Mark Anthony Holmes

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 08-40008 TG
Chapter 7
MARK ANTHONY HOLMES, 	R.S. No. MAW 904
Debtor.
___________________________/
MEMORANDUM RE MOTION FOR RELIEF FROM STAY
The motion of Mortgage Electronic Registration Systems, Inc., as
nominee for People’s Choice Home Loan, Inc., and its successors and
assigns 	(“MERS”) 	for 	relief 	from 	the 	automatic 	stay 	came 	on 	for
hearing 	before 	the 	above-captioned 	Court 	on 	July 	25, 	2008 	at 	11:00
a.m. 	Appearances 	were 	stated 	on 	the 	record. 	The 	Court 	announced
that it had some concerns, which it would set forth in writing, and
continued 	the 	hearing 	to 	August 	15, 	2008 	at 	11:00 	a.m. 	Those
concerns are as follows:
The 	Court 	is 	informed 	that 	MERS 	has 	neither 	an 	equitable
interest in the secured claims that form the basis for the motions it
files in bankruptcy court nor any servicing obligations. 	The Court
is 	informed 	that 	MERS 	simply 	provides 	the 	name 	in 	which 	the 	real
party 	in 	interest 	acts 	so 	that 	names 	need 	not 	be 	changed 	when 	the
Signed: July 25, 2008
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
July 28, 2008
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 08-40008 Doc# 25 Filed: 07/25/08 Entered: 07/28/08 15:49:20 Page 1 of 3

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underlying 	note 	changes 	hands. 	In 	the 	instant 	case, 	a 	copy 	of 	the
deed 	of 	trust, 	identifying 	the 	original 	lender 	as 	People’s 	Choice
Home 	Loans, 	Inc. 	(“People’s 	Choice”), 	is 	attached 	to 	the 	motion.
However, no copy of the promissory note is attached. 	This causes the
Court to wonder whether the note has been sold, and the motion is in
fact being prosecuted for some other lender. 	A copy of the note must
be provided as part of the record for such motions and any transfers
of the beneficial interest disclosed.
In addition, the declaration supporting the motion is signed by
an 	employee 	of 	an 	entity 	named 	Popular 	Mortgage 	Servicing, 	Inc.
(“Popular Mortgage”), which is identified as the servicing agent for
MERS. 	If MERS is merely a nominee, presumably the servicing agent is
acting 	on 	behalf 	of 	the 	party 	holding 	the 	beneficial 	interest, 	not
MERS. 	If the Court is mistaken and Popular Mortgage has a servicing
contract with MERS, a copy of the contract should be made a part of
the 	record. 	Otherwise, 	the 	declaration 	should 	be 	amended 	to
correctly state the legal relationships.
END OF DOCUMENT
Case: 08-40008 Doc# 25 Filed: 07/25/08 Entered: 07/28/08 15:49:20 Page 2 of 3

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COURT SERVICE LIST
David Ashley Smyth
Smyth Law Offices
1990 N California Blvd. #830
Walnut Creek, CA 94596
Melodie A. Whitson
Pite Duncan, LLP
525 E. Main St.
P.O. Box 12289
El Cajon, CA 92022-2289
Case: 08-40008 Doc# 25 Filed: 07/25/08 Entered: 07/28/08 15:49:20 Page 3 of 3