In re: Anthony and Brenda Stewart

Objection to Mortgage Company's Motion to Lift Automatic Stay and Foreclose Mortgage


A mortgage company using MERS as nominee attempted to lift the automatic stay in bankruptcy in order to foreclose on debtor's residence. I filed this objection/response to the mortgage compnay's motion on the grounds that Bank of America had not joined a necessary party, that MERS had no authority to transfer the underlying mortgage or note, that the note had been seperated from the mortgage rendering the note, in essence, unsecured, and that the mortgage was a collaterized mortgage and that proper assignments of the note and mortgage had not been made and BOA had no standing to bring the motion or forelcose on the home. I challenged the fact that BOA didn't even hold the original note and mortgage. The court ruled in my favor and even though this bankruptcy was filed in early 2010, it is now March 3, 2011 and BOA has still not been able to foreclose, thus allowing the debtor to live rent free in the home for over one year.

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Reference Info:Pleadings | Federal, 11th Circuit | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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