April 12, 2013
By Gloria Liu
In In Re Hayes, 393 B.R. 259, 261-62 (Bankr. D. Mass. 2008), the Debtor, Hayes, filed a voluntary Chapter 13 petition involving property encumbered by a mortgage, which secured an adjustable rate note. The note and mortgage identified Argent Mortgage Company, LLC as the Lender. AMC Mortgage Services then filed a proof of claim and attached a copy of the note and mortgage, as well as a loan history. 16 months after AMC filed a proof of claim on behalf of Argent Mortgage Company, LLC, it filed a “Transfer of Claim Other Than for Security” pursuant to which “AMC purported to transfer the proof of claim it filed on behalf of Argent Mortgage Company, LLC to Citi Residential Lending, Inc., as loan servicer for the secured creditor Deutsche Bank National Trust Company, as Trustee, in trust for the registered holders of Argent Securities Inc.” Deutsche Bank then filed a Motion for Relief from Stay.
The court found that Deutsche Bank failed to establish that Argent Mortgage Company, LLC effectively assigned the mortgage executed by the Debtor to it or that Argent Mortgage Company, LLC’s grant of authority to Citi Residential Lending, Inc. under the Limited Power of Attorney was sufficient to empower Citi Residential Lending, Inc. to execute the Confirmatory Corporation Assignment, on its behalf, so as to effectively transfer the mortgage Argent Mortgage Company, LLC to Deutsche Bank. Therefore, citing authority that states that “those parties who do not hold the note or mortgage and who do not service the mortgage do not have standing to pursue motions for relief or other actions arising from the mortgage obligation,” the court denied Deutsche Bank’s Motion for Relief from Stay.
This blog is an Amazon affiliate. Help support REFinBlog by making purchases through Amazon links on this site at no cost to you.
- Sandy Smith on Noncompliance with PSA Voids Assignment of Note and Mortgage
- tevans evans on Georgia District Court Allows Homeowner Plaintiff to Amend Fraud Claim but Dismisses Wrongful Disclosure Claim
- terry evans on The 11th Circuit Court in Georgia Holds that Homeowners’ Claim of Wrongful Foreclosure Must be Dismissed Because there Has Not Been an Actual Foreclosure Sale on the Property Yet
- terry evans on United States District of Georgia Rejects Wrongful Foreclosure Claim
- JohnR on Careful When Putting Shoe on Other Foot
- Performance-Based Consumer Law
- Frannie Reps and Warranties Crisis Brewing
- Foreclosure Mitigation Counseling Works
- Gimme More Mortgage Data!
- Housing Goals and Housing Finance Reform