To our Attorney brothers and sisters who know the “lenders” and loan servicers are oftentrying to pull fast ones in bankruptcy courts both in filing bogus proofs of claims and in seeking to lift the automatic stay in bankruptcy court when they have no standing and cannot prove they are the real party in interest to file the motion I am offering my lift-stay motion with memorandum of points and authorities available on my Foreclosure Warrior (Foreclosure Defense training for lawyers website).
Here is a sample clip from my motion:
(i) The issue of standing, in the context of a motion to lift the automatic stay in regard to an alleged failure to pay on a promissory note requires analysis of California Commercial Code law.
There are two threshold questions for establishing standing: (1) has movant established an interest in the promissory note; and (2) is the movant entitled to enforce the note? See In re Wilhelm, 407 B.R. at 392; In re Aniel, No.09-30452DM, 2010 WL 1609923 (Bankr. N.D. Cal. April 21, 2010). There is no way to determine whether a moving party is a party in interest, real party in interest, or has standing sufficient to show a colorable claim without consulting the applicable state law that dictates which party has the right to enforce a loan. In California, Commercial Code Section 3301sets forth those Persons who are Entitled To Enforce a negotiable instrument (hereinafter “PETE”):
“Person entitled to enforce” an instrument means:
(a) the holderof the instrument;
(b) a nonholder in possessionof the instrument who has the rights of a holder,
(c) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3309 or subdivision (d) of Section 3418. (ex. lost note)
A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument. (emphasis added). The definition of “holder” can be found in Cal. Commercial Code Section 1201(a)(21):
“Holder,” means the person in possessionof a negotiable instrument that is payable either to beareror, to an identified personthat is the person in possession.
California Lift Stay Opposition Motion and Memorandum of Points and Authorities (18 pages): This pleading is “battle tested” in the Central District Bankruptcy Court in California. Loan Servicer (Chase) motion to lift the automatic stay was DENIED. This document has most of the major bankruptcy cases that deal with note ownership up to 2011. In re Hwang; In re Weisband, In re Veal, in re Walker, etc. The focus is on 9th circuit cases, but there are others as well. This document will save you a TON of time in trying to get all the cases together and organize an opposition to a motion to lift the automatic stay. The document flows nicely from real party in interest, to standing, to arguing about assigning a deed of trust without the note (all the major cases on that point of law are included). Simply get your facts in there and you are ready to have a great motion.