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In RE: ONG | PA Bankr. Court “First Horizon and MERS, who apparently serviced such unrecorded mortgage”

In RE: ONG | PA Bankr. Court “First Horizon and MERS, who apparently serviced such unrecorded mortgage”


IN THE UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE:
ROBERT A. ONG and DONNA L. ONG,

Debtors. : Chapter 7

Charles O. Zebley, Jr.,

Trustee/Plaintiff,

v.

First Horizon Loans, a division of
First Tennessee Bank, N.A. and
Mortgage Electronic Registration
Systems, Inc.,

Defendants.

EXCERPT:

The Trustee contends, and First Horizon concedes, that he has reviewed
the records at the Westmoreland County Recorder of Deeds Office, and that
upon such review he was unable to verify that the Mortgage was ever recorded
there. Furthermore, First Horizon admits that it does not affirmatively assert that
(a) such a record search by anyone other than the Trustee would reveal that the
Mortgage was properly recorded, or (b) the Mortgage was ever properly
recorded. First Horizon, however, does not affirmatively concede that the
Mortgage was never properly recorded. Instead, First Horizon asserts, in its
Answer, that (a) it is searching to ascertain whether proof can be located that
would demonstrate that the Mortgage was properly recorded, (b) until such
search is completed, it lacks sufficient information to admit or deny the Trustee’s
allegation that the Mortgage was never properly recorded, and (c) it thus must
temporarily deny such allegation by the Trustee.

[..]

Because the Court converts the Trustee’s motions for judgment on the
pleadings into motions for summary judgment, the Court cannot immediately
dispose of such motions. Instead, the Court must give First Horizon a
reasonable opportunity to defend such converted motions in accordance with
Fed.R.Civ.P. 56. See Id. Therefore, First Horizon shall have 21 days from the
date of the instant Memorandum Opinion to produce evidence sufficient in weight
to withstand summary judgment regarding the Trustee’s contention that the
Mortgage was not properly recorded at the time when the Debtors filed for
bankruptcy, after which the Trustee will have 14 days to file a reply. If First
Horizon fails to timely produce such evidence, then summary judgments will
automatically be granted in favor of the Trustee, without any further hearing or
order by the Court, as to both of the Trustee’s avoidance actions.

[…]

[ipaper docId=71240438 access_key=key-1xa9vkaub9wa89yoityu height=600 width=600 /]

 

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