By Bill Lodge
Advocate staff writer
January 16, 2013
East Baton Rouge Parish Clerk of Court Doug Welborn and 46 other clerks in Louisiana cannot pursue their lawsuit to force large banks and mortgage lenders to publicly record all property transactions they finance, according to a federal judge.
The clerks alleged through their attorneys in April that they have lost more than $450 million in fees since 2000 because of the big lenders’ refusal to record transfers of mortgage assignments at parish courthouses. As much as $40 million of that alleged loss occurred in East Baton Rouge Parish, according to the clerks’ attorneys.
U.S. District Judge James J. Brady, of Baton Rouge, dismissed the clerks’ 9-month-old suit Monday.
Brady noted that the clerks did not allege Louisiana law requires the lenders to record the disputed transactions at parish courthouses.
The judge also ruled that the clerks mistakenly concluded the federal Trust Indenture Act of 1939 authorized them to sue the big lenders under federal law.
Absent an appeal, Brady’s decision ends the clerks’ suit against The Bank of New York Mellon; Bank of America N.A.; CitiMortgage Inc.; Merrill Lynch Credit Corp.; Nationwide Advantage Mortgage Co.; SunTrust Mortgage Inc.; Wells Fargo Bank N.A.; Deutsche Bank AG; U.S. Bank N.A.; HSBC Finance Corp.; HSBC Bank USA NA; JP Morgan Chase Bank N.A.; United Guaranty Corporation; and La Salle Bank N.A.
No decision was made Tuesday on a possible appeal, according to one of the clerks’ attorneys.
“Judge Brady’s decision did not address the merits of the parish clerks’ case, but instead dismissed it on very narrow grounds regarding whether the clerks had” authority to sue the lenders, attorney Ted B. Lyon , of Mesquite, Texas, said in an email.
“We think that the federal (racketeering) statute and U.S. Supreme Court precedent does give the clerks standing to bring the case, and … we will be recommending that the clerks appeal Judge Brady’s decision to the” 5th U.S. Circuit Court of Appeals, Lyon added.
Richard Faulkner, another attorney for the clerks, added in a separate email: “Wall Street hopes to remain too big to fail, too big to jail, and hiding behind every technicality imaginable.”
Faulkner formerly practiced law in the New Orleans area, but now is based in Richardson, Texas. He said if the clerks decide to appeal, “We will pursue this case until the U.S. Supreme Court says we cannot.”
But lender attorneys Anthony Rollo, of Baton Rouge, and Kent A. Lambert, of New Orleans, told Brady that neither Louisiana law nor the federal law cited by the clerks authorizes the clerks to force the filing of repeated mortgage assignments at parish courthouses.
Louisiana’s parish clerks “lack power to bring litigation except as explicitly authorized, and no such authorization was granted to clerks to sue about allegedly nonrecorded assignments,” Rollo and Lambert told Brady in one filing.
“Louisiana recording law is permissive and does not mandate recording of mortgage assignments, and thus no fraudulent conduct is alleged,” Rollo and Lambert added.
The big banks and mortgage lenders created their own private recording system in 1993, according to the clerks’ suit. That private system was housed under both Mortgage Electronic Registration Systems Inc. and MERSCORP Inc., according to the clerks, who refer to both entities as MERS.
The clerks alleged in their suit that a MERS lender records only the first purchase of a residential property at the courthouse, then keeps 10 to 12 subsequent transfers of that mortgage note in the private MERS system.
“As a result of the creation of MERS, one can no longer look to the public recording system as a reliable source for identifying the proper payment of the obligation, tracking the chain of title for a loan or for identifying the current beneficial owner of the mortgage,” the clerks alleged in their suit.
Russell Mosley, a title attorney in Baton Rouge, said Tuesday that he had not analyzed the clerks’ suit.
Mosley added, though, that title companies protect homebuyers by going to owners and demanding the name of the property’s current mortgage lender. The title company then insists on receipt of the written record of mortgage debt from that lender before scheduling the closing of a new sale, Mosley explained.
“I don’t see a huge problem from the homebuyer’s side,” Mosley said.