Fifth Circuit gives servicers green light to foreclose without note

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Foreclosing on Nothing: The Curious Problem of the Deed of Trust Foreclosure Without Entitlement To Enforce the Note. Dale A. Whitman Drew Milner In this article we propose to examine the extent to which a party conducting a nonjudicial foreclosure of a mortgage or deed of trust must establish that it is entitled to

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Fifth Circuit Court of Appeals gave servicers foreclosing in Texas the green light to proceed with a foreclosure even when the servicer lacks possession of the note. In a case called, Martins v. Bac Home Loan Servicing , the Fifth Circuit interpreted Texas law as granting servicers a right to foreclose without the note as long as they have a viable mortgage assignment.

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Mortgage Foreclosure Action Barred by Statute of Limitations Based On prior involuntary dismissal Without Prejudice. without prejudice of the foreclosure action would negate the acceleration of. A Tenth Circuit panel then backed up the lower court on appeal, and in so doing, followed in the footsteps of the Ninth Circuit while splitting from the Fourth, Fifth and Sixth circuits. nor does.

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The first theory posits that to foreclose, a party must produce the original note bearing a "wet ink signature." 3 Numerous federal district courts have addressed this question, and each has concluded that Texas recognizes assignment of mortgages through MERS and its equivalents as valid and enforceable without production of the original.

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