Miller et al v. Homecomings Financial LLC et al :: Justia ...

Miller et al v. Homecomings Financial LLC et al

Case 4:11-cv-04416 Document 16 Filed in TXSD on 08/08/12 Page 12 of 14

Analysis

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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

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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.

Justia > Dockets & Filings > Texas > Texas Southern District Court > Real Property > Foreclosure > Miller et al v. Homecomings Financial LLC et al

Miller et al v. Homecomings Financial LLC et al

Plaintiffs: Defendants:

Joan Miller and David Miller

Homecomings Financial LLC , GMAC Mortgage LLC , Bank of New York Mellon Trust Company NA , Don Ledbetter, Patricia Poston, Gabriel Ozel and Pite Duncan, LLP

Case Number: Filed:

4:2011cv04416 December 15, 2011

Court: Office: County: Presiding Judge:

Texas Southern District Court Houston Office Montgomery David Hittner

Nature of Suit: Cause: Jurisdiction: Jury Demanded By:

Real Property - Foreclosure 28:1446 Notice of Removal Diversity

None

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Defendant: Homecomings Financial LLC

Represented By: Keith Steven Anderson

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Defendant: Pite Duncan, LLP

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U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:11-cv-04416

Miller et al v. Homecomings Financial LLC et al

Assigned to: Magistrate Judge Stephen Smith

Case in other court Montgomery County, TX, 9th Judicial

:

District, 11-00010-11705-CV

Cause: 28:1446 Notice of Removal

Date Filed: 12/15/2011 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity

Plaintiff

Joan Miller

represented by Jeffrey Scott Kelly The Kelly Legal Group PLLC PO Box 2125 Austin, TX 78768 512-505-0053 Email: jkelly@ LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David Miller

represented by Jeffrey Scott Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Homecomings Financial LLC

represented by Graham W. Gerhardt Bradley Arant et al 1819 5th Ave N. Birmingham, AL 35203 205-521-8000 Email: ggerhardt@ LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith Steven Anderson Brandley Arant Boult Cummings LLP 1819 Fifth Avenue North Birmingham, AL 35203 205-521-8714

Defendant GMAC Mortgage LLC

Defendant Bank of New York Mellon Trust Company NA

Defendant Don Ledbetter Defendant Patricia Poston Defendant Gabriel Ozel Defendant Pite Duncan, LLP

Fax: 205-488-6714 Email: kanderson@ ATTORNEY TO BE NOTICED

represented by Graham W. Gerhardt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith Steven Anderson (See above for address) ATTORNEY TO BE NOTICED

represented by Graham W. Gerhardt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith Steven Anderson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/15/2011

12/16/2011 12/16/2011

# Docket Text

1 NOTICE OF REMOVAL from Montgomery County District Court, case number 11-10-11705-CV (Filing fee $ 350 receipt number 0541-9014203) filed by Homecomings Financial LLC, Bank of New York Mellon Trust Company NA, GMAC Mortgage Group, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(Anderson, Keith) (Entered: 12/15/2011)

2 CERTIFICATE OF INTERESTED PARTIES by GMAC Mortgage Group, LLC, filed.(Anderson, Keith) (Entered: 12/16/2011)

3 CERTIFICATE OF INTERESTED PARTIES by Homecomings Financial LLC, filed.(Anderson, Keith) (Entered: 12/16/2011)

12/16/2011 12/19/2011 12/22/2011 01/03/2012 01/09/2012 03/27/2012 03/27/2012 03/27/2012 03/27/2012 03/28/2012 03/28/2012 03/28/2012

4 CERTIFICATE OF INTERESTED PARTIES by Bank of New York Mellon Trust Company NA, filed.(Anderson, Keith) (Entered: 12/16/2011)

5 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 3/28/2012 at 02:00 PM in Courtroom 703 before Magistrate Judge Stephen Smith.(Signed by Judge David Hittner) Parties notified.(amaly) (Entered: 12/19/2011)

6 MOTION to Dismiss and Incorporated Brief in Support Thereof by Bank of New York Mellon Trust Company NA, Homecomings Financial LLC, filed. Motion Docket Date 1/12/2012. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Anderson, Keith) (Entered: 12/22/2011)

7 RESPONSE to 6 MOTION to Dismiss and Incorporated Brief in Support Thereof filed by David Miller, Joan Miller. (Attachments: # 1Exhibit A)(Kelly, Jeffrey) (Entered: 01/03/2012)

8 REPLY to Response to 6 MOTION to Dismiss and Incorporated Brief in Support Thereof, filed by Bank of New York Mellon Trust Company NA, GMAC Mortgage LLC, Homecomings Financial LLC. (Anderson, Keith) (Entered: 01/09/2012)

9 PROPOSED ORDER Proposed Scheduling Order, filed.(Kelly, Jeffrey) (Entered: 03/27/2012)

10 Request to Appear by Telephone by Joan Miller, filed.(Kelly, Jeffrey) (Entered: 03/27/2012)

11 Defendants' Request to Appear by Telephone by Ally Financial Inc, Bank of New York Mellon Corporation, Bank of New York Mellon Trust Company NA, GMAC Inc., GMAC Mortgage LLC, Homecomings Financial LLC, filed. (Gerhardt, Graham) (Entered: 03/27/2012)

12 CONSENT to Proceed Before a Magistrate Judge by Ally Financial Inc, Bank of New York Mellon Corporation, Bank of New York Mellon Trust Company NA, GMAC Inc., GMAC Mortgage LLC, Homecomings Financial LLC, filed. (Gerhardt, Graham) (Entered: 03/27/2012)

13 CONSENT TO PROCEED BEFORE MAGISTRATE JUDGE by All Parties and ORDER TRANSFERRING CASE to Magistrate Judge Stephen Smith. Judge David Hittner no longer assigned to the case..(Signed by Judge David Hittner) Parties notified.(ealexander, ) (Entered: 03/28/2012)

14 Minute Entry for proceedings held before Magistrate Judge Stephen Wm Smith. SCHEDULING CONFERENCE held on 3/28/2012. Scheduling order issued. Appearances: Graham W. Gerhardt, Jeffrey Scott Kelly. (ERO:A. Maly), filed. (jmarchand) (Entered: 03/29/2012)

15 SCHEDULING ORDER. ETT: 1 day. Bench trial. Amended Pleadings due by 7/14/2012. Joinder of Parties due by 7/14/2012 Pltf Expert Witness List due by 10/12/2012. Pltf Expert Report due by 10/12/2012 Deft Expert Witness List due by 11/12/2012. Deft Expert Report due by 11/12/2012 Discovery due by

08/08/2012

11/30/2012. Dispositive Motion Filing due by 12/31/2012. Non-Dispositive Motion Filing due by 12/31/2012. Joint Pretrial Order due by 2/28/2013. Bench Trial set for 3/7/2013 at 09:30 AM in Courtroom 703 before Magistrate Judge Stephen Wm Smith.(Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand) (Entered: 03/29/2012)

16 MEMORANDUM AND ORDER denying 6 MOTION to Dismiss and Incorporated Brief in Support Thereof ( Amended Complaint due by 9/7/2012.) (Signed by Magistrate Judge Stephen Smith) Parties notified.(chorace) (Entered: 08/08/2012)

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