Case Law/Accuracy Counts

Be ware of inaccurate information. For example, a search on the web for “Texas “lien theory” state” will provide several results and the first result on the list was this “map”  that has been copied and pasted all over the internet, but the map and all of the blog posts referencing this map are at large (to be gentle) inaccurate because this map shows Texas as a “Title Theory” state when in fact Texas follows a “Lien Theory” of mortgages. Therefore, the information on the map depicting Texas as a “Title Theory” state, prepared and presented to the public as accurate, is in fact (not being so gentle) an inaccurate, incorrect, misrepresentation of a facts established in law and exhibits a complete lack of due diligence or gross misinterpretation of those established facts on part of whom ever first compiled the data and published this map and such an error casts a shadow of serious doubt over any other information offered in the map and also establishing a necessity for closer scrutiny of any subsequent off site republication(s) reliably sourcing its information from this map.

How can I make such a sharp affirmative statement like that and not fear retribution? I fear no retribution because those words are not entirely my own. If this were a motion or pleading that I was drafting the only thing I would lack to support my claim or argument is case law. Though I mixed quote and paraphrase and embellished heavily, those were the words of judges in 23 Court rulings from the Texas Supreme Court, and Texas Appellate Courts. It took me less than one minutes to go to Google Scholar and typed in, “Texas “lien theory” state”; click case law; clicked Texas; click enter, and in an instant I had 23 state cases that state some variation of, “Texas follows the lien theory of mortgages”.

When checking the case law that attorneys use in their motions and pleadings we sometimes find that attorneys will often misquote, misinterpret or sometimes just make up quote or a case. Google Scholar is an excellent tool for the pro se, not only for finding his own case law, but also to see for himself if the cases his opponent cites are on point, interpreted correctly to the subject matter, and to see if the case actually even exists. If not, you can counter his argument on those grounds and have it stricken. I cannot stress how helpful this poor-man’s Lexus Nexus has been when it comes time to draft my motions and pleadings.


1 Response to Case Law/Accuracy Counts

  1. kevin rady says:

    Texas is a lien theory state. Therefore the statement “Borrower irrevocably grants and conveys to Trustee, in trust, with the power of sale, the following described property located in the following described property” is a violation of the Borrower’s property rights and is thereby nullified.

    Volume 1 PROPERTY CODE Sections 1.001 to 21.040 2011
    Cumulative Annual Pocket Part Replacing 2010 pocket part supplementing 2004 main volume
    For Use In 2011–2012
    Includes Laws through the 2011 First Called Session of the 82nd Legislature

    Page 137

    Lien Theory: Texas follows the ‘‘lien theory’’ of mortgages and deeds of trust, under which
    the creditor or the trustee, despite granting language in the instrument, is not regarded as the owner of the property securing the debt. Taylor v. Brennan, 621 S.W.2d 592, 593 (Tex.1981); NCNB Tex. Nat’l Bank v. Sterling Projects, Inc., 789 S.W.2d 358, 359 (Tex. App.– Dallas 1990, writ dism’d w.o.j.). Legal title does not pass from the mortgagor, and the mortgagee receives only a lien or equitable title. Flag–Redfern Oil Co. v. Humble Exploration Co., 744 S.W.2d 6, 8 (Tex. 1987); First Baptist Church v. Baptist Bible Seminary, 347 S.W.2d 587, 590–591 (Tex. 1961). A mortgagee ordinarily has no right of possession. The mortgagor remains entitled to possession of the land and is entitled to use the land without being accountable to the mortgagee, except for waste. State v. First Interstate Bank, 880 S.W.2d 427, 429–430 (Tex. App.–Austin 1994, writ denied); NCNB Tex. Nat’l Bank v. Sterling Projects, Inc., 789 S.W.2d 358, 359 (Tex. App.–Dallas 1990, writ dism’d w.o.j.).

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