Standing in a Lender bringing a Motion For Relief from the Automatic Stay against the Debtor(s) in a Bankruptcy Case:
This is actually a topic I get much enjoyment and satisfaction in. Federal Court is so black and white and the Superior Court has so many grey areas. When the mortgage crises hit California it was amazing to see how many banks/lender's had flawed liens and either lacked standing through a failure to properly prepare and file with the County Recorder an Assignment of the Deed of Trust and had no actual legitimate standing in the real property or neglected to perfect their lien. As a Paralegal with a seasoned firm who primarily represented UPS employees for Southern California, the firm was overwhelmed with clients who had fallen behind in their mortgage and were either seeking a Mortgage Modification; or a Chapter 13 Bankruptcy to have the opportunity to catch up on their mortgage arrears over a period of 36 to 60 months; or had been wrongfully foreclosed upon and were seeking a reversal of the wrongful foreclosure in Federal Court. Never, would I have assumed or thought for one minute that these large federally insured institutions with 1,000's of employees would have carelessly neglected to perfect their standing/lien in and to the real property secured by the loan/mortgage. If you have ever applied for a mortgage loan you know what I mean when I say they put you through the ringer and ask for everything but DNA samples.
What a mess it was and still can be found today if you take the time to follow the chain of title on the subject property. Let's be real, the Mortgage Holder's are not happily ready and willing in most cases to approve a Loan Modification. This was in most cases shoved down their throats by the feds and states. This is why in my opinion most often you have to constantly re-send documents to them because they state "they didn't receive it" or "they need updated documents". It's a vicious circle. Banks are federally insured, Federal Court Judges salaries are paid by the Federal Government. Get my drift? The upside I found is that the Federal Court is very black and white when it comes to the United State Codes and Local Rules. Even if it leaves a bad taste in their mouth. You can also find this helpful in a Unlawful Detainer Case, whereas, the lender has foreclosed and lacked the standing to do so. For years people just took it for granted that the facts stated in the Notice of Default, Notice of Trustee's Sale or the Complaint for Unlawful Detainer were truthful, never questioned the statements or actions of the Plaintiff, Movant, Bank or Lender. This where I had fun and much success. Not to mention, I looked like a star with the firm and it's clients. My nature is to question and research EVERYTHING! In my world the benefit of the doubt doesn't exist until I can see it for myself. I don't subscribe to the easier and softer way in anything I do in my world. I guess it would be easier to just prepare a simple response, never fact check, get paid and move onto the next client... but where would the challenge be in that? Coupled with the fact that it would be a serious disservice to the client. I would be a paper pusher. No fun or satisfaction in that.
Following the chain of title is not that difficult or time consuming. You can utilize the County Recorder's website for the County in which the subject property is located within by doing a Grantee/Grantor search, purchase a Preliminary Title Report or a Property Profile. It is worth the time, energy and effort! Remember, not doing a thing can often become its undoing!
The recordation of a document with the County Recorder’s Office is simply hearsay. The County Recorder does not certify and/or validate the legitimacy of the chain of title. It does not insure title. It merely, reviews the document to ensure it is filled out, there are no blanks, contains a proper and clear Notary Stamp and identification and collect any transfer tax due.
The mere recording of an instrument with the County Recorder’s Office does not establish a legal and proper chain of title. Courts throughout the country have received similar motions/petitions by creditors like U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE LXS 2005-7N TRUST FUND, to obtain relief, and such motions/petitions have been routinely denied. See In re Sheridan, 2009 Bankr. Lexis 552 (Bankr. Id. 2009) (denying motion for relief from stay by MERS, and also finding that trustee and trust had failed to prove their standing); In re Jacobson, 2009 Bankr. LEXIS 709 (Bankr. W.D. Wash 2009) (holding that UBS has submitted “no evidence that it is authorized to act for whomever holds the note . . . . because UBS AG’s proof neither shows who presently holds debtors’ note nor its own authority.”).
Standing to bring/initiate a Unlawful Detainer Case is very relevant to the success or defeat of the case. As a Paralegal who has both prepared the Unlawful Detainer on behalf of the Petitioner and an Answer on behalf of the Defendant, I have learned to do a little homework before I get to work. Taking the time to do this has yielded numerous victories for the law firms/attorneys I have been employed by.
I never assume, I always fact check on my own when handed an assignment. Standing is the first item I check for. Very important topic in a variety of ways. If you are the Plaintiff and lack standing it will be your quick demise of the case before ever getting started. If you are the Defendant it will lead you to your success often times right out of the gate.
In different areas of law there are different ways to search for the specific Standing of a party. In Unlawful Detainer Cases, it is the County Recorder's office in the County where the subject property is located within. Don't assume the Plaintiff has Standing to bring the action just because "they say they do". Attorneys and Defendants often make this mistake. I have seen Attorneys who represent the Plaintiff at hearing left with their mouth open when the Defendant raises the Affirmative Defense at hearing, that Plaintiff lacks Standing to bring the Complaint For Unlawful Detainer and has lodged evidence of same with the Court. I have seen Plaintiff's lack of Standing to bring a case be a slam dunk for the Defendant(s), resulting in dismissal of the instant action and requiring Plaintiff to incur additional costs and fees to refile the case in the name of the party with proper Standing.
Another, resource to verify Standing is the Tax Assessor's Office for the County in which the property is located within. These are just a few ways I do a little homework before I get down to typing. I will discuss, other resources I utilize if future blogs from State Courts, District Courts to the United States Bankruptcy Court. Not taking the time to do a thing can often become it's undoing.
As a prudential matter, Plaintiff must assert “his own legal interests as the real party in interest,” Dunmore v. United States, 358 F.3d 1107, 1112 (9th Cir. 2004), as found in FED. R. CIV. P. 17, which provides “[a]n action must be prosecuted in the name of the real party in interest.”