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WA STATE | In Re: JACOBSON “No Real Party In Interest, No Standing” RELIEF FROM STAY DENIED

WA STATE | In Re: JACOBSON “No Real Party In Interest, No Standing” RELIEF FROM STAY DENIED


Via: BankClassActions

UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF WASHINGTON

FOR PUBLICATION
In re:
PETER A. JACOBSON and
MARIA E. JACOBSON,

Debtors.

No. 08-45120

DECISION ON RELIEF FROM STAY

Excerpts:

Before the court is a motion for relief from the automatic stay of § 362(a)2 to enforce a deed of trust on the Debtors’ residence. As it was neither brought in the name of the real party in interest, nor by anyone with standing, the motion for relief from stay will be DENIED.

<SNIP>

Assuming the exhibits to the motion are authentic and are the same as those intended to have been attached to the declaration, the note is indorsed in blank. Without more, that and possession (rather than mere custody) suggests that Wells Fargo is the holder of the note. RCW 62A.3-20114 and 3-30115. Nothing in the record establishes on whose behalf (if other than its own) Wells Fargo Document Custody possesses the note; that (and verification of current possession and present ability to produce the original, if required) would have to come from Wells Fargo.

Nor does anything in the record establish UBS AG’s authority to enforce the Debtors’ note, for whomever holds it; and thus to foreclose the deed of trust. The declaration states that UBS AG is “servicing agent,” a term with no uniform meaning, and no definition cited. At a minimum, there must be an unambiguous representation or declaration setting forth the servicer’s authority from the present holder of the note to collect on the note and enforce the deed of trust. If questioned, the servicer must be able to produce and authenticate that authority.

UBS AG has not shown that it has standing to bring the motion for relief from stay or authority to act for whomever does.

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