In Texas, Homeowners Have Standing to Challenge the Validity or Effectiveness of Assignment to Foreclosing Party

And this is one of the reasons that I miss Texas (although this is also the law—and used to be recognized as such—in Arizona, that a borrower can challenge the validity of an assignment).  The good old Southern District (Houston) federal district court has this to say about the preposterous assertion that a homeowner lacks standing to challenge the assignment to the party trying to foreclose on said homeowner:

Miller-et-al-v-Homecomings-Fin SD Tex 2012   Thank you to Deontos for calling my attention to this case.


2. Standing to Challenge Assignment of Security Interest

Defendants’ final (and weakest) argument is that homeowners like plaintiffs “will not be prejudiced” if the chain of assignments from original lender to foreclosing entity were immune to debtor challenge. After all, the argument apparently goes, the Millers owe the money to somebody. In truth, the potential prejudice is both plain and severe foreclosure by the wrong entity does not discharge the homeowner’s debt, and leaves them vulnerable to another action on the same note by the true creditor. Banks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank’s deed of trust. MasterCard has no right to sue for debts rung up on a Visa card, and that remains true even if MasterCard has been assigned the rights of another third party like American Express. Unless and until a complete chain of transactions back to the original lender is shown, MasterCard remains a stranger to the original transaction with no claim against the debtor. And that is a fair description of this case in its present posture.

In sum, a standing issue is lurking here , but only as to the defendants, not the plaintiffs. The court concludes that under Texas law homeowners have legal standing to challenge the validity or effectiveness of any assignment or chain of assignments under which a party claims the right to foreclose on their property. Accordingly, plaintiffs have properly stated claims for declaratory and injunctive relief based on wrongful foreclosure, trespass to try title and quiet title.

Why, thank you Magistrate Smith for the fresh perspective.  Have you noticed that many of the most practical, business-minded opinions come from the magistrates?  No wonder the banks always deny consent to them.


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