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Opp to MTLS

Opp to MTLS

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Published by bryllaw
This is an example of a winning challenge to a pretender lender's proof of claim filed in an attempt to proceed with a bogus foreclosure and defeated by Debtor's attorney.
This is an example of a winning challenge to a pretender lender's proof of claim filed in an attempt to proceed with a bogus foreclosure and defeated by Debtor's attorney.

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Published by: bryllaw on May 30, 2010
Copyright:Attribution Non-commercial


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In Re:AYANNA K. CAMARA aka ROSIE P.HINTON and LARRY LEEDebtors--------------------------------------------------SUNTRUST MORTGAGE, INC.Movantv.AYANNA K. CAMARA aka ROSIE P.HINTON and LARRY LEEDebtorsandKEVIN R. MCCARTHYTrusteeRespondents No. 10-10856-RGM
Debtors Ayanna K. Camara and Larry Lee respectfully oppose SunTrust's motion to liftautomatic stay filed on March 25, 2010 and served upon the Debtors on April 2, 2010. Themotion should be denied because, based on the record before the court, SunTrust is not a creditor of the instant bankruptcy estate and is not entitled to enforce the subject debt. In addition toSunTrust's lack of standing, its lift-stay motion fails to satisfy both procedural and substantiverequirements applicable to this proceeding.
Today, more and more homeowners turn to the bankruptcy system for protection whenfacing financial hardship and impending foreclosure. It is bankruptcy courts' responsibility to
-2-ensure that these debtors receive the full protection of the Bankruptcy Code, including the benefitof the automatic stay, for as long as the debtors are entitled to it. Unfortunately,contemporaneously with the increase in foreclosures, there is an increase in lenders and entities posing as lenders who, in their rush to foreclose, haphazardly fail to comply even with the most basic legal requirements of the bankruptcy system. It is the movant's responsibility to comply,and this Court's responsibility to ensure compliance, with both substantive and proceduralrequirements of the Bankruptcy Code, the federal rules, and other applicable law.
 In re Maisel 
, 378 B.R. 19 (Bankr. Mass. 2007);
 In re Foreclosure Cases
, 2007 WL 3232430 (N.D.Ohio 2007);
 In re Foreclosure Cases
, 521 F. Supp. 2d 650 (S.D. Ohio 2007).The most basic elements required to obtain relief from stay are that a movant (1) have theright to enforce the subject debt (2) in a way it is attempting to do so (through foreclosure), i.e.,that the movant have standing to bring and prosecute a lift-stay motion.
In this case, SunTrustsatisfies neither of these elements. SunTrust does not have the right to enforce the subject debt inthe first place, much less to enforce it as a secured creditor by way of foreclosure.
FACTSThe Note and the Deed of Trust
On February 18, 2006, Debtor Ayanna Camara executed and delivered to Synergy OneFinancial Services, LLC ("Synergy One") a 3-page, fixed-rate promissory note in the principalsum of $287,000.00 ("Note") secured by a Deed of Trust on real property located at 11977Beaver Mill Lane, Manassas, VA 20112. Page 3 of the note contained Debtor Camara'snotarized signature.
Exh. A
(copy of the Note as provided to Debtor at closing).
-3-Some time in August-September 2009, after receiving a notice that her home may beforeclosed upon, Debtor Camara apparently wrote to SunTrust or its attorneys requesting,
inter alia
, a copy of the note in SunTrust's possession. On September 26, 2009, Camara received fromone of SunTrust's attorneys a 3-page copy of the note, attached hereto as
Exh. B
. The last pageof the Note produced by SunTrust contained a stamp with words "Without Recourse / PAY TOTHE ORDER OF / SunTrust Mortgage Inc. / Deborah P. Ellis, Vice President."
In other words, the note produced by SunTrust in September 2009 consisted of 3 pages and contained a blank endorsement by SunTrust (thus evidencing a transfer of the note by SunTrust to another entity). As will be shown below, these 3 pages, with page 3 containing SunTrust's blank endorsement, are what the Court will see if it examines the original note.The Deed of Trust accompanying the Note was signed by Debtor Camara on February 18,2005 and subsequently recorded in Prince William County, Virginia. The Deed of Trust listsSynergy One as the "Lender," and Mortgage Electronic Registration Systems, Inc. ("MERS") as"the beneficiary" of the Deed of Trust "solely as nominee for Lender and Lender's successors andassigns."
Exh. A to SunTrust's lift-stay motion [Dkt.29] (copy of Deed of Trust).The Deed of Trust was given by Debtor Camara and Joint Debtor Lee "to Robert T. Heltzel as[blank] and Eula R. Morgan as Trustee, for the benefit of [MERS] as beneficiary.
Upon information and belief, and a search of appropriate SEC filings, Synergy One doesnot fund mortgage loans it originates, but operates under a Flow Servicing Agreement or other similar agreement with another entity or entities that provide the actual funds used to fundmortgages originated by Synergy One. Because Synergy One uses someone else's funds, it

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