In bankruptcy case, second-generation copy of original promissory note is sufficient to establish bank’s standing to seek relief from automatic stay.
Cite as
2013 DJDAR 8379Published
Jun. 26, 2013Filing Date
Jun. 25, 2013Summary
U.S. Bank N.A. filed a motion for relief from the automatic stay concerning Toni Griffin’s bankruptcy case. To establish its standing to bring the motion, it submitted a copy of a promissory note with respect to which the bank sought relief from the stay. The copy was a second-generation copy of the note. It reproduced a certification affixed to the first-generation copy that stated: “We hereby certify that this is a true & correct copy of the original. CTX Mortgage Company, LLC.” The bank also submitted a declaration certifying that the original note was in the bank’s files. Peter Arkison, the Chapter 7 bankruptcy trustee, challenged the bank’s standing, arguing that the duplicate of the original note was insufficient to establish prudential standing. The bankruptcy court rejected this argument, and granted U.S. Bank relief from stay. The Bankruptcy Appellate Panel (BAP) subsequently affirmed. Arkison appealed.
Affirmed. A duplicate of a duplicate is a duplicate for purposes of Federal Rule of Evidence 1003. A proceeding to determine eligibility for relief from stay only determines whether a creditor should be released from the stay in order to argue the merits in a separate proceeding. Given the limited nature of the relief from this proceeding, a party seeking a stay relief need only establish that it has a colorable claim to the property at issue. Here, by providing a copy of a copy of the note and a declaration establishing its possession of the original note, U.S. Bank sufficiently established prudential standing to file the motion for relief from the stay. Hence, the bankruptcy court did not abuse its discretion in granting relief from stay.
Per Curiam Opinion.
— Brian Cardile
IN RE: TONI MARIE GRIFFIN,
Debtor,
PETER H. ARKISON,
Chapter 7 Trustee,
Appellant,
v.
TONI MARIE GRIFFIN;
U.S. BANK
NATIONAL ASSOCIATION,
Appellees.
No. 12-60046
BAP No. 11-1362
United States Court of Appeals
Ninth Circuit
Filed June 26, 2013
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Hollowell, and Jury,
Bankruptcy Judges, Presiding
Argued and Submitted
June 5, 2013---Seattle, Washington
Before: Arthur L. Alarcón,
M. Margaret McKeown,
And
Sandra S. Ikuta,
Circuit Judges.
Per Curiam Opinion
COUNSEL
Tuella O. Sykes, The Law Office of Tuella O. Sykes, PLLC, Seattle, Washington, for Appellant.
Fred B. Burnside, Davis Wright Tremaine LLP, Seattle, Washington, for Appellee.
OPINION
PER CURIAM:
U.S. Bank N.A. filed a motion for relief from the automatic stay in this bankruptcy case. To establish its standing to bring this motion, the bank submitted a copy of the promissory note with respect to which the bank sought relief from the stay. This copy was apparently a second-generation copy of the note, because it reproduced a certification affixed to the first-generation copy that stated: ?We hereby certify that this is a true & correct copy of the original. CTX Mortgage Company, LLC.? The bank also submitted a declaration certifying that the original note was in the bank?s files. The trustee argued that a duplicate of a duplicate of the original note was insufficient to establish prudential standing. The bankruptcy court rejected this argument and the BAP affirmed.
We agree with the First Circuit that a duplicate of a duplicate is a duplicate for purposes of Federal Rule of Evidence 1003. See United States v. Carroll, 860 F.2d 500, 507 (1st Cir. 1988). We therefore conclude that U.S. Bank N.A., by providing a copy of a copy of the note and a declaration establishing its possession of the original note, established prudential standing to file the motion for relief from the stay.
A proceeding to determine eligibility for relief from a stay only determines whether a creditor should be released from the stay in order to argue the merits in a separate proceeding. Johnson v. Righetti, 756 F.2d 738, 740?41 (9th Cir. 1985). Given the limited nature of the relief obtained through this proceeding and because final adjudication of the parties? rights and liabilities is yet to occur, a party seeking stay relief need only establish that it has a colorable claim to the property at issue. In re Veal, 450 B.R. 897, 914?15 (B.A.P. 9th Cir. 2011). The bankruptcy court did not abuse its discretion in granting relief from the stay.
AFFIRMED.
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