In re: MARK STANLEY MILLER,
also known as A Moment to
Remember Photo & Video, also known
as Illusion Studioz; JAMILEH
MILLER,
Debtors.
MARK STANLEY MILLER;
JAMILEH MILLER,
Appellants,
v.
DEUTSCHE BANK NATIONAL
TRUST COMPANY,
Appellee.
No. 11-1232
APPEAL FROM THE UNITED STATES
BANKRUPTCY APPELLATE PANEL FOR THE TENTH CIRCUIT
(BAP No. 10-073-CO)

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ANALYSIS

 

4. Deutsche Bank’s Status as “Party in Interest”

 

5

Deutsche Bank presented evidence that IndyMac had indorsed the Note in

blank. Is proof of this indorsement sufficient under the U.C.C. requirements to

establish Deutsche Bank as the successor holder of the note? As we shall see,

it is not, because Deutsche Bank must also prove it has possession of the

Note.

 

6

The U.C.C. identifies the requirements for “negotiation” of a note, that is, for

“transfer of possession . . . to a person who thereby becomes its holder.” Id.

§ 4-3-201(a). This statute provides that “if an instrument is payable to an

identified person, negotiation requires transfer of possession of the

instrument and its indorsement by the holder.” Id. § 4-3-201(b) (emphasis

added). The Official Commentary to section 4-3-201 explains that negotiation

“always requires a change in possession of the instrument because nobody

can be a holder without possessing the instrument, either directly or through

an agent.”

8 We note that the 9th Circuit BAP has stated that because relief from stay is

a limited proceeding that does not ultimately determine the lender’s and debtor’s

rights, “the concern of real party in interest jurisprudence for avoiding double

payment is quite reduced” in such proceedings. Veal v. Am. Home Mortg.

Servicing, Inc. (In re Veal), 450 B.R. 897, 914 (9th Cir. B.A.P. 2011). We also

note, however, that after making this statement in Veal, the 9th Circuit BAP

reversed a bankruptcy court determination granting relief from stay because the

purported holder of the note and mortgage could not produce the original note or

otherwise provide proof under state law that it was the holder of the note or a

person entitled to enforce it. See id. at 917-18.

Full opinion below…

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4closureFraud.org

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Miller v. Deutshce Bank National Trust