Monday, January 20, 2014

Motions for Relief from Stay Denied Due to Lack of Evidence of Assignment of Note and Mortgage

The Bankruptcy Court of the Middle District of Florida denied without prejudice two motions for relief from stay in the case of In re Murphy, Case No. 07-04213-TBC (Bankr.M.D.Fla. February 12, 2008)(Funk, J.) In this case, Aurora Loan Services, LLC ("Aurora") filed motions for relief from stay with respect to certain notes and mortgages on two parcels of real property. In the motions, Aurora asserted that it held the respective notes and mortgages. However, attached to each motion was a copy of a note and mortgage identifying other entities as the lenders. The affidavits attached to each motion identified Aurora as the owner and holder of the note.

The chapter 7 trustee objected to both motions and argued that Aurora had not established that it was the owner or holder of the instruments. At the hearing, Aurora did not offer any further evidence establishing a connection between it and the entity set forth in the notes and mortgages.

The court held that when challenged by an interested party, the movant must provide evidence that it is "the owner or holder of the Note and Mortgage and has standing to and a legal basis for requesting relief from the automatic stay." See In re Schwartz, 366 B.R. 265 (Bankr.D.Mass.2007), In re Maisel, 378 B.R. 19 (Bankr.D.Mass.2007), In re Foreclosure Cases, 2007 U.S.Dist.Lexis 84569 (N.D.Ohio 2007).