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1994 addition of exception for creation or perfection of statutory lien for ad valorem taxes doesn't apply retroactively. Concerning property with a long history of bankruptcies, alleged by the tax authority to have been designed to avoid property tax sales, the district court affirms the bankruptcy court's holding that § 362(b)(18)'s exception, which was added in the Bankruptcy Reform Act of 1994, doesn't contain a clear expression of retroactive application. As a result, the exception doesn't apply to a case filed in 1992 and terminated in 1997, and the tax lien imposed during the pendency of that case is void under authority of In re Meyers, 491 F.3d 120 (3d Cir. 2007) ("actions in violation of the stay are void but retroactively ratifiable if the stay is annulled."). Keuller v. Monroe County Tax Claim Bureau (In re Keuller), 399 B.R. 782 (M.D. Pa. 2009).
Stay denied when servicer fails to demonstrate standing. The motion for stay relief was supported by a declaration of "bankruptcy specialist" that movant had "possession" of original note, but the motion failed to show that movant had authority to act for note holder beyond merely stating it was servicer. The servicer doesn't assert a beneficial interest in the note nor does it establish a right to enforce the note. "The real party in interest in relief from stay is whoever is entitled to enforce the obligation sought to be enforced. Even if a servicer or agent has authority to bring the motion on behalf of the holder, it is the holder, rather than the servicer, which must be the moving party, and so identified in the papers and in the electronic docketing done by the moving party's counsel....To have standing, [the servicer] must establish its authority to act for the holder of the Debtors' note." No business records were offered to support that authority, and the declaration of the bankruptcy specialist was unclear about authority. In re Jacobson, 2009 WL __________, No. 08-45120 (Bankr. W.D. Wash. Mar. 10, 2009).
Assignee of mortgage fails to have standing for stay relief. Discussing the "serial assignments" of mortgages that have "complicated what was previously a generally straight-forward standing analysis," the Chapter 7 trustee's objection to stay relief was sustained, when the motion was filed by MERS as "nominee" for the mortgagee, and the motion provided no documentation or evidence that the party for whom MERS was acting had any interest in the note or mortgage. In re Sheridan, ___ 2009 WL _____, Case No. 08-20381-TLM (Bankr. D. Idaho, March 12, 2009).
Utility provider was entitled to unilaterally terminate services when Chapter 13 debtors failed to pay postpetition bills, since § 366(b) is self-executing if debtors fail within 20 days of order for relief to provide adequate assurance of payment for postpetition services. The statute puts no burden on the utility provider to
©2009 Hon. William Houston Brown
