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In Re: Felipe Dabao Zulueta, Jr., Debtor. v. Martha G. Bronitsky

August 23, 2011

IN RE: FELIPE DABAO ZULUETA, JR., DEBTOR. FELIPE DABAO ZULUETA, JR., APPELLANT,
v.
MARTHA G. BRONITSKY, CHAPTER 13 TRUSTEE; ONEWEST BANK, FSB, APPELLEES.



Appeal from the United States Bankruptcy Court for the Northern District of California Honorable Edward D. Jellen, Bankruptcy Judge, Presiding Bk. No. 10-42479

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

MEMORANDUM*fn1

Argued and Submitted on June 16, 2011 at San Francisco, California

Filed - August 23, 2011

Before: HOLLOWELL, PAPPAS, and JURY, Bankruptcy Judges.

Felipe Zulueta, Jr. (the Debtor) challenges whether Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Loan Trust 2006-AR14, Mortgage Pass-Through Certificates, Series 2006-AR14 under the Pooling and Servicing Agreement dated October 1, 2006 (Deutsche Bank), through its purported servicing agent, OneWest Bank, FSB (OneWest) was the real party in interest with standing to file a proof of secured claim.

The bankruptcy court determined that Deutsche Bank established it was the holder of the Debtor's note and, therefore, had standing to file the proof of claim. For the reasons stated below, we AFFIRM.

I. FACTS

The Debtor filed a chapter 13*fn2 bankruptcy petition on March 8, 2010. On April 6, 2010, Deutsche Bank filed a proof of secured claim (Claim) in the amount of $686,250.87 for money loaned on real property. The Claim listed Deutsche Bank as the secured creditor and indicated payments should be made to OneWest.

The history of the loan, which serves as the basis of the Claim, is as follows. In 2006, the Debtor and Eloisa Maru Zulueta, Trustees of the Zulueta Family Trust, executed a promissory note in the amount of $560,000 in favor of IndyMac Bank FSB (IndyMac) (the Note). The Note has an endorsement-in- blank (the Endorsement). The Note is secured by a deed of trust 2 on the Debtor's house in Brentwood, California (the Deed of 3 Trust). Mortgage Electronic Registration Systems, Inc. (MERS) is 4 the beneficiary and nominee for IndyMac on the Deed of Trust.

On October 1, 2006, IndyMac entered into a Pooling and 6 Servicing Agreement (PSA) with Deutsche Bank, whereby IndyMac 7 transferred the Note to Deutsche Bank. Section 3.01 of the PSA 8 provided that IndyMac would service the Note. On April 30, 2008, 9 MERS, as nominee for IndyMac, assigned the Deed of Trust to 10 Deutsche Bank (the Assignment). Deutsche Bank recorded the 11 Assignment on June 6, 2008.

12 In support of the Claim, Deutsche Bank attached a document 13 listing the purported arrearages on the Note. Additionally, 14 Deutsche Bank attached copies of: (1) the Note, (2) the 15 Endorsement, which was undated and appeared as a separate 16 document, (3) the Deed of Trust, and (4) the Assignment. The 17 Debtor filed an objection to the Claim, contending that Deutsche 18 Bank was not the real party in interest to assert the Claim (the 19 Claim Objection).

20 In its response to the Claim Objection, Deutsche Bank 21 contended that IndyMac assigned it the Deed of Trust pursuant to 22 the PSA, and, because the Note included the Endorsement and 23 OneWest, as Deutsche Bank's agent, had physical possession of the 24 Note, Deutsche Bank was a holder of the Note under Cal. Comm. 25 Code § 3201(b). To substantiate its contention, Deutsche Bank 26 submitted a declaration by a OneWest employee, Champagne 27 Williams, that stated OneWest was the servicer and holder of the 28 Note (the Williams Declaration). A copy of the Assignment, Note, and Endorsement was attached to the Williams Declaration.

The Debtor filed a reply. Among the issues raised by the Debtor in his reply were:

(1) the documents provided in the Williams Declaration required authentication;

(2) OneWest was not the real party in interest and needed to submit proper documentation demonstrating its agency ...


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