KSB

Judge Karlin

10-41685 Campoverde (Doc. # 45)

In Re Campoverde, 10-41685 (Bankr. D. Kan. Mar. 24, 2011) Doc. # 45

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SO ORDERED.
SIGNED this 24 day of March, 2011.


________________________________________
JANICE MILLER KARLIN
UNITED STATES BANKRUPTCY JUDGE
OPINION NOT DESIGNATED FOR
PRINT PUBLICATION


IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS


IN RE:
DAVID ANTONIO CAMPOVERDE. Case No. 10-41685
Chapter 7
Debtor.

ORDER GRANTING TRUSTEE’S MOTION TO SET MOTION TO COMPEL
FOR EXPEDITED HEARING AND TO REQUIRE RESPONSE FROM
CITIMORTGAGE


CitiMortgage, Inc., “or its Successors and Assigns,”1 filed a Motion for Relief from

Automatic Stay on certain non-exempt real property located in Emporia, Kansas on

1The motion never identifies who those “successors and assigns are.” If, for example,
CitiMortgage assigned the note to ABC Company, and ABC Company later assigned it to XYZ
Company, and CitiMortgage and XYZ Company have no relationship, it is difficult for the Court
to understand how CitiMortgage would have standing (without something more) to file a Motion
for Relief from Stay on behalf of XYZ Company.

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November 12, 2010.2 In that motion, it asserted it was the “holder of a Mortgage ... and
Promissory Note” relating to this real estate, and that the pay off on the note was
$158,615.90. 3 The Motion does not indicate in what capacity CitiMortgage “held” those
instruments. For that reason, this Court originally assumed CitiMortgage was claiming to
be the beneficial owner of the instruments since no other capacity was stated.

CitiMortgage’s motion also states that a copy of the note is attached, but is silent on
whether it is an authentic copy of the original in existence on the date of the filing of the
motion. The Trustee suggests that in light of what she has found on a public website about
this loan, it cannot be true that it is an authentic copy because the note contains no
endorsements.

CitiMortgage also claimed in its Motion that “[b]y reason of the aforesaid facts,
Movant lacks adequate protection of its interest in said property.”4 In so stating, again, the
Court assumed that CitiMortgage held the beneficial interest in the note, because if it did not,
it is unclear why it (as opposed to its principal if it is serving as an agent) would be deserving
of adequate protection.

The contents of this Motion, however, are inconsistent with information that the

2Doc. 18.
3Interestingly, CitiMortgage never alleges that any of this $158,615.90 is owed to it. It
also does not plead (if it is really merely the servicer, as the Fannie Mae documents suggest) that
the true beneficial owner of the note has authorized it to file this action on its behalf.
4Id. at ¶ 9 (emphasis added).
2

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Trustee has been required (in order to do her job) to ferret from a public website suggesting
that CitiMortgage is, at best, the servicer of the documents in this case. Because of that
perceived inconsistency, for which counsel for CitiMortgage had no explanation at the
hearing, the Court ordered CitiMortgage to provide additional information to the Trustee
within 30 days of a lengthy hearing conducted on February 9, 2011.

A review of the notes taken at this hearing, coupled with a review of the oral transcript
of the hearing, reveal that the Court essentially required CitiMortgage to provide the
following within 30 days:

1.
The MERS milestone report;
2.
Whatever information/documents that were in CitiMortgage’s possession or
control that would trace the ownership interests in the note and mortgage from
the date that CitiMortgage originally made the note to the present. The Trustee
has represented to the Court that as a member of MERS, Mortgage Electronic
Registration Systems, CitiMortgage has computer access to as many as 9
different reports that would capture this information;
3.
An exact copy of the note as it exists today (showing any and all endorsements
since the date it was executed), with a certification that it is an exact copy of
the original of that document;5
5The Trustee indicates that counsel for CitiMortgage has offered to allow her to drive the
60 plus miles to Lenexa, Kansas to view the original of this note, but has declined (or just
ignored requests) to simply mail to her a complete copy of the original with a certification that it
is a complete and accurate copy of what the note looks like today.

3

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4.
Information how the mortgagor’s signature could have been notarized by a
New Jersey notary public on the same date that the mortgage was recorded in
office of the Lyon County, Kansas Register of Deeds.
The Court then continued this matter to a status conference on April 13, 2011.

The Trustee has now filed a Motion to Compel6 that demonstrates that she has
received only the MERS milestone report—five days after everything was due, plus an email
communication dated March 16, 2011, from CitiMortgage counsel indicating it has fully
complied with the Court’s orders. At first blush, that does not appear to be the case, but the
Court will give CitiMortgage an appropriate opportunity to reply before the April 13, 2011
hearing.

Accordingly, the Court orders CitiMortgage to file a written response to the Trustee’s
Motion to Compel by April 5, 2011. Since this is a contested matter, and since this Motion
for Relief from Stay is not a dispositive motion, this provides CitiMortgage exactly the 14
days typically allowed for such a response under local rule. In addition, CitiMortgage is
ordered to immediately fax and mail to the Trustee a full and complete copy of the note that
counsel alleges he has in his possession with a notarized certification that the copy sent is an
exact copy of the original note in his possession and in its current form. Counsel is then
ordered to also bring the original to the hearing on April 13, 2011 for the Trustee’s review.

IT IS, THEREFORE, ORDERED THAT the Court will hear the Trustee’s Motion

6Doc. 43.

4

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to Compel on April 13, 2011 at 3:00 p.m. It is further ordered that CitiMortgage file a
written response to the Motion to Compel, which shall include (but not be in any way limited
to) information7 why it has failed to provide the chain of title information that the Trustee
represents is within CitiMortgage’s custody or control by virtue of its MERS membership,
by April 5, 2011. That brief shall also explain what support exists for the statement in its
Motion for Relief that it lacks adequate protection for “its interest” in the subject property,
and to the extent any document corroborates that statement, to produce it to the Trustee and
the Court with that response.8

IT IS SO ORDERED.

# # #

7This “inclusion” language certainly is not intended to mean that is the only obligation
CitiMortgage has in responding to this Motion to Compel.

8The bottom line is that we can do this the easy way, or we can do this the hard way. So
far, it appears CitiMortgage has elected to do things the hard way. The Court will not hesitate to
require that CitiMortgage make a witness(es) available in Topeka, Kansas for a Rule 30(b)(6)
deposition(s), with the deposition costs (and possibly the Trustee’s fees) to be borne by
Citimortgage, on the issues in this case if it finds the Trustee’s Motion to Compel meritorious.

5

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