NOW AVAILABLE ON AMAZON KINDLE
“The real party in interest in relief from stay is whoever is entitled to enforce the obligation sought to be enforced. Even if a servicer or agent has authority to bring the motion on behalf of the holder, it is the holder, rather than the servicer, which must be the moving party, and so identified in the papers and in the electronic docketing done by the moving party’s counsel.”
For 2 years I have been saying “stick with the basics.” Black Letter Law will set you free. But time and again attorneys, pro se litigants and judges go astray and find themselves in never never land. Most attorneys and Judges take preliminary motions with a grain of salt. Virtually all foreclosures would be eliminated if lawyers and judges paid attention to the very beginning of the case. Gator Bradshaw in Florida delivers a nice piece at our seminar on motion practice.
COME TO GARFIELD CONTINUUM SEMINAR NOV 1-2
Your job is to immediately focus the Judge’s attention on the fatal defects presnted by the actions of the intermediaries in the securitization process and more specifically, whoever is attempting to foreclose. By failing to challenge this at the outset you have effectively waived the issue and now face an uphill battle. This case reported below shows that a mere objection from the Trustee in BKR caused the entire claim of the forecloser to completely collapse.
7 months ago, before any of the landmark decisions reported on these pages, Federal Bankruptcy Judge Myers in Idaho was presented with an objection from the Trustee to Motion for Relief From stay. Full pdf version at Sheridan_decision Idaho BKR J Myers
That the Trustee took up the cause is reason enough to note this case. What the Court did with it, in an articulate, well-reasoned memorandum of decision, is nothing short of startling in its clarity. One by one, this Judge takes down the arguments and tactics of the intermediaries in the securitization chain and basically says that none of them has a right to make a claim.
In short, just as in these pages, the Judge doesn’t say say who CAN assert and enforce the claim, he just says that none of these nominees, intermediaries, conduits, bookeepers, servicers, MERS, or pretender lenders has any pecuniary interest in the outcome and therefore they lack standing to be in court. On jurisdictional grounds, therefore, the case is closed and these interlopers are thrown out of court. Will the REAL Lender please stand up? Maybe, maybe not.
The Judge points out that “The Motion further alleges that Debtors were indebted at filing “to Movant” and that the debt arose out of a promissory note and a deed of trust dated September 20, 2006 “naming Movant as beneficiary.”
Judge Myers calmly and correctly points out that this was a total lie. When pressed the attorney acknowledged that the movant was not owed any money and that MERS was merely an agent for an undisclosed principal for an undisclosed purpose acting purportedly for the real party in interest. But the Judge says quite clearly and correctly that the rules require the real party in interest to be the movant.
This Judge also addresses the issue of burden of proof, a sticking point for many readers of this blog. He states that the burden is on the movant to prove standing, not on the homeowner or petitioner to prove lack of of standing. In fact, pointing to the rules again, he says that the pleading must “[p]rovide the details of the underlying obligation or liability upon which the motion is based;” In a stroke of his pen, this Judge ends the issue over who has the burden of proof and even provides grounds BEFORE DISCOVERY for dumping fraudsters out of court. They must plead the allegations, and they must attach documentation that shows their pleadings are true and correct. This Judge is telling fraudsters to stop coming to court with attorney affidavits that are not evidence (see his memorandum) and to stop submitting affidavits, notes, revisions to notes, late indorsements, assingments that don’t match up with the pleadings or the requirements of pleading.
Id.
UNITED STATES BANKRUPTCY COURT
DISTRICT OF IDAHO
IN RE )
) Case No. 08-20381-TLM
DARRELL ROYCE SHERIDAN, )
SHERRY ANN SHERIDAN, )
) Chapter 7
Debtors. )
________________________________ )
MEMORANDUM OF DECISION
________________________________________
INTRODUCTION
In this Chapter 7 case, the trustee, Ford Elsaesser (“Trustee”), objects to a
motion under § 362(d) for relief from the § 362(a) automatic stay.
§ 362(d) are common in bankruptcy cases.
promptly to entry of an order, after proper notice, without any objection.
1 Motions under2 Most stay relief requests proceed3
However, changes in mortgage practices over the past several years have
created a number of new issues. The one highlighted in this case is the standing of
4
& Kronz
(Bankr. D. Idaho 2008). Debtors indicated in their § 521 statement of intention that they would
(continued…)
There was no objection, and the exemption was therefore allowed.
Taylor v. Freeland, 503 U.S. 638, 643-44 (1992); Rainsdon v. Farson (In re Farson), 387 B.R. 784, 797
MEMORANDUM OF DECISION – 2
the moving creditor. Serial assignments of the mortgagee’s interest(s) and the
securitization of mortgages have complicated what was previously a generally
straight-forward standing analysis. Though many creditors provide in their
motions adequate explanation and documentation of their standing to seek relief
on real estate secured debts, Trustee challenges the adequacy of the subject motion
in this case.
Following hearing and consideration of the arguments of the parties, the
Court determines that Trustee’s objection is well taken and the same will be
sustained. The motion for stay relief will be denied.
BACKGROUND AND FACTS
On June 24, 2008, Darrell and Sherry Ann Sheridan (“Debtors”) filed their
joint chapter 7 bankruptcy petition, schedules and statements. They scheduled a
fee ownership interest in a residence located in Post Falls, Idaho.
at sched. A (the “Property”). Debtors asserted the Property’s value was
$225,000.00.
Servicing” ($197,000.00) and “Citimortgage” ($34,000.00).
While this left no apparent equity in the Property, Debtors nevertheless claimed
the benefit of an Idaho homestead exemption.
See Doc. No. 1Id. They indicated secured claims existed in favor of “Litton LoanId. at sched. D.Id. at sched. C.4
4
reaffirm the secured debts on the Property.
(…continued)
5
Property as a scheduled but not administered asset,
terminate,
Closing of the case as a no asset chapter 7 would constitute an abandonment of the
see § 554(c), and the automatic stay wouldsee § 362(c)(1).
6
to by others and in the case law, as “MERS.”
Mortgage Electronic Registration Systems, Inc. refers to itself, and is generally referred
MEMORANDUM OF DECISION – 3
The § 341(a) meeting of creditors occurred on July 31, 2008. Debtors
received a discharge on October 3, 2008. While the case was noticed to creditors
as a “no asset” chapter 7, and though Trustee concedes there will be no anticipated
distribution to creditors, Trustee has not yet filed his final report of no distribution
which would allow the case to close.
5
On October 16, 2008, the subject motion for relief from stay was filed.
See
Doc. No. 21 (the “Motion”). It was filed by “Mortgage Electronic Registration
Systems, Inc. as nominee HSBC Bank USA, National Association, as Indenture
Trustee of the Fieldstone Mortgage Investment Trust Series 2006-3.”
“Movant”).
Claimant.”
Movant” and that the debt arose out of a promissory note and a deed of trust dated
September 20, 2006 “naming Movant as beneficiary.”
Id. at 1 (the6 The Movant characterized itself as a “secured creditor andId. The Motion further alleges that Debtors were indebted at filing “toId.
Attached to the Motion is a promissory note (the “Note”) executed by
Debtors. It is payable to “Fieldstone Mortgage Company” as the “Lender.”
See
7
by stipulation of the parties, as “Exhibit 1.”
The documents attached to the Motion were admitted into evidence at the final hearing,
8
evidentiary hearing is a result of the presence of material, disputed facts, which under Fed. R.
Bankr. P. 9014(d) requires testimony in the same manner as in an adversary proceeding.
A “final hearing” is contemplated under § 362(d) and (e). That it would be an
MEMORANDUM OF DECISION – 4
Ex. 1.
Lender or anyone who takes this Note by transfer and who is entitled to receive
payments . . . is called the Note Holder.”
The Note is secured by a deed of trust dated September 20, 2006 and
recorded in the real property records of Kootenai County, Idaho, on September 22,
2006 (the “Deed of Trust”). The Deed of Trust at paragraph (C) identifies and
defines the “Lender” as “Fieldstone Mortgage Company, a Maryland corporation.”
Paragraph (E) of the Deed of Trust recites:
MERS is a separate corporation that is acting solely as nominee for
Lender and Lender’s successors and assigns. MERS is the beneficiary
under this Security Instrument.
Ex. 1.
Trustee objected to the Motion, contending that the Movant failed to
establish its interest in the Property or its standing to seek stay relief. Doc. No. 23.
At a preliminary hearing on November 4, 2008, the parties requested a final
hearing because the question of standing remained unresolved.
was held on December 16, 2008, at which Trustee and counsel for Movant made
argument, but no evidence was presented other than the documents that, as noted
7 A portion of the Note states: “I understand Lender may transfer this Note.8 A final hearing
9
The Code establishes time frames for preliminary hearing, final hearing and ruling.
See
§ 362(e)(2), the stay generally “shall terminate on the date that is 60 days after a request is made
by a party in interest” if the case is one under chapters 7, 11 or 13 and the debtor is an individual.
However, that period may be extended by either agreement of the parties or by the Court for good
cause.
December 16, 2008, about the 60th day after the request. This delay was by or with concurrence
of the parties. The Court concludes that additional delay to the date of this Decision was required
to address the contentions of the parties.
§ 362(e)(1), (2). In this case, the Motion was originally filed October 16, 2008. Under
See § 362(e)(2)(B). Here, the scheduling of the hearings resulted in a final hearing on
10
equity in such property coupled with a lack of necessity of such property for an effective
reorganization.
light of the fact that this is a chapter 7 liquidation, the Property is not required for reorganization.
Another ground for stay relief with respect to acts against property is an absence of
See § 362(d)(2). The Motion indicated a lack of equity in the Property and, in
MEMORANDUM OF DECISION – 5
above, were admitted by agreement.
9
DISCUSSION AND DISPOSITION
A. Stay relief requires a motion by a party in interest with standing
The Bankruptcy Code, Bankruptcy Rules and this District’s local rules
govern stay relief requests.
Under the Code, relief from the § 362(a) stay is authorized “[o]n request of
a
added).
made by a “party in interest.”) One ground for stay relief is “cause, including the
lack of adequate protection of an interest in property
§ 362(d)(1) (emphasis added). The Motion here alleged “cause” based on
delinquent payments,
though no specific citations to § 362(d)(1) are made.
party in interest and after notice and a hearing, . . . .” See § 362(d) (emphasisSee also § 362(e)(1) and (2), § 362(f), § 362(j) (all referring to requestsof such party in interest[.]”see Doc. No. 21 at 2, thus implicating § 362(d)(1) even10
MEMORANDUM OF DECISION – 6
The Rules require that a stay relief request be made by a motion.
R. Bankr. P. 9013 (“A request for an order, except when an application is
authorized by these rules, shall be by written
hearing.”) (emphasis added); Fed. R. Bankr. P. 4001(a)(1) (“A
from an automatic stay provided by the Code . . . shall be made in accordance with
Rule 9014[.]”) (emphasis added).
In addition to the Bankruptcy Rules, this District’s local rules require,
alia
– the request shall be made by a “party in interest” and by “motion;”
– the motion shall “[p]rovide the details of the underlying obligation or
liability upon which the motion is based;” and
– the motion shall have attached “accurate and legible copies of all
documents evidencing the obligation and the basis of perfection of
any lien or security interest[.]”
LBR 4001.2(a), (b)(2), and (b)(5).
See Fed.motion, unless made during amotion for reliefinter, that:
1. Party in interest, and standing
While the term “party in interest” is not defined by the Code, this Court has
held that such a party must have a “pecuniary interest” in the outcome of the
dispute before the Court.
D. Idaho Aug. 28, 2007) (citing
4705220 (Bankr. D. Idaho 2005), and
MEMORANDUM OF DECISION – 7
D. Idaho 2003)).
18 (9th Cir. BAP 2007) (noting that a “party in interest” may be one who has an
actual pecuniary interest in the case, one who has a practical stake in the outcome
of the case, or one who will be impacted in any significant way in the case).
See In re Simplot, 2007 WL 2479664 at *9 n.45 (Bankr.In re Elias, 05.2 I.B.C.R. 41, 42, 2005 WLIn re Stone, 03.2 I.B.C.R. 134, 135 (Bankr.See also Brown v. Sobczak (In re Sobczak), 369 B.R. 512, 517-
Simplot
The question there was whether the J. R. Simplot Company, which was not a
creditor with a claim against the debtor or estate, “had sufficient party in interest
standing to be heard[.]” 2007 WL 2479664 at *9. This Court stated:
not only defined party in interest, it addressed “standing” issues.
Hasso v. Mozsgai (In re La Sierra Fin. Servs.)
BAP 2002), explained that the doctrine of standing encompasses both
constitutional limitations on federal court jurisdiction (
controversy requirements of Article III), and prudential limitations on
the court’s exercise of that jurisdiction. Constitutional standing
requires an injury in fact,
interest. 290 B.R. at 726-27. Prudential standing requires that the
party’s assertions fall within the zone of interests protected by the
statute and, further, requires that the litigant assert only its own rights
and not those of another party.
U.S. 154, 162, 167-68 (1997). The party asserting standing exists has
the burden of proving it.
the cases as principles applicable to standing on appeal, the same
propositions apply to a party at the bankruptcy court level.
, 290 B.R. 718 (9th Cir.
i.e., the case orviz. an invasion of a judicially cognizableId. at 727 (citing Bennett v. Spear, 520Id. at 726. Though sometimes articulated in
Id.
not assert . . . objections that relate solely to others, or that go to issues that do not
directly and adversely affect them pecuniarily.”
omitted). These same standing requirements were recently highlighted in a stay
relief context by the court in
MEMORANDUM OF DECISION – 8
*5-6 (Bankr. W.D. Wash. Mar. 6, 2009).
(footnote citations omitted). In
Simplot, the Court concluded that “parties mayId. at *10 (footnote citationsIn re Jacobson, ___ B.R. ___, 2009 WL 567188 at
2. Real party in interest
Under Rule 9014, which by virtue of Rule 4001(a)(1) governs stay relief
requests, certain “Part VII” rules are applicable.
incorporated rules is Rule 7017, which in turn incorporates Fed. R. Civ. P. 17, and
Rule 17(a)(1) provides that “An action must be prosecuted in the name of the real
party in interest.”
See Rule 9014(c). Among those
Jacobson
holder of the note, “neither asserts beneficial interest in the note, nor that it could
enforce the note in its own right.” 2009 WL 567188 at *4. It concluded that Fed.
R. Civ. P. 17 applied, requiring the stay relief motion to be brought in the name of
the real party in interest.
Cal. 2008));
notes that its moving party, who claimed to be a servicer for the
Id. (citing In re Hwang, 396 B.R. 757, 767 (Bankr. C.D.see also In re Vargas, 396 B.R. 511, 521 (Bankr. C.D. Cal. 2008). As
Jacobson
The real party in interest in relief from stay is whoever is entitled to
enforce the obligation sought to be enforced. Even if a servicer or
agent has authority to bring the motion on behalf of the holder, it is the
holder, rather than the servicer, which must be the moving party, and
so identified in the papers and in the electronic docketing done by the
moving party’s counsel.
summarized:
Id.
The upshot of these several provisions of the Code, Rules, local rules and
case law is this: to obtain stay relief, a motion must be brought by a party in
interest, with standing. This means the motion must be brought by one who has a
11
Cir. 2008) does not require a different conclusion.
did not violate the automatic stay by seeking to foreclose on the debtors’ property after the
bankruptcy court granted the loan servicer’s (Washington Mutual) § 362(d) motion.
62. Although Wachovia did not join in the motion or separately seek stay relief, the court held
that the order entered “as to Washington Mutual” was effective as to Wachovia.
Notably, however, the Reussers never challenged Washington Mutual’s standing in bankruptcy
court; instead, they launched that attack in a subsequently filed district court action.
62. The Ninth Circuit held that “a final order lifting an automatic stay is binding as to the
property or interest in question—the res—and its scope is not limited to the particular parties
before the court.”
standing and, of course, no final order has been entered.
The Ninth Circuit’s recent decision in
Reusser v. Wachovia Bank, 525 F.3d 855 (9thReusser held that a lender, Wachovia Bank,Id. at 861-Id. at 857, 861.Id. at 861-Id. at 861. The difference here is that Trustee has timely objected to Movant’s
MEMORANDUM OF DECISION – 9
pecuniary interest in the case and, in connection with secured debts, by the entity
that is entitled to payment from the debtor and to enforce security for such
payment. That entity is the real party in interest. It must bring the motion or, if
the motion is filed by a servicer or nominee or other agent with claimed authority
to bring the motion, the motion must identify and be prosecuted in the name of the
real party in interest.
11
B. The present Motion
Under the documents attached to the Motion and later admitted at hearing
as Ex. 1, Fieldstone Mortgage Company, a Maryland corporation, would certainly
appear to be a party in interest and have standing. It has an economic interest
according to the Note attached to the Motion and an interest in Debtors’ Property
according to the Deed of Trust that is also attached.
However, the Motion was not brought by Fieldstone Mortgage Company.
12
“the person named or otherwise designated in a trust deed as
deed is given, or his successor in interest, and who shall not be the trustee.” Idaho Code § 45-
1502(3) defines trust deed as “a deed executed in conformity with this act and conveying real
property to a trustee in trust
person named in the deed
Idaho Code § 45-1502(1) defines beneficiary for purposes of the trust deed statute as
the person for whose benefit a trustto secure the performance of an obligation of the grantor or otherto a beneficiary.” Id. (emphasis added).
MEMORANDUM OF DECISION – 10
1. MERS as “nominee” or “beneficiary”
Counsel for Movant argues that MERS, given its titular designation of
“beneficiary” under the Deed of Trust, is or should be able to prosecute the
Motion under the Code, Rules and Local Rules. Counsel conceded, however, that
MERS is not an economic “beneficiary” under the Deed of Trust. It is owed and
will collect no money from Debtors under the Note, nor will it realize the value of
the Property through foreclosure of the Deed of Trust in the event the Note is not
paid.
12
Further, the Deed of Trust’s designation of MERS as “beneficiary” is
coupled with an explanation that “MERS is . . . acting
Lender and Lender’s successors and assigns.” Ex. 1 (emphasis added). Movant’s
briefing suggests that a “nominee” is synonymous with an “agent.”
26 at 2.
The Motion was filed by MERS “as nominee [for] HSBC Bank USA,
National Association, as Indenture Trustee of the Fieldstone Mortgage Investment
Trust Series 2006-3.” Even assuming that MERS as a “nominee” had sufficient
rights and ability as an agent to advance its principal’s stay relief request, there
solely as nominee forSee Doc. No.
13
evident consistency. The Motion commenced as follows:
“COMES NOW Mortgage Electronic Registration Systems, Inc. as nominee
HSBC Bank USA, National Association, as Indenture Trustee of the Fieldstone
Mortgage Investment Trust Series 2006-3, a secured creditor and Claimant
herein, and moves the Court for its Order granting relief from the automatic
stay[.]”
Thus, the “Claimant” and evidently the “Movant” (
moves”) are one and the same, and this entity also purports to be a “secured creditor.” Since
MERS is acting as nominee, the Claimant/Movant and secured creditor appears by these
allegations to be HSBC Bank USA (in its role as indenture trustee for others). The Motion
continues by asserting that “Debtor was on the date of filing the petition herein,
Claimant
Movant as beneficiary
Bank USA or the Fieldstone Mortgage Investment Trust as its beneficiary. Nor is there
explanation of how Debtors came to owe HSBC Bank USA.
The Motion uses several terms (Movant, Claimant, Petitioner) without definition or
i.e., the party who “COMES NOW . . . andindebted toarising out of [the Note] and a Deed of Trust dated September 20, 2006, naming.” Contrary to these assertions, the Deed of Trust does not name HSBC
14
Note.
This language appears in the Deed of Trust only. There is no mention of MERS in the
MEMORANDUM OF DECISION – 11
remains an insuperable problem. The Motion provides no explanation, much less
documentation or other evidence, to show that the Fieldstone Mortgage
Investment Trust Series 2006-3 (as an entity) or HSBC Bank USA (as that entity’s
“indenture trustee”) has any interest in the subject Note or the subject Deed of
Trust.
13
In light of Trustee’s objection on this score, Movant argues that MERS’
role as “nominee for Lender [
successors and assigns” gives it ample authority to assert the stay relief request
under the Deed of Trust for whatever successor in interest or assignee might have
the beneficial interest.
i.e., Fieldstone Mortgage Company] and Lender’s14 Even if the proposition is accepted that the Deed of Trust
15
assignments resulting in the movant becoming the holder of the note.
B.R. 259, 269 (Bankr. D. Mass. 2008) (“The Court and the Debtor are entitled to insist that the
moving party establish its standing in a motion for relief from stay through the submission of an
accurate history of the chain of ownership of the mortgage.”);
(Bankr. D. Mass. 2007) (“‘If the claimant acquired the note and mortgage from the original lender
or from another party who acquired it from the original lender, the claimant can meet its burden
through evidence that traces the loan from the original lender to the claimant.’”) (quoting
Some courts have indicated that the stay relief request should explain the serial
See, e.g., In re Hayes, 393In re Maisel, 378 B.R. 19, 22In re
(continued…)
MEMORANDUM OF DECISION – 12
provisions give MERS the ability to act as an agent (“nominee”) for another, it
acts not on its own account. Its capacity is representative.
2. Documentation
This District’s Local Bankruptcy Rule 4001.2 requires copies of “all
documents evidencing the obligation and the basis of perfection of any lien or
security interest.” The sole documentation provided with the Motion here
evidences the interests in the Note and Deed of Trust held by Fieldstone Mortgage
Company, a Maryland corporation. This submission does not answer the key
question — Who was the holder of the Note at the time of the Motion?
Several movants for stay relief have argued that the holder of a note secured
by a deed of trust obtains the benefit of the deed of trust even in the absence of an
assignment of the deed of trust, on the theory that the security for the debt follows
the debt. Under this theory, it would appear that when bankruptcy intervenes, and
somewhat like a game of Musical Chairs, the then-current holder of the note is the
only creditor with a pecuniary interest and standing sufficient to pursue payment
and relief from stay.
15
15
(…continued)
Parrish
“need not here go so far” as to require such tracing, because of the paucity of proof presented in
that case. 2009 WL 567188 at *6. The same is true here. Movant’s proof does not even show
who presently holds the Note. That alone provides sufficient basis to deny the Motion.
, 326 B.R. 708, 720 (Bankr. N.D. Ohio 2005)). The court in
Jacobson decided that it
MEMORANDUM OF DECISION – 13
The Motion here certainly suggests that the Fieldstone Mortgage
Investment Trust Series 2006-3 (or perhaps HSBC Bank USA in its capacity as
indenture trustee for that trust) was the holder of the note on the June 24, 2008,
petition date. But at the time of the final § 362(e) evidentiary hearing herein, the
parties discussed and Movant ultimately conceded that (I) the Note contained
nothing indicating its transfer by Fieldstone Mortgage Company, (ii) the Motion
was devoid of allegations regarding the details of any such transfer, and (iii) the
record lacked any other documents related to the issue.
3. The supplemental affidavit
Subsequent to the closing of the hearing and after the Court took the
dispute under advisement, Movant filed a “supplemental affidavit” of its counsel.
See
counsel obtained on such date the “original” Note and that the same contains an
indorsement. Counsel states that his “affidavit is presented to supplement the
record herein and for the Court’s consideration in the pending motion[.]”
The filing and consideration of this supplemental affidavit are improper for
several reasons.
Doc. No. 28 (filed January 2, 2009). This affidavit alleges that Movant’s
Id. at 2.
16
submissions).
Accord Jacobson, 2009 WL 567188 at *6-8 (discussing inadequacies of evidentiary
MEMORANDUM OF DECISION – 14
First, the record was closed, and the Court did not authorize the reopening
of that record, nor did it indicate any post-hearing submissions would be accepted.
Second, Trustee did not have the opportunity to address this “newly
obtained” document at hearing, and nothing shows his consent to the
post hoc
supplementation of the evidentiary record.
Third, disputed factual issues in contested matters may not be resolved
through testimony in “affidavits” but rather require testimony in open court.
See
Fed. R. Bankr. P. 9014(d). Under the circumstances, the identity of the holder of
the Note certainly appears to be a fact in dispute falling within the ambit of this
rule.
Fourth, the affidavit is insufficient to establish that counsel, as affiant, has
the ability to testify regarding or lay the foundation required to admit the
document.
594-95 (Bankr. D. Idaho 2000).
the “original” appears to be based not on the affiant’s (counsel’s) personal
knowledge but on the assertions of someone else.
Fifth, the proffer of this “new” note as the “original” note directly
contradicts Movant’s prior representations that the Note attached to the Motion
See Esposito v. Noyes (In re Lake Country Invs., LLC), 255 B.R. 588,16 The assertion that the newly possessed note is
17
payable to the bearer and may be negotiated by transfer of possession alone until specially
indorsed.”); § 28-3-301 (providing that the holder of the instrument may enforce it). These
provisions make identification of the current holder significant.
See generally Idaho Code § 28-3-205(2) (“When indorsed in blank, an instrument is
MEMORANDUM OF DECISION – 15
was “true and correct” and the operative document in this matter.
at 1.
Sixth, even were it considered, the “new” Note’s asserted indorsement
states: “Pay To The Order Of [
signed by Fieldstone Mortgage Company through a named assistant vice
president. There is no date nor indication of who was or is the transferee.
Fieldstone Mortgage Company may have indorsed the Note in blank, but this
document does not alone establish that either HSBC Bank USA or Fieldstone
Mortgage Investment Trust is the Note’s holder.
See Doc. No. 21blank] Without Recourse” and then purports to be17
Thus, even if a “nominee” such as MERS could properly bring a motion for
stay relief in the name of and on behalf of the real party in interest – the entity that
has rights in and pecuniary interest under the Note secured by the Deed of Trust –
nothing of record adequately establishes who that entity actually is. Under the
evidence submitted at the § 362(e) final hearing, which consists solely of Exhibit
1, the only entity that MERS could conceivably represent as an agent/nominee
would be Fieldstone Mortgage Company. But MERS does not represent that party
according to the Motion and, in fact, its contentions are to the effect that
18
2006) is misplaced.
nominee, had standing to seek stay relief.
continued to hold the note, and the mortgage had not been transferred.
For this reason, Movant’s reliance on
In re Huggins, 357 B.R. 180 (Bankr. D. Mass.Huggins held that MERS, which was named in a mortgage as the lender’sId. at 184-85. But in Huggins, the original lenderId. at 182, 184.
19
presentation constitutes a certification that there has been an “inquiry reasonable under the
circumstances” and that factual allegations made “have evidentiary support or, if specifically so
identified, are likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery”). Trustee here was clear, though, that he asserted no Rule 9011
claims against Movant or its counsel.
See Fed. R. Bankr. P. 9011(b) (providing inter alia that a motion’s filing or other
MEMORANDUM OF DECISION – 16
Fieldstone Mortgage Company is no longer a party in interest.
18
At the time of that final hearing, counsel for Movant conceded that he had
no documentation provided to him by his “client” which indicated the interests
under the Note or Deed of Trust were held by either HSBC Bank USA or the
Fieldstone Mortgage Investment Trust. Counsel filed the Motion and
characterized the Movant’s identity therein based solely on undocumented
representations made to him. This would appear to be a problematic approach
generally.
matter at issue and Movant to its proof.
19 And, in this particular case, Trustee’s objection to the Motion put the
CONCLUSION
When Trustee challenged the Motion’s bare assertions, Movant failed to
provide an adequate record showing it was a party in interest with standing
entitled to seek such relief. On the record presented, the Court finds and
concludes Trustee’s objection is well taken. That objection will be sustained. The
Motion will be denied. The Trustee will provide a form of order for the Court’s
MEMORANDUM OF DECISION – 17
review and entry.
DATED: March 12, 2009
TERRY L. MYERS
CHIEF U. S. BANKRUPTCY JUDGE
Like this:
Like Loading...
Filed under: CDO, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage | Tagged: automatic stay, bankruptcy, borrower, Chapter 13, Citimortgage, disclosure, Eviction, Fieldstone Mortgage Investment Trust, foreclosure defense, foreclosure offense, HSBC, Litton Loan servcing, MERS, securitization, trustee | 14 Comments »
NEW! 