                                                                                              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).


                                         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.




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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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