FYI: 6th Cir Confirms Assignee Has Standing to Seek Relief from Automatic Stay, Need Not Be Named on Certificate of Title

The Bankruptcy Appellate Panel of the Sixth Circuit recently held that in a Chapter 7 bankruptcy: (1) an assignee of a previously perfected security interest in a motor vehicle has standing to seek relief from the automatic stay; and  (2) failure to change the name of the lienholder on the certificate of title does not change the perfected status of the assigned security interest.

 

A copy of the opinion can be found at: 

http://www.ca6.uscourts.gov/opinions.pdf/11b0015p-06.pdf.

 

Debtor purchased a car with proceeds from a dealer-financed loan and gave the dealer a security interest in the car.  The dealer then transferred the note and security interest to an auto finance company ("AF").  AF noted its lien on the vehicle's certificate of title.   AF later assigned the note and its security interest to a bank (Bank) pursuant to an agreement under which the Bank held and serviced the promissory note.  The Bank neither recorded the assignment of the note and security interest nor noted on the certificate of title that it had acquired the security interest.

 

Debtor later defaulted on the car loan and the Bank repossessed the vehicle.  Shortly after the repossession, Debtor filed for Chapter 7 bankruptcy protection, and the Bank moved for relief from the automatic stay.  In support of its motion, the Bank submitted copies of the retail installment sale contract between Debtor and the car dealer, the vehicle's certificate of title, the agreement between AF and the Bank, and a notarized affidavit stating that AF assigned the contract to the Bank and that the Bank was entitled to seek relief from the automatic stay.  

 

The bankruptcy court denied the Bank's motion, ruling that the Bank lacked standing to seek relief from the automatic stay due to a lack of "unity of entity," as evidenced by the fact that the Bank held the note while AF was still listed as the lienholder on the certificate of title.  The Bank appealed and the Bankruptcy Appellate Panel of the Sixth Circuit ("Panel") reversed.

 

The Panel began its analysis by addressing the term "party in interest" to determine which parties may seek relief from the automatic stay.  See 11 U.S.C. §362(d).  Noting that the term is not statutorily defined, and relying on a variety of court opinions that addressed the meaning of the term, the Panel concluded that "party in interest" broadly refers to those parties legally entitled to enforce an obligation, and that an assignment of claims must be valid in order for an assignee to be considered such a "party in interest."  Accordingly, the Panel ruled that an assignee of a secured interest has standing to pursue relief from the stay as long as the assignment is valid and the other elements of section 362(d) are satisfied. 

 

Next, taking issue with the bankruptcy court's conclusion that the reasoning in Rhiel v. Wells Fargo Fin. Acceptance (In re Fields), 351 B.R. 887 (Bankr. S.D. Ohio 2006) (Fields), was inapplicable to the present case, the Panel stressed that, although the underlying dispute in Fields differed from that in the present case, its holding was nevertheless controlling.  The Panel observed that, as stated in Fields, under Ohio law enforceability of a security interest in a motor vehicle requires that such interest be perfected, and that such a security interest may be perfected by noting the lien on the vehicle's certificate of title, which was done in this case.   

 

Moreover, again relying on Fields, the Panel ruled that under Ohio law the assignment of a perfected security interest in a motor vehicle does not require "re-perfection" of that interest in order for the assignee to maintain the status of the perfected security interest.  The Panel noted that the original act of perfecting the security interest would put interested third parties on notice that another creditor claimed an interest in the debtor's property and that the presence of the assignor's name on a certificate of title, rather than the assignee's, would not mislead creditors. See Fields, 351 B.R. 887 at 891-93; Ohio Rev. code §§1309.310(C), 1309.311(A)(2). 

 

Thus, as the assignee of a previously perfected security interest, the Bank was not required to have its assignment noted on the certificate of title in order to maintain its secured status.  Accordingly, the Panel concluded that, as a creditor with a properly perfected security interest in the vehicle, the Bank was a "party in interest" with standing to seek relief from the automatic stay.  

 

 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: Mich Ct of Appeals Limits Doctrine of Equitable Subrogation

The Michigan Court of Appeals recently limited the doctrine of equitable subrogation, to circumstances in which the original mortgage lien and the refinanced mortgage lien were held by the same lender or its bona fide successor in interest.  A copy of the opinion is attached.

 

The borrowers purchased property on September 6, 2000, with a mortgage granted to original lender.  On May 4, 2001, the borrowers refinanced their loan and discharged the original mortgage in favor of a new mortgage that was also granted to the original lender (the "2001 Loan").  The borrowers later obtained a home equity loan from another subsequent lender, granting the subsequent lender a second mortgage on the property (the "Second Lien"). 

 

On November 25, 2002, the borrowers refinanced their 2001 Loan, releasing the mortgage securing the 2001 Loan in favor of another mortgage lien also granted to the original lender (hereinafter, the "Refinanced Mortgage Lien").  Although the Second Lien was recorded, the original lender was unaware of it at the time it took the Refinanced Mortgage Lien.  On August 22, 2005, the borrowers filed for bankruptcy, and the property was sold at a foreclosure sale.  The purchaser of the foreclosed property, along with the original lender's successor in interest, sued to quiet title. 

 

The issue was whether the Second Lien or the Refinanced Mortgage Lien was superior.  Generally, the Second Lien would have been the junior lien, but for the subsequent refinancing.  On cross-motions for summary disposition, the trial court held that the Refinanced Mortgage Lien could not be first in priority over the Second Lien, under the doctrine of equitable subrogation, and the appeal followed. 

 

Looking to the Restatement of Property (Mortgages), 3d, § 7.3 (hereinafter, "Restatement"), as limited to the situations in Comment b to the Restatement, the Court of Appeals concluded that it was consistent with precedential Michigan law.  The Court, therefore, adopted the Restatement. 

 

As relevant to this case, section 7.3(a) of the Restatement provides that if a senior mortgage is released of record and within the same transaction is replaced with a new mortgage, then the later mortgage retains the same priority as its predecessor.  Exceptions to that general rule are where any changes to the terms of the mortgage or the obligation secured thereby are materially prejudicial to the holder of the junior interest in the real estate; or where the one who is protected by the recording act acquires an interest in the real estate when a senior mortgage is not of record. 

 

Comment b to the Restatement states: "[u]nder 7.3(a) a senior mortgagee that discharges its mortgage of record and records a replacement mortgage does not lose its priority against the holder of an intervening interest unless that holder suffers material prejudice."  Additionally, the associated Reporter's Note explains that "courts routinely adhere to the principle that a senior mortgagee who discharges its mortgage of record and takes and records a replacement mortgage, retains the predecessor's seniority as against intervening lienors unless the mortgagee intended a subordination of its mortgage or 'paramount equities' exist."

 

In adopting the Restatement, the Court warned that the lending mortgagee that seeks subrogation and priority over an intervening interest relative to its newly recorded mortgage must be the same lender as the one that held the original mortgage before the intervening interest arose.  Thus, the Court could not adopt the Restatement in its entirety, due to its broader scope. 

 

The Court of Appeals concluded, however, that at the time that the lien is sought to be enforced, any bona fide successor in interest may stand in the shoes of the original lending mortgagee, for the purposes of equitable subrogation.  Further, any application of equitable subrogation will be subjected to a careful examination of the equities of all parties and potential prejudice to an intervening lienholder.

 

Finally, the Court addressed the "mere volunteer" rule.  That rule provides that equitable subrogation cannot be extended to a party that is a mere volunteer.  Under the doctrine of equitable subrogation, a new mortgagee is not permitted to take the priority of the older mortgagee simply because the proceeds of the new mortgage were used to pay off an indebtedness secured by the old mortgage.  The Court held that the "mere volunteer" rule has no bearing in the context of a case where the new mortgagee was also the original mortgagee. 

 

The Court concluded that equitable subrogation is available to place a new mortgage lien in the same priority as a discharged mortgage lien, if the new mortgagee was the original mortgagee.  However, in order for the general rule to apply, the holders of any junior liens must not be prejudiced. 

 

The Court further concluded that the Restatement, as adopted in the limited form expounded by the Court, sets forth a reasonable and proper framework for determining whether junior lienholders have been prejudiced and whether the equities ultimately favor equitable subrogation. 

 

Accordingly, the Court of Appeals reversed and remanded the case to the trial court for further determinations of fact consistent with its ruling. 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: Cal App Ct Holds 1-yr Statute of Limitations for Forged Checks Does Not Apply to HELOCs

The California Court of Appeals, Second Appellate District, recently held that the statute of limitations applicable to actions "by a depositor against a bank for the payment of a forged or raised check" does not apply to allegations brought by a borrower with respect to her home equity line of credit. 

 

A copy of the opinion is available at:

http://www.courtinfo.ca.gov/opinions/documents/B224469.PDF. 

 

A borrower sued her HELOC lender, alleging various causes of action in connection with a retailer's cashing of allegedly forged checks.  These checks were drawn on the borrower's home equity line of credit ("HELOC") account. 

 

The lender demurred on the grounds that the action was time barred.  The lower court agreed with the lender, finding that the one-year statute of limitations provided for by California Code of Civ. Proc. Sec. 340(c) applied.  The borrower appealed. 

 

As you may recall, California Code of Civ. Proc. Sec. 340(c) ("Sec. 340") governs "actions by a depositor against a bank for the payment of a forged or raised check."  It applies a one-year statute of limitations to such actions. 

 

On appeal, the borrower argued that the one-year time limit did not apply to her, because she was a loan customer with a HELOC account, and not a depositor.  The appellate court agreed.  It observed that the account at issue here is "not a deposit account"; rather, the lender is a creditor to the borrower.  Because the legislature used the word "depositor" in Sec. 340 rather than, for example, "customer," the Court reasoned that there is "no valid basis" to assume that the legislature intended the statute of limitations to apply to non-depositors. 

 

The lender argued that Sec. 340 ought to be "harmonized" with California Uniform Commercial Code Sec. 4406, as both statutes concern similar subject matter.  The UCC code section uses the word "customer" in lieu of "depositor."  The Court disagreed, noting that the UCC sections cited were not part of the same statutory scheme as Sec. 340. Specifically, the Court observed that California Commercial Code Sec. 4406 is not a statute of limitation, but an "issue-preclusion statute." 

 

Therefore, the Court held that the 1-year statute of limitations in Sec. 340 "is not applicable to this action," and consequently reversed the decision of the lower court to grant the lender's demurrer.  

 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: Mich Court of Appeals Rules in Favor of Creditor in Challenge to Affidavit and Standing

The Michigan Court of Appeals recently held that the lower court properly
considered documentary evidence to support summary disposition in a
creditor's collection action, where such evidence was "plausibly
admissible," and where the debtor failed to present evidence establishing
a question of fact on any element of the creditor's claim. A copy of the
opinion is attached.

Defendant debtor failed to make the required payments on her credit card
account, and plaintiff bank eventually sued the debtor for breach of the
credit card agreement. Appearing pro se, the debtor denied the existence
of a credit agreement with the bank, and denied that she owed the bank any
money. The debtor also filed a counterclaim, asserting that the bank had
committed fraud by presenting a "false document" (i.e., the complaint) to
the court.

The bank moved for summary disposition and, in support of its motion,
submitted into evidence copies of the credit card agreement, the debtor's
monthly credit card statements, checks the debtor had sent as payment on
the account, as well as an affidavit. The bank also asserted that the
debtor's fraud claim should be dismissed for failure to plead it with
sufficient particularity.

In response, the debtor argued in part that because the documents the bank
submitted to the trial court as evidence were unsigned, they could not be
used to support its motion. The debtor further argued that the bank
lacked standing because it was not registered to do business in Michigan,
had unclean hands, and violated federal law by seeking to collect the
debt. The debtor also asserted that the bank's supporting affidavit was
invalid.

The trial court granted the bank's motion for summary disposition. The
debtor appealed, arguing that the evidence that the bank had submitted to
support its motion was inadmissible. The appellate court affirmed.

The Court of Appeals first noted that a motion for summary disposition
requires the submission of supporting documentation such as affidavits,
depositions, admissions or other documentary evidence, and that the trial
court may only consider such submissions to the extent that they "would be
admissible as evidence." See MCR 2.116(G)(3),(6). The Court also
observed that the documentation submitted to support a motion for summary
disposition need not be in admissible form, but need only be admissible in
substance, and that if a "plausible basis" exists for the admission of the
supporting material, the trial court may properly consider the
documentation.

While pointing out that the affidavit submitted by the bank may not have
established a proper foundation for admitting the documentation into
evidence, the appellate court noted that the documents submitted were
"nevertheless plausibly admissible as records of regularly conducted
activity." The Court then determined that the documentation demonstrated
that the debtor had among other things opened a credit card account with
the bank, used the account to make purchases and balance transfers, and,
after making a number of payments on the account, breached the agreement
by failing to make additional required payments.

The Court determined that the documentary evidence was sufficient to
establish the existence of a lending agreement between the parties, the
breach of that agreement, and the amount of the bank's damages.
Accordingly, the Court ruled that the bank had properly supported its
motion, and that the debtor therefore had to respond with evidence that
raised a question of fact as to at least one of the element's of the
bank's breach of contract claim, but failed to do so.

The Court also rejected the debtor's arguments that the bank lacked
standing to sue, failed to prove it was assigned the note, and that its
collection efforts violated federal law, because the debtor had failed to
provide "meaningful citation to the law or record evidence," and because,
in the Court's view, such allegations were meritless in any event.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com

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FYI: 10th Cir Holds Verification of Employment Faxed to Consumer's Employer Did Not Violate FDCPA, Prevailing Defs Entitled to Costs Without Bad Faith Finding Under FDCPA

The U.S. Court of Appeals for the Tenth Circuit recently held that: (1) a
facsimile sent by a debt collector to a borrower's workplace for the
purpose of verifying the borrower's employment did not constitute a
"communication" under the Fair Debt Collection Practices Act ("FDCPA"),
absent evidence that the employer knew the facsimile was sent in
connection with a debt, and (2) a prevailing defendant in a FDCPA action
may be awarded costs without a finding that the plaintiff brought the suit
in bad faith and for the purpose of harassment. A copy of the opinion is
attached.

Defendant General Revenue Corporation ("GRC") was hired to collect on
plaintiff-borrower's delinquent student loan. GRC sent a facsimile the
borrower's employer, seeking to verify the borrower's employment. The
facsimile did not make any reference to debt collection. However, it did
include GRC's corporate logo, and GRC's account number for the borrower.

The borrower sued GRC, alleging among other things that the facsimile sent
by GRC violated the FDCPA's prohibition of debt collector communications
with third parties. The lower court found no violation of the FDCPA, and
awarded costs to GRC. The borrower appealed.

As you may recall, the FDCPA provides that "a debt collector may not
communicate, in connection with the collection of any debt, with any
person other than the consumer." 15 U.S.C. Sec. 1692(e). A
"communication" is defined as "the conveying of information regarding a
debt directly or indirectly to any person through any medium." Id. at
Sec. 1692(a)(2).

The Tenth Circuit held that because the facsimile sent by GRC did not
"indicate to the recipient that the message relates to the collection of a
debt," it did not constitute a "communication" as that term is defined in
the FDCPA.

In so holding, the Court was influenced by the fact that the borrower did
not allege that her employer was aware that the communication related to
the collection of a debt. Had there been any evidence to that effect, the
Court suggested that "the case would be different." Nevertheless, the
Court noted that the borrower had the burden of proving that the facsimile
conveyed information regarding a debt. Because the borrower failed to
meet that burden, the Tenth Circuit affirmed the lower court's ruling.

Next, the Tenth Circuit examined the lower court's award of costs to GRC.
It began by scrutinizing the relevant statutes. Rule 54(d) of the Federal
Rules of Civil Procedure provides that "[u]nless a federal statute, these
rules, or a court order provides otherwise, costs - other than attorney's
fees - should be allowed to the prevailing party." Fed. R. Civ. P.
54(d)(1). The FDCPA provides that if an action is brought "in bad faith
and for the purposes of harassment, the court may award to the defendant
attorney's fees reasonable in relation to the work expended and costs."
15 U.S.C. Sec. 1692k(a)(3).

Here, there was no finding that the borrower brought the suit in bad faith
and for the purpose of harassment. Therefore, the case turned on whether
Sec. 1692k supersedes Rule 54(d).

The Tenth Circuit held that it does not. It noted that statutes enacted
subsequent to the Federal Rules of Civil Procedure should be read to
harmonize with those Rules, where possible. See U.S. v. Gustin-Bacon
Div., Certainteed Prods. Corp., 426 F.2d 539, 542 (10th Cir. 1970).
Moreover, because the presumption that the prevailing party is awarded
costs is "a venerable one," the Tenth Circuit required "[a] clear showing
of legislative intent...before we find that Rule 54(d) is displaced by
statute."

The Court did not find any such "clear showing" in its examination of the
Rule 1692k itself, or in the relevant legislative history. Because
"nothing in the language of Sec. 1692(k)" prevents Rule 54(d)'s normal
operation, the Tenth Circuit affirmed the lower court's award of costs in
favor of the defendant debt collector.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com

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FYI: Cal App Holds Post-Petition Recording of Mechanics Lien Did Not Violate Automatic Stay, and BK Tolled Statute of Limitations

The California Court of Appeal, Second District, recently held that
California's limitations period for filing a complaint to foreclose on a
mechanic's lien was tolled during the pendency of bankruptcy proceedings,
and that the post-petition recording of a mechanic's lien did not violate
the automatic stay.

A copy of the opinion can be found at:
http://www.courtinfo.ca.gov/opinions/documents/B225685.PDF.

Debtor hired Plaintiff to perform construction services on property that
Debtor owned, but failed to pay for the construction work. Plaintiff
recorded a mechanic's lien against the property for the amount due, and,
almost two months later, Debtor filed for Chapter 11 bankruptcy
protection. Seven months after the bankruptcy filing, Plaintiff recorded
a second mechanic's lien against the property and filed a notice of
perfection of its security interest in the bankruptcy proceedings.

Various of the Defendants obtained relief from the automatic stay and sold
Debtor's property at a trustee's sale. Within three months after the
trustee's sale, Plaintiff filed a foreclosure complaint stating two causes
of action, one for each lien.

Defendants demurred based on the alleged invalidity of the liens, arguing
that: (1) Plaintiff's complaint had not been filed within 90 days of the
recording of the first lien as required by California Civil Code Section
3144; and (2) the recording of the second lien violated the automatic
stay. Plaintiff asserted that its notice of perfection preserved the
second lien until after such time as the property was no longer part of
the bankruptcy estate. Plaintiff also argued that its complaint had been
timely filed because the pendency of the bankruptcy proceedings tolled the
90-day period for filing the complaint. Concluding that the liens
violated the automatic stay and that the complaint was not timely filed,
the trial court entered judgment for the defendants. Plaintiff appealed.

Addressing only the second lien on appeal, the Court of Appeal reversed,
concluding that Plaintiff's complaint had been timely filed, and that the
recording of the second lien did not violate the automatic stay.

In so ruling, the appellate court noted that: (1) the mere recording of a
mechanic's lien post-petition does not violate the automatic stay in
bankruptcy; (2) a notice of lien must be filed in a bankruptcy proceeding
in order to provide the debtor and creditors notice of the lienor's intent
to enforce the lien; and (3) the bankruptcy trustee may not avoid a
properly perfected lien. See 11 U.S.C. §§362(b)(3), 546(b).

The Court focused on the tension between California's requirement that an
action to foreclose a mechanic's lien must be brought within 90 days of
the lien's recording and the Bankruptcy Code's prohibition on
post-petition lien foreclosure actions as a violation of the automatic
stay. See 11 U.S.C. §362(b); Cal. Civ. Code § 3144.

As you may recall, Bankruptcy Code Section 108, Subdivision (c) tolls
certain filing deadlines in civil actions against a debtor. Section 108,
subdivision (c) provides in pertinent part, "if applicable nonbankruptcy
law . . . fixes a period for commencing . . . a civil action . . . on a
claim against the debtor . . . and such period has not expired before the
date of the filing of the petition, then such period does not expire until
the later of . . . the end of such period, including any suspension of
such period occurring on or after the commencement of the case . . . or .
. . 30 days after notice of termination or expiration of the [automatic]
stay . . . ."

The Appellate Court thus determined that the period during which the
automatic stay was in effect did not count toward the limitations period
for purposes of enforcement of Plaintiff's lien. Accordingly, the Court
held that California's 90-day period for filing Plaintiff's complaint
began running from the time of the trustee's sale of the property when the
automatic stay terminated (the later of the two time periods contemplated
by Section 108, Subdivision (c)), and that Plaintiff's complaint, filed 79
days after the trustee's sale, was timely.

The Court rejected Defendants' argument that the doctrine of invited error
precluded Plaintiff from arguing on appeal the validity and enforceability
of the lien, because Plaintiff had stated at trial that the second lien
was null and void but nevertheless asserted that it could file a notice of
perfection and retain rights under the lien. The Court noted that for
the invited error doctrine to apply, a party must demonstrate by
affirmative conduct a deliberate tactical choice and that, in this case,
Plaintiff's counsel had merely applied one rule of law when another rule
should have been applied.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com

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