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484 B.R. 284
Bankr. S.D.N.Y.
2013
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Background

  • In this chapter 7 case, U.S. Bank moves to lift the automatic stay to foreclose the Debtor’s primary residence.
  • The Debtor intends to keep the Property, and no party objected to the Motion.
  • The Property’s mortgage arrears amount to $145,703.92 with total due of $639,365.25; the appraisal values the Property at $430,000.
  • The Note bears two endorsements and an alleged allonge; MERS is named as mortgagee of record but not clearly shown to own the Note.
  • U.S. Bank failed to prove it owns or can enforce the Note; the allonge was not submitted, and the record lacks evidence of a valid transfer of the Note.
  • The Court denies the Motion to lift the stay, without prejudice to renew if standing is established.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Standing to obtain stay relief Bank asserts ownership via note transfer/allonge. Debtor/Trustee do not challenge standing; focus on record facts. Bank lacks standing to foreclose; motion denied.
Creditor status under 362(d)(1) Bank is a creditor with right to payment. No demonstrable right to payment or state-law remedies without ownership of note. Bank not a creditor entitled to relief; motion denied.
Ownership of the Note and transfer evidence Note transferred by allonge; Bank has authority to proceed. Allonge not in evidence; delivery/endorsement proof insufficient. Insufficient evidence of proper transfer; standing not shown.
New York property-right rules for foreclosure Record supports foreclosing on note/mortgage. Standing required to foreclose; MERS/note chain questionable. Under state law, lacking proof of ownership defeats foreclosure rights.

Key Cases Cited

  • In re Mims, 438 B.R. 52 (S.D.N.Y.2010) (creditor must show right to payment and ownership to seek stay relief)
  • In re Lippold, 457 B.R. 293 (S.D.N.Y.2011) (MERS authority limited; note ownership required for standing)
  • Bank of N.Y. v. Silverberg, 86 A.D.3d 274 (2d Dep't.2011) (foreclosure standing depends on ownership of note and mortgage)
  • In re Escobar, 457 B.R. 229 (Bankr.E.D.N.Y.2011) (note transfer and mortgage rights cannot be asserted by non-owner)
  • Agard, 444 B.R. 231 (Bankr.E.D.N.Y.2011) (servicer standing depends on lender’s standing; MERS authority questioned)
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Case Details

Case Name: In re Idicula
Court Name: United States Bankruptcy Court, S.D. New York
Date Published: Jan 10, 2013
Citations: 484 B.R. 284; 2013 Bankr. LEXIS 140; 2013 WL 120875; No. 12-12120 (MG)
Docket Number: No. 12-12120 (MG)
Court Abbreviation: Bankr. S.D.N.Y.
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