Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Sandy
Assignment of the security instrument is not proof of ownership of the note and the naked assignment of a lien without express language as to the transfer of the note cannot support a foreclosure. Shepard v. Boone, 99 S.W. 3d 263 (Tex.Civ.App.—Eastland 2003).

I did not review the entire case to see the express language referenced, but it might be worth the time for those who are facing Texas foreclosure.
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William A. Roper, Jr.
Sandy:

That really IS a very nice little case for authority in appropriate Texas litigation!  Thanks for posting.

Although I would hope that most of our regular Forum participants have by now learned to navigate around LexisOne and, more recently, Google Scholar, I thought that participants might benefit from a link to the Google Scholar presentation of this case:


Though your citation of the case is generally quite adequate, some using other services and resources might benefit from the full LEXIS citation which could also aid in locating the briefs through the appellate clerk:

Shepard v. Boone, No. 11-02-00043-CV , COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND, 99 S.W.3d 263; 2003 Tex. App. LEXIS 722; 50 U.C.C. Rep. Serv. 2d (Callaghan) 666, January 23, 2003, Decided.

The inclusion of the case in Callaghan's U.C.C. Reporter Service reflects the belief of editors that this was an important decision with possible U.C.C. interpretation implications in other jurisdictions!

Your citation is probably about what is needed for inclusion in a Texas memorandum of law, however Texas courts prefer to see the inclusion of a so called writ history with each citation.  "Writ history" is somewhat an archaic description, as Texas courts changed the nomenclature associated with appeals to the Texas Supreme Court from an application for a "writ of error" to a "petition for review" for appeals after September 1, 1997.

See:  http://books.google.com/books?id=qB7k56Ufw_sC&lpg=PA380&ots=bherK5Kf5g&dq=%22writ%20history
%22%20Texas%20writ%20%22petition%20for%20review%22&pg=PA380#v=
onepage&q=%22writ%20history%22%20Texas%20writ%20%22petition%20for
%20review%22&f=false

The core idea is to show whether the matter was appealed to the higher court and the disposition of such an appeal.  A decision would be deemed to have greater authority where an appeal was filed and the court expressly refused to take the case.  This might be something like "writ ref. n.r.e." (writ refused no reversible error), "writ den." (writ denied), "pet den." (petition for review denied).  There is a hierarchy to the authority in Texas cases.  In cases in which the writ or petition was denied, the court refused to take the case, but this might have been because they didn't believe that there was any real dispute amongst the Texas districts that needed to be resolved by Supreme Court intervention.  Where the writ or petition is shown to be refused due to no reversible error, the Court is essentially saying that it will not entertain the case because the decision of the intermediate court is clearly correct.  The Supreme Court is giving its blessing to the decision.  See the reference for details.

In this particular case, it appears that no appeal to the Texas Supreme Court was ever filed.  Since the case was decided after the 1997 change, the additional designation "no pet.", meaning that no petition for review was filed should also be included:
Shepard v. Boone, 99 S.W. 3d 263 (Tex.Civ.App.—Eastland, 2003, no pet.)
Where a case is included in something like the U.C.C. Reporter, I would tend to also include that in the citation for increased authority, though this is not required.

*

Another similar Texas decision which cites Shepard within footnote 12 is Leavings v. Mills:

Leavings v. Mills, NO. 01-03-00047-CV , COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON, 175 S.W.3d 301; 2004 Tex. App. LEXIS 7783; 54 U.C.C. Rep. Serv. 2d (Callaghan) 678, August 26, 2004, Opinion Issued.
http://scholar.google.com/scholar_case?case=10452512075120425923
[No petition for review was filed.]

Even more interesting than the supportive language as to ownership and holdership is the discussion showing the limits of acceptable hearsay testimony and the necessity of an affirmative showing of personal knowledge by an affiant seeking to establish facts by affidavit.

Read the holdings in the Leavings case and then re-read my analysis:

"Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule" (09/27/10 at 01:12 AM)
http://ssgoldstar.websitetoolbox.com/post?id=4903945

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Ed Cage
William A. Roper, Jr. wrote:
Sandy:

That really IS a very nice little case for authority in appropriate Texas litigation!  Thanks for posting.

Although I would hope that most of our regular Forum participants have by now learned to navigate around LexisOne and, more recently, Google Scholar, I thought that participants might benefit from a link to the Google Scholar presentation of this case:


Though your citation of the case is generally quite adequate, some using other services and resources might benefit from the full LEXIS citation which could also aid in locating the briefs through the appellate clerk:

Shepard v. Boone, No. 11-02-00043-CV , COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND, 99 S.W.3d 263; 2003 Tex. App. LEXIS 722; 50 U.C.C. Rep. Serv. 2d (Callaghan) 666, January 23, 2003, Decided.

The inclusion of the case in Callaghan's U.C.C. Reporter Service reflects the belief of editors that this was an important decision with possible U.C.C. interpretation implications in other jurisdictions!

Your citation is probably about what is needed for inclusion in a Texas memorandum of law, however Texas courts prefer to see the inclusion of a so called writ history with each citation.  "Writ history" is somewhat an archaic description, as Texas courts changed the nomenclature associated with appeals to the Texas Supreme Court from an application for a "writ of error" to a "petition for review" for appeals after September 1, 1997.

See:  http://books.google.com/books?id=qB7k56Ufw_sC&lpg=PA380&ots=bherK5Kf5g&dq=%22writ%20history%22%20Texas%20writ%20%22petition%20for%20review%22&pg=PA380#v=onepage&q=%22writ%20history%22%20Texas%20writ%20%22petition%20for%20review%22&f=false

The core idea is to show whether the matter was appealed to the higher court and the disposition of such an appeal.  A decision would be deemed to have greater authority where an appeal was filed and the court expressly refused to take the case.  This might be something like "writ ref. n.r.e." (writ refused no reversible error), "writ den." (writ denied), "pet den." (petition for review denied).  There is a hierarchy to the authority in Texas cases.  In cases in which the writ or petition was denied, the court refused to take the case, but this might have been because they didn't believe that there was any real dispute amongst the Texas districts that needed to be resolved by Supreme Court intervention.  Where the writ or petition is shown to be refused due to no reversible error, the Court is essentially saying that it will not entertain the case because the decision of the intermediate court is clearly correct.  The Supreme Court is giving its blessing to the decision.  See the reference for details.

In this particular case, it appears that no appeal to the Texas Supreme Court was ever filed.  Since the case was decided after the 1997 change, the additional designation "no pet.", meaning that no petition for review was filed should also be included:
Shepard v. Boone, 99 S.W. 3d 263 (Tex.Civ.App.—Eastland, 2003, no pet.)
Where a case is included in something like the U.C.C. Reporter, I would tend to also include that in the citation for increased authority, though this is not required.

*

Another similar Texas decision which cites Shepard within footnote 12 is Leavings v. Mills:

Leavings v. Mills, NO. 01-03-00047-CV , COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON, 175 S.W.3d 301; 2004 Tex. App. LEXIS 7783; 54 U.C.C. Rep. Serv. 2d (Callaghan) 678, August 26, 2004, Opinion Issued.
http://scholar.google.com/scholar_case?case=10452512075120425923
[No petition for review was filed.]

Even more interesting than the supportive language as to ownership and holdership is the discussion showing the limits of acceptable hearsay testimony and the necessity of an affirmative showing of personal knowledge by an affiant seeking to establish facts by affidavit.

Read the holdings in the Leavings case and then re-read my analysis:

"Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule" (09/27/10 at 01:12 AM)
http://ssgoldstar.websitetoolbox.com/post?id=4903945



As always William your layman guidance is *superb* - Especially the references to new sources of solid information : scholar.google.com/scholar
and Lexus One.
Ed Cage
ecagetx@gmail.com
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Sandy
Thanks, Mr. Roper, I needed that bit of teaching about citing the cases. I appreciate your help.

I was encouraged that you think this might help with UCC interpretation in other jurisdictions. I'm going back and spend more time digesting this case.



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William A. Roper, Jr.
Sandy:

Bear in mind that the necessity of showing writ history and subsequent history within the citation as described is unique to Texas.  But one certainly needs to be mindful of the subsequent history of cases in other places and these other jurisdictions may very well have their own specifications for case citation either explicitly within the Rules or merely by convention and practice.

I have had it occur more than once that an opponent has cited a case that was overruled by a decision of a higher court OR where a case was cited as making a holding which was actually expressly contrary to what the court actually decided.  The latter recently happened in a memorandum of law submitted by a plaintiff in support of its motion for summary judgment.  I highlighted the false representation of the court's holding and attached a COPY of the court's actual decision to my reply brief.

As to the citation of cases from places outside of the jurisdiction where the matter is being litigated one needs to distinguish between the cases which are authoritative and possibly binding upon the trial courts and those which are merely instructive and/or persuasive.

Very often within a singularly well written decision will be concise and compelling language which explains WHY the holding is law.  And this reasoning can inform the court in support of your case.

In seeking to borrow from the case law of other jurisdictions, also bear in mind that the case law holdings are MOST LIKELY to be relevant and informative where there statutes and Rules closely conform between the two jurisdictions.  For this reason, case holdings of decisions determined under the Uniform Commercial Code (where the statutes are almost identical throughout the country) are inherently more relevant than cases determined under property laws, where the underlying statutes are far from uniform.  Similarly, in those cases where state court rules of civil procedure are closely modeled on the federal rules of civil procedure, the rules decisions of the Federal courts and other jurisdictions with similar or identical rules are going to be far more instructive and informative than when cases are based upon highly differentiated statutes.

For example, Ohio and Kentucky civil rules are modeled on the Federal Rules and the courts in these places have expressly held that they look to the Federal Rules decisions for guidance where the state court jurisprudence on a point is thin.  By contrast, while there are a number of individual rules in the Texas Rules of Civil Procedure which are modeled on Federal Rules, the numbering is inconsistent and there are a variety of deviations, as well.  So some Federal Rules decisions may be instructive while others may not. 

Even when the underlying statutes and rules differ, the logic implicit in a well written decision may still inform your argument, but great care needs to be taken to distinguish between what the law of a jurisdiction IS and what we wish it to be or which it OUGHT TO BE!
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