Thomas v. Federal National Mortgage (In re Thomas)
- Summarized by Steven Mulligan , Coan, Payton & Payne, LLC
- 10 years 5 months ago
- Citation:
- Thomas v. Fed. Nat’l Mortgage Ass’n, Case No. 13-6281 (10th Cir. July 29, 2014)
- Tag(s):
-
- Ruling:
- Holder of promissory note made a sufficient showing that it had possession of the original note to confer standing to seek an order under 11 U.S.C. § 362(j).
- Procedural context:
- Appeal from the 10th Circuit BAP which had affirmed the holding of the Bankruptcy Court for the Western District of Oklahoma which found that Appellee had made a sufficient, colorable showing of standing, as the holder of a promissory note signed by Appellant, to seek § 362(j) relief.. Since the appeal was from the BAP, the 10th Circuit reviews only the Bankruptcy Court decision because the BAP is a subordinate tribunal whose rulings are not entitled to any deference although they may be persuasive. Matters of law reviewed de novo and factual findings of the Bankruptcy Court reviewed for clear error.
- Facts:
- (These facts are derived from the BAP’s opinion as there are scant facts in the 10th Circuit’s opinion) Appellant commenced an adversary proceeding against Appellee and other parties seeking a declaration that none had an enforceable security interest in real property owned by Appellant. Appellee sought an order pursuant to 11 U.S.C. § 362(j) that the automatic stay had terminated which the Bankruptcy Court granted. Appellant appealed arguing that Appellee lacked standing and the matter was remanded. On remand and after an evidentiary hearing, the Bankruptcy Court found that Appellee had possession of the original note and thus, had standing to seek the § 362(j) order.
- Judge(s):
- Matheson, Ebel, Philips
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