Hilton v. U.S. Bank (In re Hilton)

544 B.R. 1, 88 U.C.C. Rep. Serv. 2d (West) 748, 2016 Bankr. LEXIS 86
CourtUnited States Bankruptcy Court, N.D. New York
DecidedJanuary 11, 2016
DocketCase No. 14-10113; Adv. Pro. No. 14-90019
StatusPublished
Cited by5 cases

This text of 544 B.R. 1 (Hilton v. U.S. Bank (In re Hilton)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hilton v. U.S. Bank (In re Hilton), 544 B.R. 1, 88 U.C.C. Rep. Serv. 2d (West) 748, 2016 Bankr. LEXIS 86 (N.Y. 2016).

Opinion

MEMORANDUM-DECISION AND ORDER

Robert E. Littlefield, Jr., United States Bankruptcy Judge

The matter before the court is a motion for partial summary judgment jointly filed by U.S. Bank as Trustee (“US Bank,” “Defendanb-Trustee,” or the “Trustee”) for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2004-19XS (the “Trust”), and Citimortgage, Inc., as servicer for the Trust (“Citi,” “Defendant-Servicer,” or “Servicer,” and collectively with U.S. Bank, “Defendants”), seeking dismissal of the adversary proceeding brought by Robert Hilton (“Plaintiff’) to disallow Defendants’ claim and invalidate Defendant-Trustee’s corresponding mortgage lien. The court’s findings of fact and conclusions of law are set forth herein pursuant to [3]*3Federal Rule of Bankruptcy Procedure 7052.1

JURISDICTION

The court has jurisdiction over this matter pursuant to 28 U.S.C.A. § 1334. This is a core proceeding under 28 U.S.C.A. §§ 157(b)(2)(B) & (K).

FACTS

The following facts are derived from the record before the court, including Defendants’ statement of undisputed facts (“Stmt.”) submitted pursuant to Local Bankruptcy Rule 7056-1,2 the Affidavit of Misty Montag, a bankruptcy specialist for Defendant-Servicer (“Montag Affi”) and the supporting exhibits (“Ex. to Montag Affi”), the Declaration of Defendants’ attorney, Meghan Breen (“Breen Deck”), and the records from the hearings held on January 29, 2015 and February 26, 2015 (“1/29 Hr’g R.”; “2/26 Hr’gR”)3

1. Note and Mortgage

On June 28, 2004, Plaintiff and his wife executed a note in the principal amount of $73,850, made payable to the order of First National Bank of Arizona (“FNBA”). (StmtA 1.) Plaintiff and his wife delivered the note to FNBA. (StmO 1.) Along with the note, Plaintiff and his wife executed a mortgage against 375 Eighth Street, Troy, New York and delivered it to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for FNBA and its successors and assigns. (StmtJ3.) The mortgage was recorded in the Rensselaer County Clerk’s Office on June 30, 2004. (Stmtffi 3.) At some time after the closing, an allonge to the note, which specifically references the note, but is undated, was indorsed from FNBA to First National Bank of Nevada (“FNBN”), and then indorsed again, in blank, by FNBN. (StmO 5.) Each indorsement on the allonge is signed by the same individual, who signed both on behalf of FNBA, as shipping officer, and on behalf of FNBN, also as shipping officer. (Ex. C to Montag Affi.)

The note, mortgage and allonge were sent to U.S. Bank in August 2004 pursuant to the terms of an agreement between FNBA, as seller, and Lehman Brothers Holdings, Inc. (“Lehman”), as purchaser, for the acquisition of certain loans purportedly owned by FNBA. (“Bailee Letter”; Ex. D to Montag Affi) Pursuant to the terms of the Bailee Letter, the subject notes were to be delivered to U.S, Bank, as custodian for Lehman, for inspection prior to purchase. (Ex. D to Montag Affi) The Bailee Letter references a separate Advances and Security Agreement between FNBA and Merrill Lynch, wherein FNBA granted Merrill Lynch a security interest in those notes referenced in the Bailee Letter. Id. The Bailee Letter is signed on behalf of FNBA by the same [4]*4individual that signed the allonge, this time as Assistant Vice President. Id. The Bailee Letter incorporates an attached loan schedule titled “FNBA Sale to U.S. Bank” and dated August 10, 2004, which references the Hilton loan. Id. FNBA and FNBN terminated their business operations in or around 2008. (1/29 Hr’g R.)

Pursuant to the electronic records used to track U.S. Bank’s possession of the note and mortgage (“Electronic Records”; Montag Aff. ¶ 10; Ex. E to Montag Aff.), the note and mortgage were registered into U.S. Bank’s system on August 19, 2004, nine days after the date of the Bailee Letter (Montag Aff. ¶ 10; Ex. E to Mon-tag Aff.). The note and mortgage each have their own electronic record; there is no such record for the allonge. (Montag Aff. ¶¶ 13, 21; Ex. E to Montag Aff.)

Shortly after U.S. Bank received the Hilton loan, it was securitized and pooled with other loans under the Trust, created by the trust agreement dated September 1, 2004 (“Trust Agreement”; Ex. G to Montag Aff.; Stmt. ¶ 7-8.) LaSalle Bank served as the initial trustee of the Trust. Id. LaSalle Bank and U.S. Bank served as the initial custodians of the Trust. (Ex. G to Montag Aff.) The Trust was serviced according to a Servicing Agreement between Lehman and Aurora Loan Services Inc. (“Aurora”), pursuant to which Aurora agreed to act as the initial servicer for the Trust (“Servicing Agreement”). (Stmt. ¶ 8; Ex. F to Montag Aff.) In 2005, Citi became the new servicer for the Trust, (Stmt,. ¶ 9; Ex. H to Montag Aff.), and U.S. Bank became the successor trustee to the Trust (StmtV 10). US Bank has maintained physical possession of the note since FNBA delivered the note to U.S. Bank in 2004. (Stmt. ¶ 10; Montag Aff. ¶¶ 13, 17, 21; Ex. E to Montag Aff.). It is undisputed that U.S. Bank currently possesses the original note, mortgage and allonge. (Stmt. ¶¶ 13-15; Breen Deck) The allonge is not physically attached to the note, but both documents are kept in the same file. (1/29 Hr’g R.; 2/26 Hr’g R.)

2. Proof of Claim

On October 5, 2009, Defendant-Servicer obtained a Judgment of Foreclosure and Sale from the Rensselaer County Supreme Court (“Foreclosure Judgment”), (Stmt. ¶ 22, Ex. L to Montag Aff.) Plaintiff did not oppose the action. (Ex. L to Montag Aff. 2; Defs.’ Reply ¶ 1.) Subsequent to entry of the Foreclosure Judgment, but prior to a foreclosure sale, Defendant-Servicer and Plaintiff executed a Stipulated Repayment Plan Agreement (“Forbearance Agreement”) whereby, in exchange for Defendant-Servicer’s foregoing its foreclosure action, Plaintiff agreed to cure his arrears, pay certain expenses related to the foreclosure action and continue making payments under the terms of the mortgage. (Ex. M to Montag Aff.) The Forbearance Agreement does not change Plaintiffs monthly obligations under the mortgage note, but instead details the amounts owed by Plaintiff at the time of the Forbearance Agreement and establishes due dates for those payments. (Ex. M. to Montag Aff. 2.) On November 22, 2010, based upon the execution of the Forbearance Agreement, the Foreclosure Judgment was vacated and the foreclosure action was discontinued. (Ex. N to Mon-tag Aff.) Defendant-Servicer maintained a record detailing the payments made by Plaintiff on the Hilton loan, which includes payments made under the Forbearance Agreement (“Payment Schedule”). (Ex. P to Montag Aff.) On the day Plaintiff filed his petition, he had a delinquent balance under the Forbearance Agreement. (Montag Aff. ¶¶ 35-36; Ex. P to Montag Aff.; Ex. A to Defs.’ Reply.)

[5]*5PROCEDURAL HISTORY

Plaintiff filed his chapter 13 petition on January 23, 2014. On schedule D of his petition, Plaintiff listed Defendant-Servicer as a creditor holding a secured claim of $68,294.02. Plaintiffs petition does not list Defendant-Servicer's claim as disputed. Plaintiffs proposed plan also lists Defendant-Servicer as a secured lender and provides for the curing of arrears through the plan and for post-petition payments to be paid by the Plaintiff directly to DefendantServicer. (ECF No.

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Cite This Page — Counsel Stack

Bluebook (online)
544 B.R. 1, 88 U.C.C. Rep. Serv. 2d (West) 748, 2016 Bankr. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilton-v-us-bank-in-re-hilton-nynb-2016.