Professional Documents
Culture Documents
Chapter 7
Debtor.
_________________________________/
CARLA P. MUSSELMAN, Trustee
of the Bankruptcy Estate of Maria
Renee Balderrama,
Plaintiff,
v.
AURORA LOAN SERVICES, LLC,
Defendant.
_________________________________/
COMPLAINT TO VALUE SECURED CLAIM
PURSUANT TO 506(a) AND QUIET TITLE IN REAL PROPERTY IN THE ESTATE
COMES NOW CARLA P. MUSSELMAN, CHAPTER 7 TRUSTEE (the Trustee),
Plaintiff, and files this Complaint against AURORA LOAN SERVICES, LLC (the
Defendant), and states:
NATURE OF THE CASE
1.
claims of the Defendant, at $0.00, to avoid any alleged liens pursuant to 11 U.S.C.
506(d), 544, 547, 548 and 549, and to quiet title in real property located at 398 Tunbridge
Drive, Rockledge, Florida 32955 (the Property), legally described as follows:
LOT 3, IN BLOCK G, OF CHELSEA PARK UNIT 7 A S/D OF A PORT OF SEC
22 & A, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT
This Court has subject matter jurisdiction over this adversary proceeding,
which arises under Title 11, arises in, and relates to cases under Title 11, in the United
States Bankruptcy Court for the Middle District of Florida, Orlando Division (the
"Court"), Case No. 6:10-bk-07828, pursuant to 28 U.S.C. 157 and 1334(b).
3.
The claims and causes of action set forth herein concern the
1409.
GENERAL ALLEGATIONS
1.
On May 6, 2010, the Debtor filed in this Court a voluntary petition for
At the time of filing, the Debtor owned and was in possession of the
On August 16, 2010, the Defendant filed its Motion for Relief from
Automatic Stay and Notice of Opportunity to Object and for Hearing (Main Case Doc. No. 22)
(the Motion) as to the Property.
4.
On September 3, 2010, the Trustee filed her Objection to Motion for Relief
from Stay of Aurora Loan Services, LLC (Main Case Doc. No. 29).
5.
At the final evidentiary hearing on September 21, 2010, this Court found
that insufficient evidence had been provided to support relief, and denied the
Defendants Motion.
6.
7.
The subject mortgage, attached to the Defendants Motion for Relief (the
Mortgage), is executed in favor of the Originator, and not in favor of the Defendant.
Furthermore, the Mortgage identifies MERS as the mortgagee, but limits the interest of
MERS by stating that MERS holds only legal title to the Mortgage.
8.
Relief (the Assignment), allegedly transferring the interest in the mortgage contract
from MERS to the Defendant, specifies an Ocala, Florida address for MERS but has been
notarized in Nebraska.
9.
10.
The Assignment was not executed as part of any bona fide transfer of an
interest in the subject mortgage contract but rather was prepared solely for purposes of
litigation, and is void and has failed to transfer any interest.
11.
The subject note, attached to the Defendants Motion for Relief (the
Note), is executed in favor of First National Bank of Arizona (the Originator), and
not in favor of the Defendant.
12.
Even though there is ample room on the face of the Note, it bears no
endorsements.
13.
First, the allonge allegedly negotiates the interest in the Note from the
Second, the allonge allegedly negotiates the interest in the Note from the
First National Bank of Nevada to blank (i.e. no designated payee), purporting to make
the Note a bearer instrument enforceable by any holder.
16.
18.
19.
allonge.
20.
21.
The allonge is not a document executed as part of any bona fide transfer
The allonge is void and fails to transfer any interest in the Note to
anyone.
23.
The Defendant cannot provide a complete chain of title for the subject
loan transaction.
24.
The Defendant has failed to provide the Trustee with evidence that it
27.
The Defendant is unable to prove that it is the lawful owner of the Note
Therefore, the Defendant cannot show that it has any allowable secured
claim pursuant to 11 U.S.C. 506(a), and its secured claim must be valued at zero dollars
($0.00) pursuant to 11 U.S.C. 506(a).
29.
lien, to the extent any such lien exists, is avoided pursuant to 11 U.S.C. 506(d).
COUNT II
(Avoidance of Alleged Lien Pursuant to 548 as a Fraudulent Transfer)
30.
31.
32.
To the extent that the Defendant has any secured interest in the Property,
34.
To the extent that the Defendant has any secured interest in the Property,
37.
Property are avoidable pursuant to 11 U.S.C. 549, in that the postpetition transactions
were not authorized by this Court.
38.
To the extent that the Defendant has any secured interest in the Property,
COUNT V
(Valuation of Secured Claim and Avoidance of Alleged Lien Pursuant to 502)
39.
40.
41.
Defendant did not have possession of the Note and Mortgage to enforce
45.
Defendant has not proved that it took the subject loan for value, in good
Therefore, this Court should find that Defendant is not a holder in due
course of the subject Note and Mortgage, and lacks any secured interest in the Property.
COUNT VII
(Action to Quiet Title as to the Property in the Estate)
48.
49.
Because Defendant has no lien or its lien has been avoided pursuant to
506(d), 547, 548, and/or 549, and because there is no other entity who has filed a claim or
is capable of filing a claim against the Property, title in the property should be vested in
the Estate, so that the Property can be sold for the benefit of the unsecured creditors of
the Estate.
50.
title of Plaintiff as against Defendant and enter judgment quieting the title of, and
awarding possession to the Plaintiff, and in support of such judgment should enter such
injunctions or additional orders as are necessary to protect the rights of the parties.