Christine Emrich

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1This is even assuming that the case, In re Kang Jin Hwang, 396 B.R. 757 (Bkrtcy.C.D.Cal
2008), applies here at all. The moving party in that case was Creditor Mortgage Electronic
Registration Systems, Inc., which presented different issues from those which arise when a creditor
seeks relief in its own name. In any event, this court has declined to follow Hwang even when the
movant is MERS. In re Gramajo, 2009 WL 2824786.
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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
CHRISTINE EMRICH, 	No. 09-12038
Debtor(s).
______________________________________/
Memorandum on Motion for Relief from Stay
_________________
Debtor Christine Emrich filed her Chapter 13 petition on July 1, 2009. She scheduled her real
property at 417 C St, Petaluma, California, as having a value of $515,000.00 and being owned by her
free and clear. Creditor Onewest Bank has filed a motion for relief from the automatic stay, alleging
that it holds a first deed of trust on the property, that it is owed over $659,000.00 by Emrich, and that
she has not made any of the payments which have come due since the filing.
Emrich has filed a written objection which does not assert that she has been making payments.
Instead, relying on a Central District bankruptcy court case, she argues that the court should not grant
the motion because Onewest has not proved it has a valid note and deed of trust to her property.
The court is aware of the case Emrich cites and does not find it to be consistent with the law of
this circuit.1 It is not appropriate for the court to decide the rights of either party in a stay relief
Entered on Docket
November 13, 2009
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-12038 Doc# 34 Filed: 11/12/09 Entered: 11/13/09 11:21:49 Page 1 of 3

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motion. Rule 7001 of the Federal Rules of Bankruptcy Procedure requires an adversary proceeding to
determine rights in property or obtain declaratory relief. 	Relief from stay hearings are limited in
scope to adequacy of protection, equity, and necessity to an effective reorganization; the validity of
underlying claims is not litigated. In re Johnson, 756 F.2d 738, 740 (9th Cir.1985), cert. denied, 474
U.S. 828, 106 S.Ct. 88, 88 L.Ed.2d 72 (1985). Stay relief hearings do not involve a full adjudication on
the merits of claims, defenses, or counterclaims, but simply a determination as to whether a creditor
has a colorable claim. Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 32 (1st Cir.1994); In re
Robbins, 310 B.R. 626, 631 (9th Cir. BAP 2004).
For the foregoing reasons, the court will grant the motion if Emrich has not become
current in her postpetition payments within 30 days. The order will make it clear that the court is not
adjudicating whether Onewest has the right to foreclose, but merely allowing that right, to the extent it
exists under non-bankruptcy law, to be exercised. The debtor shall retain all rights to injunctive relief
and damages for slander of title if she can show that Onewest is acting unlawfully; those are issues for
an adversary proceeding or a lawsuit in another forum, not a stay relief motion.
Counsel for Onewest shall submit an appropriate form of order.
Dated: November 12, 2009
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 09-12038 Doc# 34 Filed: 11/12/09 Entered: 11/13/09 11:21:49 Page 2 of 3

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CERTIFICATE OF MAILING
The undersigned deputy clerk of the United States Bankruptcy Court for the Northern District of
California hereby certifies that a copy of the attached document was mailed to all parties listed below
as required by the Bankruptcy Code and Rules of Bankruptcy Procedure.
Dated: Nov 12, 2009
Christine Emrich
1610 Shenandoah Court
Petaluma, CA 94954
Case: 09-12038 Doc# 34 Filed: 11/12/09 Entered: 11/13/09 11:21:49 Page 3 of 3