     Case: 15-20201      Document: 00513600039         Page: 1    Date Filed: 07/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                             July 19, 2016
                                      No. 15-20201
                                                                             Lyle W. Cayce
                                                                                  Clerk
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the
Residential Asset Securitization Trust 2007-A8, Mortgage Pass-Through
Certificates, Series 2007-H under the Pooling and Servicing Agreement dated
June 1, 2007,

               Plaintiff - Appellant

v.

JOANNA BURKE; JOHN BURKE,

               Defendants - Appellees




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:11-CV-1658


Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Joanna and John Burke borrowed $615,000 from IndyMac Bank, with
Joanna alone executing a note containing a promise to pay. The Burkes
stopped making payments on this loan in December 2009; sixteen months
later, Deutsche Bank, the holder of the Burkes’ deed of trust, sought a


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-20201
declaratory judgment authorizing a non-judicial foreclosure sale pursuant to
Texas law. After briefing and a bench trial, the magistrate judge held that
Deutsche Bank could not foreclose on the Burkes’ property, finding that “at no
time has Deutsche Bank possessed any right, title, or interest in the Burkes’
note and security interest.” Deutsche Bank timely appealed.


                               BACKGROUND
      Joanna and John Burke applied for a home equity loan in early 2007, but
were denied by IndyMac Bank because they had no income—they were retired.
Representatives at IndyMac Bank soon changed their mind, however, and
notified the Burkes that their loan would be approved. Joanna Burke signed a
Texas Home Equity Note in May 2007 promising to pay $615,000 plus interest
to secure a loan from IndyMac Bank. The note was secured by a Texas Home
Equity Security Instrument (deed of trust), signed by both Joanna and John,
placing a lien on their property. Mortgage Electronic Registration Systems,
Inc. (MERS) is the beneficiary named in the deed of trust.
      In the summer of 2008, the Office of Thrift Supervision closed IndyMac
Bank and transferred substantially all of IndyMac Bank’s assets to IndyMac
Federal Bank, FSB. In the spring of 2009, the Federal Deposit Insurance
Corporation placed IndyMac Federal in receivership, selling substantially all
of its assets to OneWest Bank, FSB. During this period, the Burkes started
having trouble with their loan. They complained that their monthly payments
were being placed in suspense rather than being applied towards their
mortgage. The Burkes tried to arrange a loan modification, but were told that
they had to be three months in arrears to be eligible. They went three months
in arrears according to these instructions, were told to pay the arrearage to get
the modification, and arranged to pay the arrearage—but did not get the
modification. In the summer of 2009, Joanna Burke sued former Secretary of
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the Treasury Timothy Geithner because of IndyMac Federal’s conduct. Joanna
ultimately withdrew the suit. The Burkes made their loan payments until
December 2009—their last attempted payment was returned by the bank.
      IndyMac Mortgage Services notified the Burkes in March 2010 that their
loan was in default, giving them approximately thirty days to cure the default
by paying $14,282.48 in overdue payments and late fees. The Burkes did not
make any payments. In December 2010, the Burkes sued IndyMac Mortgage
Services, MERS, and others in Texas state court for breach of contract and
predatory lending practices. This second suit was removed to federal court and
dismissed in March 2011 because the Burkes did not wish to pursue the case.
In January 2011, MERS assigned the Burkes’ deed of trust to Deutsche Bank.
The assignment listed April 9, 2010, as the effective date: nine months prior to
the date on which it was executed. In February 2011, OneWest Bank, the
mortgage servicer for Deutsche Bank, notified the Burkes that because they
had failed to cure the default on their loan, their mortgage was accelerated.
The Burkes still did not make any payments.
      In April 2011, Deutsche Bank sought a declaratory judgment in federal
district court authorizing a non-judicial foreclosure sale pursuant to Texas law.
The parties consented to magistrate judge jurisdiction, who found for the
Burkes. Deutsche Bank timely appealed. After reviewing the briefs, record,
and applicable case law, we VACATE the Amended Final Declaratory
Judgement in favor of the Burkes and REMAND for further proceedings.


                                 DISCUSSION
                                       I.
      Following a bench trial, we review legal determinations de novo and
findings of fact for clear error. Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 583
F.3d 348, 352 (5th Cir. 2009).
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                                       II.
      Deutsche Bank sought an order authorizing it to proceed with a non-
judicial foreclosure sale pursuant to Texas Property Code § 51.002. The Burkes
contend—and the magistrate judge held—that Deutsche Bank did not
establish its right to foreclose on the Burkes’ property under Texas law. In
Texas, borrowers like the Burkes execute two documents to obtain a home
equity loan: “(1) a promissory note that creates the borrower’s legal obligation
to repay the lender, and (2) a deed of trust that grants the lender a lien on the
property as security for the debt.” Harris Cty. Tex. v. MERSCORP Inc., 791
F.3d 545, 549 (5th Cir. 2015). This court has repeatedly held that, under Texas
law, the note and the deed of trust (also called a lien) are distinct obligations,
each providing the right of foreclosure. See, e.g., Martins v. BAC Home Loans
Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013) (“Where a debt is ‘secured by
a note, which is, in turn, secured by a lien, the lien and the note constitute
separate obligations.’” (quoting Aguero v. Ramirez, 70 S.W.3d 372, 374 (Tex.
App.—Corpus Christi 2002, pet. denied))).
      Here, the magistrate judge erred in finding that Deutsche Bank did not
possess the right to foreclose under the Burkes’ deed of trust. “Under Texas
law, a non-judicial foreclosure may be initiated by the current mortgagee
including: ‘the grantee, beneficiary, owner, or holder of a security instrument;’
a ‘book entry system;’ or ‘the last person to whom the security interest has been
assigned of record.’” Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 342 (5th
Cir. 2013) (quoting Tex. Prop. Code § 51.0001(4)). MERS assigned the Burkes’
mortgage to Deutsche Bank—the new mortgagee—by an Assignment of Deed
of Trust dated January 20, 2011. By this assignment, Deutsche Bank now held
“a perfected security interest in the [Burkes’] property,” including “the right to
invoke the power of sale.” Harris Cty., 791 F.3d at 556; see also Farkas, 737
F.3d at 342 (“Our holding in Martins permits MERS and its assigns to bring
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                                   No. 15-20201
foreclosure actions under the Texas Property Code. Deutsche Bank became the
mortgagee as defined under Section 51.0001(4) by valid and recorded transfer
of the deed[ ] of trust and therefore was an appropriate party to initiate non-
judicial foreclosure actions.”).
      The magistrate judge found four reasons why the Assignment of Deed of
Trust from MERS to Deutsche Bank was “void and absolutely invalid”:
      (A) the putative assignor, IndyMac Bank, F.S.B., had been defunct
      for more than two years at the time of execution, and therefore had
      no legal existence or capacity to act; (B) the party executing the
      assignment, [MERS], acted solely in its capacity as “nominee for
      IndyMac Bank F.S.B., its successors and assigns,” not in its own
      behalf or any other capacity; (C) the document does not specify who
      the successors or assigns might be, whether they had any rights
      under the Burkes’ note or security instrument, and if so how they
      obtained those rights; and finally (D) the curious backdating of the
      document [ ] confirms the suspicion that this document was
      generated to obscure the chain of title inquiry rather than to
      illuminate it.
Because he determined that the assignment was void, the magistrate judge
held that “there is no way to tell which entity, if any, currently possesses the
right to foreclose on the Burkes’ property lien.” These four reasons, however,
all misunderstand our precedent and Texas law. The first three reasons—(A)
through (C) listed above—are all based on the incorrect premise that when
MERS assigned the deed of trust to Deutsche Bank, acting per the assignment
as “nominee for IndyMac Bank,” it as beneficiary did not have authority to
assign the deed of trust. However, the original deed of trust named MERS as
a beneficiary, and Texas law and our precedent make clear that MERS, acting
on its own behalf as a book entry system and the beneficiary of the Burkes’
deed of trust, can transfer its right to bring a foreclosure action to a new
mortgagee by a valid assignment of the deed of trust. See Farkas, 747 F.3d at
342. Here, MERS assigned its right to foreclose under the deed of trust to
Deutsche Bank. That the assignment did not state that MERS was acting in
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its capacity as beneficiary does not change our analysis. See, e.g., Allen v. Bank
of Am., N.A., No. EP-14-CV-429-KC, 2015 WL 1726986, at *8 (W.D. Tex. Apr.
15, 2015) (“MERS had every right to assign its interest in the Property to
Deutsche Bank. Moreover, the fact that [the lender] filed for bankruptcy some
four years after the Security Instrument was executed does not deprive MERS
of its previously acquired authority to assign its interest to a third party.”). 1
       The fourth reason—that the assignment was backdated, listed as (D)
above—is not supported by Texas law. At least two Texas Courts of Appeals
have considered this very question, and both have held that an assignment
may have a retroactive “effective date.” See Transcon. Realty Inv’rs, Inc. v.
Wicks, 442 S.W.3d 676, 680 (Tex. App.—Dallas 2014, pet. denied) (“Although
assignments are usually effective on the date on which they are signed, there
is no language in the lease which would require that the assignment only be
effective upon execution.”); see also Crowell v. Bexar Cty., 351 S.W.3d 114, 118–
19 (Tex. App.—San Antonio 2011, no pet.). As in Wicks, there is no language
identified to us in the Burkes’ deed of trust prohibiting retroactive assignment.
The deed of trust was assigned to MERS, and then by MERS—validly—to
Deutsche Bank, which did not need the note to foreclose on the Burkes’
property. See Martins, 722 F.3d at 255. The magistrate judge erred in finding


       1 The assignment in Casterline v. OneWest Bank, F.S.B., 537 F. App’x 314, 317 (5th
Cir. 2013) (unpublished), was nearly identical to the assignment in the present case. In both
assignments, MERS purported to be acting “as nominee for” the lender rather than
specifically stating that it was acting pursuant to its authority as a book entry system and
beneficiary of the deed of trust. Here, as in Casterline, we do not find that to be prohibitive
(and we note that we have not found a single case from any Texas state court that has made
this distinction). Stone v. Sledge, 26 S.W. 1068, 1069 (Tex. 1894), the case cited by the
magistrate judge, is inapposite. That case involved the rights of husbands and wives in
conveying property, and, as the magistrate judge noted, declared “wholly inoperable” a deed
signed by a spouse who was not named as grantor in the body of the deed. In this case, MERS
was named both a beneficiary and “as nominee for” the lender in the deed of trust. It is
unquestionable that MERS, as the beneficiary of a security instrument and a book entry
system, “had the authority to transfer the Security Instrument together with the power to
foreclose to another party.” Casterline, 537 F. App’x at 317; see also Martins, 722 F.3d at 225.
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that Deutsche Bank did not possess the right to foreclose under the Burkes’
deed of trust.


                              CONCLUSION
      For the foregoing reasons, we VACATE the final judgement and
REMAND to the district court to determine whether Deutsche Bank met the
remaining requirements to foreclose under Texas law and, if so, grant a final
judgment for Deutsche Bank and rule on any outstanding request for
attorneys’ fees.




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