Bankr. E.D.N.C.: In re Carroll- Evidence of Default necessary for Motion for Relief From Stay

By Ed Boltz, 26 March, 2012

Summary: Vericrest sought relief from the automatic stay and the Chapter 7 Trustee objected. In the present case, the note contains two allonges purporting to transfer the Note by indorsement. The first purports to transfer the Note from Flagstar Bank, F.S.B. To LSF7 Bermuda NPL V Trust. The second allonge is blank indorsement from Bermuda Trust.

To prevail on a Motion for Relief from Stay where there is no issue as to the sufficiency of equity to adequately protect it interests, the moving party must show "[t]he [d]ebtor owes a debt to it, that it possesses a valid security interest securing the debt, and that the collateral securing the debt is declining in value while the [d]ebtor has failed to provide [the creditor] with adequate protection of its interest" to establish a prima facie case it is entitled to relief for lack of adequate protection. In re Vankell, 311 B.R. 205, 215 (Bankr. E.D. Tenn. 2004).

At hearing, Vericrest failed to present evidence, including even a verified Motion or Affidavit, that the value of the property was declining or insufficient value to adequately protect the claim. Similarly, Vericrest asserted a substantial arrearage, but presented not evidence of such, again not even a verified Motion nor Affidavit. While counsel for Vericrest stated that he had reviewed the payment history and default, such unsworn statements are insufficient, particularly where neither the Debtor nor Trustee affirmatively conceded default.

Commentary: Secured Creditors in the Eastern District are best advised to have Motions for Relief include an Affidavit establishing that there has been a default and/or that the value of the property is declining or insufficient to adequately protect the claim.

For a copy of the opinion, please see:

In re Carroll- Evidence of Default necessary for Motion for Relief From Stay.PDF