J Thomas Black
Board Certified, Consumer Bankruptcy Law- Texas Board of Legal Specialization

I hate to see consumers trying to bring arguments in court to save their homes, that are just getting thrown out of court here in the 5th Circuit.

One of the arguments is the argument that MERS assignments are void. Another argument is based on the Pooling and Servicing Agreements (PSA's), arguing that since the mortgages were not transferred into the securitized trust before the closing date, that the foreclosing lender or servicer does not have standing to foreclose.

A recent U.S. District Court case out of Houston, by Judge Nancy Atlas illustrates my point. In Khan v Wells Fargo Bank, N.A., Civil Action No. H-12-1116, SD Texas 2014, Judge Atlas stated in part, quoting the recent Farkas opinion from the 5th Circuit (Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 342 (5th Cir. 2013), said:

Courts in the Fifth Circuit have repeatedly upheld MERS' assignment of mortgages to other entities. See Farkas, 737 F.3d at 342 ("Our holding in Martins permits MERS and its assigns to bring foreclosure actions under the Texas Property Code"); Mason v. Bank of Amer., N.A., 2013 WL 1313900, at *2 (E.D. Tex. Feb. 25, 2013) (citing cases).

With respect to the issue concerning PSA's, the court stated:

...the Fifth Circuit recently stated that "borrowers, as non-parties to [a] PSA, have no right to enforce its terms unless they are intended third-party beneficiaries."Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 342 (5th Cir. 2013). Plaintiff has offered no evidence to show that she is an "intended third-party beneficiary" of the PSA. Plaintiff thus has failed to establish that New York law applies or that she has standing to contest assignment to the Trust, and thus has not created a genuine issue of material facts that the assignment of her mortgage to the Trust was invalid.

I'm not saying that these are not good arguments, I'm just saying that they are not being successful in our courts here in the 5th circuit. If you are going to bring claims like these, you are going to have a tough row to hoe. And many of the ones that I've seen, there is no equity in the house anyway.

1 Comments
maybe your judge doesn't like following the rule of law, just to start. now go and read this and then ask this judge to explain were she gets off ,and say what she said. look under U.S.BANK ADMITS TO IN WRITING THAT THE BORROWER IS A PARTY TO ALL MBS,AND PSA. THEN HAVE THIS JUDGE GO TO FORECLOSUREDEFENSENATIONWIDE.COM, AND READ IF SHE CAN, WERE MERS HAS NO AUTHORITY TO DO ANYTHING.PERIOD.
by david a belanger February 2, 2014 at 11:42 AM
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