Reinagel v. Deutsche Bank National Trust Co.

Jr.; REINAGEL, Joseph A. Dia Reinagel, Plaintiffs-

J.

Appellants NATIONAL BANK

DEUTSCHE COMPANY, Defen-

TRUST

dant-Appellee. 12-50569.

No. Appeals,

United States Court

Fifth Circuit. 29, 2013.

Oct. the note

ments which the bank obtained of trust were corresponding deed invalid. “robo-signed” and therefore motion granted court the bank’s district affirm. dismiss. We I. February Joseph Dia and Rein-

In property a appellants, purchased agel, Helotes, $307,840, obtaining Texas in for a necessary financing mortgage from appeal. May this party lender refinanced, obtaining a Deeves, Esq., J. Kenneth Christopher $360,000 Argent from home-equity loan Grubbs, Antonio, TX, for San Ernest in Company, (“Argent”) ex- Mortage LLC Plaintiffs-Appellants. promissory for a note as well as a change securing Argent of trust the note.1 deed Esq., Hastings, Scott Robert William Reinagels’ loan apparently sold the Dallas, TX, Benjamin Mowrey, Thompson Company Bank Trust Deutsche National Foster, Austin, TX, Esq., for David Lee (“Deutsche Bank”), appellee, shortly Defendant-Appellee. origination, point

after at which Deutsche it pooled Bank with other loans in a and sold the securitization transaction resulting mortgage-backed securities in- HIGGINBOTHAM, OWEN, and Before alleged amended vestors. As in the com- GRAVES, Judges. Circuit Servicing Agree- plaint, Pooling and (“PSA”) governed ment the trust PETITION ON FOR REHEARING trustee, Bank, held which Deutsche as HIGGINBOTHAM, E. PATRICK mortgage loans that no provided loans Judge: Circuit into the trust after could transferred 1, October Treating Appellants’ Petition for Re- En Banc as a Petition for Panel hearing date, closing Notwithstanding the PSA’s for Panel Rehear- Rehearing, Petition Bank Argent neither nor Deutsche formal- DENIED, prior but ing is we amend Reinagels’ ly documented the sale of the (5th Cir.2013), solely 722 F.3d 700 opinion, 23, 2008, until a date that January loan amended, opin- to add footnote 30. As roughly coincides the zenith with follows: ion is as date, subprime mortgage crisis.2 On case, L. to act mortgagors Reynolds, purporting In this who defaulted a Ms. Dawn enjoin agent” seek a bank from of “Citi Residen- on their note as “authorized Inc...., assign- Lending, [a]ttorney-in-[f]act foreclosing, contending that tial formally Subprime Mortgages Though Murphy, a Tim deed trust is distinct Foreclosures, N.Y. Linked to Rise in mortgage, courts tend to use the Times, from Aug. http://www.nytimes. at available interchangeably. purposes two terms For com/2007/08/05/nyregion/nyregionspeciaI2/05 appeal, we do same. this mamwe.html. 51.0001(4), (1) as- Argent,” executed instrument der mortgagee can be the deed of trust signing “to grantee, beneficiary, owner, “the or holder ..., Trustee, in trust for the trust],” of a [deed of “if the [deed registered Argent Holders of Securities record, assigned trust] has been the last Inc., Pass-Through Asset-Backed Certifi- person to whom the [deed of has trust] cates, ac- Reynolds Series Ms. 2006-MI.” assigned been of record.”3 Deutsche her knowledged before Califor- Bank that it qualified claimed mort- as a notary nia the instrument filed gagee wing; on either as the 2008 and 2009 County January and recorded Bexar holder, rendered owner and 30, The 2008. instrument does not refer- assignee record, as well as of of the deed promissory ence the note the secured of trust. The state apparently court deed of trust. agreed, granting the order. 13, February 2009, year On more than a assignment, initial after the a Mr. Brian 2011, In October the suit filed Bly a assign- executed second instrument in court enjoin Texas state to temporarily Bank, ing the deed of trust to Deutsche the declaratory foreclosure and obtain a purporting capacity to act as -“Vice judgment that Deutsche Bank lacked Lending, President” of “Citi Residential standing to foreclose. The Inc., attorney-in-fact ... for Argent.” Un- the assign- claimed that 2008 and 2009 however, assignment, like the first sec- the “robo-signed” ments were both and there- ond instrument also expressly transferred fore “Robo-signing” colloquial void. is the note(s) “the certain described the deed [in media, politicians, term the and consumer together of with all secured trust] interest advocates have used to array describe an liens, all thereby, any and due or to rights practices of questionable deployed banks due thereon.” become Mr. acknowl- perfect right their to foreclose in the edged his before a nota- Florida subprime crisis, wake mortgage of the ry and instrument was and e- e-filed practices having that included em- bank 17, County February recorded Bexar on (1) ployees third-party or contractors: ex- acknowledge ecute and transfer docu- 2010, point At some in 2009 early large quantities ments in within a short note, Reinagels defaulted on the and in time, period often of without the purport- April judi- Deutsche Bank a sought assignor’s ed authorization of and outside cial authorizing order foreclosure. of presence notary certifying Deutsche asserted that it was acknowledgment,4 and swear out affida- “mortgagee” under Property Code 51.0001(4) confirming missing § vits right and existence of therefore had the Reinagel’s foreclose property. pieces documentation, Un- of per- loan without 51.0001(4), Timiraos, (6). Although Prop.Code also Nick Banks Hit Hurdle to Fore- 3. Tex. here, "mortgagee” J., closures, not relevant also be ("In can June some St. Wall 51.0001(4), "book-entry system,” id. such cases, showing are that borrowers Mortgage Registra- as the national Electronic properly ownership assign of banks failed Inc., MERS, System, Campbell tion mortgages pooled were after into mort- (Tex.Ct.App.2012). WL 1839357 at *4 gage-backed incomplete Curing securities.... assignments tricky can be Cong. Oversight See, e.g., Panel, November many originated subprime lenders loans Oversight Examining Report: Consequences gone as the owner out still listed but have Mortgage Irregularities Stabil- Financial business.”). Mitigation ity (2010); see and Foreclosure dispute Deutsche Bank did not knowledge and often outside sonal PSA, assignments argued violated the notary.5 presence en- standing lacked Reinagels’ granted court state agreement. force temporary injunction, setting request for a granted The district court Deutsche On trial for November June Though court “dis- Bank’s motion. 2011,- Bank removed the Reina- agree[d] argument with [Deutsche Bank’s] Texas, District of gels’ suit to the Western invalidity of the amended com- invoking diversity. their impact ability on its would no on then- Reinagels elaborated plaint, the foreclose,” it concluded that Reina- “[the claiming allegations “robo-signing,” invalidity mat- gels’] allegations of fail as a void be- January First, reasoned, ter of law.” the court Reynolds to be an “appears cause Ms. Reinagels pointed to “no case that has Lending[,] employee Residential of Citi because it was invalidated that the Feb- Argent,” and not [Inc.] Second, observed, robo-signed.” the court ruary assignment was void because Reinagels] no for the authority cite “[the to it as “Vice purported Mr. execute proposition that the violations of the PSA attorney ... as in fact for President of Citi invalid, make the to assignment and due Argent” he in when fact worked for standing, they lack of assert cannot th[eir] contractor, third-party Nationwide Title claim for of the itself.” breach PSA [a] Clearing. Reinagels The also asserted Reinagels appeal. assignment that the was void as a second Bly’s testi- forgery, deposition as “Mr. own II. mony in another case indicates that taken appeal The first issue on is whether simply ‘scanned’ onto Reinagels standing challenge have to origi- then an documents and notarized as by of the transactions which Finally, nal and recorded.” Argent, originator, the loan purportedly claimed, assignments void both were assigned correspond of trust deed and PSA, violating which that specified no ing promissory note to Deutsche Bank. be could transferred into Bank that law well urges Deutsche “the pooling Deutsche after Octo- Bank’s trust that to a lacks stranger settled contract ber contract,” standing challenge to and [that] that courts “[n]umerous federal district Deutsche Bank moved to dismiss the recognized plaintiffs lack stand Reinagels’ complaint, urging amended ing assignment security to challenge the standing lacked pres instruments in cases similar to the challenge validity of the 2008 and 2009 rejoin The Reinagels ent.” that “Texas assignments par- because were routinely state and allow a federal agreements. ties to those In the alterna- “ challenge homeowner to chain of as tive, argued Bank ‘robo- Deutsche by signments party right which a claims a signing’ claims are not to as- applicable foreclose,” dismissing relied cases “an signments,” assignment is a by incorrectly Bank as de upon Deutsche contract, distinguishable and is from an cided. affidavit, typically which is document challenged ‘robo-sign- in connection with To agree Reinagels. We with the sure, though ing’ allegations.” Finally, courts have held that a non- Cong. Oversight Martin, Mortgage GMAC Andrew Oct. at Times, B9; Foreclosures, Expands supra Its Review at Panel, N.Y. note party to a contract cannot enforce the that Deutsche Bank authority lacks an intended contract unless she is third- foreclose under the deed of trust. To beneficiary,6 occasionally party couching question, answer this begin by we examin- principle “standing.”7 this terms of ing whether the first is itself Here, however, are not at- convey sufficient authority, such in- tempting to enforce the terms of the assignments necessary— whether both assignment; contrary, struments of an issue not parties addressed they urge are void ab ignored by the district court. As afore- Though initio. “the law is settled” in Tex- mentioned, assigned the first instrument obligor as that an cannot against defend trust, only the deed of whereas the second assignee’s obligation efforts to enforce the assigned instrument both the deed of trust ground merely on a renders the as- note(s) and “the certain described there- signment at the election of the voidable Presumably, in.” Deutsche Bank ar- assignor, Texas courts majority follow the ranged conveyance the second because of obligor rule that the may any defend “on common-law rule that the ground renders which of mortgage alone a nullity,9 a rule contrary void.”8 A rule would lead to the based on principle the intuitive that a par- odd result could fore- ty seeking to foreclose must have the close on Reinagels’ property though right to enforce the debt it seeks to satis- party is not a valid the deed of trust or However, fy.10 under the Restatement note, which, promissory by Deutsche (Third) Property: Mortgages, reasoning, Bank’s should mean that transfer of a in- mortgage presumptively “standing” lacks to foreclose. by cludes the note secured mortgage, the whether or not the instrument of assign-

III. ment expressly references the note.11 Un- question The next then, is whether the Reina- der the approach, Restatement’s the true, gels’ allegations, taken as establish first assignment give is itself sufficient to See, Lomas, 1977) ("The e.g., 6. South Tex. Water Auth. mortgage v. note is the cow and the 304, (Tex.2007). tail, 223 S.W.3d the tail. The cow can survive without a cow.”). but the tail cannot survive without the See, 813, e.g., Corp., 7. Neal v. SMC 99 S.W.3d (Tex.Ct.App.2003). e.g., Property: (Third) Restatement Mortgages 5.4(c) (1997) (“A § mortgage may Const., Co., 8. Tri-Cities Inc. v. Am. Nat. Ins. of, only by, person be enforced or in behalf 426, (cit- (Tex.Civ.App.1975) 523 S.W.2d obligation who is entitled to enforce the the ing Carpenter, Glass v. secures.”). also, (Tex.Civ.App.1959)); see 6A C.J.S. Assignments (“A § may, debtor 5.4(b). Id. As the comments to 5.4 of ..., generally, against assignee any assert an (Third) Property: Mortgages the Restatement rendering assignment absolutely matters the explain: ..., nonassignability invalid such the as[ ] It is conceivable that on rare occasions a right attempted assigned, prior to be or a mortgagee will wish to disassociate the ob- assignment.”); Murphy revocation of the ligation mortgage, and the but that result Servs., LLC, Aurora Loan 699 F.3d only upon should follow evidence (8th Cir.2012) (recognizing mortgagors parties agreed. to the transfer so The far against by establishing can defend foreclosure keep more common intent is to the two purported mortgagee’s a fatal defect in the rights purpose combined.... This section's title). chain of generally is to achieve the same result even Ariz., Burns, E.g., aspects Best Inc. v. if one of the two of the transfer is Fertilizers of (Ariz.Ct.App. 117 Ariz. 571 P.2d omitted. foreclose, scope authority executing authority to of her short, Reinagels’ assignment. chal- validity of the second lenge tend of the first to follow irrelevant.12 Texas Restatement;13 however, fails as on its own terms. its note-follows- adopted expressly never assign Turning to the second we the-mortgage presumption,14 examine ment, it as Reinagels challenge void to both instru- Reinagels’ objections BlyMr. the instrument executed ments. Argent’s as “Vice President” of au Citi — challenge he was actu agent though the validi thorized —even ally of a ground employee third-party on an contrac ty of the first instrument tor, However, Title Reynolds Clearing. it as the “au Nationwide that Ms. executed Marcus,15 Supreme even agent” Argent though she Nobles v. thorized that a executed Leasing, Residential Court clarified contract on employed Citi (“Citi”), directly corporation by person never behalf of a fraudu implying Inc. —but lently to be Reynolds purporting corporate must have there officer asserting —that is, contract, authority any to execute the as like other unauthorized fore lacked However, void, merely as in the not voidable at the elec signment. reflected but Reynolds principal here, tion of the defrauded Citi pleadings, attachments — (or Citi).16 agent” Argent through of “Citi As signed “[Texas] as “authorized ..., Argent.” of a [a]ttorney-in-[f]act obligors for As law settled claim assignee’s fail ... Reinagels conspicuously allege may [against not defend authority lacked effort Reynolds obligation] any that Ms. to enforce either ground act or that Citi lacked on behalf of Citi which renders authority Argent only,”17 Bly’s alleged to act lack of on behalf voidable au —-let true, support allega thority, accepted such does plead alone facts to even tions—there is no record basis conclud furnish the with a basis to chal Reynolds lenge ing misrepresented assignment.18 that Ms. the second Const., (citing § a. 17. 523 Id. 5.4 cmt. Tri-Cities S.W.2d at 430 Glass, 537); at 330 S.W.2d see also 29 Rich- Notably, Reinagels argue do not 12. § ard A. 74:50 Lord, Williston Contracts produce original, must (4th 2012) (“If objection ed. to the validi- in wet-ink note order to foreclose. As ty assignment is it void an not that is but courts, concede, Reinagels including most option assignor, only at the voidable of the or Circuit, rejected district courts in this person, legal of some third the debtor has no defense, holding the “show-me-the-note” brought defense whether or not action is in though mortgagee must establish that name, assignee’s foreclose, for be it cannot assumed pro- the note it need not owns assignor avoiding is desirous of original. duce the assignment.”). See, e.g., Props., 13. L.L.C. v. Kes Conversion sler, (Tex.Ct.App.1999). S.W.2d Nobles, ("It 18. See at 926-27 S.W.2d is by person a deed settled that ... [executed Ass’n, Mortg. But see Kramer v. Fed’l Nat’l 14. fraudulently agency] misrepresenting his (W.D.Tex.2012) WL at *5-6 represents prima valid and facie evidence of J.) (Sparks, (suggesting that the Restatement’s title has suit until there been a successful approach governs). only ... be set it aside can main- [which] (Tex.1976). 15. 533 S.W.2d 923 by [principal].”). tained the defrauded 16. Id. at 926. here; Reinagels challenge also contend that not require- there is no ment that the affiant affix signature

the second is void as a “for Finally, Bly’s wet ink.21 even if acknowl- gery,” reasoning Bly testified “has defective,22 edgment counsel for signature that his was scanned onto docu Reinagels conceded during argument oral original.” ments and then notarized as an “that there is no dispositive says law that argument herring. This is a red [an of a deed of trust] has to recognizes typed stamped signatures— or be a notarized document.”23 While mort- presumably also signatures— scanned gage assignments acknowledged must be long they by so as are rendered or at the recorded,24 to be recording Texas’s statute signer,19 direction of the and the Reinagels protects only subsequent purchasers allege Bly’s do not signature was is, value and without notice.25 That while scanned onto the document without his defects in the acknowledgment might pre- Moreover, authorization.20 acknowledg vent Deutsche Bank foreclosing from had long ments are as valid as are made party purchased a third the underlying presence notary of the and meet real estate from without ac- certain other formalities the do tual knowledge mortgage,26 they of the do See, Oliveira, e.g., (2013) (“An Stout v. Acknowledgments § 1A C.J.S. (Tex.Civ.App.1941); Mondragon v. Mon acknowledgment of an instrument is not the (1923); dragon, 113 Tex. 257 S.W. 215 Thus, except same as the instrument itself. see also Restatement (Second) acknowledgment where formal is made essen- of Contracts (1981) ("The signature § 134 to a memoran statute, validity tial by of an instrument may any symbol adopted dum made or attempted acknowledgment where an is de- intention, apparent, with an actual or to au irregular, fective or the instrument is not writing signer.1'). thenticate the that of the thereby parties, invalidated as between the or heirs, representatives.”). their Indeed, attribute scan- ning Bly, claiming Bly’s that "Mr. conduct Mortgages § C.J.S. clearly provision within th[e] [of falls the Tex- ("[I]t necessary is not of an forgery]'' as Penal Code that criminalizes of a that it should be added). (emphasis witnesses.”). acknowledged or attested 21. See Tex. Civ. Pract. & Remedies Code 121.004, §§ 121.007. 12.001(b). 24. Tex. Prop.Code. Reinagels allege Bly’s 22. The 13.001(a). 25. Tex. It matters not Prop.Code. assignment, allega- was scanned onto the Property that the Texas Code defines "mort- might tion from which one infer that did gagee” person to include "the last to whom actually "appear notary before" the as assigned deed [the trust] of has been rec- of required acknowledgment to render an valid ord," as this definition is not exhaustive and under Texas law. Tex. Civ. Pract. & Remedies applies only the has been [deed trust] "if § 121.004. The concurrence concludes Code assigned of record.” See Tex. Prop.Code that acknowledgment such a defect in the 51.0001(4). § "mortgagee” The definition of may underlying assignment render the a for- owner, grantee, beneficiary, also includes "the gery. disagree. We Texas contract law is trust],” (em- or holder of deed of id. [the see "[fjorgery making clear that is the without added), phasis enough a definition broad authority writing, of a false instrument assignees who fail to record. accommodate Nobles, purporting to be the act another." added). Here, (emphasis 533 S.W.2d at 926 "might” deliberately, use the We term Bly assignment, executed the and the Reina- general "the rule ... is that a defect in the gels allege Bly's signature do not that was ..., Indeed, acknowledgment forged of an instrument which without his authorization. they suggest apparent is not on sig- that the face of the instrument himself scanned his Hence, prevent nature onto the document. ... does not the under- the recordation from lying assignment forgery. being persons may is not void aas constructive notice to who Cf. Moreover, assuming that rights against benefit.29 even affect Deutsche Bank’s not beneficiaries, Reinagels are third-party the Reinagels.27 fact that the violated the assignments claim Finally, Reinagels not separate contract —would ren- PSA —a assignments are void because that both void, merely assignments but enti- der the governed they violated PSA Reinagels for breach of the tle the to sue mort Bank’s Series 2006-MI Deutsche PSA. provid PSA gage pool. enough, True sum, and, In the first is valid transferred mortgages that no could be ed under the Restatement’s note-follows-the- Bank’s trust after pooling into mortgage presumption, vests Deutsche 1, year before 2006—more than a October authority Bank with to foreclose assignment. first But as However, Reinagels’ property.30 to the they party not concede are the second is also valid—at PSA, no its they right to enforce against least as need third- they its intended terms unless —we today not determine whether Supreme party beneficiaries. The Texas Supreme Court follow the Restate- ... would presumption has established “a Court themselves,” ment. Our a narrow one: holding is we parties contracted law, merely reaffirm that under Texas fa- ‘clearly appears’ “unless it applies which cially valid cannot chal- they party intended a third to benefit lenged authority except by for want of Here, from the contract.”28 assignor. defrauded We do condone they are third-party claim that beneficia “robo-signing” broadly and more remind integral part the PSA ries because employees contractors that bank who of a securitization transaction that enabled loan; forgery or prepare howev commit false affidavits home-equity them to obtain er, subject any indicating supervisors fail to state facts themselves and their liability. parties to the PSA intended to civil criminal by Capital Dynex Mgmt., be affected recorded.” 28. Basic Inc. v. Com- transaction mercial, Inc., cases). (Tex.2011). (collecting §

A.L.R.2D 1299 course, reality, a PSA is executed 27. See Property: (Third) Restatement buy Mortgages (1997); benefit investors who securities cmt. 5.4 b Am.Jur.2d Legal by mortgage pool-investors Mortgages (2013); backed who § 924 3 Tex. Forms & enforcing (2012). be harmed would PSA to Admittedly, § 3:60 the Texas Bus. mortgages keep pooling trust. out of the Un that the as- Local Government Code declares surprisingly, invariably deny mortga signment aof recorded instrument must itself gors third-party status enforce PSAs. be recorded. See Local Gov’t Code Tex. Walker, However, e.g., In re 192.007(a). 466 B.R. 284-85 provi- this obscure (Bankr.E.D.Pa.2012); Kelly v. Deutsche Bank has never been a state court sion cited in Co., F.Supp.2d Nat’l Trust 267-68 procedural best decision and is read as a (D.Mass.2011); Bittinger Fargo clerks, v. Wells county prerequi- directive to not as a NA, (S.D.Tex. F.Supp.2d 625-26 assignments. See Miller site Fin., LLC, F.Supp.2d Homecomings 2010). 825, (S.D.Tex.2012) (noting 830 that ”[t]he consequences comply legal failing of with also v. BAC Home Loans Ser- See Martins L.P., 249, 192.007(a)] (5th Cir.2013) unclear”); Equities, vicing, 722 are KCB F.3d 255 [§ Ass’n, USA, (holding party 2012 WL that in Inc. v. HSBC Bank Nat’l Texas "the foreclose 1985899, (unpub- possess and that (Tex.Ct.App.2012) at *2 need not the note itself” "the lished) (rejecting argument assignment mortgage or own of servicer need not hold mortgage yet note and would be authorized to adminis- recorded must itself be recorded foreclosure”). effective). a ter

229 fully recognized The rule is in this state IV. mortgage that a to secure a negotiable of the district court is judgment note promissory merely is an incident to AFFIRMED. debt, passes by assignment and transfer of the note.... The note and GRAVES, JR., JAMES E. Circuit mortgage are inseparable; the former only: Judge, concurring judgment essential, the latter as an incident. assignment An of the note carries the judgment sep I concur in the and write it, mortgage assignment with while an of arately express three concerns with the nullity. the latter alone ais First, majority’s opinion. disagree I with Williams, Kirby Corp. Lumber v. 230 F.2d majority assignment that the first was (5th 330, Cir.1956) 333 (quoting Van Burk and that “Texas courts tend to follow valid Co., 1085, leo v. Mfg. Sw. 39 S.W. 1087 Indeed, the Restatement.” (Tex.Civ.App.1896); Gough v. Home Own “expressly adopted” have not the Restate (Tex.Civ. Corp., ers’ Loan 135 S.W.2d 771 note-follows-the-mortgage pre ment’s App.1939)). The United States District sumption precisely longstanding Court for the Northern District of Texas Supreme and Texas United States Court recently came to the same conclusion. See precedent foreclosing party that a requires Am., NA, McCarthy v. Bank 2011 WL of promissory be the holder of the note in (N.D.Tex. 2011) 22, 6754064 at *3-4 Dec. Carpenter Longan, order to foreclose. v. (requiring party foreclosing to be holder of 271, 274, 21 U.S. 16 Wall. L.Ed. note, promissory just not holder of mort (1872) (“The mortgage note and Indeed, gage). the courts have a reason essential, inseparable; the former as adopting requirements these note —the latter as an incident. An the obligation mortgage is and the secures it, the note carries the with obligation. only It that a logical is while an of the latter alone is a obligation lender must hold the in order to nullity.”); accord Nat’l Live Stock Bank v. security foreclose on the for that obli Bank, 296, 306, First Nat’l 203 U.S. Nevertheless, gation. I concur in the (1906); S.Ct. 51 L.Ed. 192 Baldwin v. - judgment majority correctly because the Mo., 586, 596, State U.S. S.Ct. holds that Texas courts have never ex (1930) (Stone, J., 74 L.Ed. 1056 con pressly adopted the Restatement’s note- curring); Regency see also Cadle Co. follows-the-mortgage presumption. More Homes, Inc., (Tex.App S.W.3d over, since the val second .2000) that, foreclose, (holding in order to id, there is no need to decide the party seeking to enforce the note must assignment. the first show it is the owner and holder of the Second, I agree do not that the Reina- note).1 gels’ forgery argument herring. red law, Applying Texas this court has also at Acknowledging document a different assignor assign held that must place time or than what was in fact the note, promissory just mortgage: case is included the Texas Penal Code’s This, course, note, require promissory plaintiff does not the owner on a must estab- (1) produce question, and holder of the note to the actual lish: the existence of the note in note, (2) (3) original signed note at the time the defendant of foreclosure. Cf. Co., note, (citing plaintiff Cadle 21 S.W.3d at 674 Commer- is the owner and holder of the Perry, owing Wooldridge, cial Serv. Inc. v. a certain balance due and (“To note.”). (Tex.App.1998)) S.W.2d collect the PSAs”, seeking Reinagels are not Tex. Penal Code “forge.” definition In- the PSA. 32.21(a)(1)(A). status to enforce forgery third-party makes And in void, stead, “point to defects not voidable. assignment (Tex. Garza, that process as evidence v. the securitization Garcia Joint Kirkpatrick Bellaire of the note App.2010); possession title nor neither Loots, 205, 210 S.W.2d sought v. to fore- [party] Venture who passed ma- disagree I with the (Tex.App.1992). Thus, Plaintiffs mortgages. close their that, acknowledgment even if the jority the breaches as evidence only to use seek not invalidate the improper, it did was to foreclose is not seeking the party assignments second v. Bank their note.” Ball the owner of in Texas. to be notarized required are not (W.D.Mo. N.Y., at *4 WL regardless of whether This 2012) (permitting homeowners immaterial — Dec. sign origi- Bly required was Bryan on violation of challenge foreclosures based in ink or to have his nal wet PSA). very It makes little sense notarized, claim signature challenge right have a at a time signature was notarized on fraud but lack the assignments based Bly actually than where place different assignments based right challenge the definition of was.2 This satisfies view, my In both a violation of the PSA. Penal Code. The “forge” under the Texas challenging bases for however, sufficiently did not Reinagels, valid, should be considered on the and argument, having this raised plead or brief Nevertheless, given the lack merits. reply in their brief. it for the first time Reinagels may be sub- evidence Ramirez, F.3d United States double-collection,3 I ject concur (5th Cir.2009) (“This court does not judgment. arguments raised for the first entertain brief.”). the Rein- reply in a Because time argument, I concur

agels have waived the judgment.

in the

Third, technically majority while the invariably deny mort-

correct that “courts to enforce

gagors third-party status act,” rization,” Bly "the exact date of the notarial 2. Reinagels claim that admitted in his signer personally testimony ”[t]hat and attest that deposition from another case own notary public appeared at the time before signature was "scanned” onto docu- that his 117.05(4). Stat. of the notarization.” Fla. original as an ments and then notarized Thus, that, Stoldt, Bly Nevertheless, appears if was not Bobbie Jo recorded. presence signature was Stoldt’s because his purportedly notary that witnessed Florida "scanned,” also violated the notarization assignment in Bly's execution of the second addition, Florida, notary the law Florida’s law. County, attested in the as- Pinellas public may notary not notarize "[a] states that signment’s acknowledgment that certificate of signature unless he or she on a document acknowledged Bly me "before knows, satisfactory evi- personally or has year day February in the 2009.” this 13th dence, person whose is to added). (emphasis She also attested who is de- notarized is the individual "personally me to be the Vice known to executing the instru- scribed in and who is Lending, of Citi Residential President 117.05(5). §Id. ment.” Inc.....” to, alia, that its conclu- notary 3. The Ball court announced requires a inter Florida law “which held acknowledgment supported caselaw sion was include in the certificate of standing generally lacks to con- that a debtor stating the location of the nota- the "venue INCORPORATED, CHS,

Plaintiff-Appellant

PLAQUEMINES HOLDINGS, L.L.C.,

Defendant-Appellee.

No. 13-30028. Appeals,

United States Court

Fifth Circuit.

Nov. debt, possession pre- test the of an of the note is meant to except prejudiced. if the debtor One (citing Washington, will vent.” Id. In re 468 B.R. prejudice potential form (Bankr.W.D.Mo.2011) ("Possession exposed multiple judgments." debtor will be to creditor, of the note insures that this and not alia, added) (emphasis (citing, Id. inter at *5 one, an unknown is the one entitled to exer- Danner, (Mo. Barker v. trust, rights under the deed'of and that cise ("[T]he Ct.App.1995) only interest of the obli- obligated pay the debtor will not be gor being required pay that he shall be however, twice.”)). Here, ad- person.”); Prop. debt to but one Livonia Hold they payments mit made their to Deutsche ings, Farmington LLC v. 12840-12976 Rd. negotiate attempting had been LLC, (6th Holdings, Fed.Appx. payments the amount of those with Deutsche 28, 2010) ("Obligors standing Cir. Oct. Thus, Bank. there is no indication that the to raise these claims because cannot lender were confused as to which protect having otherwise themselves from pay, significant possibility or that a exists twice.”)). fact,” pay "In the same debt con Argent attempting to collect on the note. court, very possibility tinued the "this is the

Case Details

Case Name: Reinagel v. Deutsche Bank National Trust Co.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 30, 2013

Citation: 735 F.3d 220

Docket Number: 12-50569

Court Abbreviation: 5th Cir.