Basson, BK Appeal Brief New (2)
Basson, BK Appeal Brief New (2)
IN RE:
Appellant. CHAPTER 13
CITIMORTGAGE and
FEDERAL NATIONAL
MORTGAGE ASSOCIATION, APPEAL CASE NO.:
Appellees.
______________________________
PIERRE ANDRE BASSON
Appellant Pro Se; Self Represented
5262 Keithwood Drive
Cumming, GA 30040
1
TABLE OF CONTENTS
TABLE OF AUTHORITIES.2
JURISDICTIONAL STATEMENT..4
STATEMENT OF ISSUES ON APPEAL4
STANDARDS OF REVIEW..5
STATEMENT OF THE CASE..5
SUMMARY OF ARGUMENT..6
ARGUMENT--ISSUES ON APPEAL
I. Whether the Bankruptcy Court erred in granting movants motion for
relief from the automatic stay without making any finding of fact that movant had
standing once the standing issue was raised by the Debtor in his pleadings.
Pages 8-20
II. Whether the Court erred in failing to make a finding of fact that
movant was the owner and holder of the note and security deed before granting
movants motion for relief from the automatic stay.
Pages 20-21
CONCLUSION21
CERTIFICATES: SERVICE22-23
INTERESTED PARTIES.23
RELATED CASES...23
COMPLIANCE 23
TABLE OF AUTHORITIES
Barhold v. Rodriguez, 863 F.2d 233 (2nd Cir. 1988)..13
2
In re Alcide, 450 B.R. 526 (Bankr. E.D. Pa., May 27, 2011)..15
In re Burnett, 450 B.R. 589 (Bankr. W.D. Va., April 28, 2011). 14
In re Ruest, Case No. 08-10512, Adv. Proc. No. 09-1035 (Bankr. D. Vt., August 23,
2011)..22
3
In re Sheridan, 2009 Bankr. Lexis 552 (Bankr ID 2009)13
In re Steinberg, BAP No. WY-12-082 (10th Circuit BAP May 30, 2013.
(unpublished). 7, 8, 10
In re Veal, 450 B.R. 897 (9th Cir. B.A.P., June 10, 2011)14, 22
Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269 (2008).19
St. Paul Fire and Marine Insurance Co. v. PepsiCo, Inc., 884 F. 2d 688 2nd Cir.
1989).19
Valley Forge Christian Coll. V. Am. United for Sep. of Ch. & State,
4
Section 101 (5) (A) of the Bankruptcy codeA
1978 U.S.C.C.A.C. 5787, 6136.. 11
JURISDICTIONAL STATEMENT
This court has jurisdiction over this matter pursuant to 28 U.S.C. 158 (a) and
(c), which provides that the US District Court may hear appeals from final
judgments, orders and decrees. A party takes an appeal of a 28 U.S.C. 158 final
order as of right by filing a timely notice of appeal. Fed. Bankr. P. 80001 (a). The
grant or denial of a motion for relief from an automatic stay under 11 U.S.C. 362
5
(a) is considered a final order.
STANDARD OF REVIEW
The bankruptcy courts Order granting relief from the automatic stay is for
abuse of discretion. Whether movant had standing to file the motion for stay relief,
Association lacked legal standing, were not real parties in interest, and that said
Movants, which had filed a motion for stay relief, were not entitled to obtain the
relief they had requested and were seeking due to their lack of standing. Debtor
6
maintained that the alleged moving creditors should not be able to foreclose on his
property because said entities did not have a valid security interest on his Property.
Debtor had filed in the public records an affidavit of forgery and a affidavit in
regard to the broken chain of title regarding these entities. In its order of
September 28, 2016 the court granted movants motion for stay relief without
making any finding of fact that said movants had standing. Further, it denied
SUMMARY OF ARGUMENT
abused its discretion in granting relief from stay because it failed to conduct an
inquiry into the threshold issue of whether the creditor had standing to file the
motion for stay relief. Further, the Court erred by failing to make an inquiry on
standing because without standing the Court lacked jurisdiction to grant the relief
requested by creditor/movant and such an inquiry was required before the court
could rule on the motion for stay relief when the standing issue was raised by
Debtor. Further, the court failed to make a finding of fact as to whether movant did
in fact own and hold Debtors promissory note and security deed and erroneously
determined that movant had standing when it did not refusing to conduct an
evidentiary hearing.
ARGUMENT
I. The Bankruptcy Court abused its discretion in granting relief
from stay because it failed to conduct an inquiry into the
threshold issue of whether the creditor had standing to file the
7
motion for stay relief once the issue of standing was raised by
the Debtor in his pleadings.
A mortgage creditor may seek stay relief to pursue its non-bankruptcy law
remedies in enforcing its mortgage on a debtors home. But, as in any other civil
whether its jurisdiction has been properly invoked. (emphasis added). The
bankruptcy court failed in its affirmative obligation to do this. Appellant would cite
the case of In re Steinberg, BAP No. WY-12-082 (10th Circuit BAP May 30, 2013)
(unpublished). Here, the debtor, Dianna Kay Steinberg (Debtor), challenged the
banks standing by questioning whether it had the right to enforce the note. The
hearing on that very important threshold issue. Debtor appeals the bankruptcy
courts order granting the motion for relief from the automatic stay to foreclose on
its interest on her home. We REVERSE the order of the bankruptcy court and
REMAND the motion for a determination whether the creditor holds the note or
may enforce the note on some other legal basis. For the rest of the court's ruling,
see In re: Steinberg. Although the opinion is not precedent, it is persuasive. The
panel clearly ruled on facts similar to the case at bar, that the bankruptcy court had
standing to enforce the Note was raised, the bankruptcy court was required to
resolve it on the merits. Indeed, the Tenth Circuit has previously said as much in In
re Miller. There, the Tenth Circuit held that a secured creditor must demonstrate
that it has a right to payment by adducing evidence that it possesses the note.
challenged, the bankruptcy court has a duty to ensure that debtors are not
either its possession of the note or some other legal basis for being able to enforce
it. Here, the bankruptcy court granted movants motion without conducting any
inquiry into that important threshold issue (emphasis added). Because the
standing, it abused its discretion in granting relief from stay when it failed to
conduct an inquiry into whether Bank of America had possession of the original
note. We therefore reverse the order of the bankruptcy court and remand the
motion for a determination whether BOA holds the Note or may enforce the Note
on some other legal basis. It is clear from the legal authority cited, that the
standing to determine movants standing prior to granting a motion for stay relief.
9
The bankruptcy courts decision should be reversed and remanded.
Further, the court did not consider Debtors filed objections to the motion for
stay relief, including the movants lack of standing to file the motion.
Movant never established that it is truly a real party in interest with standing
to file a motion for relief from automatic stay. Both the Federal Rules of Civil
Procedure and the U.S. Bankruptcy Code require that a motion for stay relief can
only be filed by a real party in interest. The bankruptcy court essentially ignored
Debtors Objection to movants motion. Courts throughout the country have denied
standing on motion for stay relief where movants couldnt prove standing. In re
Sheridan, 2009 Bankr. Lexis 552 (Bankr. ID. 2009); In re: Jacobson, 2009 Bankr.
WD Wash 2009); In re: Hayes, 393 B.R. 259 (Bankr. Mass. 2008); In re: Hwang,
396 B.R. 757 (Bankr. C.D. Cal, 2008). Problems with standing in cases of notes
and mortgages or security deeds assigned to securitized trusts have been evident in
opined:
Yet again the court is called upon to decide whether the purported holder of a note
allegedly transferred into a securitized mortgage pool has standing to obtain relief
from the automatic stay. Yet again, the movant has failed to demonstrate that it has
standing. To make matters worse, the movant has filed its motion without
the fact, and only disclosed its real evidence on the day of the final evidentiary
Constitutional and prudential standing and be the real party in interest under Fed.
R. Civ. Pro. 17, in order to be entitled to lift stay relief. [citing Kowalski v.
Tesmer, 543 U.S. 125, 128-129 (2004)(quoting Warth v. Seldin, 422 U.S. 490, 498
(1975). Constitutional standing under Article III requires, at a minimum, that a
conduct, that the injury be traced to the challenged action, and that it is likely to be
redressed by a favorable decision. Valley Forge Christian Coll. V. Am. United for
Sep. of Ch. & State, 454 U.S. 464, 472 (1968). Beyond the Article III
the real party in interest. Dunmore v. United States, 358 F. 3d 1107 1112 (9th Cir.
2004). [a]n action must be prosecuted in the name of the real party in interest.
conclude that Movant lacked standing to request relief from the automatic stay and
that it was error for the bankruptcy court to fail to conduct an evidentiary hearing
11
determination of property rights. See Butner v. United States, 440 U.S (1979). 48,
54 (noting that absent an actual conflict with federal bankruptcy law, Congress
has generally left the determination of property rights in the assets of a bankrupt's
estate to state law); In re Morton, 866 F.2d, 866 F. 2d 561, 563 (2d Cir 1989).
Movant has not established its standing under the subject documents by valid
assignment or otherwise. Movant has not supplied the court with any evidence that
agreement nor has Movant presented any valid written assignment of the Deed. As
Movant has failed to prove it owns the Note and has failed to present a valid
assignment, Movant has no standing to pursue its state law remedies with regard to
the Property. Unless and until Movant establishes it's standing on the record, it had
no standing to file this Motion for Stay Relief and the court would lack jurisdiction
litigation against the Debtor, as well as any act to create, perfect, or enforce any
lien against property of the estate. 11 USC 362(a). Section 362(d) of the
Bankruptcy Code provides that [o]n request of a party in interest and after notice
and a hearing, the court shall grant relief from the stay.... 11 USC Section 362(d)
12
(emphasis added). The term party in interest is nowhere defined in the
Bankruptcy Code. However, the Supreme Court has suggested that when an
undefined term is used in bankruptcy law, [i]n determining the term's scope---and
Kokoszka v. Belford, 417 U.S. 642, 645 (1974) (citing Segal v. Rochelle, 382 U.S.
differently, the Second Circuit explained In re Comcoach, 698 F.2d 571, 573 (2d
creditors and debtors could settle their disputes.... The Comcoach1 court went on
to find that in order to invoke the court's jurisdiction to obtain relief from the
automatic stay, the moving party had to be either a creditor or a debtor. In Support
of this assertion, the court cited to the Bankruptcy Code's legislative history
which suggest that, notwithstanding the use of the term party in interest, it is
only creditors who may obtain relief from the automatic stay. Id. (Citing H.R.
It follows from the Second Circuit's analysis that unless Movant qualifies as a
creditor, it does not have standing to request relief from the automatic stay.
1The facts in Comcoach involved a bank, and therefore this language should not be read to
exclude from the definition of a party in interest the United States Trustee or other corporate or
corporeal entities specifically given standing in the Bankruptcy Code or applicable case law.
13
Section 101(10) of the Bankruptcy Code defines a creditor as an:
(A) Entity that has a claim against a debtor that arose at the time of or
(B) Entity that has a claim against the estate of a kind specified in section
348 (d), 502(f), 502 (g), 502 (h), or 502 (I) of this title; or
(C) Entity that has a community claim. 11 U.S.C. Section 101 (10). This
Section 101 (5) (A) of the Bankruptcy code defines a claim as the right to
equitable, secured or unsecured. Even under this broad definition movant has not
it lacks the ability to seek the state law remedy of foreclosure. Johnson v. Home
State Bank, 501 U.S. 78, 84 (1991) (finding that a mortgage foreclosure was a
the litigant does not have standing, the court has no power to hear the case, even if
14
no objection has been raised. Unfortunately, not all courts exercise that affirmative
duty, so its usually up to Debtor or her attorney to ensure that claimants without
standing dont slip through. The cases below establish those basic principles:
Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269 (2008):
Assignee to claim must hold legal title at the time that it is asserted in action.
Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004): Federal
court can only exercise jurisdiction when litigant meets both constitutional
every federal case determining the power of the court to entertain the suit.
St. Paul Fire and Marine Insurance Co. v. PepsiCo, Inc., 884 F. 2d 688 (2nd
Barhold v. Rodriguez, 863 F.2d 233 (2nd Cir. 1988): Parties cannot consent
to waive standing.
Numerous U.S. Bankruptcy Court rulings have reaffirmed the general rule
that federal court jurisdiction requires that the litigant have both Constitutional and
prudential standing. That requirement and what exactly is required to satisfy the
15
standard is elaborated upon in:
In re Jackson, 451 B.R. 24 (Bankr. E.D. Cal., June 6, 2011): For a federal
In re Veal, 450 B.R. 897 (9th Cir. B.A.P., June 10, 2011): A federal court
may exercise jurisdiction over a litigant only when that litigant meets
conduct or some statutory prohibition, and which the requested relief will
on the exercise of federal jurisdiction; here, Wells Fargo did not establish
standing to seek relief from stay, as it did not show that it or its agent had
actual possession of the note, so that it could not establish that it was a
person entitled to enforce the note under UCC 3-301.In re Burnett, 450
B.R. 589 (Bankr. W.D. Va., April 28, 2011): In order to establish a colorable
claim, a movant for relief from stay must satisfy the constitutional
16
exercise.
must also have standing to bring a motion; a litigant must have both
In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho, July 7, 2009): To obtain stay
relief, a Movant must have standing and be the real party in interest under
Standing of a Servicer. In re Alcide, 450 B.R. 526 (Bankr. E.D. Pa., May 27,
2011): To establish its status as a party in interest entitled to seek relief from
the automatic stay, a mortgage servicer must demonstrate that (1) the
the servicer by its principal and; and (2) the principal itself is a party in
interest (i.e., the principal is a party with the right to enforce the mortgage).
In re Gulley, 436 B.R. 878 (Bankr. N.D.Tex., August 23, 2010): A mortgage
17
the note.
In re Jacobson, 402 B.R. 359 (Bankr. W.D. Wash., March 6, 2009): Even if a
servicer or agent has authority to bring a motion for relief from stay on
behalf of the holder, it is the holder, rather than the servicer, that must be the
moving party, and so identified in the papers and in the electronic docketing
In re Escobar, 457 B.R. 229 (Bankr. E.D. N.Y., August 22, 2011): Where the
holder of the note; here, the movants had met this burden of proof through
their uncontroverted affidavit testimony that they were holders of the notes
blank.
In re Veal, 450 B.R. 897 (9th Cir. B.A.P., June 10, 2011): (See Constitutional
In re Banks, 457 B.R. 9 (8th Cir. B.A.P., Oct. 11, 2011): The bankruptcy
court erred in holding that a creditor possessed the right to enforce a note
18
endorsed in blank where the creditor did not establish that it was in
Date of Possession
In re Ruest, Case No. 08-10512, Adv. Proc. No. 09-1035 (Bankr. D. Vt.,
August 23, 2011): Even though it was undisputed that loan servicer was in
possession of the note and the note was endorsed in blank, the date that the
bank came into possession of the note was a genuine issue of material fact
In re Parker, 445 B.R. 301 (Bankr. D.Vt., March 18, 2011): The creditor
needed to show that it was the holder of the note on the date of the debtors
bankruptcy petition.
to establishing the rights of a holder, a servicer seeking relief must show its
authority to act as the holders agent. In re: Canellas, 2010 WL 571808 (Bankr.
19
M.D. Fla. Feb. 9, 2010). (motion for relief from stay denied after movant produced
Cal., Jan. 26, 2009) (sanctioning attorney who pursued stay relief motion knowing
named party lacked ownership interest in note); In re: Jacobson, 402 B.R. 359
(Bankr. W.D. Wash. 2009) (servicers declaration in support of motion for stay
relief did not establish that it had a beneficial interest in the note) In re: Fitch, 2009
CONCLUSION
Based upon the facts of this case, the legal arguments and authorities cited
abused its discretion in granting relief from stay because it failed to conduct an
inquiry into the threshold issue of whether the creditor/movant had standing to file
the motion for stay relief. The Court erred by failing to make an inquiry on
standing because without standing the Court lacked jurisdiction to grant the relief
requested by creditor and such an inquiry was required before the court could rule
on the motion for stay relief when raised by Debtor. Therefore the Bankruptcy
Courts ruling granting the motion for stay relief should be reversed and remanded.
______________________________
Pierre Andre Basson
Appellant Pro Se; Self Represented
20
5262 Keithwood Drive
Cumming, Georgia 30040
CERTIFICATE OF SERVICE
______________________________
Pierre Andre Basson
Appellant Pro Se
5262 Keithwood Drive
Cumming, Georgia 30040
30040.
______________________________
Pierre Andre Basson
Appellant Pro Se
5262 Keithwood Drive
Cumming, Georgia 30040
21
I HEREBY CERTIFY that the following is a list of Related Cases to this
matter. NONE.
_________________________
Pierre Andre Basson
Appellant Pro Se
CERTIFIATE OF COMPLIANCE
_________________________
Pierre Andre Basson
Appellant Pro Se
22