Editor: David Reiss
Brooklyn Law School

November 24, 2013

Texas Court Dismisses Plaintiff’s Wrongful Foreclosure Action, as MERS was Authorized to Assign the Note and Deed of Trust to Defendant

By Ebube Okoli

The court in deciding Perez v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 153947, 2013 WL 5781208 (W.D. Tex. Oct. 25, 2013) dismissed the plaintiff’s wrongful foreclosure.

Plaintiff alleged that the defendant’s foreclosure action was wrongful. Also plaintiff alleged that the deed of trust was not enforceable due to that lack of ownership in the note by the defendants.

Plaintiff asserted that First NLC, rather than MERS, was the only party authorized to assign the note and deed of trust to the defendant; she asserted that assignment is only complete upon recording, and recording has not been effectuated; and she asserted that the deed of trust and the transfer of lien document were fraudulently created, and therefore ineffective as a security instrument and assignment, respectively. Additionally, plaintiff asserted that the note and deed of trust were not enforceable because they had been split.

Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant argued that plaintiff has not stated a claim for wrongful foreclosure because she has not alleged that her home had been foreclosed.

Ultimately, the court rejected the plaintiff’s claims and the broader legal theories she asserted; however, the court granted the plaintiff leave to amend to allow her an opportunity to assert a valid claim.

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