In Re Alcide
450 B.R. 526
| Bankr. E.D. Pa. | 2011Background
- Debtor filed a Chapter 13 petition on July 2, 2010.
- Everhome Mortgage Company, as servicer for Everbank, moved for relief from the automatic stay on October 4, 2010 to foreclose the Property.
- Debtor admitted lack of post-petition payments but disputed obligations to pay and whether Everhome/Everbank hold the mortgage.
- Hearing held March 17, 2011 focused on Everhome's standing/authority to pursue relief; six exhibits admitted.
- Debtor converted to Chapter 7 on May 23, 2011; court denied the Motion without prejudice, reasoning Everhome failed to prove it was a party in interest or authorized to enforce the mortgage.
- Decision rested on evidentiary gaps regarding whether Everhome acted within its authority as servicer for Everbank and whether Everbank was the holder with enforcement rights
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Everhome has standing to seek stay relief | Everhome asserts it is the mortgage holder or its agent | Debtor contends Everhome lacks party-in-interest status | Denied; Everhome failed to prove party-in-interest status |
| Whether a mortgage servicer has authority to file stay-relief motions on behalf of the holder | Servicer argues authority under servicing agreement | Debtor contends no clear agency to initiate foreclosure proceedings | Denied; insufficient evidence of servicer's authority to enforce the mortgage |
| Whether Pennsylvania law permits the foreclosing action by the holder or its assignee given the MERS/Everhome chain | Relies on MERS/assignee theory to assert enforcement rights | Disputes holder identity and enforceability of assignments | Denied on standing grounds; court did not reach deeper PA assignment issues |
Key Cases Cited
- In re Hwang, 396 B.R. 757, 396 B.R. 757 (Bankr. C.D. Cal. 2008) (servicer may be party in interest but not real party in interest)
- In re Wilhelm, 407 B.R. 392, 407 B.R. 392 (Bankr. D. Idaho 2009) (servicer standing and agency considerations in stay relief)
- In re Jacobson, 402 B.R. 359, 402 B.R. 359 (Bankr. W.D. Wash. 2009) (agency and standing considerations for servicers)
- In re Densmore, 445 B.R. 307, 445 B.R. 307 (Bankr. Vt. 2011) (servicer authority to pursue foreclosure on holder's behalf)
- In re Hayes, 393 B.R. 267, 393 B.R. 259 (Bankr. D. Mass. 2008) (servicers as parties in interest with proper authority)
- In re Weisband, 427 B.R. 13, 427 B.R. 13 (Bankr. D. Ariz. 2010) (discussion of real party in interest and proof requirements)