Steinberg v. Bank of America, N.A. (In re Steinberg)
- Summarized by Andrew Johnson , Onsager | Fletcher | Johnson LLC
- 9 years 10 months ago
- Citation:
- 10th Cir. BAP Case No. 12-082 (unpublished)
- Tag(s):
-
- Ruling:
- The Tenth Circuit Bankruptcy Appellate Panel reversed the bankruptcy court's order granting relief from stay to Bank of America to foreclose on the debtor's house because the bankruptcy court failed to conduct an evidentiary hearing on whether Bank of America was in possession of the note secured by Debtor's residence, or if Bank of America had some other legal basis to enforce the note. The court rejected Bank of America's argument that a Debtor's failure to schedule a debt as disputed estops the debtor from challenging relief from stay. The court also rejected Bank of America's argument that a debtor's indication on a statement of intention that the debtor intends to surrender the property that is subject to a secured claim estops the debtor from objecting to relief from stay by the creditor
- Procedural context:
- Bank of America filed a motion for relief from stay to foreclose on Debtor's house. Of relevance to the opinion, Debtor objected to relief from stay on the basis that Bank of America lacked standing because Bank of America did not allege it possessed the note. The bankruptcy court granted relief from stay to Bank of America over Debtor's objection without conducting an evidentiary hearing on whether Bank of America was in possession of the note secured by Debtor's residence, or if Bank of America had some other legal basis to enforce the note.
- Facts:
- In 2005 Debtor purchased a house that the Debtor financed with a loan from Major Mortgage. Major Mortgage assigned the mortgage to Mortgage Electronic Registration Systems, Inc. (MERS). Major Mortgage then assigned the note in blank. The Debtor filed for chapter 7 relief in 2009. In her schedules, Debtor listed a debt to Bank of America secured by Debtor's house, but Debtor did not schedule the debt as disputed. Debtor's statement of intention indicated that she intended to surrender the house to Bank of America.
- Judge(s):
- Nugent, Karlin, and Sommers
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