Case 1:09-cv-00940-JRN Document 9-2 Filed 06/29/10 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

VALERIE NORWOOD, § CIVIL ACTION NO.

§
Plaintiff, § 1 : 09-cv-00940-JRN
§
v. §
§
CHASE HOME FINANCE LLC, §
§
Defendant. §

PLAINTIFF’S FIRST AMENDED COMPLAINT

1. Valerie Norwood (“Plaintiff”) submits this amended complaint and in support,

shows the Court as follows:

PARTIES

2. Valerie Norwood, Plaintiff, is a resident of Travis County, Texas.

3. Chase Home Finance LLC (“Defendant”) is a business entity that alleges it is

incorporated in Delaware and has its principal place of business in New Jersey.

JURISDICTION

4. Defendant claims this Court has diversity jurisdiction under 28 U.S.C. § 1332(a),

as Plaintiff and Defendant are citizens of different states, and this is a civil action in which the

amount in controversy is greater than $75,000.

VENUE

5. Venue is proper in this case because it was removed pursuant to 28 U.S.C. §§

1441 and 1446, and this case could have originally been brought in this district under 28 U.S.C.

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§ 1391(a)(2), because a substantial part of the events or omissions at issue occurred in this

district.

FACTS

6. On or about May 17, 2007, Plaintiff obtained a loan using her home located at

6111 Hylawn Dr., Austin, Texas 78723 (“home”) as security under Article XVI § 50(a)(6) of the

Texas Constitution.

7. The loan was evidenced by Plaintiff who signed a promissory note (“Note”),

promising to pay a principal balance of $83,500 over a thirty year period to Chase Bank USA,

N.A. See Exhibit A, attached.

8. The Note is a negotiable instrument pursuant to § 3.104 of the Texas Business &

Commerce Code.

9. On or about July 20, 2009, Defendant Chase Home Finance LLC filed an

application with the 126th District Court, Travis County, Texas (Cause No. D-1-GN-09-002307),

requesting permission to foreclose on Plaintiff’s home pursuant to Rules 735-736 of the Texas

Rules of Civil Procedure (“state foreclosure case”). The state foreclosure case was filed by

Defendant with the assistance of counsel with the law firm of Barrett Daffin Frappier Turner &

Engel, LLP. See Exhibit B, attached.

10. A document attached to the state foreclosure case purports to be an assignment of

the Note and Deed of Trust from Chase Bank USA, N.A. to Defendant. The document was

purportedly executed on June 16, 2009 (after the Note had been declared in default, but prior to the

filing of the application for foreclosure) by Stephen Porter. The document purports to be effective

on May 12, 2009. See Exhibit C, attached.

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11. Stephen Porter was not an employee or agent of Chase Bank USA, N.A. on or about

June 16, 2009, but instead an employee of the law firm Barrett Daffin Frappier Turner & Engel,

LLP, who was representing Defendant in the state foreclosure case.

12. Stephen Porter had no authorization to assign the Note on behalf of Chase Bank

USA, N.A. on or about June 16, 2009.

13. Plaintiff filed this suit originally in Travis County District Court, and Defendant

removed it to federal court for disposition. Pursuant to Rule 736(10) of the Texas Rules of Civil

Procedure, the state foreclosure case was abated and dismissed.

CAUSES OF ACTION

A. Defendant May Not Enforce the Note Because Defendant Is Not the Holder of the
Note.

14. The purported assignment of the Note supposedly made on or about June 16, 2009

was insufficient to transfer possession of the Note to Defendant or make Defendant a holder of

the Note. See Tex. Bus. & Comm. Code § 3.201; Nelson v. Regions Mortg., Inc., 170 S.W.3d

858, 864 (Tex. App.―Dallas 2005, no pet.) (assignee of a negotiable instrument not entitled to

enforce the instrument as a holder).

15. Only the holder of the instrument or a nonholder in possession of the instrument

may enforce a negotiable instrument. Tex. Bus. & Comm. Code § 3.301.

16. Assignment of a negotiable instrument is insufficient to give the assignee the

power to enforce the negotiable instrument unless the assignee obtains possession of the

instrument. Tex. Bus. & Comm. Code § 3.203 cmt. 1 (“X signs a document conveying all of X's

right, title, and interest in the instrument to Y…Y is not a person entitled to enforce the

instrument until Y obtains possession of the instrument.”).

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17. Defendant was not and is not a holder of the Note or a nonholder in possession of

the Note.

B. Even if an Assignment Were Sufficient, Defendant May Not Enforce the Note
because the Note was Never Assigned to Defendant.

18. On information and belief, Stephen Porter had no authorization from Chase Bank

USA, N.A. to sign the purported assignment of the Note to Defendant on or about June 16, 2009.

19. Therefore, the document titled “Assignment of the Note and Deed of Trust” is

void and a nullity.

REQUESTS FOR RELIEF

20. Pursuant to the Texas Uniform Declaratory Judgments Act, Plaintiff requests the

Court declare that Defendant is not entitled to enforce the Note, and permanently enjoin it from

taking any action to do so. See Tex. Civ. Prac. & Rem. Code § 37.001, et seq.

21. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code,

Plaintiff further requests court costs, attorney’s fees, and litigation expenses.

22. Plaintiff requests all other relief that she may be entitled.

Respectfully submitted,

/s/ .
Robert W. Doggett
State Bar No. 05945650

Texas RioGrande Legal Aid Inc.

4920 N. IH-35
Austin, TX 78751
512-374-2725
512-447-3940 (fax)
rdoggett@trla.org
Attorney for Plaintiff

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Certificate of Service

I hereby certify that I caused a true and correct copy of the foregoing to be sent to counsel
for Defendant named below by filing this document with the Electronic Court Filing system this
29th day of June 2010:

WM Lance Lewis
Justin R. Opitz
Quilling, Selander, Cummiskey & Lowinds, P.C.
2001 Bryan Street, Suite 1800
Dallas, Texas 75201

/s/ .
Robert W. Doggett

Plaintiff’s Amended Complaint – Page 5