Consumer complaint received 2020-02-23
Company: McCarthy & Holthus, LLP
State: TX
Product: Debt collection
Sub-product: Mortgage debt
Issue: Attempts to collect debt not owed
Sub-issue: Debt is not yours

Complaint:
The Complaint is against debt collection law firm of McCarthy & Holthus LLP., of  XXXX XXXX  . Since XX/XX/XXXX, I have experience abusive, misleading and deceptive debt collection acts by these debt collectors.

First and of significant is the fact that these debt collectors McCarthy & Holthus LLP.,  are presently falsely misleading consumers and the Courts in the State of XXXX   into believing that as debt collectors are NOT liable for any of their actions due to qualified attorney immunity. See Attachment A ( letter to XXXX and XXXX  Transcripts of Court Hearing ). 

In other words despite the fact that on XX/XX/XXXX, the U.S. House Committee on Financial Services passed the H.R. 5001, bill entitled The Non-Judicial Foreclosure Debt Collection Clarification Act which reverse Supreme Court decision in Obduskey vs. McCarthy and Holthus LLP., the debt collectors pled as affirmative defense in Court that they are NOT subject to the Federal Debt Collection Practice Act or the XXXX  Debt Collection Practice Act as such they are immune of any actions they take due to qualified attorney immunity defense. 

Challenged Actions taken : I am a XXXX veteran from the State of XXXX  on XX/XX/XXXX, I became the third owner and holder of title of the legal estate of a certain tract of land located in XXXX County, XXXX  as through a duly recorded deed executed on XX/XX/XXXX and corrected on XX/XX/XXXX, recorded in the official Public records of XXXX County, XXXX  and more particularly described as : Ex. C LOT XXXX ( XXXX ), IN BLOCK XXXX ( XXXX ) OF XXXX XXXX XXXX XXXX ( XXXX ) A SUBDIVISION IN XXXX COUNTY, XXXX   ACCORDING TO THE MAP OR PLAT THEREOF RECORDED UNDER FILM CODE NO. XXXX OF THE MAP RECORDS OF XXXX COUNTY, XXXX. 

Prior to taking title to the property on XX/XX/XXXX, I received a copy of a title commitment prepared by XXXX XXXX XXXX XXXX XXXX, and on Schedule C, the report only one lien encumbered said property which is Deed of Trust for XXXX XXXX d/b/a XXXX XXXX. Ex. XXXX The Deed of Trust to XXXX XXXX d/b/a XXXX XXXX is the debt I agreed to assume in taking title to said property. 

Since XX/XX/XXXX, to the present the the debt collection law firm of McCarthy & Holthus LLP., of XXXX XXXX   ; has posted " Notices of Substitute Trustee Sale of my property under the false pretense that XXXX XXXX is the current grantor/owner and holder of title for the same said property under a deed of trust dated XX/XX/XXXX, for XXXX XXXX XXXX, recorded in the XXXX County Real Property Records under Clerks File No. XXXX. See Exhibit ENotice of Sale. 

As shown above on XX/XX/XXXX, when I took title to said property this XXXX, deed of trust to XXXX XXXX XXXX is NOT shown as a lien encumbering my property to this every day. See Exhibit E. Lien Search Report. This deed of trust as been recorded as release effective XX/XX/XXXX, XXXX, prior to me to taking title to said property.See Exhibit F '' Release of Lien .

The debt collectors McCarthy & Holthus LLP., are fraudulently seeking to foreclose on my property under the false pretense that XXXX XXXX is still the grantor/owner of said property because in XXXX  , substitute trustees can at a foreclosure sale transfer legal title to a foreclosure purchaser via present/grantor, because in executing the foreclosure deed the trustee affects the transfer of legal title from the debtor/grantor to the foreclosure purchaser. XXXX v. XXXX XXXX, XXXX XXXX XXXX ( XXXX. XXXX XXXX XXXX, pet. denied ). 
" The deed of trust states that in the event of foreclosure sale, the " [ t ] rustee shall deliver to the purchaser a Trustee 's deed... with convenants of general warranty from Borrower/Grantor. '' In other words and more simply stated according to debt collectors McCarty & Holthus LLP., at foreclosure sale, as the " [ t ] rustee they shall deliver to the purchaser a Trustee 's deed... with convenants of general warranty from Borrower/Grantor XXXX XXXX. However XXXX XXXX is not the current record owner of the property holding any title or interest for any trustee could convey. 

Despite the false and misleading nature of debt collectors McCarty & Holthus LLP.., "  Notices of Substitute Trustee Sale '' they argue in court that they are immune of for any actions e due to qualified attorney immunity and the proper property to any suit is entity for whom they represent in this case being XXXX XXXX XXXX  XXXX , although they never sent me any notices. 

The complaint seeks clarification of the H.R. 5001, bill entitled The Non-Judicial Foreclosure Debt Collection Clarification Act. In order words this complaint seeks the debt collector to answer the following questions as it applies to said act : Ex.G 1. Are the debt collectors McCarty & Holthus LLP., XXXX  division subject to the Federal Debt Collection Practice Act under the H.R. 5001, bill?

2. Does the Federal Debt Collection Practice Act have a qualified attorney immunity defense?

3. Can the debt collectors McCarty & Holthus LLP., XXXX division " pass the buck '' for their actions to third parry such as an alleged lender?

4. Are the debt collectors McCarty & Holthus LLP., XXXX  division liable for their own actions?

5. When a consumer brings a suit challenging the debt collectors McCarty & Holthus LLP., XXXX  division actions are false, misleading and deceptive practices, or unconscionable acts is it mandatory to also include the entity for whom they represent?

6. Is their a provision under the Federal Debt Collection Practice Act or the XXXX  Debt Collection Practice Act that mandatorily require that a bank servicer or lender be sued for the actions of debt collectors notice if they did not send said notices?

7. Do the debt collectors McCarty & Holthus LLP., XXXX  division have to conduct their own independent investigation in verifying ( i ) the existence of debt ( ii ) the debt is in default and ( iii ) that the debt is secured by a recorded lien ?

8. Do the debt collectors McCarty & Holthus LLP., XXXX  division have to obey a prior judge rulings based on a question of law as to the validity of any lien encumbering an property if they were a party to the suit?

9. After the debt collectors McCarty & Holthus LLP., XXXX  division conducts its own verification of the debt are you liable for your own actions in the collection of the debt?

10. Under the H.R. 5001, bill entitled The Non-Judicial Foreclosure Debt Collection Clarification Act '' is non-judicial foreclosure in the State of XXXX  subject to the H.R. 5001, bill?

11. Is the debt collectors McCarty & Holthus LLP., XXXX  division subject to the H.R. 5001, bill? 

12. Is XXXX XXXX XXXX the recorded owner holding title to the Property located at XXXX XXXX XXXX XXXX, XXXX XXXX. XXXX? 

13. How then will the debt collectors McCarty & Holthus LLP., XXXX   division trustee transfer title at foreclosure sale from XXXX XXXX XXXX

Company public response: Company believes it acted appropriately as authorized by contract or law
Company response to consumer: Closed with explanation