Arizona Bankruptcy Judge Case Clarifies Requirements for “Lender” Seeking Stay Relief

August 31, 2011

  • New Guidelines for filing stay relief motions in cases assigned to
    Judge Charles G Case II
    :In light of the recent Panel decision(s) of In re Veal — B.R. —-, 2011 WL 2304200 (9th Cir. BAP, June 10, 2011), In re Sardana (unpublished and not for citation), and In re Matson (unpublished and not for citation) the Court adopts the following procedures for hearings on relief from the automatic stay for residential mortgage properties.

    1. A party seeking stay relief in order to enforce a secured obligation against real property has the burden of making a colorable showing that it has standing to enforce the note and deed of trust or mortgage. To meet this burden, Movant must provide evidence, in the form of assignments, endorsements or otherwise, demonstrating that it is a person entitled to enforce the note under the Uniform Commercial Code as well as a complete chain of title of the beneficial interest under the deed of trust or mortgage. Such evidence shall either be self authenticated under FRE 902 or accompanied by a declaration of a person with knowledge authenticating each document in a form sufficient under FRE 901. If the Movant is proceeding as a servicer or agent, evidence of the servicing or agency agreement must be provided, authenticated as indicated above. Absent such a showing, a hearing on the motion may be vacated and sanctions may be imposed.

    2. Any objection to standing must be made with particularity. If an objection to standing is made without an adequate basis in law or fact, the party making the objection may be subject to sanctions.

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