In its first published opinion of 2013 about the merits of a wrongful foreclosure claim, the Fifth Circuit rejected the plaintiff’s “show-me-the-note” and “split-the-note” arguments. Martins v. BAC Home Loans Servicing LP, 722 F.3d 249 (5th Cir. 2013). In footnote 2, the Court noted that much of the relevant law is federal because of diversity between the borrower and the foreclosing entity. As to the first theory, the court cited authority that allowed an authenticated photocopy to prove a note, and said: “We find no contrary Texas authority requiring production of the ‘original’ note.” As to the second, acknowledging some contrary authority, the Court reviewed the relevant statute and held: “The ‘split-the-note’ theory is . . . inapplicable under Texas law where the foreclosing party is a mortgage servicer and the mortgage has been properly assigned. The party to foreclose need not possess the note itself.” An unpublished opinion, originally released a day before Martins, was revised to closely follow its analysis and result. Casterline v. OneWest Bank, No. 13-50067 (revised July 5, 2013, unpublished).
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