Musselman v. Deutsche Bank Trust Co. Americas (In re Balderrama)
Musselman v. Deutsche Bank Trust Co. Americas (In re Balderrama)
Opinion of the Court
MEMORANDUM OPINION GRANTING CREDITOR’S MOTIONS FOR RECONSIDERATION, SUMMARY JUDGMENT, AND RELIEF FROM STAY
Defendant Deutsche Bank (“Deutsche”) seeks reconsideration of the Court’s previous order denying summary judgment as to Deutsche’s standing to enforce a note because Deutsche did not prove it was the proper holder.
Deutsche, claiming to be a secured creditor, filed a motion for relief from the automatic stay to proceed against debtor’s real property located in Rockledge, Florida.
Both parties filed motions for summary judgment on the trustee’s complaint.
In response to the Court’s denial of summary judgment, Deutsche filed a motion for reconsideration.
Along with its motion for reconsideration, Deutsche presented additional evidence to demonstrate that the second al-
The Court first will address the sufficiency of the additional evidence Deutsche has provided clarifying the existence of the two different allonges. As Deutsche explains, for unknown reasons, the first version of the allonge was submitted by Deutsche’s former counsel even though the properly executed allonge existed at the time. Deutsche’s current counsel recognized the mistake and submitted the proper allonge in its response to the trustee’s complaint and motions to compel.
As the trustee points out in her opposition to Deutsche’s motion for reconsideration, the Court acknowledges that the evidence and explanation of the two allonges is not newly discovered or newly available evidence.
As to Deutsche’s other argument, the Court feels it necessary to clarify the distinction between being a “holder” and a “holder in due course.” Deutsche is correct that a party holding a note may, in limited circumstances, enforce a note not endorsed to it specifically. But in Deutsche’s case, possession of the note alone was not enough.
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the rights of a holder; or
(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to § 673.3091 or § 673.4181(4).
“Holder” is defined as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.”
Deutsche should be aware of this nuance because it was a party to at least two Florida cases that highlighted the distinction. In Harvey v. Deutsche Bank National Trust, the Fourth District Court of Appeals found that Deutsche had standing to enforce a note indorsed in blank because Deutsche had possession of the note, notwithstanding “questionable assignments” in the note’s chain of title. In Taylor v. Deutsche Bank, the Fifth District Court of Appeals agreed that a party in possession of a bearer instrument may enforce it without being a holder in due course but required Deutsche to prove it was the holder in due course because the note was specifically endorsed to Deutsche.
Similar to Taylor, the note in this case was endorsed directly to Deutsche.
Given that debtor has no equity or remaining interest in the property and the property is not necessary for an effective reorganization, Deutsche is entitled to final summary judgment in its favor and to relief from the automatic stay as requested.
DONE AND ORDERED.
. Doc. No. 68.
. Doc. No. 22 in Main Case 6:10-bk-07828-KSJ. The debtor has surrendered her interest in the home.
. Doc. Nos. 22 & 23 in Main Case 6:10-bk-07828-KSJ.
. Doc. No. 36 in Main Case 6:10-bk-07828-KSJ.
. Doc. No. 25.
. Doc. No. 56.
. Deutsche’s Motion For Summary Judgment and Incorporated Memorandum of Law (Doc. No. 40); Trustee's Response to Defendant's Motion for Summary Judgment and Trustee's Cross Motion for Summary Judgment (Doc. No. 56).
. The Court granted summary judgment to Deutsche on Counts II, III, and IV. Doc. No. 67.
. Doc. No. 71 Defendant’s Motion for Reconsideration.
. Johnson v. Bensalem Tp. 609 F.Supp. 1340, 1342 (D.C.Pa. 1985) (citing 7 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 60.20, at 60-170 (2d ed. 1983); Campos v. Puerto Rico Sun Oil Co., 536 F.2d 970 (1st Cir. 1976); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970); John Simmons Co. v. Grier Bros., 258 U.S. 82, 90-91, 42 S.Ct. 196, 199-200, 66 L.Ed. 475 (1922) (“if an interlocutory decree be involved, a rehearing may be sought at any time before final decree, provided due diligence be employed and a revision be otherwise consonant with equity”); Moore & Rogers, Federal Relief from Civil Judgments, 55 Yale L.J. 623, 641-42 (1946)).
.Lanier Const. Inc. v. Carbone Properties of Mobile, LLC, 253 Fed.Appx. 861, 862 (11th Cir. 2007).
. Doc. No. 25.
. Doc. No. 71 Exhibit 1.
. Id.
. Doc. No. 22 in Main Case 6:10-bk-07828-KSJ.
. Doc. No. 73.
. Fed.R.Civ.P. 60(b) allows a court to relieve a party from a final judgment for a number of reasons, including if a party provides “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial.”
. Doc. No. 71
. A promissory note is a negotiable instrument governed by Chapter 673 of the Florida Statutes. Taylor v. Deutsche Bank National Trust, 44 So.3d 618, 622 (Fla.Dist.Ct.App. 5th 2010).
. Fla. Stat. § 671.201(21).
. “Bearer means a person ... in possession of a negotiable instrument ... that is payable to bearer or indorsed in blank.” Fla. Stat. § 671.201(5).
. Harvey v. Deutsche Bank National Trust, 69 So.3d 300, 303-304 (Fla.Dist.Ct.App. 4th 2011) (citing Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla.Dist.Ct.App. 4th 2010)).
. In re Aum Shree of Tampa, LLC, 449 B.R. 584, 593-94 (Bankr.M.D.Fla. 2011) (citing Taylor v. Deutsche Bank Nat. Trust Co., 44 So.3d 618, 622 (Fla.Dist.Ct.App. 5th 2010)).
. At one point, Deutsche argues that the note is a bearer instrument because the original allonge was endorsed in blank. This argument fails, however, because Deutsche has provided a second allonge in an attempt to show that the note was endorsed to Deutsche. Deutsche cannot, on one hand, argue that a previous allonge was endorsed in blank, and then, on the other hand, provide a subsequent document arguing it was specially endorsed to Deutsche.
. Taylor, 44 So.3d at 623 (citing Booker v. Sarasota, Inc., 707 So.2d 886, 889 (Fla.Dist. Ct.App. 1st 1998)).
. Doc. No. 22, Exhibit B in Main Case 6:10-bk-07828-KSJ (showing the value of debtor's property is $138,550, compared to Deutsche's secured claim of $224,610.06).
. Doc. No. 56.
Reference
- Full Case Name
- In re Maria Renee BALDERRAMA, Debtor. Carla P. Musselman, Trustee v. Deutsche Bank Trust Company Americas, in trust for Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QH5
- Status
- Published