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
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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).
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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.
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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
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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
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