Veal v. American Home
Mortgage Servicing, Inc. (In re Veal), 2011 WL 2304200
(9th Cir. BAP 2011). In Veal, the Ninth Circuit BAP
explained that standing is an independent inquiry that must
be made in all federal litigation, and must be determined
prior to consideration of the substantive rights of the
parties. Id. at *13-14. In Veal, American Home
Mortgage, Inc. (AHMI) filed a proof of claim in the Veals'
bankruptcy. Id. at *1. The debtor objected to the
proof of claim, arguing that AHMI was not the real party in
interest, nor an agent for the real party in interest, and
therefore lacked standing to file the proof of claim. Id.
at *2. The bankruptcy court overruled the Veals' objection.
Id. at *4. The BAP concluded that once the Veals had
challenged AHMI's standing, AHMI had an affirmative
obligation to show that it was a real party in interest, or
that party's agent. Id. at *16. Because AHMI had
provided no evidence at all on the issue, the BAP vacated
the bankruptcy court's order and remanded. id. at
*16, 18. PARTY NEED ONLY SHOW THEY HAVE A "COLORABLE CLAIM
TO BRING ACTION"
CLICK HERE FOR TEXT OF VEAL OPINION
Cervantes vs Countrywide
Home Loan, Inc. 2011 WL 3911031 (9th Cir., September 7,
201 This is
a putative class action challenging origination and
foreclosure procedures for home loans maintained within the
Mortgage Electronic Registration System (MERS). The
plaintiffs appeal from the dismissal of their First Amended
Complaint for failure to state a claim. In their complaint,
the plaintiffs allege conspiracies by their lenders and
others to use MERS to commit fraud. They also allege that
their lenders violated the Truth in Lending Act (TILA), 15
USC. § 1601 et seq., and the Arizona Consumer Fraud Act,
Ariz. Rev. Stat. § 44-1522, and committed the tort of
intentional infliction of emotional distress by targeting
the plaintiffs for loans they could not repay. The
plaintiffs were denied leave to file their proposed Second
Amended Complaint, and to add a new claim for wrongful
foreclosure based upon the operation of the MERS system.
In re Matson, BAP NO.
Az-101-1433 (Bankr. 9th Cir. June 7 2011) The debtors, David
and Deborah Matson, appeal the bankruptcy court’s decision
to grant Citibank, N.A. (“Citibank”) relief from stay as to
their home in Gilbert, Arizona.3 On appeal, the debtors
contend that the bankruptcy court abused its discretion in
granting Citibank relief from stay because Citibank did not
have standing to request such relief as it was not a real
party in interest. We AFFIRM.
In re Sardana, BAP No.
AZ-101-1368 (Bankr. 9th Cir. June 2011) Even so, as counsel
for Bank of America admitted at oral argument, to be a “real
party in interest” for standing purposes to prosecute a
motion for relief from stay, the moving party must have a
right to enforce the subject obligation under Arizona law.
See, e.g., BAC Home Loans Servicing, L.P. v. Zitta (In re
Zitta), 2011 WL 677289 (Bankr. D. Ariz. Jan. 25, 2011); In
re Weisband, 427 B.R. 13 (Bankr. D. Ariz. 2010); and In re
Hill, 2009 WL 1956174 (Bankr. D. Ariz. July 6, 2009). With
Ms. Sardana having made an offer of proof, which the
bankruptcy court apparently accepted but disregarded, that
the Note had been assigned to Fannie Mae, Bank of America
needed to establish that it retained the right to enforce
the Note obligation in order to establish its standing to
prosecute the Motion. It did not meet its burden of proof to
make that showing. Accordingly, we determine that it is
appropriate to vacate the Order and remand to the bankruptcy
court to conduct an evidentiary hearing on the issue of Bank
of America’s standing as a real party in interest to
prosecute the Motion and on such other matters as the
bankruptcy court determines to be appropriate.
CONCLUSION For the foregoing reasons, we VACATE the Order
and REMAND to the bankruptcy court to conduct an evidentiary
hearing.
In re Weisband,
4:09-bk-05175-EWH (memorandum decision 3/29/10) GMAC failed
to provide evidence of standing to bring motion for relief.
Some Arizona cases:
Silving, et al. v. Wells
Fargo Bank, N.A., 2011 WL 2669246 (D. Ariz. July 7,
2011) challenging trustee sales - 11 causes of action
(fraud, etc)
Bridgeman v.CitiMortgage
Inc., et al., Defendants. No. CV11-1106-PHX DGC.
(District Court, D. Arizona., September 1, 2011) challenging
standing of MERS, etc.
BACK TO BANKRUPTCY CASE LAW
Index
OPINION
SUMMARIES ARCHIVE FindLaw archives case law summaries of
opinion issued since September 2000 by the U.S. Supreme Court,
all thirteen Federal Circuit Courts, the California Supreme
Court, the California Appellate Courts, and the New York Court
of Appeals.
http://caselaw.lp.findlaw.com/casesummary/index.html
