US Trustee opposed the relief, not the debtor.
IN RE BOX
In re: MARTY EUGENE BOX and TAMMY JEAN BOX, Debtors.
Case No. 10-20086.
United States Bankruptcy Court, W. D. Missouri.
June 3, 2010.
ORDER DENYING MOTION FOR RELIEF FROM STAY
ARTHUR B. FEDERMAN, Bankruptcy Judge
BAC Home Loans Servicing LP f/k/a Countrywide Home Loans Servicing (“BAC”) seeks relief from the automatic stay to allow it to exercise its rights under state law as to the Debtors’ real property. 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. This is a core proceeding under 28 U.S.C. § 157(b)(2) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons that follow, the Court finds that BAC has not proven that it is the holder of the Note. Therefore, it lacks standing, so its motion for relief from stay will be denied.
On January 21, 2009, Debtors Marty E. Box and Tammy J. Box executed a promissory note in
the original principal amount of $164,836, for the purchase of their home. The Note was made
payable to Taylor, Bean & Whitaker Mortgage Corp. and its successors and assigns. The Note is
secured by a Deed of Trust on the home. The Deed of Trust identifies the beneficiary as
“Mortgage Electronic Registration Systems, Inc. (`MERS’),” and states that “MERS is a separate
corporation that is acting solely as nominee for Lender and Lender’s successors and assigns.” The
“Lender” is identified as Taylor, Bean & Whitaker Mortgage Corp. The Deed of Trust was
recorded with the Hickory County Recorder of Deeds on January 28, 2009.
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.
The Debtors filed this Chapter 7 bankruptcy case on January 20, 2010, and BAC filed the instant
Motion for Relief from Stay on February 24, 2010. As stated, the Chapter 7 Trustee maintains
that there was no proper assignment of the Note and Deed of Trust to BAC and, therefore, BAC
lacks standing to seek relief from the stay.
To obtain relief from the stay, BAC must be a party in interest[ 1 ] and have standing.[ 2 ] http://www.4closurefraud.org
The Missouri Court of Appeals has recently discussed assignment of notes and deeds of trust in
Bellistri v. Ocwen Loan Servicing, LLC.[ 3 ] In that case, the borrower executed a promissory note
in favor of lender BNC Mortgage Inc. As here, the deed of trust did not name BNC as the
beneficiary, but instead named Mortgage Electronic Registration System (MERS) solely as
BNC’s nominee. The promissory note made no reference to MERS. The note and deed of trust
both required that payments be made to the lender, not MERS. These facts regarding the loan
documents are, for all relevant purposes, identical to those in the case at bar.
Subsequently, a third party, Robert Bellistri, purchased the property at a tax sale. Bellistri sent
BNC a notice of redemption as required by Missouri statute. After the collector of revenue issued
Bellistri a collector’s deed, MERS, as nominee for BNC, assigned the deed of trust to Ocwen.
The assignment of the deed of trust contained language that the assignment was made “together
with any and all notes and obligations therein described or referred to, the debt respectively
secured thereby and all sums of money due and to become due.” Bellistri then filed a quiet title
action to eject the original borrower from the property. Bellistri moved to add Ocwen as a
necessary party because the assignment of the deed of trust to Ocwen had been recorded and
Ocwen was, therefore, the recorded grantee as to the deed of trust. Granting summary judgment
in favor of Bellistri, the circuit court found that Ocwen lacked standing in the action. Ocwen
In affirming the circuit court’s decision, the Missouri Court of Appeals discussed the law of
mortgages in order to determine Ocwen’s interest in the property.[ 4 ] The Court explained:
Generally, a mortgage loan consists of a promissory note and security instrument, usually a
mortgage or a deed of trust, which secures payment on the note by giving the lender the ability to
foreclose on the property. Typically, the same person holds both the note and deed of trust. In the
event that the note and the deed of trust are split, the note, as a practical matter becomes
unsecured. The practical effect of splitting the deed of trust from the promissory note is to make
it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the
agent of the holder of the note. Without the agency relationship, the person holding only the note
lacks the power to foreclose in the event of default. The person holding only the deed of trust
will never experience default because only the holder of the note is entitled to payment of the
underlying obligation. The mortgage loan [becomes] ineffectual when the note holder [does] not
also hold the deed of trust.[ 5 ]
When the holder of the promissory note assigns or transfers the note, the deed of trust is also
transferred. An assignment of the deed of trust separate from the note has no “force.” Effectively,
the note and the deed of trust are inseparable, and when the promissory note is transferred, it
vests in the transferee “all the interest, rights, powers and security conferred by the deed of trust
upon the beneficiary therein and the payee in the notes.”[ 6 ]
Thus, if the note is properly assigned, the deed of trust automatically goes with it, and the note is
not split from the deed of trust. However, that is not necessarily the case when it is the deed of http://www.4closurefraud.org
trust which is assigned — if the note is not also assigned, the assignment of the deed of trust is,
for all practical purposes, ineffectual because the note and deed of trust have become split.
In Bellistri, when MERS purported to assign the deed of trust to Ocwen, MERS also apparently
attempted to transfer the note because the deed of trust stated that its assignment to Ocwen was
“together with any and all notes and obligations therein described.”[ 7 ] The Court of Appeals did
not comment on the issue of whether such a notation on the assignment of the deed of trust
effectively also assigned the note. However, the Court of Appeals said, BNC was the holder of
the promissory note, and since there was no evidence that MERS ever held the promissory note
or that BNC gave MERS the authority to transfer the promissory note, MERS did not have such
authority to transfer the promissory note.[ 8 ] Thus, the language in the assignment of the deed of
trust purporting to transfer the promissory note was ineffective.[ 9 ] In other words, “MERS never
held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the
note had no force.”[ 10 ]
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, which states, in its entirety:
CAMETRICE JACKSON, first being duly sworn, on his/her oath states that he/she is the LOAN
SVC SPECIALIST of BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans
Servicing, LP and is authorized by said entity to sign this Affidavit. This is to certify that BAC
Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP is the holder of the
Promissory Note and Deed of Trust dated January 21, 2009, executed by Marty E. Box and
Tammy J. Box, in the original principal amount of $164,836.00. The Promissory Note and Deed
of Trust were transferred from TAYLOR BEAN & WHITAKER MORTGAGE CORP to BAC
Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP on 8/25/2009. The
only document attached to the Affidavit was an Assignment of Deed of Trust, dated February
18, 2010, in which “Mortgage Electronic Registration Systems, Inc., solely as nominee for
Taylor, Bean & Whitaker Mortgage Corp.” purports to assign the Deed of Trust to “BAC Home
Loans Servicing, LP F/K/A Countrywide Home Loans Servicing, LP.” The February 18
Assignment states that it is “[t]ogether with any and all notes and obligations therein described or
referred to, the debt respectively secured thereby and all sums of money due thereon, with
interest thereon, and attorneys’ fees and all other charges.” No documents evidencing an August
25, 2009 assignment were attached, nor were any of the loan documents themselves.
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 http://www.4closurefraud.org
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. Indeed, in In re Wilhelm, the court
held that a statement identical to the one in BAC’s Affidavit, namely that BAC is the “holder of
the Promissory Note and Deed of Trust,” is a legal conclusion, not a fact, and inappropriate for
such an affidavit.[ 12 ] Moreover, the court said, it did not answer the critical question of fact,
which is: Who has possession of the original note?[ 13 ]
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. Perhaps MERS
had the authority to assign the Deed of Trust because it was named as a nominee beneficiary, a
question I do not decide here.[ 15 ] However, as stated, MERS was not named in any capacity in
the Note, and there was no evidence that it otherwise had the authority to assign the Note.
Consequently, because MERS has not demonstrated that it had the authority to assign the Note,
its statement on the Deed of Trust Assignment purporting to do so could not be effective.[ 16 ]
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 ]
As relevant here, § 400.3-301 of the Missouri Statutes provides that a party may enforce a
promissory note if it is either (1) the holder of the promissory note, or (2) a nonholder in
possession of the instrument who has the rights of a holder.[ 19 ] “`Holder’ with respect to a
negotiable instrument, means the person in possession if the instrument is payable to bearer or, in
the case of an instrument payable to an identified person, if the identified person is in
possession.”[ 20 ] “`Negotiation’ means a transfer of possession, whether voluntary or involuntary,
of an instrument by a person other than the issuer to a person who thereby becomes its holder.”[
21 ] “An instrument is transferred when it is delivered by a person other than its issuer for the
purpose of giving to the person receiving delivery the right to enforce the instrument.”[ 22 ]
“Except for negotiation by a remitter, if an instrument is payable to an identified person,
negotiation requires transfer of possession of the instrument and its endorsement by the holder. If
an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”[ 23 ] http://www.4closurefraud.org
Therefore, because the Note is made payable to Taylor Bean, in order to transfer the Note to
BAC, Taylor Bean had to both transfer possession of the Note to BAC, and endorse it.
Because the Note here contains a blank endorsement, § 400.3.-205(b) applies. That section
If an endorsement is made by the holder of an instrument and it is not a special endorsement, it is
a “blank” endorsement. When endorsed in blank, an instrument becomes payable to bearer and
may be negotiated by transfer of possession alone until specially endorsed.[ 24 ]
“`Bearer’ means the person in possession of an instrument, document of title, or certificated
security payable to bearer or endorsed in blank.”[ 25 ] As the Trustee suggests, as to bearer paper,
an entity is only entitled to enforce the obligation if it proves that it holds the original or
complies with the lost not requirements discussed later.[ 26 ] This requirement serves an important
purpose. As stated, under Missouri law, the transfer of a note serves to also transfer the
transferor’s rights under a deed of trust, regardless of whether that transfer is recorded.
Possession of the note insures that this creditor, and not an unknown one, is the one entitled to
exercise rights under the deed of trust, and that the debtor will not be obligated to pay twice.[ 27 ]
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.
Perhaps BAC can correct the problem it currently faces with standing, as well as the Trustee’s
likely attack on the validity of the lien BAC asserts. The most obvious way would be for BAC to
produce the original Note, either endorsed to it or endorsed in blank. If BAC can do that, such
that the evidence sufficiently establishes proper assignment of the Note to BAC, then, as stated
above, the Deed of Trust followed, and the February 18 Assignment would be, in effect, a
nullity. BAC would, in that event, be the holder of both the Note and Deed of Trust.
On the other hand, if BAC cannot produce the original Note (or satisfy the requirements for a
lost note under §400.3-309), then assuming that the February 18 Assignment of the Deed of
Trust is valid (i.e., assuming MERS had authority as nominee beneficiary to make such an
assignment of the Deed of Trust), the Note and Deed of Trust may have become split, in that
Taylor Bean still holds the Note, but BAC holds the Deed of Trust. In that case, the Trustee
might prevail in challenging the lien. However, the court in Landmark Nat’l Bank v. Kesler has
suggested that MERS may not have had the authority to assignment of the Deed of Trust, either.
If that is correct, then Taylor Bean may still hold both the Note and the Deed of Trust. And, as
stated, there is no rule prohibiting a postpetition assignment of a claim to another party such as
This Order does not go further than necessary, and specifically does not decide whether the
structure of MERS is fatally flawed under Missouri law because, e.g., it splits the note and deed
of trust between different entities. I am well aware that there would be far-reaching
consequences from such a determination on creditors holding what they believed were mortgage http://www.4closurefraud.org
loans, and also on debtors, who may or may not be able to obtain new financing in order to
purchase their homes from the estate at current value. Therefore, I would hope to decide those
issues in a proceeding in which the promissory note is produced, and in which evidence is
offered as to the relationship between MERS and lenders for whom it purports to act, as well as
the powers granted to it by them. Such evidence might include, for example, an agency
agreement if one exists.
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.
Filed under: foreclosure |