WEISBAND APPEAL: IS EVIDENCE REQUIRED OR CAN WE JUST TAKE THE BANKS’ WORD FOR IT?
Posted on August 10, 2011 by Neil Garfield
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FILED BY RONALD RYAN, ESQ. IN TUCSON, AZ
Debtor informed the Bankruptcy Court (herein, “Court” as the trial court) that it had expert testimony to support Debtor’s challenge to the Motion, and informed the Court that the evidence in the record contained certain indicators that also supported Debtor’s challenge. Primarily Debtor contends that the Loan, Note and Deed of Trust (“DOT”) were intended for Securitization into a Mortgage Backed Security (“MBS”) Trust, and that Appellee was not, either at the time the bankruptcy case was filed, nor at the time the motion for relief from stay was filed: the real Article 3 Holder of the Note; nor the owner of the Loan; nor the party possessed of the DOT rights, including the security interest in the Property. Debtor alleged that the merger agreement was irrelevant. Debtor alleged that the Loan, Note and DOT rights had been sold or otherwise transferred to a completely separate entity, within weeks after the original loan closed, to a completely separate entity from either FHHLC, FTBNA and FHHL.
The Court did not hold a single evidentiary hearing. It did not require a single piece of evidence or testimony to be admitted in a legal proceeding, subject to cross examination and the right to present controverting evidence. The Court did not require that the evidence and the purport of said evidence met even the standard of summary judgment evidence. Debtor was not afforded an opportunity to perform reasonable discovery, despite the fact that Debtor informed the Court that they intended to immediately serve written discovery requests.
- Did the Court err in finding that FHHL proved itself to have Constitutional Standing and Real Party in Interest status (“RPI”) (Prudential Standing), without having to present any evidence in an admissible form, over Debtor’s objection?
- Even if FHHL had established a prima faci case that it had Constitutional Standing and Prudential Standing, was it a denial of due process, or in contravention of statutory law or the applicable rules of procedure to deny Debtor an evidentiary hearing?
- was it error to deny Debtor the right to a reasonable amount of discovery within a reasonable period of time in this case?
- What evidence is necessary to prove Constitutional Standing and Prudential Standing in the context of a Motion for Relief from Stay in Bankruptcy Court on residential real estate?
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