Mikael Judah and Laura Judah v. EMC Mortgage Corporation ( 2015 )


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  •                                                                                               ACCEPTED
    03-14-00304-CV
    5454700
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    5/28/2015 2:35:25 PM
    JEFFREY D. KYLE
    CLERK
    NO. 03-14-00304-CV
    IN THE COURT OF APPEALS FOR THE THIRD FILED IN
    3rd COURT OF APPEALS
    DISTRICT OF TEXAS AT AUSTIN, TEXAS
    AUSTIN, TEXAS
    5/28/2015 2:35:25 PM
    JEFFREY D. KYLE
    MIKAEL JUDAH AND LAURA              JUDAH        Clerk
    Appellants,
    v.
    EMC MORTGAGE CORPORATION
    Appellee.
    APPELLEE’S RESPONSE TO APPELLANTS’
    MOTION FOR LEAVE TO FILE NOTICE
    Appellee JPMorgan Chase Bank, N.A., successor servicer to EMC Mortgage
    LLC, formerly known as EMC Mortgage Corporation files this Response to
    Appellants’ Motion for Leave to File Notice and would respectfully state as
    follows:
    1.     This case has been fully briefed with Appellants’ Brief, Appellee’s
    Brief and Appellants’ Reply since December 12, 2014. Now, over five months
    later, Appellants file a motion seeking to file “additional authority.” However, the
    materials Appellants seek to file do not constitute additional authority. Instead, the
    materials are (1) a copy of an unreported decision from a federal district court in
    Pennsylvania, a case previously cited by Appellants in their Reply Brief, and (2) an
    amicus curiae brief filed in an appeal in the Third Circuit regarding the impact of
    1
    the MERS recording system under Pennsylvania law. There is no basis for filing
    either of these materials as “additional authority” in this case involving the
    application of Texas law.
    2.    The Montgomery County v. Merscorp case is irrelevant to the issues
    before the Court in this appeal.      Montgomery County involves a suit by a
    Pennsylvania county to recover recording fees it has allegedly lost as the result of
    the MERS recording system. As noted by Appellants’ in their Reply Brief, similar
    suits were filed in Texas on behalf of Texas counties. Appellants’ Reply Br., p. 27,
    n. 5. Though Appellants seek to provide the Court with a copy of the Montgomery
    County case as “additionally authority,” they have not sought to update the Court
    regarding the status of the Texas cases where this issue has been raised. Perhaps
    that is because Texas counties have been unsuccessful in recovering recording fees
    allegedly lost as a result of the MERS recording system. Dallas County, Tex. v.
    MERSCORP, Inc., 
    2 F. Supp. 3d 938
    , 941-42 (N.D. Tex. 2014) (denying claims
    premised on section 192.007 of the Texas Local Government Code because the
    statute does not “require[] recordation of interim instruments, such as assignments
    of deeds of trusts.”); see also Welborn v. Bank of New York Mellon Corp., 557 Fed.
    Appx. 383, 387 (5th Cir. 2014) (cited as El Paso v. Bank of America in footnote 5
    of Appellants’ Reply Brief, denying RICO claims asserted by Texas counties
    regarding the MERS recording system).
    2
    3.     In addition, the amicus curiae brief filed in the appeal of the
    Montgomery County case is not “authority” and is not relevant to the issues
    presented in this appeal. Allowing a party to file an amicus curiae brief filed in
    another matter allows the party to avoid page and line limitations. In addition,
    where the brief is not prepared for the appeal in which it is sought to be filed, it is
    not tailored to address the issues actually raised in the appeal. The amicus brief
    was prepared to address Pennsylvania law, and does not take into account any of
    the Texas cases that have considered and upheld the validity of a MERS
    assignment. As a result, the amicus brief is not likely to aid the Court in its
    consideration of this appeal. Instead, it is more likely that the brief will only cloud
    and confuse the issues.
    4.     In this appeal, the validity of the MERS assignment is not a central
    issue. Instead, because the summary judgment evidence established that the entity
    seeking to foreclose is in possession of the original Note endorsed specifically, it is
    not necessary to establish standing to foreclose solely through a MERS assignment
    of the Deed of Trust. The issues discussed in the Montgomery County amicus
    curiae brief simply have no impact on the issues actually presented by the facts of
    this case.
    3
    WHEREFORE, PREMISES CONSIDERED, Appellee JPMorgan Chase
    Bank, N.A., successor servicer to EMC Mortgage LLC, respectfully requests that
    Appellants’ Motion for Leave to File Notice be denied.
    Respectfully submitted,
    /s/ Marcie L. Schout
    MARCIE L. SCHOUT
    Texas Bar No. 24027960
    mschout@qslwm.com
    WM. LANCE LEWIS
    Texas Bar No. 12314560
    llewis@qslwm.com
    QUILLING, SELANDER, LOWNDS,
    WINSLETT & MOSER, P.C.
    2001 Bryan Street, Suite 1800
    Dallas, Texas 75201
    (214) 871-2100 (Telephone)
    (214) 871-2111 (Facsimile)
    ATTORNEYS FOR APPELLEE
    4
    CERTIFICATE OF SERVICE
    On May 28, 2015, I served a copy of the foregoing motion on counsel for
    Appellants via facsimile:
    VIA FACSIMILE (512) 853-4098
    Stephen Casey
    Casey Law Office, P.C.
    595 Round Rock West Drive
    Suite 102
    Round Rock, Texas 78681
    Attorney for Appellants.
    /s/ Marcie L. Schout
    Marcie L. Schout
    5
    

Document Info

Docket Number: 03-14-00304-CV

Filed Date: 5/28/2015

Precedential Status: Precedential

Modified Date: 9/29/2016