Recently became aware of this amicus curiae brief (link at bottom of this post) in the appeal of the case of Ashley Martins v. BAC Home Loans Servcing, LP; Federal National Mortgage Association (appeal # 12-20559). I wrote about this horrible appellate decision back in May, and said the following:
“Well, nice try geniuses, but the wording of Kirby and all the cases it cites do not have an exception for MERS. In other words, Kirby and Carpenter do not say that mortgages can be assigned separate from the note under certain circumstances. They say that assignments of mortgages separate from the note are a nullity, end of story. Period. No exceptions.
And why do they say that? Because the note and mortgage are inseparable, but even though that is the case, the mortgage is only an afterthought to the note and the note is to be considered superior to the mortgage. That is, the mortgage is not the issue, the note is.
And I should point out that the 5th Circuit cites to some recent Texas cases which incredibly say that the note and the mortgage are separate obligations. However, this misguided notion obviously flies in the face of what earlier Texas courts (as discussed above) have said, and when this misguided notion is brought before the 5th Circuit, it is the duty and obligation of the 5th Circuit to refute such nonsense, particularly when the 5th Circuit itself has already ruled–i.e. established binding precedent–that the note and mortgage are inseparable. In fact, the 5th Circuit has tied its own hands regarding matters such as these, particularly in the case of FDIC v. Abraham (5th Cir., 1998).”
The Rogers/Casey brief NAILS IT!
Stephen Casey (whom I do not know) and David Rogers (with whom I have had a few great discussions) wrote up an amicus curiae brief in an attempt to get the 5th Circuit to hold an en banc rehearing, vacate the panel’s horrible decision, and reverse the district court. In other words, it’s kind of a motion for reconsideration at the appellate level. Casey and Rogers also ask that, if the 5th Circuit prefers to keep endorsing and allowing blatant fraud to continue (which is my guess as to what the outcome will be), maybe the 5th Circuit could certify questions on these matters to the Texas Supreme Court.
It’s a great read, and it really takes the 5th Circuit judges back to law school. It even manages to get in the great work recently done against MERS by Judge Nelva Gonzales Ramos in the Nueces County v. MERS case.
The brief really gets to the heart of the problem, which is this: JUDGES ARE NOT FOLLOWING THE LAW. Simple as that. That’s why we’re not seeing massive victories for homeowners. Oh, the judges make it appear that they’re following the law, but they clearly aren’t, which Casey and Rogers make abundantly clear. If you don’t have the time or the inclination to read the whole brief, the “Summary of the Argument” quoted below will give you the gist:
“1. In this case, the panel articulates fundamental principles of law, but does not follow them.
2. The panel articulates the principles set forth by the United States Supreme Court in Carpenter v. Longan that a lien is incident to a debt, and that when a debt is transferred, the lien transfers with it, but an attempt to transfer the lien without the debt is a nullity, and transfers nothing. But the panel expressly repudiates the Supreme Court, and does not follow the articulated principle.
3. The panel articulates the principle, found in Texas Jurisprudence, 3d Deeds of Trust and Mortgages that “any attempt to assign or transfer [a mortgage] apart from the debt is a nullity,” but expressly repudiates the authority of Texas Jurisprudence, and does not follow the articulated principle.
4. The panel articulates the principle of the Texas Property Code’s definitions, but does not follow the articulated principles.
5. This Brief amplifies two points the Appellants make in their brief. First, this Brief argues that the panel opinion erred in its presentation of Texas law regarding the nature of promissory note and deed of trust transfers, overturning over a century of unchanged Texas law and federal law both from this Court and the United States Supreme Court.
The panel opinion, in effect, lets the “tail wag the dog” by suggesting that assignment of a deed of trust has any effect on a promissory note. Second, the Brief argues that MERS’ role within the mortgage foreclosure process has been confused by a failure to follow basic legal definitions within the foreclosure context. MERS is allowed under statute to serve as a mortgagee, but such potential of action does not mean MERS, when listed as “beneficiary” on a deed of trust, is in fact necessarily designated as a mortgagee.
The relevant statute is permissive, not mandatory, and has been misconstrued by the panel. Additionally, the panel has conflated the traditional common law definition of mortgagee, and the powers attendant thereon, with the new Texas statutory definition of mortgagee, which is both broader and more limited than the common law, traditional definition. In making these errors, the panel has disrupted the balance of interests, powers and rights painfully negotiated over more than a century and half between lenders and borrowers, homeowners, trustees, and thirdparty servicers and recording organizations. The error of the panel threatens the predictable flow of commerce and the certainty of contract and property rights for 22 million Texans.”
Download/read the brief yourself: Amicus Brief –David Rogers