Case No. 10-20086.

United States Bankruptcy Court, W. D. Missouri.

June 3, 2010.


ARTHUR B. FEDERMAN, Bankruptcy Judge

Some excerpts…

The Debtors do not oppose the motion, but the Chapter 7 Trustee has challenged BAC’s standing to seek relief from the stay. The Trustee asserts that the Note and Deed of Trust were not properly assigned to BAC and, because it is not the holder of the Note and Deed of Trust, it lacks standing to seek relief from the stay to enforce those documents.

BAC states that Taylor, Bean & Whitaker Mortgage Corp. (“Taylor Bean”) transferred the Note and Deed of Trust to BAC on August 25, 2009, although the only evidence of any such transfer is an affidavit by BAC’s representative, discussed more fully below.

Here, as in Bellistri, the Note is made payable only to Taylor Bean; MERS is mentioned nowhere in the Note. And, as in Bellistri, MERS is identified in the Deed of Trust as the beneficiary, solely as Taylor Bean’s nominee.

With regard to the purported assignment of the loan documents to BAC, the evidence in the case at bar is both scant and suspect. Specifically, at an April 21, 2010, hearing on BAC’s Motion for Relief from Stay, counsel for BAC submitted a notarized Affidavit dated April 19, 2010, partially in fill-in-the-blank form
At the conclusion of the hearing, the parties were granted time in which to submit briefs on the issue. BAC did submit a brief, and attached a copy of the Note, the Deed of Trust, and another copy of the Affidavit quoted above. Notably, BAC attached no documents whatsoever to support the Affidavit’s representation that the Note and Deed of Trust were assigned at all, much less on August 25, 2009, as represented in the Affidavit. Moreover, the Affidavit does not state with any specificity how BAC purportedly became the “holder” of the Note and Deed of Trust or how the documents were “transferred” to BAC. Although I overruled the Trustee’s objection to the admission of the Affidavit and admitted it into evidence at the hearing,[ 11 ] the Affidavit, in and of itself, is self-serving, lacks credibility, and is entirely unpersuasive on the question of whether the Note and Deed of Trust were properly assigned to BAC.

The only actual evidence of any assignment at all in this case is the February 18, 2010 Assignment which was attached to the Affidavit submitted at the hearing. The fact that the February 18, 2010 Assignment was made after the bankruptcy case was filed does not render it per se invalid in that there is no rule prohibiting a creditor from assigning its claim postpetition. However, the February 18 “assignment” contradicts the date stated in the Affidavit and, particularly since no August 25 documents were attached, makes the Affidavit even more suspect.[ 14 ]

That said, even looking to the February 18 Assignment, that document has the same fatal flaw that the one in Bellistri did: Even assuming that the holder of a note and deed of trust can effectively assign the note by including such language only on the deed of trust assignment (an issue not decided by Bellistri), there is no evidence in this case that MERS has ever held the Note, or that MERS was Taylor Bean’s agent for purposes of assigning the Note.
This case does present one fact that was not addressed in Bellistri. Here, the Note contains a blank endorsement by Taylor Bean.[ 17 ] Hence, BAC asserts that Taylor Bean transferred the Note to it, and that the Deed of Trust follows the assigned Note.[ 18 ]

BAC has not produced the original Note, nor has it even produced a witness stating that BAC is in possession of the original Note. Indeed, even the Affidavit, for what it is worth, fails to make such a statement.[ 28 ] Since BAC has failed to demonstrate that the loan was properly assigned to it by Taylor Bean, it lacks standing to seek relief from the stay.

All I find here is that BAC has not proven that it holds the Note. Thus, it has not established that it is a party in interest or that it has standing to seek relief from the stay.

ACCORDINGLY, the Motion for Relief from Stay filed by BAC Home Loans Servicing LP f/k/a Countrywide Home Loans Servicing is DENIED.

Read entire order below…

RE: BOX Order Denying Motion for Relief from Stay