Robin Hayes

As discussed below, Deutsche Bank is a party to a Pooling and Service1
Agreement, dated as of October 1, 2004. The Depositor under the Pooling and Service
Agreement, namely the seller of pass-through certificates reflecting beneficial
ownership interests in certain real estate mortgage investment conduits, is Argent
Securities Inc., not Argent Mortgage Securities, Inc. Under the Pooling and Service
1
UNITED STATES BANKRUPTCY COURT
FOR THE
DISTRICT OF MASSACHUSETTS
~~~~~~~~~~~~~~~~~~~~~~~~~~~
In re
ROBIN HAYES, Chapter 13
Debtor Case No. 07-13967-JNF
~~~~~~~~~~~~~~~~~~~~~~~~~~~
MEMORANDUM
I. INTRODUCTION
Two matters are before the Court: 1) the First Omnibus Objection to Claims filed by
the Debtor, Robin Hayes (the “Debtor”), pursuant to which the Debtor objected to a proof
of claim filed by AMC Mortgage Services, Inc. (“AMC”); and 2) the Motion for Relief from
Stay filed by Deutsche Bank National Trust Company, as Trustee of Argent Mortgage
Securities, Inc. [sic] Asset-Backed Pass Through Certificates Series 2004-W11, under the
Pooling and Servicing Agreement Dated as of October 1, 2004, without Recourse
(“Deutsche Bank”), filed on September 17, 2007. AMC, on November 6, 2007, filed a1
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Agreement, the Trustee of the Trust Fund, consisting of a segregated pool of assets
comprised of mortgage loans and certain other related assets, is Deutsche Bank
National Trust Company. Deutsche Bank erroneously identified itself in its own
Motion.
In its Response, AMC identified itself as the servicer for the holder of the2
mortgage on 232 Perkins Avenue, Brockton, Massachusetts owned by the Debtor and
her mother, Tina Hayes. It did not, however, specifically identify the holder of the
mortgage. In the Motion for Relief from Stay filed approximately two months earlier,
Deutsche Bank identified itself as the holder of the mortgage.
2
Response to the Debtor’s Objection to the proof of claim which AMC subsequently
purported to transfer to a servicer of Deutsche Bank. In her Objection to the proof of claim2
filed by AMC, the Debtor noted the absence of evidence of an assignment from the original
holder of her mortgage. The Debtor filed an Objection to Deutsche Bank’s Motion for
Relief from the Automatic Stay. In her Objection to Deutsche Bank’s Motion for Relief from
Stay, the Debtor raised an issue of Deutsche Bank’s standing to seek relief from stay.
On July 14, 2008 and July 15, 2008, the Court conducted a consolidated evidentiary
hearing on the Debtor’s Objection to Claim, and Deutsche Bank’s Motion for Relief from
Stay. Three witnesses testified and 20 exhibits were introduced into evidence. The
threshold issue is whether Deutsche Bank has standing to seek relief from the automatic
stay and to oppose the Debtor’s Objection to the proof of claim filed by AMC. The specific
issue is whether Deutsche Bank successfully traced the identity of the various holders and
servicers of the mortgage from Argent Mortgage Company, LLC, the original holder of a
mortgage executed by the Debtor and Tina Hayes, to itself. For the reasons set forth below,
the Court finds that Deutsche Bank failed to trace the mortgage from Argent Mortgage
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The Court takes judicial notice that the Debtor filed Case No. 06-11255-JNF on3
May 3, 2006, and Case No. 06-12851-JNF on August 23, 2006. Her mother, Tina Hayes,
filed Case No. 06-10565-WCH on March 13, 2006, Case No. 06-11599-RS on May 30,
2006, and Case No. 06-13311-WCH on September 22, 2006.
3
Company, LLC to itself and thus lacks standing to obtain relief from stay and to defend the
Debtor’s Objection to the claim filed by AMC.
II. FACTS
The Debtor filed a voluntary Chapter 13 petition on June 26, 2007, her third Chapter
13 petition since May of 2006, and the sixth involving real property located at 232 Perkins
Avenue, Brockton, Massachusetts (the “Perkins Avenue property”), which the Debtor owns
as a joint tenant with her mother, Tina Hayes. The Perkins Avenue property is3
encumbered by a mortgage dated November 3, 2004 (Exhibit 1), which secures an
adjustable rate note of even date in the original principal amount of $324,000 (Exhibit 2).
Only Tina Hayes executed the adjustable rate note; both she and the Debtor executed the
mortgage.
The note and mortgage identify Argent Mortgage Company, LLC as the Lender.
The note sets forth an initial monthly payment amount of $2,514.28 and provides for an
adjustment of the initial 8.6% interest rate on December 1, 2006 and every six months
thereafter based upon the LIBOR index. The note provides:
[T]he Note Holder will calculate my new interest rate by adding six
percentage point(s)(6.000%) to the Current Index. The Note Holder will then
round the result of this addition to the nearest one-eight [sic] of one percent
(0.125%). Subject to the limits stated in Section 4(D) below, this rounded
amount will be my new interest rate until the next Change Date. The Note
Holder will then determine the amount of the monthly payment that would
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4
be sufficient to repay the unpaid principal that I am expected to owe at the
Change Date in full on the Maturity Date at the new interest rate in
substantially equal payments. The result of this calculation will be the new
amount of my monthly payment.
The note further provides that the interest rate was subject to a cap of 10.600% and a floor
of 8.6% at the first Change Date and that, after first Change Date, it would never increase
or decrease more than 1.000% from the rate payable for the previous six months, subject
to an overall ceiling of 14.6% and floor of 8.6%. The note also provides for late charges and
attorneys’ fees.
The mortgage contains additional pertinent provisions. It provides:
Lender [Argent Mortgage Company, LLC] may return any payment or
partial payment if the payment or partial payments are insufficient to bring
the Loan current. Lender may accept any payment or partial payment
insufficient to bring the Loan current, without waiver of any rights
hereunder or prejudice to its rights to refuse such payment or partial
payment in the future, but Lender is not obligated to apply such payments
at the time such payments are accepted. If each Periodic Payment is applied
as of its scheduled due date, then Lender need not pay interest on unapplied
funds. Lender may hold such unapplied funds until Borrower makes
payment to bring the Loan current . . . .
Further, the mortgage permits the Lender to obtain property insurance in the event the
Borrower failed to maintain insurance coverage or perform obligations under the note and
mortgage, as well as to take actions to protect its interest, including assessing the value of
the property, appearing in court and paying reasonable attorneys’ fees.
As noted above, AMC, not Argent Mortgage Company, LLC, filed a proof of claim
on August 13, 2007 “as loan servicer for Secured Creditor Argent Mortgage Company,
LLC” (Exhibit 8). It set forth a pre-petition secured claim in the total amount of $398,099.18,
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The delinquent payments were set forth as follows: sixteen payments at4
$2,514.28 each for the period September 1, 2005 through December 1, 2006; five
payments at $2,972.50 each for the period January 1, 2007 through May 1, 2007; and one
payment at $3,199.25 for June 1, 2007. The late fees ($1,741.96), property inspection fees
($327.00), foreclosure fees and costs ($10,947.96), appraisal fees ($535), bankruptcy
attorneys’ fees ($1,334.42), bankruptcy costs ($300), and foreclosure attorneys’ fees
($2,200) totaled $17,386.34.
5
comprised of the principal loan balance of $322,422.61, plus twenty-one delinquent
monthly mortgage payments, late fees, attorneys’ fees, and other costs and charges,4
totaling $75,676.57.
The Debtor objected to the proof of claim on grounds that AMC failed to attach “a
copy of the note and mortgage (and any related assignments)” and that its costs and
charges were unreasonable and excessive in the absence of documentation. Additionally,
the Debtor complained that she could not verify that twenty-two payments were in arrears
without a complete loan history. She asked that “[a]bsent appropriate documentation . . .
the claim be disallowed and the security interest voided pursuant to 11 USC § 506(d).”
AMC responded to the Debtor’s Objection “as servicer to the holder of the
mortgage.” It attached to its Response a copy of the note and mortgage, as well as a loan
history. On April 29, 2008, almost 16 months after AMC filed a proof of claim on behalf of
Argent Mortgage Company, LLC, an attorney with the law firm of Buchalter Nemer filed
with the Court a “Transfer of Claim Other Than for Security” (Exhibit 18), dated April 8,
2008, pursuant to which AMC purported to transfer the proof of claim it filed on behalf of
Argent Mortgage Company, LLC to Citi Residential Lending, Inc., as loan servicer for the
secured creditor Deutsche Bank National Trust Company, as Trustee, in trust for the
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6
registered holders of Argent Securities Inc.”
On September 17, 2007, approximately three months after the Debtor filed her
Chapter 13 petition, Deutsche Bank filed its Motion for Relief from Stay under 11 U.S.C.
§ 362(d)(1) and (d)(2), as Trustee of Argent Mortgage Securities, Inc. [sic]. In its Motion,
it alleged that it is the current holder of the mortgage, that the Debtor failed to stay current
with post-petition mortgage payments, that the Debtor had little, if any equity in the
Perkins Avenue property, and that the property was unnecessary for an effective
reorganization. The Debtor filed a timely Objection to Deutsche Bank’s Motion asserting
that she lacked knowledge or information sufficient to respond to Deutsche Bank’s
allegation that she had failed to make post-petition mortgage payments and, as noted
above, raising the issue of Deutsche Bank’s standing to bring the Motion.
At trial, Deutsche Bank, through Andrea Rodriguez-Tapia, a bankruptcy specialist
and so-called “team lead,” with Citi Residential Lending, Inc., introduced multiple
documents in support of its standing to bring its Motion for Relief from Stay and respond
to the Debtor’s objection to the proof of claim filed by AMC. In addition to the note,
mortgage and Transfer of Claim (Exhibits 1, 2 and 18, respectively), Deutsche Bank
introduced the following exhibits in support of its standing:
1) a “Confirmatory Corporation Assignment of Deed of Trust Mortgage”
(Exhibit 3) pursuant to which Argent Mortgage Company, LLC, “[b]y its
Attorney In-Fact, Citi Residential Lending, Inc.,” by Tamara Price, Vice
President, purported to assign and transfer to “Deutsche Bank National
Trust Company as Trustee of Argent Mortgage Securities, Inc. [sic], Asset-
Backed Pass Through Certificates Series 2004-W11, under the Pooling and
Servicing Agreement dated as of October 1, 2004 Without Recourse” “all
beneficial interest under that certain mortgage dated November 3, 2004
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Deutsche Bank also introduced as Exhibit 5 an “Incumbency Certificate,” dated5
October 23, 2007, executed by Kathleen Wood-Wagner, the Secretary of Citi Residential
Lending, Inc., purportedly attesting to Tamara Price’s authority to execute the
Confirmatory Corporation Assignment. It did not submit evidence that Tamara Price
retained that authority after October 23, 2007. Thus, it unclear whether she retained
that authority on April 16, 2008, the date she executed the Confirmatory Corporation
Assignment.
7
executed by Tina Hayes aka Tena Hayes and Robin Hayes” with respect to
the Perkins Avenue property. The assignment was dated April 16, 2008, but
it provided that “[t]he effective date of this assignment is October 24, 2005.”5
2) a “Limited Power of Attorney” (Exhibit 4) given by Argent Mortgage
Company L.L.C. to Citi Residential Lending, Inc., dated September 6, 2007,
pursuant to which Argent Mortgage Company LLC granted Citi Residential
Lending, Inc. “full power and authority to sign, execute, . . . and record any
instrument on its behalf and to perform such other act or acts as may be
customarily and reasonably necessary and appropriate to effectuate the
following enumerated transactions. . . .” The Limited Power of Attorney
further provides: “This Appointment shall apply only to the following
enumerated transactions and nothing herein or in the Agreements shall be
construed to the contrary:
1. The modification or re-recording of a Mortgage or Deed
of Trust, where said modification or re-recording is
solely for the purpose of correcting the Mortgage or
Deed of Trust to conform same to the original intent of
the parties thereto or to correct title errors . . . .
2. The subordination of the lien of a Mortgage or Deed of
Trust to an easement in favor of a public utility
company of a government agency or unit with powers
of eminent domain . . . .
3. The conveyance of the properties [sic] to the mortgage
insurer, or the closing of the title to the property to be
acquired as real estate owned, or conveyance of title to
real estate owned.
4. The completion of loan assumption agreements.
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The limited nature of the power of attorney is further emphasized in the6
document, which provides “[T]his appointment is to be construed and interpreted as a
limited power of attorney. The enumeration of specific items, rights, acts or powers
herein is not intended to, nor does it give rise to, and is not to be construed as a general
8
5. The full satisfaction/release of a Mortgage or Deed of
Trust or full conveyance upon payment and discharge
of all sums secured thereby, including without
limitation, cancellation of the related Mortgage Note.
6. The assignment of any Mortgage or Deed of Trust and
the related Mortgage Note, in connection with the
repurchase of the mortgage loan secured and evidenced
thereby.
7. The full assignment of a Mortgage or Deed of Trust
upon payment and discharge of all sums secured
thereby in conjunction with the refinancing thereof,
including, without limitation, the assignment of the
related Mortgage Note.
8. With respect to a Mortgage or Deed of Trust, the
foreclosure, the taking of a deed in lieu of foreclosure,
or the completion of judicial or non-judicial foreclosure
or termination, cancellation or rescission of any such
foreclosure . . . .
9. With respect to the sale of property acquired through a
foreclosure or deed-in-lieu of foreclosure, including,
without limitation, the execution of the following
documentation:
a. Listing agreements . . . .
10. The modification or amendment of escrow agreements
established for repairs to the mortgaged property or
reserves for replacement of personal property.
11. Endorse on behalf of Argent Mortgage all checks, drafts
and/or negotiable instruments made payable to Argent
Mortgage.”6
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power of attorney.”
9
3) a “POOLING AND SERVICING AGREEMENT, dated as of October 1, 2004,”
among “ARGENT SECURITIES INC., Depositor,” “AMERIQUEST
MORTGAGE COMPANY, Master Servicer,” and “DEUTSCHE BANK
NATIONAL TRUST COMPANY, Trustee.” (Exhibit 6). The title page contains
a reference “Asset-Backed Pass-Through Certificates Series 2004-W11.” The
agreement was signed by all three parties and their signatures were
notarized on October 6 and 7, 2004. In the Preliminary Statement of the
Pooling and Servicing Agreement (“PSA”), the parties agreed that “[t]he
Depositor intends to sell pass-through certificates . . . to be issued hereunder
in multiple classes which in the aggregate will evidence the entire beneficial
ownership in each REMIC created hereunder.” The term REMIC is defined
as a “real estate mortgage investment conduit within the meaning of Section
860D of the Code [the Internal Revenue Code of 1986, as amended].”
The PSA contains a reference to a Schedule 1, a “Mortgage Loan
Schedule,” which was not attached to Exhibit 6. However, in Section 1.01
“Definitions,” at p. 35, the term “Mortgage Loan” is defined as “[e]ach
mortgage loan transferred and assigned to the Trustee pursuant to Section
2.01 or Section 2.03(d) of this Agreement or pursuant to a Subsequent
Transfer Instrument, as held from time to time as part of REMIC I, the
Mortgage Loans so held being identified in the Mortgage Loan Schedule.”
The “Mortgage Loan Schedule” is defined as follows: “As of any date, the list
of Mortgage Loans included in REMIC I on such date . . . attached hereto as
Schedule 1 and as supplemented by each schedule of Subsequent Mortgage
Loans attached to the Subsequent Transfer Instrument.” On p. 65, the term,
“Subsequent Mortgage Loan,” is defined as “[a] Mortgage Loan sold by the
Depositor to the Trust Fund pursuant to Section 2.09, such Mortgage Loan
being identified on the Mortgage Loan Schedule attached to a Subsequent
Transfer Instrument.” Section 2.01, entitled “Conveyance of Mortgage
Loans,” provides that “[t]he Depositor . . . convey[s] to the Trustee, without
recourse, for the benefit of the Certificateholders [sic] and Certificate Insurer,
all right title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Schedule. . . .” Section 2.09 entitled “Conveyance
of the Subsequent Mortgage Loans,” provides that “the Depositor shall on
any Subsequent Transfer Date sell, transfer, assign, set over and convey
without recourse to the Trustee for the benefit of the Trust Fund . . . all right,
title and interest of the Depositor in and to (i) the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule attached to the related
Subsequent Transfer Instrument delivered by the Depositor on such
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Deutsche Bank noted that Argent Mortgage Company, LLC was identified as an7
“Originator” in the PSA. See Exhibit 6 at p. 41, not p. 44 as cited by Deutsche Bank.
Deutsche Bank failed to explain the relationship between Argent Securities Inc. and
Argent Mortgage Company, LLC, in its capacity as an originator, and Argent Securities
Inc.’s ownership of pass-through certificates backed by the mortgage originated by
Argent Mortgage Company, LLC remains unclear. Deutsche Bank failed in its burden to
explain the relationship and how it affects its standing.
During final argument by Debtor’s counsel, after both parties had rested and8
the evidence was closed, counsel to the Debtor attempted to introduce into evidence
two additional documents for the reason that they were attached to a pleading filed by
Deutsche Bank, namely: 1) an “Assignment of Mortgage,” dated November 3, 2004,
pursuant to which Argent Mortgage Company, LLC assigned the mortgage executed by
the Debtor and Tina Hayes on that day to Ameriquest Mortgage Company; and 2) a
“Corporation Assignment of Deed of Trust/Mortgage,” dated February 4, 2008,
pursuant to which AMC Mortgage Services, Inc. by its Attorney-in-Fact, Citi Residential
Lending, Inc., assigned the mortgage executed by the Debtor and Tina Hayes to
Deutsche Bank. The Court sustained Deutsche Bank’s objection to the introduction of
the documents.
10
Subsequent Transfer Date. . . .”7
Rodriguez-Tapia testified that Argent Mortgage Company, LLC and Ameriquest
Mortgage Company are affiliated companies, that Ameriquest Mortgage Company created
AMC to service loans, that Citi Residential Lending, Inc. purchased AMC’s loan servicing
portfolio, and that Citi Residential Lending, Inc. is the current servicer of the mortgage on
the Perkins Avenue property.8
III. DISCUSSION
A. Standing
As the Court noted in In re Maisel, 378 B.R. 19, 21 (Bankr. D. Mass. 2007), “[t]he
plain language of section 362 of the Bankruptcy Code requires that one be a ‘party in
interest’ to seek relief from stay.” Although the United States Court of Appeals for the First
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11
Circuit in Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 32 (1st Cir. 1994), determined
that relief from stay hearings should not involve a full adjudication on the merits of claims,
defenses, or counterclaims, but rather should involve a determination of “whether a
creditor has a colorable claim to property of the estate,” this Court must ensure that
Deutsche Bank is, in fact, a party in interest with standing to bring the Motion for Relief
from Stay now before the Court.
As noted by this Court in In re Shamus Holdings, LLC, No. 08-1030-JNF, 2008 WL
3191315 (Bankr. D. Mass. Aug. 6, 2008), the United States Bankruptcy Appellate Panel for
the First Circuit in In re Newcare Health Corp., 244 B.R. 167 (B.A.P. 1st Cir. 2000),
addressed the concept of standing in connection with a request for an accounting and
turnover by a party that asserted a security interest in property belonging, not to the
debtor, but to an affiliate of the debtor. It observed the following:
Standing is a “threshold question in every federal case, determining the
power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 95
S.Ct. 2197, 45 L.Ed.2d 343 (1975). Hence, “a defect in standing cannot be
waived; it must be raised, either by the parties or by the court, whenever it
becomes apparent.” U.S. v. AVX Corp., 962 F.2d 108, 116 n. 7 (1st Cir.1992).
The inquiry into standing “involves both constitutional limitations on
federal-court jurisdiction and prudential limitations on its exercise.” Warth,
422 U.S. at 498, 95 S.Ct. 2197. “In its constitutional dimension, standing
imports justiciability: whether the plaintiff has made out a ‘case or
controversy’ between himself and the defendant within the meaning of Art.
III.” Id. Apart from this minimum constitutional mandate, the Supreme
Court recognizes other limits “. . . on the class of persons who may invoke
the courts’ decisional remedial powers.” Id. at 499, 95 S.Ct. 2197. These
prudential limitations are self-imposed rules of judicial restraint:
These considerations, which militate against standing,
principally concern whether the litigant (1) asserts the rights and
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12
interests of a third party and not his or her own, (2) presents a
claim arguably falling outside the zone of interests protected
by the specific law invoked, or (3) advances abstract questions
of wide public significance essentially amounting to
generalized grievances more appropriately addressed to the
representative branches.
Shamus Holdings, Slip op. at *6 (citing Newcare, 244 B.R. at 170)(emphasis in original).
To have standing to seek relief from the automatic stay, Deutsche Bank was required
to establish that it is a party in interest and that it is asserting its rights and not those of
another entity. In In re Woodberry, 383 B.R. 373 (Bankr. D. S.C. 2008), the court observed:
“Generally, the ‘real party in interest’ is the one who, under the applicable
substantive law, has the legal right which is sought to be enforced or is the
party entitled to bring suit.” In re Comcoach Corp., 698 F.2d 571, 573 (2nd
Cir.1983) (citations omitted). While Comcoach has been criticized as unduly
restrictive in the interpretation of “party in interest”, its general principle
that “party in interest standing does not arise if a party seeks to assert some
right that is purely derivative of another party’s rights in the bankruptcy
proceeding” survives. In re Refco, 505 F.3d 109, 115 fn. 10 (2nd Cir.2007).
Woodberry, 383 B.R. at 379. Courts have held that mortgage servicers are parties in
interest with standing by virtue of their pecuniary interest in collecting payments under
the terms of the notes and mortgages they service. 383 B.R. at 379. See also In re Conde-
Dedonato, __ B.R. __, 2008 WL 2873356 at *2 (Bankr. E.D.N.Y. July 22, 2008) (“A servicer
of a mortgage is clearly a creditor and has standing to file a proof of claim against a debtor
pursuant to its duties as a servicer.”).
Under Massachusetts law, a mortgage is an interest in real estate and an assignment
is a conveyance of that legal estate in the mortgaged premises. An assignment need not
be recorded. See generally Arthur L. Eno, Jr. and William V. Hovey, Assignment of
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Mortgage, 28 Mass. Prac., Real Estate Law, § 9.49 (4 ed.). “The mortgagee or personth
having his estate in the land mortgaged, or a person authorized by the power of sale, or the
attorney duly authorized by a writing under seal . . . or person acting in the name of such
mortgagee or person, may, upon breach of condition and without action, do all the acts
authorized or required by the power . . . .” Mass. Gen. Laws ch. 244, § 14. See In re
Huggins, 357 B.R. 180 (Bankr. D. Mass. 2006). Thus, a mortgagee or an entity with a valid
assignment may foreclose on real estate in Massachusetts and seek relief from the
automatic stay to do so. Moreover, a title is not defective “by reason of: . . . [t]he recording
of an Assignment of Mortgage executed either prior, or subsequent, to foreclosure where
said Mortgage has been foreclosed, of record by the Assignee.” 28B Mass. Prac. Series
REBA Tit. Std. No. 58.
B. Deutsche Bank’s Motion for Relief from Stay
The foregoing provisions of Massachusetts law do not assist Deutsche Bank or
establish its standing to file the Motion for Relief from Stay which is now before the Court.
In this case, Deutsche Bank filed its Motion for Relief from Stay, as Trustee of Argent
Mortgage Securities, Inc. [sic], an entity which was not a party to the PSA. It failed to
prove that the mortgage executed by the Debtor and her mother in favor of Argent
Mortgage Company, LLC was ever assigned to an entity by that name or to Argent
Securities Inc., the Depositor under the PSA. The Confirmatory Corporation Assignment
of Deed of Trust/Mortgage, dated April 16, 2008 (Exhibit 3), which was executed some
seven months after the filing of the Motion for Relief from Stay, pursuant to which Argent
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14
Mortgage Company, LLC conveyed the mortgage on the Perkins Avenue property to
Deutsche Bank was ineffective because Citi Residential Lending, Inc. lacked authority
under the Limited Power or Attorney to assign the mortgage to Deutsche Bank on behalf
of Argent Mortgage Company, LLC. Moreover, Deutsche Bank failed to submit any
evidence that the November 3, 2004 mortgage was included in the PSA or was subject to
Section 2.09 of the PSA as neither Schedule 1 to the PSA nor a Mortgage Loan Schedule
attached to a Subsequent Transfer Instrument were submitted into evidence. Thus,
consistent with the holdings in In re Maisel, 378 B.R. at 22, and In re Parrish, 326 B.R. 708,
729 (Bankr. N.D. Ohio 2005), the Court finds that Deutsche Bank failed to adequately trace
the loan from the original holder, Argent Mortgage Company, LLC, to it. See also In re
Foreclosure Cases, No. 1:07CV2282, 2007 WL 3232430 (N.D. Ohio Oct. 31, 2007).
Additionally, the Debtor’s reference to Deutsche Bank as a secured creditor in several of
her proposed Chapter 13 plans cannot confer standing on it as a party in interest for
purposes of its Motion for Relief from Stay. See In re Newcare Health Corp., 244 B.R. at 170
(“‘a defect in standing cannot be waived.’”).
In In re Schwartz, 366 B.R. 265 (Bankr. D. Mass. 2007), the court observed:
[I]t is not uncommon for notes and mortgages to be assigned, often more
than once. When the role of a servicing agent acting on behalf of a mortgagee
is thrown into the mix, it is no wonder that it is often difficult for
unsophisticated borrowers to be certain of the identity of their lenders and
mortgagees.
Id. at 266. In In re Nosek, 386 B.R. 374, 380 (Bankr. D. Mass. 2008), a case involving
Ameriquest Mortgage Company, an affiliate of Argent Mortgage Company, LLC and
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15
AMC, the court again chronicled the “the confusion and lack of knowledge, or perhaps
sloppiness” which characterize practices in the residential mortgage industry, in particular,
the failure by mortgage companies to document their standing. The court observed the
following:
. . . “[M]istakes” and misrepresentations . . . [are not] . . . limited to the
identification of roles played by various entities in this industry. In re
Schuessler, 2008 WL 1747935, *3 (Bankr.S.D.N.Y.2008) (movant’s motion
misrepresented debtor’s equity); Porter, Katherine M., “Misbehavior and
Mistake in Bankruptcy Mortgage Claims” (November 6, 2007). University of
Iowa Legal Studies Research Paper No. 07-29. Available at SSRN: http://
ssrn.com/abstract=1027961. As this Court has noted on more than one
occasion, those parties who do not hold the note or mortgage and who do
not service the mortgage do not have standing to pursue motions for relief
or other actions arising from the mortgage obligation. Schwartz, 366 B.R. at
270. The Court has had to expend time and resources, as have debtors
already burdened in their attempts to pay their mortgages, because of the
carelessness of those in the residential mortgage industry and the bombast
this Court and others have encountered when calling them on their
shortcomings. In re Foreclosure Cases, 2007 WL 3232430 at *3, n. 1.
Nosek, 386 B.R. at 380.
Although courts have been addressing the issues raised by Bankruptcy Judge
Rosenthal in the Nosek case for some time, see In re Foreclosure Cases, No. 1:07CV2282,
2007 WL 3232430 (N.D. Ohio Oct. 31, 2007), problems associated with the practices are
amplified in the instant case. The mortgage lender, its affiliates, assignees, and agents
involved in this case, through the convoluted process of securitization, the submission of
a 191-page, incomplete PSA, and reliance upon back-dated, unrecorded assignments, have
confounded the identity of the current holder of the mortgage for the purpose of filing the
Motion for Relief from Stay, as well as the proof of claim. The Court and the Debtor are
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16
entitled to insist that the moving party establish its standing in a motion for relief from stay
through the submission of an accurate history of the chain of ownership of the mortgage.
Absent such proof, relief from stay is unwarranted and a proof of claim filed by the wrong
party, to which an objection is filed, must be disallowed.
Massachusetts Local Bankruptcy Rule 4001-1(b)(f) requires a movant to state “the
original holder of the obligations secured by the security interest and/or mortgage and
every subsequent transferee, if known to the movant, and whether the movant is holder
of that obligation or an agent of the holder. . . .” Inaccurate representations about the
moving party’s status as a holder may constitute a violation of Fed. R. Bankr. P. 9011 and
may warrant sanctions under 28 U.S.C. § 1927. Given the tangle of inconsistent and
incomplete documents introduced into evidence purporting to establish Deutsche Bank as
the holder of the Debtor’s mortgage, which were submitted during a two-day trial and
required intensive scrutiny of hundreds of pages of documents, sanctions may be
appropriate. See In re Nosek, 386 B.R. 374 (Bankr. D. Mass. 2008).
C. The Proof of Claim
Pursuant to Fed. R. Bankr. P. 3001(f), “[a] proof of claim executed and filed in
accordance with the Federal Rules of Bankruptcy Procedure constitutes prima facie
evidence of the validity and amount of the claim.” See In re Long, 353 B.R. 1, 13 (Bankr. D.
Mass. 2006). See also Juniper Dev. Group v. Kahn ( In re Hemingway Transp., Inc.), 993
F.2d 915, 925 (1st Cir.1993). In order to rebut the prima facie evidence, the objecting party
must produce “substantial evidence,” and, if the objecting party produces substantial
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evidence in opposition to the proof of claim, rebutting the prima facie evidence, the burden
shifts to the claimant to establish the validity of its claim. Long, 353 B.R. at 13 (citations
omitted).
The proof of claim filed by AMC did not initially comply with Fed. R. Bankr. P.
3001(c) and (d), although it contained a reference to a “Summary of Exhibits,” including
the note, mortgage and “Certificate of Assistant Secretary,” which exhibits were not
attached. The Debtor objected to the claim, raising an issue under Rule 3001(c) and (d).
Accordingly, AMC had the burden of establishing the validity of the claim it filed - - a
burden assumed, sub silentio, by Deutsche Bank. Deutsche Bank submitted no evidence
that Argent Mortgage Company, LLC executed a servicing agreement with AMC, although
Rodriguez-Tapia testified that Ameriquest Mortgage Company created AMC to service
its loans. Accordingly, the transfer of the claim by AMC to Citi Residential Lending, Inc.
as loan servicer for Deutsche Bank under the PSA was insufficient for this Court to trace
the claim from Argent Mortgage Company, LLC to AMC and from AMC to Argent
Securities Inc. who sold the certificates backed by mortgages to Deutsche Bank pursuant
to the PSA.
IV. CONCLUSION
As noted above, Deutsche Bank failed to establish that Argent Mortgage Company,
LLC effectively assigned the mortgage executed by the Debtor to it or that Argent
Mortgage Company, LLC’s grant of authority to Citi Residential Lending, Inc. under the
Limited Power of Attorney (Exhibit 4) was sufficient to empower Citi Residential Lending,
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In view of the foregoing, the Court need not address issues raised by both9
parties with respect to the Debtor’s burden of establishing the existence of a plan in
prospect under 11 U.S.C. § 362(d)(2)(B). The Court notes that the Debtor may have won
a battle, but she still may lose the war. The evidence established that the Debtor has
made a total of two postpetition mortgage payments in the 14 months her Chapter 13
case has been pending and that she had incurred substantial mortgage arrears at the
time of the commencement of her second Chapter 13 case. Although the holder of the
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Inc. to execute the Confirmatory Corporation Assignment, dated April 16, 2008, on its
behalf, so as to effectively transfer the mortgage on the Perkins Avenue property from
Argent Mortgage Company, LLC to Deutsche Bank. Moreover, Argent Mortgage
Company, LLC was not a party to the PSA and Deutsche Bank failed to submit evidence
that Argent Mortgage Company, LLC ever conveyed its rights in and to the mortgage on
the Perkins Avenue property to Argent Securities Inc.
As the court noted in In re Nosek, 386 B.R. 374, 380 (Bankr. D. Mass. 2008), “those
parties who do not hold the note or mortgage and who do not service the mortgage do not
have standing to pursue motions for relief or other actions arising from the mortgage
obligation.” Id. at 380 (citing In re Schwartz, 366 B.R. at 270). Because Deutsche Bank has
failed to establish its standing to seek relief from the automatic stay and to defend the
Debtor’s Objection to the proof of claim filed by AMC, the Court shall enter an order
denying Deutsche Bank’s Motion for Relief from Stay. The Court shall also enter an order
sustaining the Debtor’s Objection to the proof of claim without prejudice to reconsideration
under 11 U.S.C. § 502(j) upon the filing of an amended proof of claim by the proper party.
See also Fed. R. Bankr. P. 3008. The Court shall defer issues relating to lien avoidance
pending submission of an amended claim or the filing of an amended plan.9
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mortgage may be in doubt, the Debtor’s inadequate income and questionable ability to
make mortgage and plan payments from self-employment is not. Outstanding issues
remain and include whether the claim securing the Perkins Avenue property can be
modified, and whether she can propose a feasible plan. The Court has sustained
objections to her First Amended Chapter 13 plan because it had a balloon payment
feature. At this time, she does not have a confirmable plan before the Court.
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The Court shall enter orders consistent with the foregoing rulings.
By the Court,
Joan N. Feeney
United States Bankruptcy Judge
Dated: August 19, 2008
cc: David G. Baker, Esq., Sanjit Korde, Esq., John McNicholas, Esq., Julie A. Ranieri, Esq.,
Carolyn Bankowski, Esq.
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