Tag Archives: Pooling and Servicing Agreement

Certified Forensic Loan Securitization Analyst


I am happy to announce my certification as a Mortgage Securitization Auditor.  I have been helping people with this type of information for a few years now by passing them on to Bloomberg forensic mortgage securitization auditors I know.  I decided to educate myself to this procedure and am very grateful that I put myself through that learning curve.  Being a Mortgage Securitization Auditor allows me to complete a Bloomberg Forensic Loan Securitization audit for lawyers or their clients, property owners, and those who might be in litigation against the illegal foreclosure of their property and are trying to prove lack of standing, the void or voidable condition of their note, filing for quiet title, and much more.

Our report will include the following:

  • Loan Recording at county, governmental housing reporting agencies and financial reporting services
  • Deed Recording and Transfers
  • Verification that Assignees on Promissory Note is True and Correct
  • Information Identifying “True” beneficial Interest as per Promissory Note
  • Disclosures and Sufficiency of Information as per UCC
  • Securitized Trust Verification
  • Pooling and Servicing Agreement governing the Trust that holds your Note
  • CUSIP – Identifying the Trust Account
  • Trust Prospectus filed with the Securities and Exchange Commission
  • Identification of the Servicers; Originators; Trustees and Underwriters
  • Details of Bond Performance – Transactional up-to-date information
  • Periodic Reporting of Loan Performance in Securitized Trust
  • Client Specific Information – (special requests)

We use a private Bloomberg terminal for the latest search for Non-Agency residential loans by characteristic. Either Loan Number or Original Amount that are provided to perform a search to verify that the loan is inside the Securitized Trust.

Have a look at our sample Bloomberg securitization audit and see the depth of research our audits have compared to other firms. – Sample – Level-III-Securitization-Analysis

With our audits you get much more than just a Bloomberg Securitization Audit.  We work with a staff of expert lawyers who also help us draft you a legal complaint that can be used in any court in the country, to include state and federal jurisdictions. –  Sample –   Complaint-Petition

Bloomberg Securitization Audit

Our Bloomberg securitization audit is one many attorneys request. This type of audit is among the first important steps in determining the securitization of a loan and by whom.  A Bloomberg securitization audit can be a vital tool in an attorney’s or homeowner’s foreclosure defense and litigation brought against lenders. Call us today to talk about your needs.

For more information on Mortgage Securitization audits:

60 Minutes – Mortgage Securitization  Auditor – Forensic Loan Audit



Testimonials –  (from clients of my associates)

To begin, I bought your securitization audit after I had lost in state court in a foreclosure-10/27/14. Thinking there was no hope I found Certified Forensic and decided to try a securitization audit in order to have evidence of fraud in a filing with the Federal Court in New Jersey. I ended up in discovery in Federal Court. As you may remember part of discovery was a deposition taken by Chase of Michael Carrigan. I filed before Final Judgment in Federal Court on 04/10/15 with a securitization audit from Certified as evidence of fraud.To my surprise after a ruling for Chase in a summary judgement on 10/27/2014 -and going on four years later- on February 1, 2018 Chase unilaterally dismissed my state foreclosure case without any notice or discussions. I used most of the legal package from Certified. I did have people with some experience I could discuss the case with, and I had an expert witness which is also very helpful. William Paatalo is one of my expert witnesses. Bill knows the game well and he has testified around the country against the banks. It could only have happened because of the discovery in Federal Court which provided me with more evidence of fraud. This evidence could only have been gotten from discovery. And therefore the securitization audit was critical to my success in getting into discovery in Federal Court. Although I must caution there were others with the securitization audits that were not so successful so a securitization audit does not guarantee anything but in my opinion it puts you in the race. You need good legal advice and lots of reading and research with a lot of luck. I do think the odds are improving today as people are educating themselves. There are success stories. Its a long road home but the odds are getting better in my opinion. This may qualify me as a qualified success story for your firm since the state court dismissal could only have happened if I had not filed in Federal Court which brought me to discovery. Discovery gave me the evidence of fraud that I turned around and used in a Motion to Dismiss for Certification fraud in state court. The battle rages on. And there are more defeats than wins but there is hope. Many people have no idea that even after all these years there are options open to them. Chase tried to claim statue of limitation but there is no statue of limitation if you find fraud.”
James Farah


My wife and I would like to thank you for the wonderful work you’ve done submitting the loan modification to ocwen on our behalf, we have been wrestling with them for so long and we were getting nowhere and in fear of losing our home. After you suggested I called them to find out what the status of our loan modification was, they told us over the phone that we were eligible for a Sam [Shared Appreciation Modification) they reduced our principle from $736,579.75 to $513,950.00 our interest rate went from 4.25% to 2.00% our monthly mortgage payment went from $3467.83 interest only to $2354.82 principle interest taxes and insurance included, our interest only loan was changed to a 22‐year conventional fixed rate loan at 2.00%. This is good news, we could not be more grateful for the work you put into the modification. In addition; the difference between the original principle including penalties and interest and the new principal balance of $513,950 was $476,732.99 which they agreed to waive off 1/3 of that amount each year for three years as long as I remain current on my payments, at the end of that time the debt would not exist. They also told me that notification had gone out to their attorneys to stop the foreclosure proceedings, which was pending a sale date as you know. My wife and l are still in shock we wanted to see everything in writing and they told me over the phone tracking indicated that the package had been delivered to my address and it was already in the mailbox. I’m sending you copies of everything for you to look over. This was a great deal you got us, Steven, there’s more I can’t put in writing. Well done. This is a big step for us to be able to stay in our home.”
Anthony and Karen Boone


“Thank you for the support over the years. We just beat the bank in court to save house and prevent eviction. Their case was denied.”
Jeff Castillo



What Good Are the Reports and Analyses?

If you have a medical problem do you want just one doctor to look at your lab results or a team of doctors each doing their own analysis? The same question applies if you are heading into litigation. The problem for homeowners is that having a deep bench of professionals costs money. That is the way our system works, for better or worse.

Let us help your plan for trial and help you or your attorney draft your foreclosure defense strategy, discovery requests and defense narrative.


Today I was copied on an email sent by a client who was frustrated by having to pay his attorney to do his own analysis of the status of the loan and litigation in addition to reports by my staff and myself. The client regarded the work done by the lawyer as the same as reports done by forensic analysts, and the same as the work that I do at my firm.

Here is my answer:

The lawyer is doing something else entirely — making strategic and tactical decisions that will result in a homeowner winning the case — not just being “right.” The lawyer not only uses his unique knowledge of local laws, rules and procedures, he/she will only pursue those issues, claims and defenses that have the highest likelihood for traction and the lawyer makes the difficult decision of selecting 2-3 issues out of dozens because he knows the local bar and can make the best judgment on which tip to put at the end of the spear.

The “bench” for the financial industry is very deep involving as many as 20 people, most of whom are not seen by you because they want it to appear as a “standard foreclosure.” You need to understand that because of finances you are limiting your bench to one person (a lawyer or consultant) when what you need is a full bench.

For your lawyer to use any specific strategy or tactic he/she needs to believe in it. If not, it will not play well in the courtroom even on motions. If the lawyer wants to do further analysis to bring himself/herself up to that level of confidence then that is what it costs. If the lawyer is satisfied to direct the work of Bill Paatalo or myself to provide “second sight”, then that is what should happen.

The Justice system is based upon rationing out decision making where there is a dispute. It boils down to a vetting process based upon available resources. In other words it is about money. Lawyers, forensic analysts, and consultants, have spent years, even decades accumulating knowledge, skill and intuition. They have a right to get paid for that when it is applied to your benefit.

In an event like the past and current tidal wave of foreclosures based upon questionable and fraudulent business practices sometimes law enforcement gets involved; but the real benefit of winning and stopping the foreclosure can only be achieved through direct action by the homeowner and not some agency. That takes money from people who were wiped out by Wall Street banks who are propped up by an executive branch and legislative branch that not only doesn’t help homeowners but actually pass and enforce laws directly opposite to the legitimate interests of homeowners.

The system, particularly nonjudicial foreclosure, is rigged to favor devious parties who use fraud as their business plan. They have very deep pockets. For a homeowner who wants to win a case, the homeowner must be willing to commit resources required by the effort. Each professional has their own contribution to make, if you let them. Even if they are performing what appears to be identical work you will get a better decision based upon better interpretation.     ~    A.P. Lehman, JD


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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.


©2014-2018 Doug Boggs All Rights Reserved






STEPHEN Wm SMITHMagistrate Judge.

Judgment is rendered in favor of defendants John and Joanna Burke against plaintiff Deutsche Bank National Trust Co., as Trustee of the Residential Asset Securitization Trust 2007-A8, Mortgage Pass-Through Certificates, Series 2007-H under the Pooling and Servicing Agreement dated June 1, 2007 (“Deutsche Bank”). It is hereby ORDERED, ADJUDGED, and DECREED that neither Deutsche Bank nor any mortgage servicer acting on its behalf has the right to foreclose on the Burkes’ residence. It is further ORDERED, ADJUDGED, and DECREED that at no time has Deutsche Bank possessed any right, title, or interest in the Burkes’ note and security interest on this property executed on May 21, 2007.



Civil Action No. H-11-1658.


United States District Court, S.D. Texas, Houston Division.

December 21, 2017.


Deutsche Bank National Trust Company, as Trustee of the Residential Asset Securitization Trust 2007-A8, Mortgage Pass-Through Certificates, Series 2007-H under the Pooling and Servicing Agreement date, Plaintiff, represented by Mark Daniel Hopkins , Hopkins Law, PLLC & Shelley L. Hopkins , Hopkins Law, PLLC.

Joanna Burke & John Burke, Defendants, represented by Constance Pfeiffer , Beck Redden et al.


STEPHEN Wm SMITHMagistrate Judge.

Judge Learned Hand believed that above the portals of every courthouse should be inscribed the famous admonition of Oliver Cromwell: “I beseech ye in the bowels of Christ, think that ye may be mistaken.”1 This opinion is written in that spirit.


Deutsche Bank brought this suit to foreclose on a home equity lien. After a bench trial in 2015, this court ruled in favor of the homeowners, holding that Deutsche Bank based its foreclosure claim entirely upon a deed of trust assignment which was void and invalid. Dkt. 94. Among other deficiencies, the purported assignment was executed by an entity (MERS) acting solely as agent for a principal (IndyMac Bank) that no longer existed. After entry of judgment, Deutsche Bank filed a motion to alter or amend the judgment, which was denied in a written opinion.2 One of the arguments considered and rejected was that MERS had executed the assignment as a principal on its own behalf, rather than merely as agent on behalf of a disclosed principal. Id. at 960.

On appeal the Fifth Circuit disagreed, concluding in an unpublished opinion that MERS had validly assigned its right to foreclose under the deed of trust to Deutsche Bank. The final judgment was vacated and the case remanded to this court “to determine whether Deutsche Bank met the remaining requirements to foreclose under Texas law and, if so, grant a final judgment for Deutsche Bank and rule on any outstanding request for attorneys’ fees.” Deutsche Bank Nat’l Trust Co. v. Burke, No. 15-20201, slip op. at 7 (5th Cir. July 19, 2016).

Upon remand, this court directed the parties to submit additional briefing on whether Deutsche Bank had satisfied the requirements of the Texas Constitution for a valid and enforceable home equity lien. Dkt. 119. The parties were also directed to consider the impact of a recent decision by a Texas appellate court upon the panel’s ruling.

For reasons explained below, the court finds that the Burkes’ constitutional challenges to the lien have no merit. However, binding Texas Supreme Court precedent,3 as well as at least three Fifth Circuit decisions adhering to that precedent,4 compel the conclusion that the panel’s Erie guess about the validity of the assignment is clearly erroneous and, if followed, would work a manifest injustice.


When the Burkes initially applied to IndyMac Bank for a home equity loan in 2007, they were turned down. Both were then retired, and neither had employment income. Sometime later, another representative of IndyMac Bank called to advise that the loan would be approved, and that the Burkes’ previous contact at the bank had been fired. On May 21, 2007, Joanna Burke signed a note promising to repay a loan from Indymac Bank in the amount of $615,000 plus interest, secured by a deed of trust placing a lien on the Burkes’ homestead in Kingwood, Texas. Four days after closing, the Burkes received loan documents from IndyMac, including an unsigned loan application falsely claiming that the Burkes had employment income of $10,416.67 per month. Because the Burkes had never claimed any employment income during the loan process, they promptly notified the bank of the error. The bank took no steps to cure that defect.

Article XVI Section 50 of the Texas Constitution imposes exacting requirements for a homestead lien in Texas. A constitutionally noncompliant lien is invalid unless and until the noncompliance is cured. Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 543 (Tex. 2016). The Burkes maintain that the home equity lien failed to satisfy the requirements of Section 50 in several respects:

1.The application for the extension of credit was not voluntary, written, and consented to by the homeowners, in violation of Tex. Const. art. XVI, § 50(a)(6)(A), (Q)(v); 2.The lender failed to cure the defect in the loan application after notice from the homeowners, violating § 50(a)(6)(Q)(x); 3.The value of the total indebtedness exceeded 80% of the home’s total value, violating § 50(a)(6)(B); 4.The loan closed sooner than 12 days after the borrower applied for it, violating § 50(a)(6)(M)(i); 5.The loan closed sooner than one day after the homeowner received a copy of the loan application, violating § 50(a)(6)(M)(ii); and 6.The lender failed to provide a copy of the loan application documents at closing, as required by § 50(a)(6)(Q)(v).Dkt. Nos. 121, 131. For reasons explained below, none of these challenges have merit.

The first two challenges center on the bank’s falsification of the Burkes’ employment income on the unsigned loan application. While this may well be evidence of the bank’s intent to defraud underwriters and subsequent investors, it does not signify a violation of the cited constitutional provisions.5 Subsection 50(a)(6)(A) requires “a voluntary lien on the homestead created under a written agreement with the consent of each owner.” It says nothing about the loan application, which may be given orally or electronically and need not be submitted in writing. Cerda v. 2004-EQR1 L.L.C., 612 F.3d 781, 788-89 (5th Cir. 2010) (citing 7 Tex. Admin. Code § 153.12(2)). The other cited provision, Subsection 50(a)(6)(Q)(v), requires only that the owner receive a copy of the final loan application as well as all documents signed by the owner at closing. Those requirements were met here. While the final loan application may have contained incorrect (and even fraudulent) information, it was the final loan application, and it was provided to the borrowers as required.

The third challenge — excessive loan to home value ratio — is unsupported by evidence at trial. At closing the Burkes signed an affidavit in which they expressly represented that the amount of the loan “does not exceed eighty percent (80%) of the fair market value of the Property on the date the Extension of Credit is made.” See Texas Home Equity Affidavit and Agreement § I.E. (attached as Ex. A to D.Ex. 11). The amount of the loan was $615,000, and no evidence was introduced at trial suggesting that this loan amount exceeded 80% of fair market value. Nor did the Burkes offer evidence to justify disregarding the representation of value made in their affidavit at closing.

The closing date challenges (items 4 and 5) are similarly without merit, but for different reasons. The alleged violation of Subsection 50(a)(6)(M)(i) — that the loan must close no earlier than 12 days after the loan application — hinges on the assertion that the Burkes never applied for the loan they received. They contend that their initial loan application was turned down, and they never reapplied. However, the most natural interpretation of the events here is that they constituted a single loan transaction — after the initial rejection, the Burkes’ loan application was simply reactivated by the bank, and the Burkes ratified that process by going forward with the loan transaction. See Cerda, 612 F.3d at 789 (holding that a final loan amount higher than originally applied for did not trigger another 12-day waiting period, since it was all “part of the same loan transaction.”). As for the alleged violation of Subsection 50(a)(6)(M)(ii) — that the loan must close no less than one business day after the date the homeowner receives a copy of the loan application — the bank correctly observes that this provision of the Texas Constitution did not take effect until December 4, 2007, more than six months after the Burkes’ loan was closed. See TEX. CONST. art. 16, § 50, historical notes (citing Acts 2007, 80th Leg., H.J.R. No. 72). Thus the closing date challenges are not well taken.

The sixth and final challenge is the failure to provide a copy of the final loan application “at closing.” This contention misreads Subsection 50(a)(6)(Q)(v), which provides as follows:

(v) at the time the extension of credit is made, the owner of the homestead shall receive a copy of the final loan application and all executed documents signed by the owner at closing related to the extension of credit[.](emphasis added). The final loan application is thus not due at closing, but “at the time the extension of credit is made.” This wording makes clear that these two dates are not necessarily synonymous. This makes sense, because the borrower’s mandatory three-day revocation period renders it unlikely that the actual extension of credit will occur the same day as the closing. The record in this case does not disclose exactly when the extension of credit was made. It is undisputed the Burkes received the loan application four days after closing. Transcript (Dkt. 74) at 79. Absent proof that credit was actually extended before that date, there is no basis to invalidate the lien on this ground.

For all these reasons, the Burkes’ contention that the home equity lien was constitutionally deficient must be rejected.


Nevertheless, this court remains convinced that Deutsche Bank is not entitled to foreclose on the Burkes’ property, because the assignment underlying its claim is void. Acutely aware that the panel reached the opposite conclusion, this court accepts that the basis for its earlier judgment was misunderstood. The balance of this opinion aims to correct that misunderstanding, and show how starkly the panel’s conclusion deviates from binding precedent of both the Texas Supreme Court and the Fifth Circuit. See Seagraves v. Wallace, 69 F.2d 163, 164-65 (5th Cir. 1934) (“An appellate court . . . ought to have power to do justice according to law, and should be more ready to correct its own previous error, if such clearly appears, than to correct the errors of the District Court. Justice is better than consistency.”).

As a preliminary matter, this court will address the very limited circumstances under which a lower court may properly disregard an appellate court’s instructions on remand.


Under the law of the case doctrine, an issue of law or fact decided on appeal may generally not be re-examined either by the district court on remand or by the appellate court on a subsequent appeal. Illinois Central Gulf R.R. v. International Paper Co., 889 F.2d 536, 539 (5th Cir. 1989). The doctrine follows from the sound public policy that litigation should have an end. White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967) (citing Roberts v. Cooper, 61 U.S. 467, 481 (1857)). It is an exercise of judicial discretion, not a limit on judicial power. See Messinger v. Anderson, 225 U.S. 436, 444 (1912).

The law of the case doctrine is not absolute, and has several recognized (if narrow) exceptions. The Fifth Circuit has explained that “a prior decision of this court will be followed without re-examination . . . unless (i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work a manifest injustice.” North Mississippi Communications, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir. 1992).

A corollary of the law of the case doctrine, known as the mandate rule, provides that a lower court on remand must implement both the letter and the spirit of the appellate court’s mandate. See Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1370 (5th Cir. 1992). Again, this rule is not absolute, even upon lower courts. See United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998) (“Consequently, unless one of the exceptions to the law of the case doctrine applies, the district court [is] bound to follow our mandate . . .”).

For reasons explained below, this case falls squarely within the third exception. The unpublished panel opinion contradicts not only long-settled Texas law, but also several published decisions of the Fifth Circuit. Unless the decision is reversed, it will work a manifest injustice upon the Burkes, as well as other Texas residents who might be turned out of their homes in similar circumstances.


Deutsche Bank’s right to foreclose hinges entirely6 upon a 2011 assignment from the original lender, IndyMac Bank. This document, a one-page standard form prepared by Deutsche Bank’s attorneys, contained the following signature block:

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR, INDYMAC BANK, F.S.B., ITS SUCCESSORS AND ASSIGNS By: /s/ Brian Burnett Assistant SecretaryP.Ex. 2. Below that, in equally prominent lettering, was a corporate acknowledgment that Mr. Burnett was acting in his capacity as “Assistant Secretary of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR, INDYMAC BANK, F.S.B., ITS SUCCESSORS AND ASSIGNS.” Id. Via this signature and corporate acknowledgment, IndyMac Bank is plainly identified as the principal, with MERS signing merely in the capacity as “nominee,” or agent7 for IndyMac.

The body of the assignment8 further confirms this understanding of MERS’ agency relationship to the transaction. Rather than beneficiary or assignor, it refers to MERS merely “as nominee for the lender, its successor and assigns.” Moreover, the assignment purports to transfer “all rights accrued under said Loan Agreement,” defined as both the promissory note and the deed of trust. MERS has never claimed to have any rights under the promissory note. It follows that MERS was not the intended assignor, because only IndyMac Bank possessed “all rights” under both the note and the deed of trust.

This absence of ambiguity regarding MERS’ role as agent in this transaction was tacitly conceded at trial. Deutsche Bank never contended in its pleadings or proposed pretrial order that the assignment (drafted by its own lawyers) was ambiguous on this point. No witnesses were called to offer parol testimony that, despite the wording used, MERS had intended to sign as principal on its own behalf. At the close of the bench trial, this court candidly explained its concerns:

THE COURT: MERS is not doing it in its own name here. MERS is acting as nominee for IndyMac Bank. They’re an agent for an entity that no longer exists; right?

Mr. JACOCKS: Under the terms of the Deed of Trust and the Property Code, Texas Property Code, MERS is a beneficiary and nominee for both the originating lenders and its successors and assigns under the expressed language of this particular Deed of Trust and Texas law, and it does allow the holder or the assignee of the Deed of Trust to initiate foreclosure proceedings.

THE COURT: The nominee. That they were acting as nominee. They were not acting as beneficiary.


THE COURT: That’s what the Assignment says. The Assignment doesn’t say: MERS, in our capacity as beneficiary, is transferring the interest in this document or instrument. They’re saying: We’re acting on behalf of IndyMac Bank, an entity which no longer exists. So that’s what troubles me about this.

Tr. at 93-94. Counsel for the bank acknowledged the point, but offered no rebuttal or counter-argument. Id. at 95.

Consistent with its comments at trial, this court issued findings and conclusions that MERS had acted solely in its limited capacity as nominee, and thus had not assigned its own rights under the deed of trust to Deutsche Bank.9 Whether MERS possessed the authority to assign its rights as beneficiary under the deed of trust was never doubted;10 the critical issue was whether MERS exercised that authority — and on that score the assignment left no room for doubt.


On appeal, Deutsche Bank did not directly confront the problematic wording of the assignment, and instead pursued a strategy of misdirection. The bank shifted attention to the deed of trust, falsely implying that this court had ruled that under that document MERS lacked authority either to foreclose or to assign that right to another. The bank’s brief viciously assaulted this straw man,11 tearing it limb from limb. But at the end of the day the actual language of the assignment was left standing, unscathed except for the occasional misquotation.12

Even so, aided perhaps by the Burkes’ pro se status, the strategy appears to have worked. Declaring that this court’s reasons for invalidating the assignment “all misunderstand our precedent and Texas law,” the panel resurrected the bank’s scarecrow:

The first three reasons [given by the magistrate judge] are all based on the incorrect premise that when MERS assigned the deed of trust to Deutsche Bank, acting per the assignment as nominee for IndyMac Bank, it as beneficiary did not have authority to assign the deed of trust.Deutsche Bank, No. 15-20201, slip op. at 5 (emphasis added). The panel opinion continued in the same vein:

However, the original deed of trust named MERS as a beneficiary, and Texas law and our precedent make clear that MERS, acting on its own behalf as a book entry system and the beneficiary of the Burkes’ deed of trust, can transfer its right to bring a foreclosure action to a new mortgagee by a valid assignment of the deed of trust.Id.(emphasis added). Once again, a correct statement of Texas law. See also Harris County v. MERSCORP Inc., 791 F.3d 545, 558-59 (5th Cir. 2015) (“In other words, because of the duality of the note and lien, it is possible that MERS could simultaneously be the principal of the lien and the agent of the lender who holds the note.”). Of course, the fact that MERS could wear the hat of principal or agent under the 2007 deed of trust says nothing about which hat MERS did wear when it executed the 2011 assignment.

The panel answered the hat question in conclusory fashion:

Here, MERS assigned its right to foreclose under the deed of trust to Deutsche Bank. That the assignment did not state that MERS was acting in its capacity as beneficiary does not change our analysis.Deutsche Bank, No. 15-20201, slip op. at 5-6 (emphasis added). In other words, the actual wording of the assignment made no difference.

Disregarding unambiguous language is not a normal tenet of contract construction, yet the panel offered no Texas case law or doctrinal justification for doing so here. In a footnote, the panel cited an unpublished Fifth Circuit decision involving a similarly worded assignment by MERS as nominee. Casterline v. OneWest Bank, F.S.B., 537 F.App’x 314 (5th Cir. 2013). But Casterline never contested the validity of that assignment, so the issue of MERS’ capacity as principal or agent was never considered (much less decided) by that court. Id. at 317 (“Casterline has not challenged the assignment of the Security Instrument [by MERS] to OneWest.”).

More important, even if Casterline had held that words of capacity in signing a contract could be ignored, such a ruling would have contradicted a long line of Texas and Fifth Circuit precedent, as the next section will demonstrate.


More precisely stated, the question is a simple one: was MERS a party to this contract? If it signed as principal, MERS was a party and its rights were assigned; if it signed merely as agent for IndyMac, then MERS was not a party and only IndyMac’s rights (or those of its “successors and assigns”) could have been transferred.

This is not a particularly novel issue in the law of agency and contracts. What follows is a brief survey of two centuries of common law on this question, commencing before Texas joined the Union. The polestar of the inquiry has always been the parties’ intent, starting with the language of the agreement itself — and often ending there, when the parol evidence rule applies. See Cavaness v. General Corp., 283 S.W.2d 33, 39 (Tex. 1955).


It is fitting to begin with Chief Justice John Marshall’s decision in Hodgson v. Dexter, I Cranch [5 U.S.] 345 (1803). Shortly after the War Department was moved to Washington D.C., its building was destroyed by fire. The lessor of the building (Hodgson) sought to hold the Secretary of War personally liable for breach of covenant, pointing to Dexter’s personal seal beside his signature on the lease. Justice Marshall rejected the claim, finding that other language in the lease negated an intent to contract on his own behalf. “The whole face of the agreement then manifests very clearly a contract made entirely on public account, without a view, on the part of either the lessor or the lessee, to the private advantage or responsibility of Mr. Dexter.” Id. at 365.

Justice Joseph Story, riding circuit, faced a similar issue in Thayer v. Wendell, 1 Gall. 37, 23 Fed. Cases 905 (C.C.D. Mass. 1812). The suit was for breach of covenant in a deed of conveyance of land, and defendant Wendell had executed the deed as surviving executor of the testator. The covenant at issue began with this recitation: “And in my capacity aforesaid, but not otherwise, I do covenant. . . .” Justice Story had no difficulty disposing of the claim. “[T]he first rule of construction is, that every deed is to be construed according to the intent of the parties. Now what was the apparent intent of the parties? Certainly . . . that the defendant should not be personally bound.” It made no difference that this construction would leave the plaintiff with no remedy. “We are not at liberty to reject any words, which are used in a contract, when they are sensible in the place where they occur. . . .” Id. at 906.

Following the lead of these prominent jurists, the law became settled that determining the parties to a contract was a matter of contract interpretation no different than any other. See, e.g., Hewitt v. Wheeler, 22 Conn. 557, 562-63 (1853) (“[T]he intention, when ascertained, is the true and only rule in these, as in other contracts, written or unwritten. We want only to know what the parties, by the language used, intended to declare.”) (emphasis in original). In his famous Commentaries, Chancellor James Kent declared: “It is a general rule, standing on strong foundations, and pervading every system of jurisprudence, that, where an agent is duly constituted, and names his principal, and contracts in his name, the principal is responsible, and not the agent.” 2 Kent, Commentaries on American Law, p. 492 (1st ed. 1828).

This common law maxim has survived intact into the modern era. The first Restatement of Agency in 1933 recited the familiar rule:


Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.The Restatement further provided that the parol evidence rule applies to the question of whether an agent is or is not a party, just as it does to any other issue of contract interpretation. Restatement of Agency § 323(1) (1933). Essentially the same principles were carried forward in the next version of the Restatement issued in 1958. See Restatement (Second) of Agency § 155 (1958) (“In the absence of manifestations to the contrary therein, an unsealed written instrument is interpreted as the instrument of the principal and not of the agent if, from a consideration of it as a whole, it appears that the agent is acting as agent for a principal whose name appears as such.”).


The first Texas Supreme Court case to reach the issue toed the common law line. In Heffron v. Pollard, 11 S.W. 165 (Tex. 1889), a seller sued Heffron for breach of a contract to buy pipe. Heffron denied he was party to the contract, contending that he signed as agent for another (Fry), using the words “J.W. FRY, per HEFFRON.” The seller offered testimony purporting to show that Heffron, though signing in the name of Fry, had really intended to contract on his own behalf. The Supreme Court held that such parol evidence could not be used to vary the plain meaning of the contract:

As to the legal effect of this contract upon its face there can be no doubt. It discloses the names and relation of all the parties connected with it. It binds Fry, the principal, and does not bind Heffron, the agent. . . Is it permissible, in order to bind him, to show by parol testimony an intention exactly contrary to that expressed on the face of the writing, namely, that Heffron was bound by it, and that Fry was not bound? In our opinion, this cannot be done without violating a cardinal rule of evidence.11 S.W. at 166-67. Texas courts have consistently applied the Heffron parol evidence rule to all manner of contracts, including real property transactions. See, e.g., Farrier v. Hopkins, 112 S.W.2d 182, 183 (Tex. 1938) (no liability for an undisclosed principal not named in a deed of conveyance or a negotiable instrument such as a vendor’s lien note).

The most current and comprehensive treatment of this issue by the Texas Supreme Court is Cavaness v. General Corp., 283 S.W.2d 33 (Tex. 1955). Cavaness was the owner of certain patent rights, and entered an agreement to license those rights in exchange for royalty payments. Instead of executing the agreement in his own name, Cavaness made the agreement in the name of a non-existent company called D-A-M Company, and signed the contract as “President” of that company. When the royalty payments were not forthcoming, Cavaness brought suit individually on his own behalf, claiming to be the real contracting party notwithstanding the contrary language of the contract.

Writing for a unanimous court, Justice Garwood rejected the claim, applying the parol evidence rule of Heffron v. Pollard:

The same decision appears to us to establish that a writing such as that in the instant case reflects the status of the purported agent (petitioner) as a nonparty with sufficient clarity to make the Parol Evidence Rule applicable to proof that he is a party. Certainly a person recited and acknowledged as acting merely as a corporate officer is no more likely to be contracting for himself personally than is one recited to be acting as agent for another individual. The elaborate instant writing, with its corporate acknowledgment, and lacking any individual acknowledgment, thus perhaps even more clearly excludes the petitioner as a party than did the brief and unacknowledged agreement in the Heffron case.283 S.W.2d at 38. The Court emphasized that this ruling was consistent with the Restatement of Agency, Section 323, as well as the explanatory comments. Id. at 37.

Two additional aspects of the Cavaness decision are significant. First, it made no difference to the result that Cavaness himself, as owner of the patent rights in question, held a personal interest in the subject matter of the contract. According to the Court, if the terms of the contract exclude the agent as a party, the parol evidence rule controls, whether or not the agent holds a personal stake in the matter: “We see no reason why the Rule should not apply in the one case as in the others. . . .” Id. at 38.

Nor did it make any difference that the nominal principal — “D-A-M Company”—never existed, either before or after the contact was executed. The court expressly endorsed the view of the Restatement that, when the contract language is unambiguous, parol evidence is not admissible “although the effect is to show that the purported principal is nonexistent.” Id. at 37 (quoting Comment b., Sec. 326).

Cavaness remains good law to this day,13 its teachings frequently applied in Texas courts.14 The Fifth Circuit has frequently recognized Cavaness as controlling authority. The first such case was Northern Propane Gas Co. v. Cole, 395 F.2d 1 (5th Cir. 1968). The dispute was over a covenant not to compete in a corporate buy-out contract between the acquirer, Northern Propane, and Economy Gas & Supply, a local dealer being acquired. More specifically, the question was whether in addition to binding Economy as a corporate entity, the covenant also bound Mike Cole, its president and sole stockholder. Cole had signed the contract as president of the company.

In his inimitable style, Judge John Brown began by describing the case as a “sort of man bites dog situation.” Id. Unlike the typical scenario where the author of a boiler plate adhesion contract seeks to enforce its harsh literal terms, the corporate plaintiff here “[a]ssert[s] with dead earnestness that its own form contract, filled in by its own responsible and presumably articulate representative of considerable responsibility, is ambiguous in its reference to the identity of all the parties to be bound by it.” Id. at 1. Applying Section 323 of the Restatement of Agency as approved in Cavaness, Judge Brown had little trouble disposing of the case:

Structured as the contract was with the purposeful insertion of the corporate name and the corporate title of the signatory agent, there is no basis whatsoever for holding that there was either an intention to hold Mike Cole personally responsible or any basis for any genuine doubt thereon.Id. at 4.

Similarly, in Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200 (5th Cir. 1975), the court overturned a default judgment against an individual for breach of a contract related to a letter of credit issued by the bank. The agreement was plainly signed by the individual as agent for the corporation only:

South East Construction Co., Ltd. (Handwritten) By: (Printed) Jack D. Baize (Handwritten)Citing Heffron, Cavaness,and similar authorities, Judge Wisdom recited the familiar rule:

Construction of this contract must begin with the presumption that if an agent signs a contract for a disclosed principal, he does not intend to make himself a party to the instrument. . . . Unless an ambiguity is created by some contrary manifestation in the body of the instrument itself, parol evidence is not admissible to show that the agent is or the principal is not a party to the instrument, except where the plaintiff seeks to reform the contract.Id. at 1207. The court also quoted from the treatise of Professor Seavey, who had served as the Reporter for the Restatement of Agency:

If the parties are spelled out unambiguously, as where the agent signs `P by A’ or `A for P’, parol evidence can not be introduced to show the intent to make the agent a party or the principal not a party, except where reformation is sought.Id. Finding no ambiguity in the agent’s signature, the court vacated the judgment against the individual agent.

The Fifth Circuit reaffirmed the continuing vitality of this line of precedent in an opinion written by Judge Garwood, the son of the Texas Supreme Court justice who had authored Cavaness. In Martin v. Xarin Real Estate, Inc., 703 F.2d 883 (5th Cir. 1983), the corporate defendant was sued for breach of contract to purchase a shopping center. The corporation attempted to avoid liability by claiming that it had signed the contract merely as the agent for the real buyer, who was known to the seller but not named in the contract. Once again, the parol evidence rule proved fatal to the claim:

Nothing in the contract shows or gives the impression that Xarin is acting as agent for another; rather the contract negates any such impression. Where, as here, a written contract is signed in the name of a party who happens to be acting as an agent, but the contract gives no indication that any agency exists or that the party is signing other than as a principal or with any other qualifications, the agent is bound even though the other contracting party knows the identity of his principal. . . In such a case, parol evidence is inadmissible to show that it was the intention of the parties thereto that the agent not be personally bound, for such evidence would contradict the written contract.Id. at 891.

The Fifth Circuit has applied these same contract and agency rules in jurisdictions other than Texas. See, e.g., Gulf Shores Leasing Corp. v. Avis Rent-A-Car System, Inc., 441 F.2d 1385, 1391 (5th Cir. 1971) (applying Louisiana law); U.S. Shipping Board Emergency Fleet Corp. v. Galveston Dry Dock & Constr. Co., 13 F.2d 607, 611-12 (5th Cir. 1926) (applying federal law). As Judge Brown observed in Northern Propane, the principles embodied in Cavaness are “not surprising,” and “find general acceptance in Texas and elsewhere.” 395 F.2d at 2.

Little purpose would be served by extending this recitation of pertinent precedent. The point is that the common law rules for determining the parties to a contract have been settled for more than two hundred years. Few common law principles possess a more impeccable pedigree.


The panel opinion simply cannot be reconciled with Cavaness. Texas law presumes that a self-described agent signing a contract for a disclosed principal does not intend to make himself a party to the instrument. Yet the panel held that the explicit declaration of agent capacity did not matter in construing the contract. Deutsche Bank, No. 15-20201, slip op. at 6-7 (“That the assignment did not state that MERS was acting in its capacity as beneficiary does not change our analysis.”).

To be fair, the panel did not say that an express declaration of agency on the signature line was never relevant in determining the parties to a contract. Perhaps the panel viewed this case as an exception to the general rule. If so, the opinion made no attempt to explain the contours of this exception, which is perhaps unsurprising given the appellant’s mis-framing of the case. A few possibilities come to mind, though none are consistent with Cavaness or otherwise supported by Texas law.

One possible rationale is that, after all, MERS did possess rights of its own in the property under the deed of trust. Yet this was also true of Cavaness, who in fact owned the patent rights that were transferred by the licensing agreement at issue. Cavaness had argued that an exception to the general rule should apply when the agent has an interest in the subject of the contract, citing some older cases.15 The Cavaness court acknowledged that an agent’s personal interest in the subject matter might be relevant when the “name as used in [the] agreement is inherently ambiguous.” 283 S.W.2d at 38. But when, as in the case before it, the agreement was “quite unambiguous” that Cavaness had chosen to sign as agent and not principal, the parol evidence rule forbade any proof to the contrary. Id. (“We see no reason why the [Parol Evidence] Rule should not apply in the one case as in the others”).

Another possible rationale is that, at the time of the assignment, MERS and Deutsche Bank were likely aware that IndyMac Bank did not exist as a corporate entity. But the same was true in Cavaness — according to the petition all involved knew that the purported principal (D-A-M Company) did not exist. 283 S.W.2d at 35-36. As the Cavaness court noted, there was some authority for the proposition that when an agent purports to make a contract with another for a principal whom both know to be nonexistent, the agent is a party “unless otherwise agreed.” Restatement of Agency, section 326. But, as Cavaness also explained, this qualification means that the parol evidence rule still governs when the contract is unambiguous:

As stated in Sec. 323, if it appears unambiguously in an integrated contract that the agent is not a party, parol evidence is not admissible to show the contrary intent and, except in the case of a negotiable instrument, this is so although the effect of the evidence is to show that the purported principal is nonexistent. 283 S.W.2d at 37 (quoting Restatement of Agency section 326, Comment b) (emphasis added). Thus, it made no difference in Cavaness that the disclosed principal was a nonexistent corporation, and it makes no difference here.Finally, the panel may have believed that MERS enjoys a unique status under the law, operating under a special dispensation from ordinary rules that bind other legal actors. Under this view, MERS always acts simultaneously as both beneficiary and nominee under the deed of trust. Like the two-headed fictional character Zaphod Beeblebrox,16 MERS is a single integrated entity who happens to wear two opposing hats, one labeled “Principal” and the other “Agent.” The difficulty with the dual capacity theory as an Erieguess17 is that no Texas court at any level has ever adopted it. Moreover, a recent opinion by the Fourteenth Court of Appeals in Houston gives no reason to doubt that MERS, like any other legal entity, can act sometimes as principal only, and sometimes as agent only:

In Nueces County [v. MERSCORP Holdings, Inc.,No. 2:12-CV-00131, 2013 WL 3353948 (S.D. Tex. 2013)] the court determined that MERS was acting merely as the nominee or agent of a lender, and in that limited capacity had no power to assign the note to itself. Id. at *6. By contrast, the evidence in this case shows that Irwin assigned the note to MERS as a beneficiary, not as a nominee or agent for another lender.EverBank, N.A. v. Seedergy Ventures, Inc., 499 S.W.3d 534, 540-41 (Tex. App.-Houston [14th Dist.] 2016, n.p.h.). Admittedly, the factual scenario in Everbank differs in some respects from the case at bar.18 Even so, the court’s opinion affords no reason to doubt that the ordinary rules of principal and agency apply to MERS as they do to any other legal entity in Texas.


This opinion unavoidably assumes a posture of defiance that is profoundly uncomfortable for the author. After nearly forty years of working within this circuit at the bar or on the bench, every natural instinct is to salute and obey. Nevertheless, in view of the long common law tradition and precedents just described, it is difficult to imagine that jurists of reason could debate whether MERS was a party to the 2011 assignment.19

Respectfully, this court concludes that the panel decision regarding the validity of the 2011 assignment is clearly erroneous. It contradicts binding authority from the Texas Supreme Court in violation of Erie,and disregards previous Fifth Circuit decisions, in violation of the circuit’s rule of orderliness. The court further concludes that the panel opinion would work a manifest injustice to the Burkes and other Texas homeowners.

Final judgment will be rendered in favor of the Burkes, together with amended findings of fact and conclusions of law consistent with this opinion.



1. Learned Hand, Morals in Public Life (1951).

2. See Deutsche Bank Nat’l Trust Co. v. Burke, 117 F.Supp.3d 953 (S.D. Tex. 2015).

3. In a diversity case such as this, Texas substantive law governs the interpretation of contracts. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). To determine state law, federal courts look to the final decisions of the state’s highest court. Transcon Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992).

4. In the Fifth Circuit, the rule of orderliness generally forbids one panel from overruling a prior panel. Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th Cir. 1999). This rule extends to conflicting language in the subsequent case. Arnold v. U.S. Dept. of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000) (“under the rule of orderliness, to the extent that a more recent case contradicts an older case, the newer language has no effect.”).

5. The Burkes’ counsel conceded the point at the status conference on remand. Dkt. 126 at 5.

6. Texas law provides other ways for a mortgagee to prove its right to foreclose, such as by showing that it holds the note. See Miller v. Homecomings Financial, LLC, 881 F.Supp.2d 825, 829 (S.D. Tex. 2012). The current holder of the Burkes’ note was never established at trial, as no bank representatives were called to testify (indeed, no bank representative bothered to attend). Counsel for the bank initially offered a copy of the note purporting to contain an endorsement in blank, but withdrew the document in the face of an authenticity objection. 117 F. Supp. 3d at 954-56. In an attempt to show that the bank had fraudulently altered documents, the Burkes offered as D.Ex. 12 various versions of the note (including the endorsed version), but no authenticated note endorsed in blank was ever admitted. Nor was there any evidence, via testimony or otherwise, that the bank held such a note.

7. A “nominee” is a kind of agent. See Black’s Law Dictionary 1211 (10th ed. 2014) (“A person designated to act in place of another, usu. in a very limited way”). The Fifth Circuit has used the two terms interchangeably when describing MERS’ authority under the typical deed of trust language. Harris County v. MERSCORP Inc., 791 F.3d 545, 558-59 (5th Cir. 2015).

8. “FOR VALUE RECEIVED, receipt of which is acknowledged, Mortgage Electronic Registration Systems, Inc., as nominee for the lender, its successor and assigns, PO Box 2026, Flint, MI 48501-2026, tel. (888)679-MERS, and existing under the law of Delaware, mortgagee of record of that one certain loan agreement evidenced by a promissory note and security instrument or deed of trust dated 05/21/2007 (the “Loan Agreement”), in the amount of $615,000.00, made or granted by JOANNA BURKE AND JOHN BURKE (Borrower) and recorded as CLERK’S FILE NO. 20070322928, in the official real property records of HARRIS County, Texas, GRANTS, ASSIGNS, AND TRANSFERS all rights accrued and to accrue under said Loan Agreement to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE RESIDENTIAL ASSET SECURITIZATION TRUST 2007-A8, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-H UNDER THE POOLING AND SERVICING AGREEMENT DATED JUNE 1, 2007, 1761 EAST ST. ANDREW PLACE SANTA ANA, CA 94705.” P.Ex. 2.

9. Other arguments raised by the bank were also considered and rejected by this court, but those findings and conclusions were not considered by the panel.

10. See, e.g., 117 F. Supp. 3d at 960 n.8 (expressly assuming “(1) that MERS was not required to act solely as nominee for the lender under the Deed of Trust, and (2) that MERS had contractual authority under its member agreements to make assignments in its own name, and not merely `as nominee’ for its member entities.”).

11. See Appellant’s Brief, Statement of the Issues, at 2: I. If authorized under a deed of trust, can MERS or its assignee foreclose on property, under Texas law, without demonstrating that it also holds the note? II. When MERS is both the beneficiary of a security instrument as well as the nominee of a lender, does the lenders’ [sic] dissolution negate MERS’ authority to execute an assignment of the security instrument?

12. At several points, Deutsche Bank’s brief pretended the assignment read that MERS transferred all of “its” rights under the Loan Agreement. Id. at 4, 8, 23. And when quoting the actual language of the assignment, the bank omitted the “as nominee” limitation. Id. at 8 (“[MERS] GRANTS, ASSIGNS, AND TRANSFERS all rights accrued and to accrue under said Loan Agreement to Deutsche Bank . . .”) .

13. 3 Tex. Jur. 3d Agency § 310 (June 2017 Update) (“Where an unambiguous contract is executed and signed by an agent in the principal’s name, extrinsic evidence is generally not admissible to show that the agent, in executing the agreement, intended to bind him- or herself only, instead of the principal.” (citing Cavaness)).

14. See, e.g., Fleming Associates, L.L.P. v. Barton, 425 S.W.3d 560, 573 (Tex. App.-Houston [14th Dist.] 2014, pet. denied); Hull v. S. Coast Catamarans, L.P., 365 S.W.3d 35, 45 (Tex. App.-Houston [1st Dist.] 2011, pet. denied); Barker v. Brown, 772 S.W.2d 507, 510 (Tex. App.-Beaumont 1989, no writ); FDIC v. K-D Leasing Co., 743 S.W.2d 774, 775-76 (Tex. App.-El Paso 1988, no writ); Priest v. First Mortgage Co. of Texas, Inc., 659 S.W.2d 869, 872 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.); Jordan v. Rule, 520 S.W.2d 463, 465 (Tex. Civ. App.-Houston [1st Dist.] 1975, no writ) (“A written contract may itself afford the highest evidence of the identity of the contracting parties and the terms of the agreement,” citing Detroit Fidelity & Surety Co. v. First Nat’l Bank, 66 S.W.2d 406, 407 (Tex. Civ. App.-Fort Worth 1933, no writ)).

15. See, e.g., Martin v. Hemphill, 237 S.W. 550 (Tex. Com. App. 1922).

16. See Douglas Adams, The Hitchhiker’s Guide to the Galaxy (First Ballantine Books Edition: November 1995). Beeblebrox was the figure-head President of the Imperial Galactic Government, a position which also blurred the line between official and representative capacities: “Only six people in the Galaxy knew that the job of Galactic President was not to wield power but to attract attention away from it.” Id. at 40. The comparison of MERS to a two-faced fictional entity is not uncommon. See Christopher L. Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory, 53 Wm. & Mary L. Rev. 111, 113 (2011) (“Like Janus, MERS is two-faced: impenetrably claiming to both own mortgages and act as an agent for others who also claim ownership.”).

17. In the absence of a final decision by the state’s highest court, it is the duty of the federal court to determine, in its best judgment, how the state’s highest court would decide the issue presented. American Int’l Specialty Lines Ins. Co. v. Canal Indemnity Co., 352 F.3d 254, 260 (5th Cir. 2003). This can include consideration of decisions by lower appellate courts in the state. West v. American Telephone & Telegraph Co, 311 U.S. 223, 237 (1940).

18. EverBank was an appeal from a summary judgment that voided a deed of trust. The court ultimately concluded that, although the assignee of the deed of trust did not demonstrate its right to foreclose based on the deed of trust, the assignee conclusively established its standing to foreclose as holder of the note. 499 S.W.3d at 536.

19. To eliminate any possible doubt, an appropriate course might be to certify the question to the Texas Supreme Court under Texas Rule of Appellate Procedure 58.1. The Fifth Circuit has occasionally invoked this procedure for home equity lien cases under the Texas Constitution. See, e.g., Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342 (Tex. 2001); Stringer v. Cendant Mortgage Corp., 23 S.W.3d 353 (Tex. 2000); cf. Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir. 2013), abrogated by Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 548 (Tex. 2016).

Originally posted by 4closureFraud.org –  Jan. 12, 2017

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HSBC v Buset decision


Someone recently called the HSBC v Buset decision to my attention. This decision came out almost a year ago, but I think it’s good to have a reminder. I was going to write my own analysis but then I came across the following. It basically hits on most of the points I would have made anyway.

Now it needs to be said – this decision doesn’t even appear in the regular section I would normally pull decisions from. That tells me this is not a precedential decision. I think the analysis the Judge provides is the most important part. His analysis can be used to formulate these same arguments.

If anyone needs to know the note is not negotiable argument, I have it nearly verbatim to what they judge has in this decision. I’ve seen the argument before and have it written.

The definition of Note Holder in the Note is not the same as the one in the UCC. The Judge addresses that in this decision as well.


Okay, here’s an analysis of the decision:

Posted on May 25, 2016 by attorney Susan Lacava

(Originally published on AFN – Anti-Foreclosure Network)

This decision from a trial court in Miami addresses hot topics in foreclosure defense:

  1. assignment of a mortgage by a defunct company;
  2. failure to transfer the loan to the depositor during the securitization;
  3. the subsequent loan servicer hearsay problem;
  4. and the negotiability of the note.

The original lender was Freemont Investment and Loan. MERS held the mortgage as nominee of Freemont. In 2012, Ocwen had the mortgage assigned to it in preparation for the foreclosure. Freemont, however, went out of business in 2008. Here is what Judge Butchko had to say about that: The Court takes judicial notice that on July 25, 2008, Freemont Investment and Loan (“Freemont”) entered into a voluntary liquidation and closing which did not result in a new institution. As such, the status of MERS as nominee for Freemont ended when Freemont closed on July 25, 2008, which renders the AOM created in 2012 void ab initio. [ab initio is Latin for from the first act or meaning from the start.]

This is straightforward application of the Agency rule that when the principal dies, the agency dies. MERS ceased being Freemont’s agent in 2008, when Freemont went out of business. It had no authority to act on behalf of Freemont in 2012 when the mortgage was assigned from MERS to Ocwen. There are 3 things I want you to notice in this paragraph. First, a new institution was not begun out of Freemont’s ashes. That meant that Freemont was conclusively dead. Other lenders, such as Countrywide, were purchased by other businesses. Whether the agency survived either the merger or the sale of assets is a difficult legal question, which may hinge on the details of the transaction. Second, the court took judicial notice of records kept online by the FDIC. Judicial notice is a rule of evidence that allows the court to accept evidence without a witness. You must look at the evidence code in your state to seek whether a piece of evidence is capable of being admitted by judicial notice. Third, be certain to visit the FDIC database if the original lender in your case went out of business. If, like Freemont, the lender went out of business and another business was not created from the liquidation, you may have a good argument that the lender is without question dead.

That lays the groundwork for arguing that MERS stopped being an agent when the original lender went out of business. Here is how the death of the agency played out in court: The transaction described in the AOM never legally occurred. There was never a transaction between MERS and/or Freemont Investment and Loan that sold Defendant’s loan directly to the Trust. Not in 2012, not in 2005, not ever. This is an application of the holding that the assignment was void ab initio. Something that is void ab initio has never existed legally.
PSA NOT FOLLOWED The Pooling and Servicing Agreement (PSA), like all PSAs, required the loan to go from the originator to the depositor to the trust. (If you would like some background information, read How Securitization Was Supposed To Work on the website). The note for the loan before the court, however, went from the originator directly to the trust. The AOM [assignment of mortgage] is missing a key party in the chain of ownership, the Depositor, Freemont Mortgage Securities Corporation. Similarly, the undated, specific endorsement affixed to the back of the promissory note reflects the same defective transfer from the originator to the Plaintiff, without reference to the depositor.

This endorsement is contrary to the unequivocal terms of the PSA, in evidence over Plaintiff’s objection, which required all intervening endorsements be affixed to the face of the note because there was ample room for endorsements on the face of the note. There is also no evidence the endorsement was affixed before the originator went out of business in 2008. The requirement that the loan go from the originator to the depositor to the trust serves a very important purpose, it puts the trust assets out of the reach of a bankruptcy trustee: The Court accepts the testimony of Defendant’s well qualified expert witness, Kathleen Cully, who explained the securitization model which required the protection of assets from future bankruptcy clawbacks. There could be no direct sale from the originator to the trust directly.

If you have read the post on void and voidable transactions, you know that the last sentence — there could be no direct sale from the originator to the trust directly — is very important: it means that the attempt to transfer the loan from the originator directly to the trust is void, not merely voidable. Judge Butchko also held that Ocwen lacked standing because of the failure to transfer the loan to the depositor before transferring it to the trust: Plaintiff, HSBC Bank USAS, National Association, as trustee for Freemont Home Loan Trust 2005-B mortgage Backed Certificates, Series 2005-B, failed to prove it is the proper owner and holder of the Defendant’s loan by virtue of the endorsement on the note or the assignment of mortgage. Both the endorsement and the assignment omit the Depositor, Freemont Mortgage Securities Corporation, from the transaction which constitutes a fatal break in the chain of title. 45. The Defendant presented the testimony of their expert witness, Ms. Cully, who testified that the endorsement on the note is contrary to the instructions in 2.01 of the PSA that required a complete chain of endorsements, which would include the Depositor, to be placed on the face of the note so long as space allowed. The Court notes there is ample space on the face of the note for endorsements. Therefore, the Court finds that the undated specific endorsement from the originator directly to the trust found on the back of the note is inherently untrustworthy.

The Court further questions the validity of the endorsement in that Plaintiff violated the Court’s order to produce the custodian’s records or documents showing when and how the endorsement was affixed to the original note. In addition, the Court accepts Ms. Cully’s testimony that the form of the endorsement and assignment would be grounds for the Trust to reject this loan pursuant to the PSA. There is not a complete chain of endorsements on the face of the note. The PSA required no assignment of mortgage, only that the Trust appear in the MERS system as the loan owner. For these reasons, the Court finds Plaintiff failed to prove its standing to foreclose the note and mortgage in this action.

Servicers incorporate the records of prior servicers in their own records. Servicers sometimes argue that the mere incorporation of the records into its system ought to allow one of its employees to testify about the things that must be proved in order to have the records admitted under the business records exception to the hearsay rule. (if you need some background on hearsay and the business record exception read Hearsay and the Prior Servicer Problem on mywebsite, mortgage-rights.com).

There are two problems with the servicer’s argument. First, its employee does not have personal knowledge of the business practices of the prior servicer. Witnesses are not allowed to testify about events for which they have no personal knowledge. You can find this rule in the Rules of Evidence. Second, to be admissible, the current servicer has to examine the records of the prior servicer to determine whether the records are accurate during the “loan boarding” process. Readers of the blog know that a close inspection of Ocwen’s loan boarding process reveals that there is no check for accuracy.

See my prior post, “Ocwen Boarding Process Fails to Check Accuracy of Prior Servicer’s Records.” Here is the testimony that Judge Butchko heard: Ms. Keeley testified the loan boarding process involved two steps. First, Ocwen confirmed that the categories for each column of financial data from the prior servicer matched or corresponded to the same name Ocwen used for that same column of financial data. Second, Ocwen confirmed the figures from the prior servicer transferred over such that the top figure from Litton became the bottom figure for Ocwen.

Ms. Keeley admitted there was absolutely no math done to check the accuracy of the prior servicer’s records or numbers. The loan boarding process’ verification to ensure the trustworthiness of the prior servicer’s records is therefore a legal fiction. In this case, Ocwen simply accepted the prior servicer’s numbers as true without any effort to audit or confirm their accuracy. The only confirmation appears to have been the check a carryover of figures from one servicer’s columns to the columns of another.

Moreover, Ms. Keeley testified loans with “red flags” would never be allowed to board onto Ocwen’s system until the prior servicer resolved them. However, Ms. Keeley also admitted she has witnessed loans that went through the boarding process that had misapplied payments and substantially incomplete loan payment histories from the prior servicer. The existence of misapplied payments and incomplete payment histories in loans that went through the loan boarding process contradicts any suggestion that the boarding process identifies red flags and/or clears them, such that Courts can trust the reliability of their records.

To support the court’s concern regarding the lack of foundation of the so called boarded records in this case, the Court takes Judicial Notice of the Consent Order entered in the matter of Ocwen Financial Corporation, Ocwen Loan Servicing, LLC by the New York State Department of Financial Services dated December 22, 2014. This Consent Order documents Ocwen’s practice of backdating business records that it failed to fully resolve “more than a year after its initial discovery.” Therefore, the Court finds Plaintiff failed to inquire into the accuracy, reliability or trustworthiness of the prior servicer’s payment history. Ocwen’s own payment history merely accepts the prior servicer’s records as accurate without question unless the numbers were challenged at some point after the loan boarding process. That is simply not enough to for this court to accept the prior servicer’s records as trustworthy and admit them into evidence here. A mere reliance by a successor business on records created by others, although an important part of establishing trustworthiness, without more is insufficient. Bank of New York v. Calloway, 157 So.3d 1064, 1071 (Fla. 4th DCA 2015).

As such, this Court exercised its discretion to sustain Defendant’s objections to both payment histories as inadmissible hearsay. Therefore Plaintiff lacked evidence of an essential element of proof, damages, warranting an involuntary dismissal. “Involuntary Dismissal,” by the way, means Ocwen lost the foreclosure case… big time. Judge Butchko may sanction the Trust and/or its attorneys for fraud on the court. I would like to add another point: we may be able to use Judge Butchko’s decision to prevent Ocwen from arguing that its boarding process checks the accuracy of the prior servicer’s records. The legal term of this is “issue preclusion.” Various states may have different rules, so you need to research the issue preclusion rule in your state. In Wisconsin, parties cannot litigate issues that pass these tests: (1) whether issue preclusion can, as a matter of law, be applied, and if so, (2) whether the application of issue preclusion would be fundamentally fair. In re Estate Rille ex rel. Rille, 728 N.W.2d 693, 2007 WI 36, par. 36, 300 Wis.2d 1 (Wis., 2007). Issue preclusion can be applied as a matter of law if (1) the issue or fact was actually litigated and determined in the prior proceeding by a valid judgment in a previous action and (2) whether the determination was essential to the judgment. Judge Butchko’s opinion clearly satisfies the first requirement. She heard evidence at a trial and found that the Ocwen boarding process does not verify the accuracy of the prior servicer’s records.
The homeowner presented a terrific expert witness at trial, who demolished Ocwen’s contention that the note is a negotiable instrument governed by Article 3 of the Uniform Commercial Code (UCC). Before you decide to use this argument in your foreclsoure case, please look at the caution in section “Questioning the Negotiability of the Note” on my website, mortgage-rights.com. The problems that the Negotiable Instruments law inflicts on homeowners is covered in “Botched Securitization and Dernier: Lost or Stolen Notes” on my website, mortgage-rights.com. The Court gives great weight as the trier of fact to the testimony of Defendant’s expert witness, Kathleen Cully.

Ms. Cully is a Yale Law School graduate that worked her entire career in structured finance transactions since 1985. She was extremely well versed in the Uniform Commercial Code. Among many other tasks and accomplishments, Ms. Cully testified that she led the Citigroup team that created the first pooling and servicing agreement ever. She led Citigroup’s Global Securitization strategy. The Court finds Ms. Cully eminently qualified as an expert witness in the area of securitized transactions and their interplay with the Model Uniform Commercial Code. Ms. Cully gave extensive testimony explaining that the negotiability of a promissory note is not a consideration in the securitization model. Securitization sells pools of thousands of mortgages with ever having an intention to sell each loan by individual negotiation.

Moreover, securitization routinely involves the sale of non-negotiable instruments such as car loans, rent receivables, even David Bowie’s intellectual property rights. Judge Butchko’s holding that the note was non-negotiable is based on section 3-104(1) of the UCC. Here is the statute in Wisconsin: 403.104 Negotiable instrument. (1) Except as provided in subs. (3) and (4), “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if all of the following apply: … (c) It does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain any of the following: 1. An undertaking or power to give, maintain or protect collateral to secure payment.

Judge Botchko analyzed whether the promise in the mortgage note was unconditional. Article 3 defines “unconditional” as: 403.106 Unconditional promise or order 1)(a) Except as otherwise provided in this section, for the purposes of s. 403.104 (1), a promise or order is unconditional unless it states any of the following:

  1. An express condition to payment.
  2. That the promise or order is subject to or governed by another writing.
  3. That rights or obligations with respect to the promise or order are stated in another writing. … (b) A reference to another writing does not of itself make the promise or order conditional.

Judge Butchko found that the note was governed by the mortgage, which rendered the note non-negotiable and that the note was not for a fixed amount. . Her analysis is set out below. I suggest you read her work with a copy of your mortgage in hand.

Since notes and mortgages are fairly uniform, you may find that you have the same provisions in your mortgage, giving you a good argument that your note is non-negotiable. This Court does not address the provision [of the note] described in the Nunez opinion, instead grounding this decision on a myriad of other provisions of the Mortgage establishing the Note is subject to and governed by the Mortgage, rendering the note a non-negotiable instrument. Among other things, the additional protections routinely change the “fixed amount of money” due under the promissory note and require additional undertakings and instructions for the borrower beyond the mere repayment of money.

First, at page 2 of the mortgage, sub-section (G) expressly provides that “‘Loan’ means the debt evidenced by the Note, plus interest, any prepayment charges and late charges due under the note, and all sums due under this Security Instrument, plus interest.” (emphasis added). Paragraph 3 of the Mortgage provides for the payment of taxes and interest on the property. These payments are not described in the Note, which requires payment only of principal, interest, late fees and costs and expenses of enforcement. The Court finds the amounts due under the Mortgage are “other charges” that are not “described in” the Note, as required by 673.1041(1), Florida Statutes. That alone destroys negotiability. Furthermore, Plaintiff’s complaint seeks damages for all sums due under the Note and “such other expenses as may be permitted by the mortgage.”

Standard mortgage servicing industry practice treats all sums due under the note and mortgage as the “loan” payoff amount or the total amount needed to liquidate in full all monetary obligations arising under both the Note and the Mortgage–the Loan, as defined in the Mortgage–not just the Note. Not only does that payoff amount include charges not described in the Note, it is much more than a mere “reference” to the Mortgage “for a statement of rights with respect to collateral, prepayment or acceleration”–it means that the Note is effectively “subject to or governed by” the Mortgage, which in turn means that it is not unconditional. See Fla. Stat. 673.1061. That also destroys negotiability of the Note.

This Court finds that the Note is non-negotiable as the amounts payable under the Complaint include amounts not described in the Note and as the Note does not contain an unconditional promise to pay. The promise is not unconditional because the Note is subject to and/or governed by another writing, namely the Mortgage. Moreover, rights or obligations with respect to the Note itself–as opposed to the collateral, prepayment or acceleration–are stated in another writing, namely the Mortgage.

Moreover, the UCC definition of “holder” would necessarily include a thief that takes by forcible transfer. However, a thief would never be entitled to the equitable relief of foreclosure. Defendant correctly cites to paragraph 1 of the promissory note that expressly provides a different definition of “Note holder” from the definition of holder under Fla. Stat. 673.3011. 68. The promissory note defines the term “Note Holder” at paragraph 1 as “anyone who takes this Note by [lawful] transfer and who is entitled to receive payments under this Note.” 69. By its terms, paragraph 1 requires that any subsequent party attempting to enforce the note prove they came into possession of the note by lawful transfer and have the right to receive payments under the Note. This provision establishes the parties’ intention to contract out of the UCC definition of holder, so as to limit the right to enforce only to those who proved ownership.

The Court finds the amounts due under the mortgage are “additional protections” from possible losses that protect the Note Holder pursuant to the Uniform Secured Note provision. The protections necessarily affect the fixed amount of money due under the note. The Court further notes Plaintiff’s complaint seeks all sums due under the note and mortgage. Standard mortgage servicing industry practice treats all sums due under the note and mortgage as the “loan” payoff amount or the total amount needed to liquidate in full all monetary obligations arising under both the Note and the Mortgage. At page 4 of the mortgage, Uniform Covenant 2 entitled “Application of Payments or Proceeds” provides that “payments be applied in the following order of priority: (a) interest due under the Note; (b) principal due under the Note; and (c) amounts due under Section 3 [of this Security Instrument]. Any remaining amounts shall be applied first to late charges, second to any other amounts due under this security Instrument, and then to reduce the principal balance of the Note.” (emphasis added).

As payments are applied to amounts due under both the note and mortgage, this Court finds the Uniform Covenant 2 in the mortgage must be read as an integrated agreement with the promissory note that will necessarily change the fixed amount of money due thereunder. At the first paragraph of page 7, the mortgage provides: “Any amounts disbursed by lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.” Therefore, pursuant to the Uniform Secured Note Provision of the note and Section 5 of the mortgage, forced placed insurance premiums become additional debt secured by the mortgage bearing interest at the note rate which changes the “fixed amount of money” due. At page 8 of the mortgage are two provisions which involve rights or obligations with respect to the promise or order stated in another writing and constitute instructions and undertakings of the borrower to do acts in addition to the payment of money. At paragraph 6 of the mortgage the borrower is obligated to occupy the property as a principal residence within 60 days after signing the mortgage and must continue to occupy the property as Borrower’s principal residence for a least one year. At paragraph 7, Borrower is obligated to maintain the property and permit lender to conduct inspections, including interior inspections, upon notice stating cause for the inspection. At paragraph 8 of the mortgage, “Borrower shall be in default if” borrower gave materially false or misleading information during the loan application process or concerning Borrowers occupancy of the property as Borrower’s principal residence. At paragraph 9 of the mortgage entitled, “Protection of Lender’s Interest in the Property and Rights Under this Security Instrument” the mortgage states “any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.” At paragraph 14 of the mortgage entitled “Loan Charges” provides for refunds of such charges and states: “the Lender may choose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower.” Again these additional protections for the Note Holder provided in the Uniform Secured Note provision in the note necessarily affect the “fixed amount of money” due under the note.
From: https://www . avvo . com/legal-guide s/ugc/the-latest-in-foreclosure- defense-let-hsbc-bank-v-buset-gu ide-your-arguments


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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site, to receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.


©2014-2017 Doug Boggs All Rights Reserved


How do I win in a corrupt court?


“How do I win in a corrupt court?”  I get this question a lot.  There are many messages and inquiries from people from all over the United States regarding this issue, so everyone must understand that the courts are not on the side of the people, but the corporations.  This is clear, evident and statistically true.  Does this mean that the courts, staff, and judges are taking bribes?  Perhaps, and in numerous cases around the country this has been found out to be true.

Could it not be corruption and simply that courts are ignorant to the issues?  That may have been the case in 2008, but many years and court cases have crossed the judicial benches over the years to which I no longer believe that judges are ignorant to the fraudulent issues that are plaguing the foreclosure industry any longer.  They are simply being paid off to look the other way.

In order to take on any party within the confined walls of Just US, I mean justice, you must have all of your evidence and claims of action detailed and complete.   If the courts tend to side with a bank (and this is the case across the nation) despite the bank having any of the legitimate documents, or use forgeries, or are not compliant with the rules of law, yet still win, one must understand that in order to take on these corrupt systems on you must have much more detailed information than the other party and you must be able to argue this information appropriately in the court of law.

I received this email the other day and wanted to share it with you, and my response:



June 29, 2016


Today I attended a trial for my UD against my eviction. this is a long story but this lawyer who said he represented bank of new york mellon and the bank bought my house in foreclosure by sls and shapiro law firm i am finding that all of them conspire DAKOTA COUNTY IS FULL OF CORRUPT KNOW-NOTHING DIRTBAGS. LED BY THE BIGGEST ONE OF ALL… THE COUNTY ATTORNEYS OFFICE SHOULD BE SHUT DOWN PERMANENTLY FOR VIOLATING PEOPLE’S CIVIL RIGHTS UNDER THE COLOR OF LAW.

How do I win in a corrupt court?



That is a very good question.  The courts are indeed corrupt and complicit.  Some are simply ignorant.  Yet, there are some judges who are attempting to find truth.  It is certainly the luck of the draw.  Winning in a corrupt court is something that takes time, effort, patience, perseverance, courage and tenacity.  If you find corruption in the court you can file against the judge for judicial review,  You can also file a claim at the Bar association.  Remember, upon doing so you are entering the “good ole boys club” to which all of them watch eachother’s back.  Some of these filings cannot be done in Pro Per or Pro Se.  They must be filed by an attorney and member of the bar.  Also, many of those do not want to file these things as it will then label them as being against the system, the status quo.

New York Mellon is one of the largest and most corrupt banks in this whole fraud.  They are one of the most used financial institutions for when the note gets to the Securitization stage.  Nearly 99% of ALL notes that were Securitized were done so illegally.  No court has really addressed this issue.  ALL of the SEC rules are necessary to be followed.  ALL rules of the Pooling and Servicing agreement must be followed.  Due to all of these rules, there is an over 99% chance that any loan that was Securitized was done so incorrectly, and is therefore VOID.  In order to really wrap your mind around this information and evidence you must do a Securitization Audit.  If this is something you are interested in, we can assist you with this action.

In this package of material that comes with the audit includes all of the documents needed to file a multiple count (usually as many as twelve counts) complaint against the parties you are referring to, and others that might show up.  This package includes the legal documents necessary to file the actions in Federal Court.  It also includes a Lis Pendens(if necessary), expert testimony and affidavits for testimony, and more.  These are completed by licensed attorneys and are ready to file.  If you need access and in court testimony from the expert witness, this is also available for an additional charge(of course).  But, this package is designed to open a claim of action against the defendants for what you have experienced.  You can give these documents to your own attorney, who can add whatever other points and legal references they might to include.  This detailed Securitization trail usually finds that your note was Secured in a way that is done illegally and is therefore VOID.  This package, which includes the audit information, the complete legal claim of actions, and all of the legal documents to file in court costs $2995.00.


I hope that this might be of assistance.  I wish you good luck in your venture.


Doug Boggs
Foreclosure expert
Author – “A Quantum of Justice”
Blogger – mycourthistory.com


NOTE: None of this information contained herein is to be used as legal
advice.  The author of this is not a licensed attorney and does not claim
to be.  This is for informational purpose only.  Any individual using any
information herein is advised to consult a licensed attorney.



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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.


©2014-2017 Doug Boggs All Rights Reserved