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Published by: acfield13 on Jul 29, 2011
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Westlaw Delivery Summary Report for WILBERT,ROBERT
Date/Time of Request: Tuesday, July 26, 2011 08:39 CentralClient Identifier: JESSE MALINDatabase: WIS-ALLCASESCitation Text: --- B.R. ----Lines: 308Documents: 1Images: 0The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,West and their affiliates.
Only the Westlaw citation is currently available.United States Bankruptcy Appellate Panel of theFirst Circuit.Paul R. CORREIA and Tammie K. Correia, Debt-ors.Paul R. Correia and Tammie K. Correia,Plaintiffs–Appellants,v.Deutsche Bank National Trust Company, as TrusteeUnder the Pooling and Servicing Agreement SeriesITF INABS–2005–A, Defendant–Appellee.Bankruptcy Nos. MB 10–064, 07–10280–WCH.Adversary No. 08–01359–WCH.June 30, 2011.
Chapter 13 debtors brought ad-versary proceeding to set aside bank's postpetitionforeclosure of their home. The United States Bank-ruptcy Court for the District of Massachusetts,Wil-liam C. Hillman, J., granted summary judgment forbank. Debtors appealed.
The Bankruptcy Appellate Panel held thatdebtors lacked standing to challenge validity of mortgage assignment, based upon alleged noncom-pliance with pooling and servicing agreement.Affirmed.West Headnotes
[1]Bankruptcy 51 0
51BankruptcyBefore addressing the merits of an appeal,bankruptcy appellate panel (BAP) must determineits jurisdiction, whether or not the issue has beenraised by the litigants.
[2]Bankruptcy 51 0
51BankruptcyBankruptcy appellate panel (BAP) has thepower to hear appeals from final judgments, orders,and decrees, or, with leave of the court, from inter-locutory orders and decrees.
[3]Bankruptcy 51 0
51BankruptcyDecision is “final,” for purposes of appeal, if itends the litigation on the merits and leaves nothingfor the court to do but execute the judgment.
[4]Bankruptcy 51 0
51BankruptcyOrder granting summary judgment is a “final”order, for purposes of appeal, where no countsagainst any defendants remain.
[5]Bankruptcy 51 0
51BankruptcyBankruptcy court's order granting summary judgment for bank in debtors' adversary proceedingto set aside postpetition foreclosure was “final” or-der over which bankruptcy appellate panel (BAP)had jurisdiction.
[6]Bankruptcy 51 0
51BankruptcyBankruptcy court could refuse to consider ar-gument raised by debtors for first time in respond-ing to summary judgment motion by bank in debt-ors' adversary proceeding to set aside postpetitionforeclosure.
[7]Bankruptcy 51 0
51BankruptcyChapter 13 debtors were not parties to or third-party beneficiaries of pooling and servicing agree-ment (PSA) that created trust into which their noteand mortgage were deposited, and thus lackedstanding to challenge validity of mortgage assign-ment, based upon alleged noncompliance with PSA,Page 1--- B.R. ----, 2011 WL 2937841 (1st Cir.BAP (Mass.))
(Cite as: 2011 WL 2937841 (1st Cir.BAP (Mass.)))
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
in their adversary proceeding to set aside postpeti-tion foreclosure.U.S.C.A.Const.Art. 3, § 2, cl. 1.
[8]Bankruptcy 51 0
51BankruptcyStanding is a threshold jurisdictional matter.
[9]Bankruptcy 51 0
51BankruptcyCase or controversy required for Article IIIstanding must arise between the parties themselves,and court is restrained from hearing cases in whichlitigant asserts rights and interests of a third partyand not his or her own.U.S.C.A.Const.Art. 3, § 2,cl. 1.Appeal from the United States Bankruptcy Courtfor the District of Massachusetts (Hon.William C.Hillman, U.S. Bankruptcy Judge).David G. Baker,Esq., on brief for Plaintiffs–Appellants.Sarah Smegal, Esq. and Howard M. Brown, Esq. onbrief for Defendant–Appellee.BeforeHAINES,VOTOLATO, andDEASY, United StatesBankruptcy Appellate Panel Judges.PER CURIAM.
Paul R. Correia and Tammie L. Correia (the“Debtors”) appeal from the bankruptcy court's de-cision awarding summary judgment to DeutscheBank National Trust Company, as Trustee Underthe Pooling and Servicing Agreement Series ITFINABS–2005–A (“Deutsche Bank”). The Debtorshad initiated an adversary proceeding seeking to setaside Deutsche Bank's post-petition foreclosure of their home. The bankruptcy court concluded thatthe Debtors were without standing to challengeDeutsche Bank's compliance with procedures setforth in the contractual arrangement (between andamong Deutsche Bank and others, not including theDebtors) governing the transfer of their note andmortgage. We
In 2004, the Debtors executed a promissorynote and mortgage in favor of IndyMac F.S.B.(“IndyMac”) as security for a loan. The documentsspecifically provided that the Debtors were grantingthe mortgage to Mortgage Electronic RegistrationSystems, Inc. (“MERS”), as nominee for IndyMac,and its successors and assigns. In the definition sec-tion, MERS is described as “the mortgagee underthis Security Instrument.”Approximately eight months later, IndyMactransferred the note, endorsed in blank by a vicepresident, to Deutsche Bank. MERS continued tohold the mortgage, now for Deutsche Bank's bene-fit. Subsequently the Debtors' note and mortgagewere combined with other notes and mortgages anddeposited into a trust titled “Home Equity MortgageLoan Asset–Backed Trust Series INABS 2005–A”(the “Trust”).The Trust was created under a Pooling and Ser-vicing Agreement dated March 1, 2005 (the“PSA”), and shares were subsequently issued. Un-der the PSA, Deutsche Bank was appointed thetrustee; IndyMac, ABS was defined as the deposit-or; and IndyMac was the servicing agent for themortgage. Thus, IndyMac held the note for the be-nefit of Deutsche Bank as trustee.The Debtors defaulted on their mortgage in2006, and filed a petition for relief under Chapter13 of the Bankruptcy CodeFN1on January 17,2007. Their case was converted briefly to Chapter 7in March, but was reconverted to Chapter 13 inMay 2007. While the case was in Chapter 7, In-dyMac filed for, and was granted, relief from theautomatic stay to pursue foreclosure.In August 2007, MERS assigned the Debtors'mortgage to Deustche Bank. Thereafter, DeutscheBank proceeded to foreclose upon (and purchase)the property in accordance with Massachusetts law.The Debtors did not, and do not now, challenge theregularity of that process.Page 2--- B.R. ----, 2011 WL 2937841 (1st Cir.BAP (Mass.))
(Cite as: 2011 WL 2937841 (1st Cir.BAP (Mass.)))
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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