Arkison v. Griffin (In Re Griffin) ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: TONI MARIE GRIFFIN , No. 12-60046
Debtor,
BAP No.
11-1362
PETER H. ARKISON , Chapter 7
Trustee,
Appellant, OPINION
v.
TONI MARIE GRIFFIN ; U.S. BANK
NATIONAL ASSOCIATION ,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Hollowell, and Jury, Bankruptcy Judges,
Presiding
Argued and Submitted
June 5, 2013—Seattle, Washington
Filed June 26, 2013
Before: Arthur L. Alarcón, M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
2 IN RE: GRIFFIN
SUMMARY*
Bankruptcy
Affirming a decision of the Bankruptcy Appellate Panel,
the panel held that a bank, by providing a copy of a copy of
the promissory note with respect to which the bank sought
relief from an automatic stay, and a declaration establishing
the bank’s possession of the original note, established
prudential standing to file a motion for relief from the stay.
COUNSEL
Tuella O. Sykes, The Law Office of Tuella O. Sykes, PLLC,
Seattle, Washington, for Appellant.
Fred B. Burnside, Davis Wright Tremaine LLP, Seattle,
Washington, for Appellee.
OPINION
PER CURIAM:
U.S. Bank N.A. filed a motion for relief from the
automatic stay in this bankruptcy case. To establish its
standing to bring this motion, the bank submitted a copy of
the promissory note with respect to which the bank sought
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE: GRIFFIN 3
relief from the stay. This copy was apparently a
second-generation copy of the note, because it reproduced a
certification affixed to the first-generation copy that stated:
“We hereby certify that this is a true & correct copy of the
original. CTX Mortgage Company, LLC.” The bank also
submitted a declaration certifying that the original note was
in the bank’s files. The trustee argued that a duplicate of a
duplicate of the original note was insufficient to establish
prudential standing. The bankruptcy court rejected this
argument and the BAP affirmed.
We agree with the First Circuit that a duplicate of a
duplicate is a duplicate for purposes of Federal Rule of
Evidence 1003. See United States v. Carroll, 860 F.2d 500,
507 (1st Cir. 1988). We therefore conclude that U.S. Bank
N.A., by providing a copy of a copy of the note and a
declaration establishing its possession of the original note,
established prudential standing to file the motion for relief
from the stay.
A proceeding to determine eligibility for relief from a stay
only determines whether a creditor should be released from
the stay in order to argue the merits in a separate proceeding.
Johnson v. Righetti, 756 F.2d 738, 740–41 (9th Cir. 1985).
Given the limited nature of the relief obtained through this
proceeding and because final adjudication of the parties’
rights and liabilities is yet to occur, a party seeking stay relief
need only establish that it has a colorable claim to the
property at issue. In re Veal, 450 B.R. 897, 914–15 (B.A.P.
9th Cir. 2011). The bankruptcy court did not abuse its
discretion in granting relief from the stay.
AFFIRMED.