitor: I just sent the E-mail. However, I have sent four E-mails over sever months, and we still have Stripes.

  8. @louise – if you haven’t figured out the relationship between stripes and marilyn lane by now, note the time stamps of their posts, and consider they only have 1 computer.

    Then let Danielle your vote is to banish them both by emailing NeilFGarfield@hotmail.com

  9. You are no where near as smart as you think you are. Too repetitious for that. As far as fraudclosure goes, you will have to do better than that to “save” the country. A legend in your own mind. You should be sued for defamation of character and libel. You are probably also into slander, so we can add that, too.

  10. ML, Ranting and raving without knowledge is not doing anyone any good. In addition, libel and defamation of character is not cool either. Everyone is entitled to their own point of view whether you like it or not. You got screwed by the so-called judicial system and so have many other people. New case law is coming out every day. You may not like christine’s posts (I don’t like all of them either) but I do not want to hear the word “commie” again. Complete waste of time. You are posting same krap over and over as well. How does that help anyone? Why don’t you file a lawsuit again and work on that.

  11. Ranting and raving on a blog site is not how you save the country from loss of liberty. You are going to have to get off your fat ass to do that.

  12. Marilyn, this is all bullshit. stripes isn’t telling anyone anything. She’s a mouthpiece for those who are discrediting the foreclosure defense movement. Wake up!

  13. Louise

    I don’t like to hear ranting either But I believe Stripes is on to how high and massive this foreclosure fraud goes ,she cannot stop shouting about it repetitiously

    Stripes has always said that KC was someone called Patricia Picard To me it seems like KC, Christine, Bob G have an alliance against the truth coming out., each for their own reason I think they are all enemys to this site’s purpose

    My observation is, BobG is an attorney who had good things going for him from this site like clients and friends like the used car guy and he doesn’t want anyone to upset the applecart like Stripes.

    Christine from her posting bashing America seems like a Commie to me and will do anything to bring this county down

    I have no idea what KC does or is and her postings of green chickens and that kind of stuff is wield to me.

    Christine posted that “Patricia gave her information about Stripes”
    There is a friendship between KC and Christine on this site and the name Patricia might have slipped out in her post giving KC’s cover away.

    Wasn’t there a time when many of us NEVER thought that the Courts, or the Banks or Wall Street was soooooo corrupt.

  14. ML, What the F%$& is wrong with you that you want to read the rantings of an insane person? Are you becoming Stripes?

  15. Wrong case. Joe O. Rodriguez v. Bank of America Corpus christi, Nueces County

  16. yes, the other part is 22 pages and won’t cut and paste properly. mine is newenglandblonde@yahoo.com. Throw me an email and I’ll reply back.

  17. Poppy, What do you need from me? An E-mail address? Your efforts are greatly appreciated.

  18. @Christine

    who is this Patricia that you refer to in your post that is conveying information true or false about about Stripes and why would she convey any information to you about Stripes? . How do you know Patricia’s information is correct that your are relaying ?

    I always remember when you posted America is finished etc. and I always judge you by that post

    I believe there are several plants on this site, from banks, from investors, commies, and many synergisticly trying to take Stripes off this site?

  19. Correct christine. The personal attacks are useless and fan the flames. If people want to be irrational and play off this nutty situation, they are entitled. What do we really care?

    I have my own problems dealing with the “mental masturbation” of the court system and fighting all the time to make rationale out of it, it doesn’t work, nor does imposing my view of this or judging anyone’s lunacy on the matters.

    My piece…

  20. MERS: if they are a nominee-facilitator, can they in fact assign their right to facilitate to another facilitator to facilitate the right they were given? The rights under the right to facilitate must be granted by the owner to someone else, not by the minimal power afforded MERS to be a facilitator, Whew!

    They have been given no rights to alter the “limited authority” allowed them and further, yet a beneficiary gets a “benefit” of an action, not a right to act on behalf of an action or take any action on behalf of themselves. A mouthful…

    The other thing I notice: when these cats designate they are working on behalf of Trust NC1-OS1 2007, etc…and it is closed-dead, what authority do they have at that point? They are making this crap up.

    The judges needs to wake up and take remedial classes in English 101.

    And this BOA case, it is my humble opinion; that some of the issues raised in the District/State court do not have subject matter jurisdiction…like so many of these cases. The judges are overreaching.

  21. “ALL information is good information.” True. On the proper forum. With the proper analysis. In the proper context. Lots of it lacking here…

  22. It is my opinion only: The losing cases have a great deal of information in them. There is good and bad, if you really pick them apart. Sometimes it’s enough to see what not to do.

    This blog is getting congested with smearing, instead of information. ALL information is good information.

    One’s opinion on information is subjective at best. It is the viewers choice to discriminate and use what works for them. Anyone here trying to use insults and berating to work the blog in their favor, without substantial experience, not cutting and pasting articles, stating emphatically the ins and outs of the legal debacle is out of line and doing a disservice to other’s . But again, that’s the viewers choice to follow a deserted path. It really doesn’t matter what works, now does it?

    There are no experts…the decisions in each case are made by the courts, not people here who are working off their own insecurities and looking for adulation.

    Now, there are plenty of nuts to go around. All one has to do is step into the courtroom and see the pathology of the minds at work. But, there are those who intend to hurt, other’s merely desperate. One is more sinister than the other. IMHO.

  23. Here I was I got from the complaint posted above . There it is in black and white – yours for the taking …read up. Anti MS readers—get off on something else.

    The rest of you – read it carefully

    “….who February 16, 2012, MERS assigned to Defendant “all beneficial interest under that certain Deed of Trust . . . with the note(s) and obligations therein described . . . and all rights accrued or to accrue under said Deed of Trust.” (Id. Ex C.)

    What did Mers Do ?
    With all rights to do what?
    As it was appointed on the what ?

    Now consider where all sales and transfers list the grantee as the seller beneficiary?


  24. Great site. Appears to be Nancy Drewe’s but… no caps. And no crap. Real advice worth looking into. Some peddling, of course but great site. And she got her start at LL.


  25. And UKG,

    I’m just going to throw that in: the imbecile is really nothing much. She self-destructed by her own stupidity and doing, she can’t deal with it and, rather than take the honorable route and disappear quietly, she’s decided to inflict the maximum of damage and leave some kind of a pitiful, pathetic and impotent mark all over the internet, for want of real human value. In her frame of reference, bad publicity is better than no publicity at all.

    Except that she’s got nothing anyone wants. A true moral wreck. Cubed2k had courage. I’ll remember him for a long time. Her? Hell no! Nor will you or anybody else.

  26. UKG,

    Quite a few of us are in doubt. Nothing happens in a vacuum. Garfield had his CVA right about the time that moron started posting. Did he go too soft in the head? Is he even still in charge?

  27. we know some of the Garfield theorems have been proven wrong, but the idea that homeowners would contest foreclosures? That’s UNHEARD of. At least, not since the farm crisis! So with that being said, litigation against the national bank players has escalated exponentially. This site is probably one reason for that increase in the momentum. There are others, but at one time this place had some pretty good players. That was then. This is now.

    i have to put forth the premise that the banking community has taken notice, and therefore you have the likes of stripes, the one-person wrecking crew pillaging with garbage posts.

    The editor invested lots of time here. I hope he still thinks it worth the effort to protect it. Right now, I am in doubt.

  28. On the other hand, any story about foreclosure mills in trouble is good news.

    Denver judge orders foreclosure lawyer to comply with investigation
    Posted: 07/11/2013 04:51:39 PM MDT
    Updated: 07/12/2013 08:25:20 AM MDT
    By David Migoya
    The Denver Post
    (AP file photo)

    With a handful of foreclosure lawyers listening intently from the back of the courtroom, a Denver District Court judge Thursday ordered one of their colleagues to comply with a state investigation into their billing practices — after denying efforts to close the case from the public.

    Judge Edward Bronfin said lawyer Robert Hopp Jr. must gather the paperwork subpoenaed by Attorney General John Suthers’ office in its investigation of lawyers specializing in foreclosures and provide it within 60 days.

    Before that, Bronfin denied Hopp’s request to keep the case from the public, saying the investigation had an “overriding public interest” that superseded Hopp’s privacy rights.

    Hopp had complied somewhat with attorney general subpoenas issued months ago but has held back some of the most critical documents investigators said they need to determine whether the lawyer was padding his bills, Assistant Attorney General Erik Neusch said in court.

    Hopp said the investigation covers “about 10,000 files” going back at least five years.

    “The scope of the investigation is very simple: why (attorneys) charge more than their actual costs,” Neusch told Bronfin. “Yet we can’t get any of these law firms to give an answer to that.”

    The investigation extends to at least a half-dozen law firms that have filed foreclosures in several Front Range counties, according to people familiar with the probe. The Hopp Law Firm was one of the state’s most prolific in filing foreclosures.

    Hopp filed for personal bankruptcy in June after closing his law firm in April.

    Investigators are poring over the bills that lawyers submit in a foreclosure case that outline expenses for which they are entitled to be reimbursed.

    Investigators say in court documents they found records indicating those expenses — particularly the costs to post a pair of required notices advising homeowners of their rights — were inflated, sometimes by nearly 10 times the amount actually spent.

    The costs are paid by homeowners looking to keep their house from foreclosure, by the foreclosing bank or by the buyer of the property, usually an investor, at public auction.

    David Migoya: 303-954-1506, dmigoya@denverpost.com or twitter.com/davidmigoya

  29. UKG,

    You were making my point as I was typing… There is a special quality to the madness this country appears to be suffering from.

  30. RAMON RODRIGUEZ, Plaintiff,
    BANK OF AMERICA, N.A., Defendant.
    Cv. No. SA-12-CV-00905-DAE.
    United States District Court, W.D. Texas, San Antonio Division.

    April 25, 2013.
    DAVID ALAN EZRA, Senior District Judge.

    If this is the case “with real traction”, traction here works for the banks. All across the board. And in district court, mind you. For every bank in every state to quote from. So… what’s so remarkable about it? Other than hammering the nail ever deeper, of course.

    All it shows is a case poorly conceived by the plaintiff, poorly pleaded, all over the map, mixing all kinds of irrelevant issues and… another homeowner who lost it all.

    Traction, indeed… what was that phrase again? Keep it simple, stupid!

  31. haven’t we played these First Amendment games long enough?
    get rid of this mouthpiece once and for all.

  32. we had a judge eat a lead popsicle last year in Racine Wisconsin. nobody knows why. he was a happy guy. hmmmm.

  33. With all this horesh[t there’s GOT to be a pony in here somewhere!

  34. @jg – if you really want to mess with MERS, consider this. An agent cannot pass on more powers than originally granted by the principal. In this case, the lender is the principal. By naming MERS as nominee for the beneficiary, that specifies the power being granted – namely the power to name another beneficiary, ONLY. It does not specify the power to declare a default, nor the power to elect to foreclose in either non-judicial nor judicial. So a beneficiary named by MERS is lacking in the power to declare default or election to foreclose. And that beneficiary cannot pass on more powers that it was granted.

    Then comes the California contusion. TILA regulations require notification to the borrower of a change in beneficiary. It doesn’t deal with a change in a partial beneficiary. Or does it? Does federal TILA law preempt ‘assignments’ by MERS?

    Well, back to standing on a pile of horsesh]t …

  35. FYI: the other part is 22 pages. A friend from CA helped me, as it was mis-labeled in the documents…DAH?

    If you want it you need to post an email, cause it won’t copy and paste,..imagine that? Sorry

  36. RAMON RODRIGUEZ, Plaintiff,
    BANK OF AMERICA, N.A., Defendant.
    Cv. No. SA-12-CV-00905-DAE.
    United States District Court, W.D. Texas, San Antonio Division.

    April 25, 2013.
    DAVID ALAN EZRA, Senior District Judge.

    On April 22, 2013, the Court heard a Motion to Dismiss brought by Defendant Bank of America, N.A. (“Defendant”) and a Motion for Leave of Court to Amend Pleadings brought by Plaintiff Ramon Rodriguez (“Plaintiff”). Nathan T. Anderson, Esq., appeared at the hearing on behalf of Defendant; Kenneth E. Grubbs, Esq., and Hector Cortez, Esq., appeared on behalf Plaintiff. After reviewing the motions and the supporting and opposing memoranda, the Court GRANTS Defendant’s Motion to Dismiss (doc. # 16) and DENIES Plaintiff’s Motion for Leave of Court to Amend Pleadings (doc. # 17). This action is DISMISSED WITH PREJUDICE.

    According to the First Amended Complaint and documents incorporated by reference therein,[1] on or around September 5, 2007, Plaintiff entered into a loan transaction for $128,000.00 with Security National Mortgage Company which was secured by a mortgage encumbering real property located at 5118 Capistrano Street, San Antonio, Texas 78233 (the “Subject Property”). (“FAC,” Doc. # 11 ¶ 3.) The Deed of Trust was recorded in the Official Public Records of Bexar County on September 21, 2007. (Doc. # 10, Ex. 1.) Both the Note and the Deed of Trust list Security National Mortgage Company as the lender. (See Doc. # 16, Ex. A & B.) The Deed of Trust also lists Mortgage Electronic Registration Systems, Inc. (“MERS”) as beneficiary “acting solely as a nominee for Lender and Lender’s successors and assigns.” (Id. Ex. B.)

    On February 16, 2012, MERS assigned to Defendant “all beneficial interest under that certain Deed of Trust . . . with the note(s) and obligations therein described . . . and all rights accrued or to accrue under said Deed of Trust.” (Id. Ex C.) Ms. Swarupa Slee, who is listed as “Vice President of MERS,” signed the assignment on behalf of MERS. (FAC ¶ 4.) Plaintiff alleges that Ms. Slee is not Vice President of MERS, but rather an employee of “document mills,” and that her signature may not be authentic. (Id.)

    At some point, Plaintiff ceased making payments on his mortgage and defaulted on his loan. (See id. ¶ 5.) As a result of Plaintiff’s default, Defendant accelerated the full amount due under the Note and initiated a deed of trust foreclosure sale on the property. (Doc. # 16 ¶ 8.)

    On September 4, 2012, Plaintiff filed a petition in the 131st Judicial District Court of Bexar County, Texas, challenging the assignment of the Deed of Trust to Defendant and seeking injunctive relief preventing Defendant from foreclosing on the Subject Property. (Doc. # 1, Ex. A.) The district court granted Plaintiff an ex parte temporary restraining order preventing Defendant from foreclosing on the Subject Property until a further hearing could be held on Plaintiff’s request for a temporary injunction. (See id.) On September 14, 2012, the district court granted an extension of the temporary restraining order and set a hearing on Plaintiff’s request for a temporary injunction for September 28, 2012. (Id.)

    On September 26, 2012, Defendant timely removed the state-court action to this Court. (Doc. # 1.) On October 1, 2012, Defendant filed a Motion to Dismiss. (Doc. # 4.) On October 16, 2012, Plaintiff filed a Motion for Leave of Court to Amend. (Doc. # 9.) On October 22, 2012, Plaintiff filed a Response to Defendant’s Motion to Dismiss. (Doc. # 10.) On October 23, 2012, the Court issued an Order granting Plaintiff’s Motion for Leave to Amend and mooting Defendant’s Motion to Dismiss. (See id.) Plaintiff filed the First Amended Complaint the same day. (FAC.)

    In the First Amended Complaint, Plaintiff brings an action to quiet title and claims under the Texas Uniform Commercial Code and Chapter 12 of the Texas Civil Practice and Remedies Code. (Id.) Plaintiff also brings an alternative claim for breach of contract “upon proof that Defendant is the `holder [of the Note].'” (Id. at ¶ 22.)

    On November 6, 2012, Defendant filed a Motion to Dismiss Plaintiff’s First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. # 16.) On November 19, 2012, Plaintiff filed a second Motion for Leave of Court to Amend (doc. # 17) and a Response to the Motion to Dismiss (doc. # 18). On November 27, 2012, Defendant filed a Response to Plaintiff’s Motion for Leave of Court to Amend. (Doc. # 21.)

    I. Rule 12(b)(1)
    A motion to dismiss under Rule 12(b)(1) challenges a federal court’s subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

    “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). Considering Rule 12(b)(1) motions first “prevents a court without jurisdiction from prematurely dismissing a case with prejudice.” Id. When the court dismisses for lack of subject matter jurisdiction, that dismissal “is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Id. The district court may dismiss for lack of subject matter jurisdiction based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010). A motion to dismiss based on the complaint alone presents a “facial attack” that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). When evidence is presented with the motion to dismiss, the attack is “factual” and “no presumptive truthfulness attaches to [the] plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).

    While the burden of proof falls on the plaintiff to show that jurisdiction does exist, “[u]ltimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle [the] plaintiff to relief.” Ramming, 281 F.3d at 161.

    II. Rule 12(b)(6)
    Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Review is limited to the contents of the complaint and matters properly subject to judicial notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). In analyzing a motion to dismiss for failure to state a claim, “[t]he court accepts `all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'”In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

    A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Twombly, 550 U.S. 544, 555-56 (2007). In providing grounds for relief, however, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556-57. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations and citations omitted). Thus, although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead “specific facts, not mere conclusory allegations.” Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); see also Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (“We do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”).

    When a complaint fails to adequately state a claim, such deficiency should be “exposed at the point of minimum expenditure of time and money by the parties and the court.” Twombly, 550 U.S. at 558 (citation omitted). However, the plaintiff should generally be given at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).

    Defendant brings its Motion to Dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim. For the reasons discussed below, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint. The Court also DENIES Plaintiff’s Motion for Leave of Court to file his proposed Second Amended Complaint.

    I. Standing
    By definition, standing goes to the “case or controversy” limitation on federal court jurisdiction. Barrett Computer Servs., Inc. v. PDA, Inc., 884 F.2d 214, 218 (5th Cir. 1989). “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Federal standing jurisprudence “contains two strands: Article III standing, which enforces the Constitution’s case-or-controversy requirement, and prudential standing, which embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (citations and internal quotations omitted); Ass’n of Cmty. Orgs. v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999).

    In this case, Defendant does not appear to challenge Plaintiff’s Article III standing.[2] However, the Fifth Circuit has noted that even if a defendant does not argue that the plaintiff lacks Article III standing, courts have an independent obligation to assure that jurisdiction exists by examining the constitutional dimension of standing before determining whether a plaintiff has prudential standing to assert a claim. Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011). To establish Article III standing, a plaintiff must demonstrate (1) an injury in fact; (2) that is fairly traceable to the challenged act; and (3) that is likely to be redressed by the requested remedy. Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 926 (5th Cir. 1996).

    The Court finds that Plaintiff satisfies the requirements of Article III standing insofar as he has an interest in the property that would be lost if the foreclosure continues, and that injury is fairly traceable to the conduct of Defendant in conducting the foreclosure sale and would be redressed by a favorable decision on Plaintiff’s claims. See Pizzini v. Bank of Am., Civ. A. No. SA-12-CV-308, 2012 WL 1834052, *4 (W.D. Tex. May 18, 2012).

    Even if a plaintiff establishes the “minimum constitutional mandate” of Article III standing, prudential limitations also exist on a federal court’s exercise of jurisdiction. See Warth, 422 U.S. at 499. These judicially created limits concern “(1) whether a plaintiff’s grievance arguably falls within the zone of interests protected by the statutory provision invoked in the suit, (2) whether the complaint raises abstract questions or a generalized grievance more properly addressed by the legislative branch, and (3) whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties.” St. Paul Fire & Marine Ins. Co. v. Labuzan, 579 F.3d 533, 539 (5th Cir. 2009) (internal quotations and citations omitted). Often, prudential standing “turns on the nature and source of the claim asserted” and goes to whether the law “on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief.” See Warth, 422 U.S. at 500-01.

    Defendant argues that Plaintiff lacks standing to challenge the assignment of the Deed of Trust because Plaintiff was not a party to that assignment. As stated above, one prudential standing limitation is that plaintiffs must assert their own legal rights and interests and cannot sue to enforce the rights of third parties. See St. Paul Fire, 579 F.3d at 539. The Court acknowledges that numerous courts within this circuit have held that a plaintiff-mortgagor does not have standing to assert claims on the basis of an allegedly invalid assignment to which he or she was not a party. See, e.g., Metcalf v. Deutsche Bank Nat’l Trust Co., No. 3:11-CV-3014-D, 2012 WL 2399369, at *5 (N.D. Tex. June 26, 2012) (“Courts in this circuit have repeatedly held that borrowers do not have standing to challenge the assignments of their mortgages because they are not parties to those assignments.”); DeFranceschi v. Wells Fargo Bank, N.A., 837 F. Supp. 2d 616, 623 (N.D. Tex. 2011). Other courts, however, have held that a plaintiff may have standing, depending on the nature of the challenges asserted. See, e.g., Routh v. Bank of Am., N.A., No. SA-12-CV-244, 2013 WL 427393, at *9 (W.D. Tex. Feb. 4, 2013). This Court falls into the latter category. See Saucedo v. Deutsche Bank Nat’l Trust Co., SA-12-CV-868, 2013 WL 656240, at *4 (W.D. Tex. Feb. 20, 2013).

    “Texas has long followed the common law rule which permits a debtor to assert against an assignee any ground that renders the assignment void or invalid.” Routh, 2013 WL 427393, at *8 (quoting Miller v. Homecomings Fin., LLC, 881 F. Supp. 2d 825, 831 (S.D. Tex. 2012)). The rule has been stated as follows by the Texas Court of Appeals:

    The law is settled that the obligors of a claim may defend the suit brought thereon on any ground which renders the assignment void, but may not defend on any ground which renders the assignment voidable only, because the only interest or right which an obligor of a claim has in the instrument of assignment is to insure himself that he will not have to pay the same claim twice.
    Tri-Cities Constr., Inc. v. Am. Nat’l Ins. Co., 523 S.W.2d 426, 430 (Tex. Civ. App. 1975) (citing Glass v. Carpenter, 330 S.W.2d 530, 537 (Tex. Civ. App. 1959)). This rule accords with long-established principles of contract law. A void contract is “invalid or unlawful from its inception” and therefore cannot be enforced. 17A C.J.S. Contracts § 169. A voidable contract, on the other hand, “is one where one or more of the parties have the power, by the manifestation of an election to do so, to avoid the legal relations created by the contract.” Id. Accordingly, only the parties to a voidable contract may seek to avoid its enforcement.

    Under Texas law, deeds obtained by fraud or mutual mistake are voidable rather than void. Poag v. Flories, 317 S.W.3d 820, 826 (Tex. App. 2010); see Nobles v. Marcus, 533 S.W.2d 923, 925 (Tex. 1976) (finding that a deed procured by fraud is voidable—not void—by the grantor); Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990) (finding that when parties to an agreement have contracted under a mutual misconception of material fact, the agreement is voidable under the doctrine of mutual mistake). A suit to set aside a deed obtained by fraud can only be maintained by the defrauded party. Nobles, 533 S.W.2d at 927 (citing Smith v. Carter, 45 S.W.2d 398, 400 (Tex. Civ. App. 1932)). By contrast, a deed that is forged is void. Lighthouse Church of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 603 (Tex. App. 1994). The Texas Supreme Court has held that, “when a person signs his true name, purporting to act as the agent of another, he generally has not committed a forgery.” Nobles, 533 S.W.2d at 926. It further explained:

    An agent may commit forgery by signing an instrument in disobedience of his instructions or in improper exercise of authority, but one who executes an instrument purporting on its face to be executed by him as an agent, when in fact he has no authority to execute such instrument, is not guilty of forgery.
    Id. at 927 (citation omitted). In the First Amended Complaint, Plaintiff alleges that the assignment of the Deed of Trust was “fraudulent.” (FAC ¶ 4.) He contends that Ms. Swarupa Slee—who signed the assignment on behalf of MERS—is not a “Vice President” of MERS, but rather “an employee of one of the various `document mills’ located around the county who are hired for the sole purpose of creating documents that fraudulently give the appearance of chain of title.” (Id.) Additionally, Plaintiff alleges that an investigation into Ms. Slee revealed that she “had at least five or more signatures” and that Ms. Slee’s signature “may not be authentic.” (Id.) Plaintiff’s allegations would render the assignment voidable rather than void. Even if Ms. Slee worked as part of a “document mill” and had different signature variations, as long as MERS was aware of this and did not object to it, the assignment—though perhaps fraudulent—would not rise to the level of a forgery and thus would be voidable, not void. If, however, Plaintiff somehow conspired with Ms. Slee to carry out the assignment with the purpose of defrauding MERS out of its legitimate interest in the Deed of Trust, the assignment would be a forgery and therefore void. The Court concludes that Plaintiff’s allegations that Ms. Slee merely lacked authority to sign on behalf of MERS would render the assignment merely voidable. Thus, Plaintiff lacks standing to challenge the assignment of the Deed of Trust on this ground. To the extent that Plaintiff’s claims for quiet title and declaratory judgment are based on a challenge to the assignment of the Deed of Trust, they are dismissed.

    II. Sufficiency of the First Amended Complaint
    For the reasons stated below, Plaintiff’s remaining causes of action fail to state a claim, and the Court dismisses them pursuant to Rule 12(b)(6).

    A. Bifurcation Theory
    Underlying all of Plaintiff’s claims is the idea that Defendant must be holder of the Note—not merely the beneficiary of the Deed of Trust—in order to foreclose on the Subject Property. For instance, Plaintiff states in the First Amended Complaint that Defendant cannot “foreclose under a deed of trust when [] Defendant [is] not the holder of the note.” (FAC ¶ 18.) Thus, before discussing the merits of Plaintiff’s various causes of action, the Court addresses this flawed legal theory, which has been roundly rejected by both federal and state courts in Texas. See Swim v. Bank of Am., N.A., No. 3:11-CV-1240, 2012 WL 170758, at *3 n.25 (N.D. Tex. Jan. 20, 2012) (collecting cases).

    As a preliminary matter, Texas law differentiates between enforcement of a promissory note and a deed of trust. “Where there is a debt secured by a note, which is, in turn, secured by a lien, the lien and the note constitute separate obligations.” Aguero v. Ramirez, 70 S.W.3d 372, 374 (Tex. App. 2002). Thus, the right to recover on the promissory note and the right to foreclose may be enforced separately. See Stephens v. LPP Mortg., 316 S.W.3d 742, 747 (Tex. App. 2010) (finding that the promissory note and the lien which secures it are “separate legal obligations” that “may be litigated in separate lawsuits”); Carter v. Gray, 125 Tex. 219, 81 S.W.2d 647, 648 (Tex. 1935) (“It is so well settled as not to be controverted that the right to recover a personal judgment for a debt secured by a lien on land and the right to have a foreclosure of lien are severable, and a plaintiff may elect to seek a personal judgment without foreclosing the lien, and even without a waiver of the lien.”). Foreclosure is an independent action against the collateral and may be conducted without judicial supervision. Bierwirth v. BAC Home Loans Servicing, L.P., No. 03-11-00644-CV, 2012 WL 3793190, at *4 (Tex. App. Aug. 30, 2012) (citing Reardean v. CitiMortgage, Inc., No. A-11-CA-420, 2011 WL 3268307, at *3 (W.D. Tex. July 25, 2011)). Enforcement of the promissory note, on the other hand, is a personal action against the signatory and requires a judicial proceeding. Id.

    Chapter 51 of the Texas Property Code, which governs non-judicial foreclosures, authorizes either a mortgagee or a mortgage servicer acting on behalf of a mortgagee to sell real property under a “power of sale conferred by a deed of trust.” See Tex. Prop. Code. §§ 51.002, 51.0025. The Property Code defines a “mortgagee” as “(A) the grantee, beneficiary, owner, or holder of a security instrument; (B) a book entry system;[3] or (C) if the security interest has been assigned of record, the last person to whom the security interest has been assigned of record.” Tex. Prop. Code § 51.0001(4). Under Texas law, therefore, Defendant need not hold the Note in order to foreclose; it need only have the right to foreclose under the Deed of Trust.

    In this case, Defendant claims authority to foreclose under the Deed of Trust pursuant to the assignment of the Deed of Trust executed by MERS. As discussed above, Plaintiff lacks standing to challenge the assignment of the Deed of Trust to Defendant. Moreover, Plaintiff’s arguments regarding the Deed of Trust are of no avail because Defendant appears to be the holder of the Note in this case.

    Under Texas law, a holder is “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” Tex. Bus. & Com. Code § 1.201(b)(21)(A). “A person can become the holder of an instrument when the instrument is issued to that person, or he can become a holder by negotiation.” Martin v. New Century Mortg. Co., 377 S.W.3d 79, 84 (Tex. App. 2012) (citing Tex. Bus. & Com. Code § 3.201 cmt. 1). When the instrument is payable to an identified entity, “negotiation requires transfer of possession of the instrument and its indorsement by the holder.” Id. (quoting Tex. Bus. & Com.Code § 3.201(b)). Physical possession of a promissory note that bears a blank indorsement establishes ownership and the right to collect. See Tex. Bus. & Com. Code § 3.205(b) (“When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.”); Kiggundu v. Mortg. Elec. Registration Sys. Inc., 469 F. App’x 330, 331-32 (5th Cir. 2012).

    At the hearing, Defendant produced a copy of the original Note, which is indorsed in blank.[4] (See Doc. # 16, Ex. A.) Defendant’s possession of the Note and the indorsement suggest that Defendant became the holder of the note by negotiation. In the First Amended Complaint, Plaintiff does not specifically allege that the indorsement on the Note is invalid for any reason. Thus, the Court must presume that the indorsement is authentic. Martinez v. Wells Fargo Bank, N.A., No. SA-12-CV-789, 2013 WL 1562759, at *4 (W.D. Tex. Apr. 12, 2013); see Tex. Bus. & Com. Code § 3.308(a) (“[T]he authenticity of, and authority to make, each signature on the instrument are admitted unless specifically denied in the pleadings.”) Plaintiff’s allegation that Defendant cannot foreclose under the Deed of Trust because it is not the holder of the Note fails because Plaintiff has not raised any challenge to the authenticity of the indorsement or Defendant’s possession of the Note.

    Moreover, “under Texas law, the mortgage follows the note.” Kiggundu, 469 F. App’x at 332 (citing Lawson v. Gibbs, 591 S.W.2d 292, 294 (Tex. App. 1979)); United States v. Vahlco Corp., 720 F.2d 885, 891 (5th Cir. 1983)); see also Tex. Bus. & Com. Code § 9.203(g); id. cmt. 9 (“Subsection (g) codifies the common-law rule that a transfer of an obligation secured by a security interest or other lien on personal or real property also transfers the security interest or lien.”). As the Fifth Circuit recently explained in similar circumstances:

    Though [Plaintiff] attacks the validity of the assignment of the mortgage document—the deed of trust—to the Bank of New York, this argument is beside the point. It was sufficient for the Bank of New York to establish that it was in possession of the note; it was not required to show that the deed of trust had been assigned to it.
    Kiggundu, 469 F. App’x at 332-33; see also Gilbreath v. White, 903 S.W.2d 851, 854 (Tex. App. 1995) (“An assignment of the deed of trust is not in evidence, but the collateral follows the promissory note obligation.”).

    Thus, if Defendant is holder of the Note, the Deed of Trust has not been “separated” from the Note because it follows the Note. Even if the assignment of the Deed of Trust was void (rather than voidable), the documents central to Plaintiff’s case suggest, and no factual allegations controvert, that Defendant would have authority to foreclose pursuant to the terms of the Deed of Trust because Defendant is the holder of the Note. See Martinez, 2013 WL 1562759, at *5.

    B. Quiet Title
    A suit to quiet title is an equitable action in which the plaintiff seeks to remove from his title a cloud created by an allegedly invalid claim. Florey v. Estate of McConnell, 212 S.W.3d 439, 448 (Tex. App. 2006). A “cloud” on legal title includes any deed, contract, judgment lien or other instrument, not void on its face, that purports to convey an interest in or makes any charge upon the land of the true owner, the invalidity of which would require proof. Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App. 2000). “In a suit to remove a cloud from his title, the plaintiff has the burden of supplying the proof necessary to establish his superior equity and right to relief.” Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App. 2009). “The effect of a suit to quiet title is to declare invalid or ineffective the defendant’s claim to title.” Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 42 (Tex. App. 2011).

    To state a quiet title claim, a plaintiff must show: (1) an interest in a specific property; (2) title to the property is affected by a claim by the defendant; and (3) the claim, although facially valid, is invalid or unenforceable. U.S. Nat’l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *3 (Tex. App. Dec. 30, 2011) (citing Sadler v. Duvall, 815 S.W.2d 285, 293 n. 2 (Tex. App. 1991)).

    In the instant case, Plaintiff successfully alleges the first element of an action to quiet title. Plaintiff maintains he is the owner of the Subject Property, which is encumbered by a mortgage. (See FAC ¶ 3.) This appears to be sufficient to establish an interest in property for purposes of an action to quiet title. See Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14-10-00090-CV, 2011 WL 1364070, at *4 (Tex. App. Apr. 12, 2011) (holding that plaintiff’s allegation that “she owns the property by virtue of her recorded deed” was a sufficient interest in property for the purposes of a quiet title action). It is an “error” to require a party to demonstrate “fee simple or [an] uncontestable interest to prevail in a suit to remove cloud on title or to quiet title.” Katz v. Rodriguez, 563 S.W.2d 627, 630 (Tex. Civ. App. 1977). While the Court is troubled by the fact that Plaintiff has not alleged that he has satisfied his obligations under the mortgage, this does not appear to be a requirement under Texas law to stating a claim for quiet title.

    The second element of a claim for quiet title, “whether title to the property is affected by a claim by the defendant,” is adequately alleged in this case. See Johnson, 2011 WL 6938507, at *3. Because Defendant claims the right to foreclose on the Subject Property pursuant to the assignment of the Deed of Trust, this is a “cloud” on Plaintiff’s interest in the property. See Routh, 2013 WL 427393, at *4.

    However, Plaintiff fails to plead sufficient facts to support the third element of quiet title—namely, that “the claim, although facially valid, is invalid or unenforceable.” See Johnson, 2011 WL 6938507, at *3. Plaintiff’s claim rests on the allegation that, although Defendant appears to have a right to foreclose on the Subject Property based on the assignment of the Deed of Trust, Defendant is in reality not authorized to foreclose for reasons not apparent on the face of the assignment. However, as discussed above, Plaintiff lacks standing to challenge the assignment of the Deed of Trust on the ground that MERS’ agent lacked authority to sign on its behalf, and Plaintiff has not made any allegations that challenge Defendant’s status as holder of the Note. Thus, Plaintiff fails to state a claim for quiet title.

    C. Violations of Texas Uniform Commercial Code
    Plaintiff brings a cause of action for “UCC violations,” or violations of the Texas Uniform Commercial Code, codified by the Texas Legislature in the Texas Business and Commerce Code. More specifically, Plaintiff alleges that Defendant is not the holder of the Note and “cannot prove all of the . . . elements of holder status,” citing to § 3.301, § 3.309, and § 3.418(d) of the Texas Business and Commerce Code. (FAC ¶ 14.) Plaintiff also alleges that, “[p]ursuant to § 3.203 of the Texas Business and Commerce Code, Defendant Bank has no right to enforce the instrument due to the fraud and illegal acts of transferring the note and deed of trust.” (Id. ¶ 16.)

    Section 3.301 of the Texas Business and Commerce Code defines a “[p]erson entitled to enforce” an instrument as one who is “(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3.309 or 3.418(d).” Tex. Bus. & Com. ode § 3.301. Section 3.301 does not appear to provide an independent cause of action to Plaintiff. However, even if § 3.301 does provide a cause of action, Plaintiff has not stated a claim on this ground because, as explained above, Plaintiff has not pleaded facts to indicate the transfer of the Note to Defendant was invalid.

    Additionally, although Plaintiff cites § 3.309 and § 3.418(d) of the Texas Business and Commerce Code, these provisions do not apply. Section 3.309 applies to the enforcement of a “lost” instrument. See Tex. Bus. & Com. Code § 3.309. Plaintiff has not pleaded facts to indicate that the Note is or was “lost”; it was produced at the hearing. Section 3.418(d) applies to an instrument that is “paid or accepted by mistake,” and Plaintiff has not pleaded any facts to indicate Defendant acquired the Note in this fashion. Plaintiff therefore fails to state a claim under § 3.309 and § 3.418(d).

    Plaintiff also invokes § 3.203 of the Texas Business and Commerce Code, which states that a “transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.” Tex. Bus. & Com. Code § 3.203. However, Plaintiff has not alleged that Defendant engaged in fraud or illegality concerning the transfer of the Note. As described above, the documents central to Plaintiff’s case suggest that Defendant became the holder of the Note by negotiation, and Plaintiff has not brought any allegations that would invalidate the transfer of the Note. Accordingly, Plaintiff fails to state a claim under § 3.203.

    D. Texas Civil Practice & Remedies Code § 12.002
    Plaintiff alleges that Defendant violated Chapter 12 of the Texas Civil Practice and Remedies Code by filing with the Office of the Bexar County Clerk a fraudulent assignment of the Deed of Trust. (FAC ¶ 20.) Section 12.002(a) provides:

    A person may not make, present, or use a document or other record with:

    (1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;
    (2) intent that the document or other record be given the same legal effect as a court record or document of a court created by or established under the constitution or laws of this state or the United States or another entity listed in Section 37.01, Penal Code, evidencing a valid lien or claim against real or personal property or an interest in real or personal property; and
    (3) intent to cause another person to suffer:
    (A) physical injury;
    (B) financial injury; or
    (C) mental anguish or emotional distress.
    Tex. Civ. Prac. & Rem. Code § 12.002(a).

    Defendant argues that the assignment of the Deed of Trust is not a “lien or claim” within the meaning of § 12.002(a)(1), citing Marsh v. JPMorgan Chase Bank, N.A., 888 F. Supp. 2d 805 (W.D. Tex. 2012). In Marsh, the court analyzed whether the assignment of a deed of trust qualifies as a “lien or claim” under § 12.002. It noted that Texas courts had not yet considered this question and proceeded to examine the legislative history of Chapter 12, ultimately concluding that the statute only applies to fraudulent documents “purporting to create a lien or claim against real or personal property.” Id. at 813 (quoting House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1184, 75th Leg., R.S. (1997) (emphasis added)). The court held that an assignment of a deed of trust falls outside the scope of Chapter 12 because it does not create a lien or claim, but “merely purports to transfer an existing deed of trust from one entity to another.” Id.

    However, this Court has held that an assignment of a deed of trust does constitute a claim against real property, relying upon Bernard v. Bank of Am., N.A., No. 04-12-00088-CV, 2013 WL 441749 (Tex. App. Feb. 6, 2013), a recently-decided Texas Court of Appeals opinion. Howard v. JPMorgan Chase, N.A., SA-12-CV-00440, 2013 WL 1694659, at *12 (W.D. Tex. Apr. 18, 2013). In Bernard v. Bank of America, N.A., the court affirmed the entry of summary judgment under § 12.002(a) against homeowners who unilaterally drafted, signed, and filed a “`Substitution of Trustee” document in an attempt to prevent a bank from lawfully foreclosing on a lien against their property. Bernard, 2013 WL 441749, at *4. In its analysis, the court assumes that the “Substitution of Trustee” document is a “claim” against real property within the meaning of Chapter 12. See id. A “Substitution of Trustee” document, like an assignment of a deed of trust, transfers an existing claim in property from one entity to another and does not “create” a new claim against property in the sense Marsh would require. Thus, this Court concluded in Howard that the Marsh court’s reading of § 12.002(a) is overly narrow and found that an assignment of a deed of trust does qualify as a “claim” against real property (or against an interest in real property) under that section. Howard, 2013 WL 1694659, at *12.

    Nonetheless, Plaintiff has failed to allege sufficient facts to state a cause of action under § 12.002(a). Plaintiff merely parrots the language of § 12.002(a)(3) by stating that he suffered “financial injury” and “mental anguish or emotional distress” by the filing of the assignment. (See FAC ¶ 20.) Thus, his statements are legal conclusions, not allegations of fact, and are therefore insufficient to state a plausible claim for relief under the Civil Practice and Remedies Code. See Twombly, 550 U.S. at 556-57 (finding that a plaintiff must do more than recite the formulaic elements of a cause of action). Moreover, as discussed above, the assignment of the Deed of Trust is merely voidable by the two parties to the assignment—MERS and Defendant. Plaintiff has not been put in danger of having to pay his mortgage twice or of being foreclosed upon twice by two different entities. Thus, it would be difficult for him to demonstrate any injury, financial or otherwise, stemming from the assignment.

    E. Breach of Contract
    Plaintiff also brings a cause of action for breach of contract, alleging that the mortgage was sold by the original lender into a credit default swap and was paid by insurance companies. (FAC ¶ 22.) Plaintiff contends that, when this occurred, he was no longer required to pay under the terms of the Note and Deed of Trust because he is entitled to “proper credit” for payments made by the insurance companies. (Id.)

    Under Texas law, “[t]he elements in a claim for breach of contract are: (1) a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach.” Richter v. Wagner Oil Co., 90 S.W.3d 890, 898 (Tex. App. 2002). “A breach of contract occurs when a party fails to perform an act that it has expressly or impliedly promised to perform.” Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 769-70 (Tex. App. 2005).

    Plaintiff’s claim for breach of contract fails because he has not alleged that he fulfilled his obligations under the contract. See Martinez, 2013 WL 1562759, at *9. Instead, he merely alleges that “Defendant has been paid in part” by multiple insurance policies. (FAC ¶ 22.) Plaintiff does not allege that these payments would have been sufficient to constitute performance of the contract. “It is a well established rule that a party to a contract who is himself in default cannot maintain a suit for its breach.” Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990) (internal quotation marks omitted). Thus, Plaintiff fails to state a claim for breach of contract.

    F. Declaratory Judgment
    Plaintiff seeks a declaratory judgment pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code finding, among other things, that Defendant is not “the valid proper assignee of the Note and Deed of Trust.” (FAC ¶ 13.) The Fifth Circuit has held that the Texas Declaratory Judgment Act is a procedural rule that does not apply in federal court. See Utica Lloyd’s of Tex. v. Mitchell, 138 F.3d 208, 210 (5th Cir. 1998). Plaintiff therefore fails to state a claim for relief on this ground.

    However, even if Plaintiff had brought his claims under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, his claims would fare no better. To be entitled to declaratory relief under the Federal Declaratory Judgment Act, a plaintiff must allege facts demonstrating that there exists “a substantial and continuing controversy between the two adverse parties.” Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003). The Act does not create substantive rights; it is merely a procedural device that enhances the remedies available to plaintiffs in federal court. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950); Appling Cnty. v. Mun. Elec. Auth. of Georgia, 621 F.2d 1301, 1303 (5th Cir. 1980).

    As described in detail above, Plaintiff has not pleaded facts to indicate that there is a “substantial and continuing controversy” as to whether Defendant holds the Note. Because plaintiff fails to bring any viable causes of action, the Court finds plaintiff’s request for declaratory relief should be dismissed. See Marsh, 888 F. Supp. 2d at 815 (citation omitted).

    G. Injunctive Relief
    Plaintiff’s request for a preliminary injunction also fails. Plaintiff may not seek a preliminary injunction in a complaint. Pursuant to Local Rule CV-65, “[a]n application for a temporary restraining order or preliminary injunction shall be made in an instrument separate from the complaint.” Moreover, to obtain a preliminary injunction, a plaintiff must demonstrate, among other things, a likelihood of success on the merits of his or her claim. See Harris Cnty. v. CarMax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999). Because Plaintiff has not pleaded a single viable cause of action, he cannot make this showing and his request for injunctive relief fails. See Pajooh v. Harmon, 82 F. App’x 898, 899 (5th Cir. 2003) (affirming the district court’s denial of injunctive relief when plaintiff failed to state a claim).

    III. Motion to Amend
    Plaintiff seeks leave to file a proposed Second Amended Complaint. (Doc. # 17.) The deadline set in the Scheduling Order for Plaintiff to seek leave to amend was January 4, 2013. (See doc. # 15.) Plaintiff timely sought leave to amend because he filed his motion on October 19, 2012. In his motion, Plaintiff states that he seeks to cure “erroneous references made in the first amended complaint” and leave to amend “because Defendant has filed a Rule 12(b)(6) motion challenging the sufficiency of [] Plaintiff’s Pleadings.” (Doc. # 17 ¶¶ 3-4.)

    “Under Rule 15(a), `leave to amend shall be freely given when justice so requires,’ and should be granted absent some justification for refusal.” Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 386 (5th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). A court may deny a motion for leave to amend for reasons such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Foman, 371 U.S. at 182 (emphasis added).

    The proposed Second Amended Complaint is virtually identical to the First Amended Complaint; the only changes appear to be the correction of a few typographical errors. Plaintiff conceded this was the case at the hearing. Thus, because the proposed Second Amended Complaint does not raise any new factual allegations that would cure the deficiencies of the First Amended Complaint, it also fails to state a claim upon which relief can be granted. To allow amendment would be futile. Moreover, the fact that Plaintiff did not make any material changes to the amended complaint leaves the Court with the inescapable impression that Defendant filed his Motion for Leave of Court to Amend for the sole purpose of delay. The Court also notes that Defendant has already been allowed to amend his pleadings once, following Defendant’s first Motion to Dismiss. (See docs. ## 4, 9, 11.) To allow further amendment would cause undue delay and prejudice Defendant, who has already brought two separate motions to dismiss.

    For the reasons stated above, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint (doc. # 16) and DENIES Plaintiff’s Motion for Leave of Court to Amend Pleadings (doc. # 17). This action is DISMISSED WITH PREJUDICE.


    [1] In its Motion to Dismiss, Defendant submitted copies of (1) the Note (indorsed in blank), (2) the September 5, 2007 Deed of Trust, and (3) the February 16, 2012 assignment of the Deed of Trust. (See doc. # 11.) Plaintiff also included these same documents in its Response to Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint. (See doc. # 18.) The Supreme Court has held that in deciding a motion to dismiss, a court may consider documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). By attaching documents to a motion to dismiss that are referred to in a plaintiff’s complaint and that are central to his or her claim, “the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000). In this case, the Note, the Deed of Trust, and the assignment are all central to Plaintiff’s claims and are properly considered by this Court.

    [2] Although Defendant invokes Rule 12(b)(1) in its Motion to Dismiss, Defendant appears to challenge Plaintiff’s prudential standing. The Fifth Circuit has explained that issues regarding Article III standing are properly addressed under Rule 12(b)(1), whereas prudential or statutory standing issues are addressed under Rule 12(b)(6). Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011).

    [3] A “book entry system” is defined as “a national book entry system for registering a beneficial interest in a security instrument that acts as a nominee for the grantee, beneficiary, owner, or holder of the security instrument and its successors and assigns.” Tex. Prop. Code § 51.0001(1).

    [4] The Note was originally indorsed to Countrywide Home Loans, Inc., which then indorsed the Note in blank. (See Doc. # 16, Ex. A.)

  37. Let me examine the language with Black’s law.

    Nominee: One designated to act for another in his/her place; to facilitate transactions even though customer is actual owner of securities, sometimes used to signify agent or trustee, it has NO connotation however, other than acting for another, representation of another or grantee of another.

    Beneficiary, Black’s law; one who benefits from act of another. A party who will benefit from a transfer of property or other arrangement. A person who has a present,or future interest, vested or contingent, also includes the owner of an interest by assignment or other transfer.

    The legal language in both instances clearly does not give MERS any assignment powers. Facilitation of an act, does not mean you have exclusive authority to act on behalf of a party. They are very different things and can have grave consequences.

    If they are beneficiaries then they would get a benefit from an act. What would that be, if they are not lenders?

    And a nominee for whom, alien extract?

    It’s all garbage for me. MERS is a CD as far as i can see. What authority or benefit would a CD get?

  38. “…any rightful reliance by the borrower that the lender would first come after his home, not his pocketbook, which as I’ve said is a particular benefit to the borrower,)”

    Most of us here may not recognize the value of that, that being that a lender must look to the security before the borrower’s pocketbook.
    This is by and large because our homes are our most significant assets, and we, many of us, dont even think in terms of other assets.

    Pretend you have a lot of money or other assets and little or no equity in a house. If that were true, you would not want the lender to be able to attack your pocketbook or other assets first, instead of the collateral. In order to get at your pocketbook, the lender must barrel thru the collateral, the house, first, and the lender may only get a deficiency judgment (now think your pocketbook or other assets) if he seeks it in one-action*, that is, by way of a judicial foreclosure.action which seeks both the collateral and a deficiency (out of your pocketbook).
    *this is true in state’s which have a “one-action” rule. States also must allow deficiencies for the lender to get one even in one-action.

  39. “Why did they not designate MERS the agent in the deed of trust?” is
    unavoidable, yet we and courts have amazingly managed to avoid it.”

    I think I can state one reason: look at the benefit to them to date of calling MERS a nominee instead of an agent. And if they meant to bifurcate the note and dot, calling mers the agent of the lender, the true ben, would not accomplish that.

  40. well, yet again i said something wrong.. If the lender meant to make mers either its nom, the ben, or the nom and ben, and not its agent,
    it’s more likely than not the lender intended bifurcation for reasons we, as i’ve opined, have yet to figure (unless the obvious one is the case – to make mbs’s not mbs’, but just ABS’s).
    but I stick by what i said last – turn the tables. if nom is taken by courts as limited agency, demand to know agent for whom.
    Courts say well an assgt is an assgt. Well, no it isn’t when we don’t know who the assignor is, in this case, the limited agent’s principal.

  41. you know, poppy, I dont think one or more very important questions have ever been squarely confronted and answered: What is the true ramification of naming a party as both a nominee and thee beneficiary in a deed of trust? What intent of the party* who did it may reasonably be inferred by doing this? Was it the party’s (the lender’s) intent to make the named party its nominee? Was it the lender’s intent to make the named party thee beneficiary with the beneficial (true) interest in the dot? They’re clearly not the same thing. For courts to just say ‘well, a nominee is a limited form of agency’ is a cop-out, is hollow, and does not answer the questions.. This is true, for one reason as I’ve said, because most if not all agencies are in fact limited in their authority-granting. It’s like saying the limited agency is limited. (No kidding? really?) Plus, agency is just not a fact in evidence and it patently conflicts with the “nominee” designation. The question
    “Why did they not designate MERS the agent in the deed of trust?” is
    unavoidable, yet we and courts have amazingly managed to avoid it.

    *A court may find intent by the language in a contract. Whether or not this applies to these contracts, I’m not certain in that they are about real property rights which require expression, not findings “by implication” . But then, implication and intent are not, or not necessarly, the same thing..

    The dot does call those guys both the nom and thee ben, possibly naming no one with the true interest as beneficiary, i.e. no beneficiary. I’d like such a finding a lot because it would leave the note enforceable only in states which don’t have security first rules (but still there is the little problem for them of the ref in the note to a collateral instrument and any rightful reliance by the borrower that the lender would first come after his home, not his pocketbook, which as I’ve said is a particular benefit to the borrower,)

    Next to that, I think the next finding I could stand is that the lender named on the note is thee beneficiary and all assignments must be executed and recorded (or even if not recorded, executed until enforcement is sought and then all of them have to be recorded to keep the chain an unbroken chain). If allowable to decree the lende – just looking at this as if all that other bs doesn’t exist) if the assignments down the chain were to those who had paid for the note.
    Next to that, I’d like a finding the note and dot were bifurcated and let the arguments begin about whether or not it’s fatal to enforcement, at least against the real property or whether they may now be united, and if they may, what else must be done so that public record as to the dot is consistant with the note’s legitimate transfer(s).

    When I say “I’d like”, I mean I think that those are the findings in order of what I think could be found.

    The only practical thing I can think of to do just now is to ask the bankster (or “MERS”) under exactly what position / authority do you claim your right to assign this deed of trust? Is it as ben? Is it
    as agent? Is it as nominee? Actually, the assgt itself should answer that question, but because the assignments are themselves tweaked, one can’t truly do that or might not be able to. Oh, hell. The assgts or a lot of them say “as nominee” for an unidentified party (“as nominee for Original Lender, its successors and or assigns”. big whoop. (it also says mers is thee ben) Okay, so let’s say the assgt identifies mers authority as stemming from its nominee status. For whom? Must a nominee, like an agent (who must, must, must), identify for whom it’s nominee and execute an assgt accordingly (“as agent for”)? **
    You know, we really are handicapped because there has been no proper adjudiction of what a “nominee” is in a dot which otherwise doesn’t name a beneficiary with the true interest and also of an instrument which calls someone both thee ben and a nominee (but then, that someone strays even further and calls itself an “agent”!). . One court says a nominee is a limited agency. Another says mers is the ben. Yet others say MERS is no one, regardless of what it’s called in the dot. And as to this last one, what all might that mean? Is the lender the “default” ben? Is there NO ben? I know this seems circular, and like a maze, but there’s a way out and imo it might be
    by way of a case going up to that highest court, brought by a consortium of really, really good and experienced minds. Of course, the downside could be a decision we don’t like and stare decisis could if not would apply: it would be the law of the land.

    **hey, now that i read this, it occurs to me that since courts have found that mers as nominee is a “limited agent” (bunk), we could easily turn the tables.
    Agents do stuff by agency, right? “as agent for an Identified Party” is how it’s supposed to be. So mers as noninee is a limited form of agency, okay. Okay because agency is agency. That means they have to, even as nominee, identify the party for whom they purport to execute the assignment .duh on me. You all don’t seem to believe that an agent must identify its principal when acting for that principal. If you’re not able to intelligently agree with or make arguments against these arguments of mine, imo, you need to read up until you can – either way. And either way, more discussion is what we need. imo.

  42. Thanks, Poppy. You;re a trooper. I see they did not get rid of Stripes. What is wrong with them?

  43. You know the instigator is just as responsible as the target…come on guys, she was thrown off before for this!

  44. It’s a real shame I have to stand on a pile of horsesh[t to post in this forum.

  45. @jg – you left out the part about the designated beach baller (dbb). The dbb remains hidden in the sand until a ‘side out’, then magically appears out of nowhere, claiming a gent sees for the player who couldn’t make it to the game. As such, he is entitled to hide the ball until the end of the game by throwing sand in the opposing team’s eyes.

  46. @jg- bravo, someone’s got his thinking cap on today- i love the beach ball analogy.

    @tnharry- good to see you

  47. “The judges dont seem to have a problem understanding what I am trying to convey……”

    Unreal… The house free and clear with no encumbrance, no lien, no mortgage and the moron is losing it for refusing to pay not only RE but also IRS taxes, without having ever enunciated her reasons. That’s how she lost her business too. Everything foreclosed by the state and the feds. That’s how Patricia describes her case… The squandering of her business and house because of her attitude (or mental illness). Well known by the courts. Not because of her wins though.


  48. True enough jg. Why, it was only this evening that I learned that I too had been Sikh brainwashed…

  49. Not for nothing, but filing bk isn’t disgracing the people of Detroit. The unions and local politicians did that long ago

  50. well, now, tn harry, you know I don’t usually make it a practice. to do that, though I understand your question completely, being one who is irritated myself at the backlash there, preferring everyone to ignore. Every once in a while in the midst of a rant or rave, something shows up that I think I may want to know about, tell the truth. So recently I have tried to see if it’s possible for me to learn – there – what I want to know. After trying enough times to satisfy me that the answer is no, knowing that it’s a no”, I won’t likely try again. But if you are saying, as i believe, that disagreeing generally or backlashing is destructive to our interests, I couldn’t agree more. I just wanted, needed maybe even, a dot at the end of the sentence. I appreciate your own civility in broaching this with me.

  51. No, the Rodriguez case is not published yet. I am trying to find the original complaint…now. I have to pay every time I click on the documents…patience.

  52. JG, why do you try to engage with stripes? There is clearly some imbalance going on there. Or have you been Sikh brainwashed to the point of no return?

  53. poppy, I think I misunderstood your earlier question. I said it correctly that a ben holds the ben interest. But, the lender up til MERS raised the ugly head, was also named as the beneficiary, that is, the party with the benificial interest. I think what you were looking for is about when a party who does not have the beneficial interest is yet named the ben in a dot. Without writing a tome, all I can say is that
    as to MERS, if MERS is thee ben and holds the beneficial interest, the note and dot are bifurcated. If MERS (or anyone) were an agent, which MERS isn’t – OR at least has NOT demonstrated it is (it is not by the language in the dot), MERS would hold the beneficial interest for its principal, which means the principal holds it, just thru its agent.
    They tried, I swear, to plug a round one with a square peg by calling MERS both thee ben and a nominee for the ben, and not denominating mers an agent, for reasons we have yet to fully glean. They cant be both. No one could. I have said and haven’t discarded the idea there is actually NO beneficiary named in a dot. This would be different if the dot had said ” Washington Mutual, the lender, is the beneficiary of this dot and herein and hereby appoints MERS (or anyone) as its agent to hold the interests of Wamu in public record and to have rights to do x,y, and z. ” But they didn’t. And to me, it was no mistake or, also to me, theyz just plain stupid.

    But we do know that MERS has disavowed the beneficial interest in the dot, for instance in nebraska dept of Banking and Finance v MERS,while concurrently arguing ‘over there’ otherwise.

    If mers IS an agent (which IF it is, despite what some courts, well, blabber, it has never demonstrated) of the guy with the beneficial interest in a dot, mers may assign the interests of its principal IF doing so is within the scope and extent of that agency and IF the assignment is done by MERS as agent of an identified principal. (MERS can’t be the agent of the boogie man anymore than I could)

    If MERS is thee ben, the note and dot were bifurcated (if the dot recites a ben at all).
    So enforcement pursuant to a MERS’ assignment depends on whether a venue believes MERS is thee ben or is an agent (or none of the above) and whether or not if bifurcated, a note and dot could now be unified (and how well one may argue a prior decsion in that jurisdiction were errant, as necessary) And, one would have to see what MERS alleged in any given case. Claim it’s thee ben? claim it’s an agent? claimed what? These are overlooked but dispositive issues imo.

  54. JG, It appears Rodriguez v. Boa is not yet on scribd. Still looking.

  55. Tranches…payouts based on quality of loans, LOL He, He, He…imagine that?

  56. I meant, of course, that they are different pay outs,not that there aren’t (like tiers)

  57. stripes, sorry, you are officially impeached. Even if you have some inkling of what you’re talking about, you are positively unable to convey it .

  58. But actually stripes, despite your glaring lack of logic, etc., it raises an interesting set of events, Alleged evidence of the right to payment of an obligation evidenced itself by a tangible, paper note is made in an uncertificated form, that is, no paper. Doesn’t seem like anything at a glance, maybe, but is it, I wonder. If we were talking anything but an instrument, a contract, regulated by the UCC, pretty sure we wouldn’t give any kind of hoot. When one buys a share in production of a well, but not the well, say, by way of buying stocks, that interest is
    uncertificated. But that’s not a(n allegedly negotiable) instrument. I can’t say – at all- why it might make a difference, just throwing it out.
    Something along the lines that the paper note, the note itself, is destroyed by conversion to securities, expecially in light of the fact that there aren’t different pay-out, tiers, structures, but then, by that reasoning, that would be true certificate or no.
    Can a trust own the notes with its members as beneficiaries to either all the same prorated interests or tiered interests without changing the characteristic of the note? Well, I’m thinking as long as (there’s that infamous as long as) the payout by the trust doesn’t exceed the dollars the notes on their faces are stated to generate.
    If the payouts, which were purchased, exceed the dollars coming in on notes, what does / might that mean, if anything? Does it change the note or does it just mean the trust is “over-extended”? And what about when the payouts which were purchased exceed the payouts in any give time frame, say six years? Anyone on this? Do we care?

  59. rodriquez v bank of america texas district court

    louise, while your waiting for poppy to have time to get those docs, try typing in the above – it’ll get a few hits. Then, type it again and add
    “scribd” to the words to see what that gets you.



    jg: were that but true! And wth isn’t it?


    jg: “as a result of the negligence by the issuer,** as evidenced by the fact (one not in evidence) that no original trustee receipts exist
    (what original trustee receipts?) the polity is the only registered owners of the uncertificated* securities. The polity is the legal title holder of record (how’s that exactly? you must be alleging by default, but this we don’t understand because you’ve never said how that might be so) as evidenced (where? how?) by the fact that the we, the polity, never granted any legal interest (in what?) to anyone else.”

    * an uncertificated security or stock is one which doesn’t have a paper to fork over to anyone to evidence rights and ownership. Entries are merely made in electronic format (electronic books), such as with the stocks one buys thru TDAmeritrade or Scottrade or eTrade, say.

    ** which you, stripes are saying is tantamount to securities fraud (the negligence or for any reason that receipts weren’t generated you say is fraud – okay, where can we look this up? or by what anything is it determined that the lack of receipts is fraud and that in turn means that we own the securities? Pray, do tell!)

  61. In my comment at 2:57, in that scenario I have chosen not only to NOT
    transfer Sam’s note to Marty (which would be to sell it to him imo), I have chosen not to hypthecate or pledge the note as security, either, to Marty as security for my 50k loan from Marty. All Marty has is a piece of paper, but one which, if not definitely than most probably, prevents me from going after Sam if the need arises.

  62. last three dox and the complaint if available. Is that feasible? Thanks,

  63. Gotta love the “transparency” in this new regime, ha folks? Hope and change, Yee Ha!

  64. The case is in Corpus Christi, TX and the last request for summary judgment by the Plaintiff, Rodriguez, was denied.

  65. Ben A could assign his interest in the dot to Ben B for some reason of their’s besides the fact that ben A sold the note to Ben B, that is, Ben B didn’t buy A’s note. But ben B can’t enforce that interest even if conveyed for want of interest in the real thing, the debt obligation. In that state, Ben A who has retained the note, may no longer enforce the note agianst the real estate for lack of interest, no longer being the beneficiary. Could A enforce his unsecured note
    against the maker and seek a money judgement? Sure, AS LONG AS
    a “security first” or other rule / statute or the contract itself doesn’t prohibit it ( a ‘first action’ on the note v one against the collateral).

    Why would a ben convey a dot to someone else, someone he hasn’t sold the note to? There could be lots of reasons. Here’s one: I’m the lender, a private party for this example. I own sam’s note and dot. (good old sam) I borrow 50k from Marty, but I’m not going to transfer sam’s note to Marty because he’s an alchie or for any reason in the world I choose not to. But he wants something to assure I will pay him
    back and all I have really is sam’s note and dot. So I assign the dot to marty. Marty can’t enforce my note and the dot because it’s still MY note. I can’t enforce my note against sam’s hosue (or likely just sam) until i get that stinking dot back that I assigned to Marty. Marty isn’t assigning it back to me until he gets his 50k back from me.

    AZ appears to think differently. AZ says, as i get Hogan, that Marty may enforce the dot against sam. nah. They missed some stuff.
    Am I at risk for Marty enforcing the dot against sam? No, I’m NOT. Marty has nothing to enforce. He’s got a collateral instrument, which, without the note it secures, is nothing to enforce. He’s got a piece of paper, which even if it doesnt do anything for him in regard to sam, does mess me up in that I have to pay Marty to ever be able to go after sam. I let Marty, by my assignment of the dot to him, queer my ability to enforce my note against sam, at least in security first states and or if the contract at issue itself prohibits me from first seeking a money judgment against Sam.
    this is just ONE example why one might willfully bifurcate a note and its collateral instrument. Some schools say once separated, they can’t be re-united ( take note please RE-united, not united). I’m still working on that fwiw. Take all the help I could get. I’m just saying……

  66. Okay folks, what is it you want to see, boat loads of papers….
    Rodriguez v. BOA-Countrywide
    2:13-cv-00133 Rodriguez v. Bank Of America, N.A. et al

    Doc. No. Dates Description
    1 Filed & Entered: 05/15/2013 Docket Text Notice of Removal
    2 Filed & Entered: 05/15/2013
    Docket Text Corporate Disclosure Statement
    3 Filed & Entered: 05/15/2013 Docket Text Supplement
    4 Filed & Entered: 05/16/2013
    Docket Text Order for Initial Conference and Disclosure
    5 Filed & Entered: 05/16/2013 Terminated: 06/24/2013
    Docket Text Motion for Preliminary Injunction
    6 Filed & Entered: 05/22/2013
    Docket Text Answer to State Court Petition/Notice of Removal
    7 Filed: 05/29/2013 Entered: 05/30/2013 Terminated: 06/24/2013
    Docket Text Motion for Temporary Restraining Order
    8 Filed: 05/29/2013 Entered: 05/30/2013
    Docket Text Certificate of Interested Parties
    9 Filed: 05/29/2013 Entered: 05/30/2013 Docket Text Notice (Other)
    10 Filed: 05/29/2013 Entered: 05/30/2013 Docket Text Response
    11 Filed: 05/29/2013 Entered: 05/30/2013 Docket Text Declaration
    12 Filed & Entered: 06/05/2013 Docket Text Supplement
    13 Filed & Entered: 06/14/2013 Docket Text Motion for Summary Judgment
    14 Filed & Entered: 06/19/2013 Docket Text Response
    15 Filed & Entered: 06/20/2013 Docket Text Proposed Order
    16 Filed & Entered: 06/24/2013 Docket Text Order on Motion for Preliminary Injunction
    17 Filed & Entered: 06/24/2013 Docket Text Memorandum
    18 Filed & Entered: 06/28/2013 Terminated: 06/28/2013
    Docket Text Motion for Extension of Time
    19 Filed & Entered: 06/28/2013 Docket Text Order on Motion for Extension of Time
    20 Filed: 07/02/2013 Entered: 07/03/2013 Docket Text Response in Opposition to Motion
    21 Filed & Entered: 07/15/2013
    Docket Text Response to Motion
    22 Filed: 07/15/2013 Entered: 07/16/2013 Docket Text Document
    23 Filed & Entered: 07/18/2013 Docket Text Reply to Response to Motion
    24 Filed & Entered: 07/19/2013 Docket Text Supplement

  67. You know what, stripes? If you signed a note, you have nothing to say about to whom it gets sold unless you reserved that in the note. A note owner may sell it to someone in timbucktoo. You’re calling the securities yours because why? they’re not yours. they’re not mine, at least it’s not a fact in evidence. Unless you can express why they’re yours or mine, stop saying it. it’s distracting. can you possibly make a complete argument?
    No one without writing a book can nicely wrap this up by one comment. No one, and definitely not what to do about it. One, here you, could say it’s all crapola because they used our own money to loan us or they created money to loan us and this means, by way of X, this is our own money and securities. You,every single time, bar none, in every single rant and rave fail to articulate the “X”.
    You make no effort. You don’t’ even try to have your conclusion match up with any particular assertion. I guess you think repetitive assertion of disjointed allegations is going to do or accomplish something. You’re mistaken, unless you have your own agenda. Your disjointed, whacked-out stuff is not helping any one here. In fact, the only thing your incessant, disjointed ranting might do is ultimately cause the reader to feel oppressed. I don’t personally believe anyone pays you. You’re too goofy, but then again, your rantings do have an undesired (for us) consequence by way of that oppession and the fact that those of us desperately seeking ways to keep our home watch day after day as those who might contribute something of value abandon ship
    because of YOU. So from me to you, thanks a lot, pal.

  68. No apologies necessary. There are a bunch of us who want to see the “new foreclosure defense.”

  69. I will post, later from Pacer, been working on AP against Credit Suisse, in between chatting here, sorry!

  70. Poppy, sorry to nag. Did you get a chance to find the Complaint and last answer to motion on Joe O. Rodriguez v. Bank of America in Texas USDC? Thanks.

  71. Ha, Ha, Ha stripes…okay our government now follows the law, Oh please say it ain’t so! LOL

  72. Me, too. Poppy said she had a Pacer account and would post. I await her pleasure. Nothing on line so far and nothing on Scribd.

  73. poppy asked:
    Isn’t there a difference between a beneficial interest in a trust and a beneficiary?

    well, yes. The beneficiary is not the beneficial interest. The beneficiary, a person (here meaning legal entity), holds the thing,
    the beneficial interest. For ease, take a beach ball as the beneficial interest. Beneficiary A is holding it and tosses it to someone else, Beneficiary B. If the beach ball is a beneficial interest, the way ben A tosses it to ben B to give it to B is by way of an executed assignment and its delivery to Ben B. The beach ball / interest hasn’t changed, just who owns it. The only (general) reason ben A would toss that ball to Ben B is if ben B had paid him for the note. If Ben B has paid Ben A for the note, Ben B has a right to have the ball tossed to him. But I always say ben B doesn’t have that ball until ben A has tossed it to him (how could he?), i.e., executed and delivered an assignment. I also say because I believe that it can’t be enforced against the obligor until that obligor and others have Notice that A tossed the ball to B and B now has it. Feels kind of silly, but that’s how it is.

  74. If I assign my interest in something to someone I must own it…these players are not owners.

    What is always missing IMHO, is the link from the lender who loaned the originator the money, not the borrower, to pool and sell forward the volume of loans, originated. The originator poses as the lender, which they are not, grants a trustee facility to work on behalf of the pool of loans going into a specific trust, which again, many did not(nullifies the trustee part, even if assigned), no trust – no PSA agreement applies, no servicer can be working for a trust that does not exist, and no losses can be claimed for the investors, the legal claim cannot be met, if there is no trust.

    They can assign until the cows come home, but if the trust never existed or it is closed, the case for “working on behalf of” does not exist in the court.

    IMO, the players coming to court are not working as trustees of REMIC trusts, they are bond trustees…an entirely different cat.

    For me, I have to live with this garbage judicial system, but I am not buying anything these courts are saying and further, these judges ALL know what is happening. The banksters are working off a revenue stream of payments. That is what this entire BS is about collecting payments. And if they cannot get that, the foreclosure carries with it a stipend from the taxpayers, that covers the loss in a foreclosure sale.

    Follow the money…IMHO and non-lawyer, no advice here.

  75. yes, NG, mrp is at it. i’m not sure I like their involvement with cities in this deal. I recognize that unless a business is a non-profit, it’s in it to make money. A problem I have with that is the abuse that often happens once it becomes easy TO abuse, and we’re still talking about our homes here, not our jetskis. This could easily be the case with an MRP not far down the road. If they got together a group of people who could handle the intracacies of em domain, good on them. But, I think we should take a step back and look at what could easily go awry and find these companies making outrageous fees or what not on our backs. Another problem I see is that an MRP deals with reps for cities who don’t know S from shortcakes about real estate or real property loans, the subject here. Knowing how to implement em domain is grand, but is just not good enough. Any cities contemplating its use needs to get an attorney or five on-board who does know S from shortcake before commiting to companies like MRP’s involvement.

    Because the cites are set to benefit by these deals, someone in this act needs to represent homeowners and see that the compensation to cities is also reasonable and doesn’t become a run-away vehicle to solve their own financial woes. I think the potential problems here can’t be overstated. People have slipped plenty of stuff in regarding home loans to our detriment, as we now so clearly see. I guess I like using em D, but we shouldn’t let this be the start of another thing to complain about later by not paying attention and not being heard NOW.
    North las Vegas, for instance, is looking seriously at em domain. People there should get in the act while they can to influence how it’s implemented. imo.

  76. Isn’t there a difference between a beneficial interest in a trust and a beneficiary?

  77. louise – what are the statutes in play there? sure like to take a gander at those!

  78. I think it’s also fair to say that anyone taking title by way of a qc deed from a dot trustee is on notice and can’t be found to be a bona fide
    purchaser for value. That, to me, is worth a lot to those who think a door has been closed by an allegation that the purchaser was a bona fide purchaser for value without notice. The qc deed to him is notice. Therefore, he’s not a bf purchaser without notice and thus that door is not in fact closed.

  79. In my state, a quit claim deed is the only deed a layperson can issue on a property, because all other transactions for real estate must be by an attorney. A quite claim deed does not really mean anything if it is not filed with the county Reg. of Deeds. An attorney takes the quit claim deed and legally changes it to a warranty deed and files it with the county, obviously, for a fee and another fee to file.

  80. A quit claim deed itself creates a cloud on title, a little known fact. .I’m mentioning this in reference to some dot trustees conveying by QC deed instead of by the appropriate warranty deed. but, bad news, what they know which we didn’t know I’d hazard is that the cloud on title created by a quit claim deed is toast after five years (if no one raises the issue of the qc deed as the cloud it is, after five years, there’s nothing to argue the cloud is poof! gone). My source of info re: the five years is a title company’s web site. But, in that five years, because a qc deed creates a cloud on title, it might be fair to say that a qc deed leads to a duty of inquiry (why was this interest conveyed by a qc deed instead of by a warranty deed?) Yeah, i think that’s accurate.

  81. Hey, MS, where are you? You said:

    “Now listen – this is so very important . I know what your trying to say here . If the deed is used to transfer and convey – then why are you all fighting the Mers Corp assignments ? In a conveyance their is no assignment.”

    ms, I see what you meant. You meant, I think, that if a dot is a conveyance (which it is), movement of the interest conveyed would be done by deed and not an assignment, and therefore why do we care about a MERS’ “assignment”, which would not be the proper vessel to move the interested granted in the dot, and therefore does nothing relevant to the interest conveyed in the dot. And you are saying that any movement would be by deed, not assignment.

    But why, ms, that is not accurate is because the interest conveyed in the dot isn’t changing by an assignment. The interest is and remains in the trustee named in the dot (and / but is held in trust). An assignment doesn’t change that. What an assgt, the proper vehicle does, is changes the party who has the benefit of that interest conveyed and held in trust by the trustee. The interest itself isn’t changing – just who may benefit. I’m actually glad you brought this up as it’s been nagging me. I guess one could say the corpus of the trust created hasn’t changed with an assgt What changes is the beneficiary, the “who may benefit”, who has the right to do anything about non-payment of the debt that the interest-conveyed-in-trust secures. So, bottom line –
    an assignment isn’t a new conveyance (not a new grant of interest);
    it’s just a change in the beneficiary of that already conveyed interest.

    It’s an absurd proposition that a borrower has no right to know who is the beneficiary of an interest which has been conveyed in his home.
    I believe any state statute which does not mandate recordation, that is notice, of the change in the beneficiary of interests in our homes is a load and or is being misconstrued. One may not have a right to notice of who owns an unsecured note he has signed (doubt even that), but when it comes to real property, it to me is apples and oranges. A state statute may say an assignment ‘may” be recorded. Taken at its face, yes, assignments may be recorded. Stop. To me, that just gives notice to an assignee and assignor that they may record an assignment in land records, i.e., it’s a permissable recordation (unlike say generally
    personal property interests aren’t recorded in public record at the county recorders).
    But banksters assert that to mean the permissive ‘may’ means they don’t have to. Because there is no way one has no right to know
    who is the beneficiary of an interest held in trust on one’s home, that just isn’t the end of the story, even if I can’t fully support it this minute.
    I don’t think i have to support that before any lender could move on that beneficial interest held in trust, the borrower must have Notice of that interest. That’s one of the reasons courts are holding that the claimant must be the ben prior to moving on that interest – to 1) have it and 2) to give fair Notice that it does.

    So, ms, you might try lining up what an assignment actually is and does with your other tenets.

  82. C, Joe O. Rodriguez v. Bank of America USDC Texas New approach to foreclosure defense. I need a copy of the complaint. Poppy is checking which I appreciate very much.

  83. Rodriguez v. B of A – TX

  84. Poppy, this is a very unique case with a different point of view that does not access equity. Case is Joe O. Rodriguez v. Bank of America USDC Texas case.

  85. Another Scam, everyone needs to go to College and pay, pay, pay!

    Terms for lending money to college students for their tuition are such that they would make loan sharks green with envy. One aspect of these loans that make them very attractive to private lenders is the near impossibility of them being discharged in bankruptcy.

    “They are almost guaranteed to be collected, so it is easy to sell the notes,” said Barmak Nassirian, formerly an official with the American Association of Collegiate Registrars and Admissions Officers.

  86. You are correct…jim.

    If we were working under the laws, this wouldn’t be a problem. We are playing by rules and they are not! The law works when it is followed.

    We have an entire dysfunctional system created by the haves, to take everything and control it all and unbelievably, not one effing governing body is stopping them.

    As for me, no lawyer, but do have legal experience and used to think those old cats in wigs had some good stuff…this garbage: legal slim, maggots, karma, I hope will be a biotch!

  87. So Poppy,

    As the song goes, “do you believe in Magic….”

    These mortgage schemes are almost like religious fables, the specifics of which must of necessity be left to ones recollection of dogma: miracles and magic.

    As a fallen away legal type ill never be able to overcome the bitterness of realizing its all a bad joke perpetrated by the monied powermongers on the rest of us. The law is a JOKE.

  88. Louise
    , I don’t have a pacer and all I could find unusual about Nueces
    is this”
    Investigators baffled by dead judge’s debts
    State District Judge Tom Greenwell was hundreds of thousands of dollars in debt when he fatally shot himself in his chambers at the Nueces County Courthouse, investigators say

  89. Have Pacer and will read it (Rodriguez v. BOA, go figure), get back to you here…

  90. “Steven Gluckstern, who’s spent more than a year pushing local governments to seize mortgages from bond trusts to cut balances and help homeowners, is renewing attempts with backing from cities in California and Nevada”.

    Bond trusts…hmm, the conversion of the promissory note to bonds, means there is no mortgage…just a revenue stream created by the bond debt. Jeez, your cutting balances to the bond holders of what, Steve? No hero’s here. And you cannot “legally” create another mortgage contract here or foreclose, WTF?

    No where in your promissory note does it say you agreed to this shit and shit is what it is! Sorry for the language, but come on folks…

  91. Well said, Fawkes….

  92. Eminent Domain……who the hell was smart to expand the GOVERNMENT with the power to seize PRIVATE property ????? Stupidest idea ever.

    Put your hand up those of you who actually trust our government ??? Yeah, that’s what I thought.

  93. It seems that everyone needs to start invoking ALLODIAL TITLE on their lands. As a paralegal who’s researched this for years, it appears that no state legislature has ever overturned allodial titles anywhere. Can’t find where any state statute has overturned or eliminated allodial titles.

    Once properly and legally invoked, the state, county, or municipality no longer has any claim to your property via property taxes, school taxes, or municipal taxes.

    That should eliminate the problem once and for all.

  94. So much magic in the mortgage business. Now we have mortgages “reconstituted.” And to think mine was merely stolen.

  95. There is another big, influential case about mortgages out there which is going through the Courts in Texas. It has real traction, but does not seem to be out there for all of us to read. Of course, it is located on Pacer but not everyone has access or an account. The case is Joe O. Rodriguez v. Bank of America. Anyone seen it out there? Also, in Nueces County, Texas.

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