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represented businesses as well as assignees under Florida's Chapter 727: Assignments for the Benefit of Creditors.

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consolidation.

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adjusted the value of the mortgages on all non-homestead homes to the value of the property.


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COURT STRIKES MORTGAGE CLAIM - NO ORIGINAL IN POSSESSION
DEBTOR FILES ADVERSARY COMPLAINT TO EXPUNGE MORTGAGE PROOF OF CLAIM

MORTGAGE SERVICER NEVER HAD POSSESSION OF ORIGINAL NOTE

COURT STRIKES PROOF OF CLAIM BUT LIEN REMAINS

In re Kemper, (Bankr.N.J. Nov. 16 2010


The court, basing its ruling on New Jersey state law and provisions of the UCC, held that the entity filing the proof of claim held an unenforceable claim because 1) the owner of the
note never had possession of the note, and 2) note was not properly endorsed to the new owner.

The ownership of the note had apparently been transferred to one or more entities, but never followed up with transfer of the original note.

" ... the note in question was never endorsed in blank or delivered to the Bank of New York, as required by the Pooling and Servicing Agreement."

" ... Countrywide, as the servicer, acts only as the agent of the owner of the instrument, and has no greater right to enforce the instrument than its principal. [cites] Because the Bank of
New York has no right to enforce the note, Countrywide as its agent and servicer cannot enforce the note." Kemp, at 21.

"Because the claim filed by 'Countrywide Home Loans, Inc., servicer for Bank of New York' cannot be enforced under applicable state law, the claim must be disallowed. 11 U.S.C. §
502(b)(1)." Kemp, at 22

The ramifications of the ruling for the Chapter 13 plan are unclear.

In a contact with the law firm representing the debtor, it is acknowledged that notwithstanding the claim is disallowed, the ruling does not automatically strip the lien.

So, you have a chapter 13 case in which the secured creditor's proof of claim is expunged, yet the mortgage is still secured on the property. How is this handled in a Chapter 13 plan?

The case also demonstrates that securitization issues are often based largely on applicable state law, and so an adversary attack on the claim must cite state statutes or cases, not
merely the Bankruptcy Code.


Analysis: Your Tampa Bankruptcy Lawyer expects that MERS will change their policy rather than fight this argument much further.  This may
not change many cases but it indicates that judges are looking for creative ways to help people keep their homes.
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Tampa Bankrupcty Attorney 1112 E. Kennedy Blvd, Tampa Fl 33602, Galewski Law Group, P.A.
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Bankruptcy attorneys at the Galewski Law Group provides Corporate Chapter 7, Chapter 11 Bankruptcy services and Chapter 13 individual bankruptcy, foreclosure defense and loan modification
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