This case is from 2013, but it is very clear in that it squarely holds that there is no requirement under Texas law that a mortgage company produce the original "wet ink" signature promissory note in order to foreclose.

And this decision is from the 5th Circuit Court of Appeals, which is the highest appeals court in this part of the country, next only to the U.S. Supreme Court. Martins v. BAC Home Loans Servicing, LP, 722 F. 3d 249, 5th Cir. 2013.

Also, the 5th circuit in this case discredited the "split the note" theory, whereby plaintiffs argued that since the mortgage was assigned to MERS, and the note wasn't, the two were split, and a party could not foreclose unless they held both the note and the mortgage.

The 5th Circuit admitted that there was some authority for the theory, but held that a note and a deed of trust are separate obligations in Texas, and went on to say that in this case, BAC did not need to possess the note to foreclose. The Court affirmed summary judgment for the defendants BAC and Federal National Mortgage Association.

If you are in danger of foreclosure, and you live in the Houston Texas metropolitan area or surrounding counties, contact our office in Houston at 713-772-8037. You may qualify to file chapter 13 bankruptcy and be able to stop the foreclosure, and be able to cure your delinquent payments over as long as 60 months.


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