In re Richmond

534 B.R. 479, 87 U.C.C. Rep. Serv. 2d (West) 105, 2015 Bankr. LEXIS 2389, 2015 WL 4466918
CourtUnited States Bankruptcy Court, E.D. New York
DecidedJuly 21, 2015
DocketCase No. 14-41678 (CEC)
StatusPublished
Cited by7 cases

This text of 534 B.R. 479 (In re Richmond) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Richmond, 534 B.R. 479, 87 U.C.C. Rep. Serv. 2d (West) 105, 2015 Bankr. LEXIS 2389, 2015 WL 4466918 (N.Y. 2015).

Opinion

DECISION

CARLA E. CRAIG, Chief United States Bankruptcy Judge

This matter comes before the Court on the motion of the debtor, Eric H. Richmond (the “Debtor”), objecting to the proof of claim filed by Select Portfolio Servicing, Inc. (“SPS”) as servicing agent for U.S. Bank National Association (“U.S.Bank”). Because U.S. Bank has standing under applicable law to enforce the note and mortgage executed by the Debtor, it has standing to file a proof of claim. Accordingly, for the reasons set forth below, the Debtor’s objection to U.S. Bank’s proof of claim is denied.

JURISDICTION

This Court has jurisdiction of this core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A)(B), and (0), 28 U.S.C. § 1334, and the Eastern District of New York standing order of reference dated August 28, 1986, as amended by order dated December 5, 2012. This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Federal Rule of Bankruptcy Procedure 7052.

BACKGROUND

Procedural History

This chapter 13 case was filed on April 7, 2014. On August 12, 2014, SPS filed a proof of claim on behalf of U.S. Bank, as trustee, on behalf of the holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series NC 2005-HE8, Asset Backed Pass-Through Certificates, Series NC 2005-HE8 (the “Trust”). (Proof of Claim 5-1, 14-41678-CEC.) On August 25, 2014, SPS filed an amended proof of claim on behalf of U.S. Bank, as trustee of the Trust (the “Proof of Claim”). (Proof of Claim 5-2, 14-41678-CEC.) The Proof of Claim, in the amount of $236,735.29, is based on a mortgage and note executed by the Debtor, secured by real property located at 66 Back Meadow Road, Nobleboro, Maine 04555 (the “Property”).

Attached to the Proof of Claim are copies of the note and mortgage executed by the Debtor on August 11, 2005 in favor of New Century Mortgage Corporation (“New Century”); a change of payment statement; and an assignment dated April 18, 2012 by SPS as attorney-in-fact for New Century, assigning the mortgage from New Century to U.S. Bank, as trustee of the Trust. (Proof of Claim 5-2, 14-41678-CEC.) On November 13, 2014, the Debtor filed a motion objecting to the Proof of Claim (the “Motion”), based upon, among other things, lack of evidence of SPS’s authority to execute a mortgage assignment on behalf of New Century. (Mot. to Object/Reclassify/Reduce/Expunge Claims: Claim Number(s): 5, 14-41678-CEC, ECF No. 146).1 On January 16, 2015, U.S. Bank filed opposition to the Motion (the “Opposition”), attaching a copy of a limited power of attorney dated June 20, 2007 executed by New Century appointing SPS as attorney-in-fact authorized to, among other things, “execute, ac[482]*482knowledge, seal and deliver ... assignments of deed of trust/mortgage and other recorded documents.” (the “Power of Attorney”). (First Affirmation in Opp’n, ECF No. 182 at 46.) On January 23, 2015, the Debtor filed a further affirmation in support of his Motion (the “Affirmation in Support”). (Affirmation in Further Supp., ECF No. 191.)

On March 17, 2015, a hearing was held on the Motion, at which U.S. Bank produced the original note, a copy of which was provided to the Debtor and received in evidence; each party was given an opportunity to submit additional briefing; and the record was closed. (Scheduling Order, ECF No. 217.) On April 3, 2015, the Debtor filed an affirmation in further support (the “Second Affirmation in Support”). (Affirmation in Further Supp., ECF No. 220.) On April 16, 2015, U.S. Bank filed an affirmation in opposition (the “Second Affirmation in Opposition”). (Affirmation in Opp’n, ECF No. 224.) On May 16, 2015, the Debtor filed an Affirmation in Further Support. (Affirmation in Further Supp., ECF No. 234.)

The New Century Bankruptcy Case

On April 2, 2007, New Century and certain of its affiliates filed chapter 11 petitions in the United States Bankruptcy Court for the District of Delaware (the “Delaware Bankruptcy Court”). (In re New Century TRS Holdings, Inc., et al., 07-10416-BLS (Bankr.D.Del.)) (the “New Century Bankruptcy”).2 Prior to filing bankruptcy, New Century was engaged in the business of originating and purchasing mortgage loans, and selling mortgage loans through loan sales and securitiza-tions. (First New Century Disclosure Statement, Del. ECF No. 5395-11, at 20.3) During the course of its chapter 11 case, New Century conducted, with court approval, various sales of its loans and servicing rights. Id., at 31-36.4

On July 15, 2008, the Delaware Bankruptcy Court confirmed New Century’s chapter 11 plan (the “Original Plan”), which provided for the transfer of all of New Century’s remaining assets to a liquidating trust (the “Liquidating Trust”), to be administered by a liquidating trustee (the “Liquidating Trustee”), to sell all New Century’s assets, wind down its business, and pay claims (the “First New Century Confirmation Order”). (Original Plan, Del. ECF No. 8596-2,3; First New Century Confirmation Order, Del. ECF No. [483]*4838596-1 5; First New Century Disclosure Statement, Del. ECF No. 5395-11, at 9-10.)

By order dated June 16, 2009, the Delaware District Court reversed the First New Century Confirmation Order, based on a finding that the plan effectuated an improper substantive consolidation of the debtors and unfairly discriminated in favor of certain creditors. (Mem. Op. Signed by Judge Sue L. Robinson on 6/16/09, Del. ECF No. 9686; In re New Century TRS Holdings, Inc., 407 B.R. 576 (D.Del.2009).). An amended plan was filed to address these problems, and on November 20, 2009, the Delaware Bankruptcy Court entered an order confirming New Century’s second amended chapter 11 plan (respectively, the “Modified Plan” and the “Second New Century Confirmation Order”). (Modified Plan, Del. ECF No. 99572,8,4,5; Second New Century Confirmation Order, Del. ECF No. 9957-1.6) The Modified Plan, like the Original Plan, provided for the liquidation of all of New Century’s remaining assets through the Liquidating Trust and for the transfer of New Century’s assets to the trust as of the effective date of the Original Plan. (Second New Century Confirmation Order, Del. ECF No. 9957-1, at 23-25.)

DISCUSSION

The Debtor does not dispute that he executed the Note and Mortgage; nor does he challenge the amount owed pursuant to the Note and secured by the Mortgage, as set forth in the Proof of Claim. The Debtor’s objection is based upon the contention that U.S. Bank lacks standing to file a proof of claim because it has not shown that it holds the Note and Mortgage.

A properly-filed proof of claim constitutes “prima facie evidence of the validity and amount of the claim,” Fed. R. Bankr.P. 3001(f), and is “deemed allowed, unless a party in interest ... objects.” 11 U.S.C. § 502(a).

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Cite This Page — Counsel Stack

Bluebook (online)
534 B.R. 479, 87 U.C.C. Rep. Serv. 2d (West) 105, 2015 Bankr. LEXIS 2389, 2015 WL 4466918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-richmond-nyeb-2015.