{"id":2084,"date":"2024-07-31T20:33:45","date_gmt":"2024-07-31T20:33:45","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/bankruptcy-mortgage-eviction\/"},"modified":"2024-07-31T20:33:45","modified_gmt":"2024-07-31T20:33:45","slug":"bankruptcy-mortgage-eviction","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/bankruptcy-mortgage-eviction\/","title":{"rendered":"Bankruptcy \u2013 Mortgage \u2013 Eviction"},"content":{"rendered":"\n
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Where a bank has moved for relief from the automatic stay in order to evict the debtor, that motion should be granted in part, but the bank\u2019s request to waive the 14-day stay pursuant to Fed. R. Bankr. P. 4001(a)(3) should be denied because sufficient cause has not been stated.\n<\/p>\n

\u201cOn June 11, 2024, this Court conducted a hearing (the \u2018Hearing\u2019) on the Motion of Deutsche Bank National Trust Company, as Trustee for CDC Mortgage Capital Trust 2003-HE4, Mortgage Pass-Through Certificates, Series 2003-HE4 for Relief from the Automatic Stay Pursuant to <\/i>11 U.S.C. \u00a7362 <\/i>[ECF No. 19] (the \u2018Motion\u2019) whereby Deutsche Bank National Trust Company, as Trustee for CDC Mortgage Capital Trust 2003-HE4, Mortgage Pass-Through Certificates, Series 2003-HE4, on behalf of itself and its successors and assigns (collectively, \u2018Deutsche Bank\u2019) sought relief from the automatic stay to evict the debtor, David L. Fuller (the \u2018Debtor\u2019), from 22 Nevada Road, Tyngsborough, Massachusetts 01879 (the \u2018Property\u2019). Deutsche Bank alleges that it acquired title to the Property as the highest bidder at a foreclosure sale, attaching to the Motion a foreclosure deed dated October 20, 2015, and recorded on October 21, 2015 in the Middlesex County (Northern District) Registry of Deeds at Book 29518, Page 272 (the \u2018Foreclosure Deed\u2019), and that the Debtor, who was the former owner of the Property, \u2018had no interest in the Property at the time he filed the bankruptcy petition\u2019 on April 5, 2024. \u2026 After considering the Motion, the Objection, and record of this case, including the arguments of the parties at the Hearing, and taking judicial notice of related state court and appellate dockets, as discussed on the record at the Hearing and for the further reasons set out below, I grant the Motion in part authorizing certain relief from the automatic stay, but deny Deutsche Bank\u2019s request to waive the fourteen-day stay pursuant to Fed.R.Bankr.P. 4001(a)(3) of the Federal Rules of Bankruptcy Procedure (the \u2018Rules\u2019). \u2026\n<\/p>\n

\u201c\u2026 The Debtor\u2019s Objection focused on assertions related to the jurisdiction of the housing court (the \u2018Housing Court\u2019) in relation to a post-foreclosure summary process action commenced by Deutsche Bank, Case No. 18H77SP004078 (the \u2018Summary Process Action\u2019), improper foreclosure, other claims he has asserted in different forums, including claims arising under the United States and Massachusetts constitutions, the (then-pending) appeal to the Massachusetts Supreme Judicial Court in Frechette v. D\u2019Andrea<\/i>, No. SJC-13497, 2024 WL 2885099 (Mass. June 10, 2024) allegedly impacting his dismissed appeals, and whether the Rooker-Feldman<\/i> doctrine should apply with respect to the final judgment of the Housing Court on the issue of Deutsche Bank\u2019s title to the Property (and, thus, its standing to bring the Motion). In addition to his arguments relating to Deutsche Bank\u2019s standing, the Debtor contends that the Deutsche Bank is adequately protected and, presumably, has not demonstrated a colorable claim entitling it to relief from the automatic stay pursuant to \u00a7362(d)(1) for that reason. I have considered the Debtor\u2019s multiple arguments that Deutsche Bank does not possess title to the Property and had no standing to seek to evict him, and I found them to be unavailing. \u2026<\/p>\n

\u201cThe Debtor raises issues regarding his loan origination and administration and has attempted to assert such claims in state court. He also raises issues regarding the propriety of the foreclosure by Deutsche Bank and its claim to title. He asserts that the numerous defenses and counterclaims that he has raised should preclude me from determining that Deutsche Bank holds a colorable claim to title to the Property that supports relief from the automatic stay. These asserted defenses and counterclaims are insufficient to counter the colorable claim to a superior right of possession demonstrated by Deutsche Bank. Application of the Rooker-Feldman doctrine and principles of res judicata provide a sufficient basis for my determination that Deutsche Bank demonstrated a colorable claim that it possesses title to the Property and a superior right to possession that may be pursued under state law, subject to any defenses or counterclaims that the Debtor may properly assert. Alternatively, Deutsche Bank submitted as exhibits to its Motion uncontroverted copies of the Foreclosure Deed and affidavit of sale complying with Mass. Gen. Laws ch. 244, \u00a715, which, under Massachusetts case law, establish a prima facie claim to title, and, consequently, a colorable claim to title and standing. \u2026\n<\/p>\n

\u201cEven if the Rooker-Feldman doctrine did not apply and I had jurisdiction to consider the issue of title and superior right to possession, I would be constrained by application of res judicata. \u2026\n<\/p>\n

\u201cFor the reasons stated above, I grant the Motion in part, but deny Deutsche Bank\u2019s request to waive the fourteen-day stay pursuant to Fed.R.Bankr.P. 4001(a)(3) as sufficient cause has not been stated. Deutsche Bank is granted relief from the automatic stay provisions of 11 U.S.C. \u00a7362(a) to seek to obtain possession the Property, which may include, but is not limited to, commencing or continuing any pending state court eviction proceedings, obtaining and enforcing an execution against the Debtor for possession, serving any unexpired execution against the Debtor for possession, removing any personal property of the Debtor, and evicting the Debtor, and other occupants from the Property, all in accordance with applicable state and federal law. Nothing in this Order shall be deemed to grant Deutsche Bank relief from the automatic stay to levy, or take any other action to seek or collect, monetary damages against the Debtor, provided, however, that Deutsche Bank may request from the state court the posting of a bond or receipt of payments for use and occupancy in conjunction with any requested stay pending appeal by the Debtor in any eviction proceeding.\u201d<\/p>\n

In Re: Fuller, David L. (Lawyers Weekly No. 04-010-24) (13 pages) (Panos, J.) (Chapter 13 Case No. 24-40334-CJP) (June 25, 2024).<\/i>\n<\/p>\n

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