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In Re: Lupi Paulo Edwards v. Wells Fargo Bank

July 12, 2011

IN RE: LUPI PAULO EDWARDS, DEBTOR. LUPI PAULO EDWARDS, APPELLANT,
v.
WELLS FARGO BANK, N.A., TRUSTEE, APPELLEE.



Appeal from the United States Bankruptcy Court for the Central District of California Honorable Peter H. Carroll, Chief Bankruptcy Judge, Presiding Bk. No. LA-10-42638-PC

The opinion of the court was delivered by: Markell, Bankruptcy Judge:

SUSAN M SPRAUL, CLERK

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

OPINION

Submitted Without Oral Argument on March 17, 2011*fn1

Filed July 12, 2011

Before: MARKELL, PAPPAS, and DUNN, Bankruptcy Judges.

INTRODUCTION

Debtor Lupi Edwards ("Edwards") appeals the bankruptcy court's order granting relief from the automatic stay to appellee Wells Fargo Bank, as trustee for certain mortgage-backed securities ("Wells Fargo"). We AFFIRM.

FACTS

On August 5, 2010, Edwards filed a voluntary chapter 7*fn2 bankruptcy petition. Within days, Wells Fargo filed a motion for relief from the automatic stay with respect to Edwards' residence, located in Long Beach, California (the "Property").

In support of its motion, Wells Fargo attached a copy of a post-foreclosure Trustee's Deed Upon Sale dated May 17, 2010 ("Trustee's Deed"). The Trustee's Deed conveys title to the Property to Wells Fargo based on the completion of a non-judicial foreclosure sale at which Wells Fargo was the successful bidder ("Foreclosure Sale"). The Trustee's Deed identifies Power Default Services, Inc. as trustee and grantor, and Wells Fargo as grantee. Wells Fargo recorded the Trustee's Deed in Los Angeles County on May 20, 2010, almost three months before Edwards filed her bankruptcy case.

Wells Fargo also attached copies of the following documents to its motion for relief from stay: (1) a Notice to Vacate Property, addressed to Edwards' and dated May 28, 2010; (2) a complaint for unlawful detainer filed in the Los Angeles County

Superior Court ("State Court"), dated June 3, 2010 ("Unlawful Detainer Action"); (3) an order of the State Court in the Unlawful Detainer Action, dated July 14, 2010, granting summary judgment in Wells Fargo's favor in the Unlawful Detainer Action ("Unlawful Detainer Judgment"); and (4) a Writ of Possession in favor of Wells Fargo, issued on July 26, 2010.

On August 26, 2010, Edwards filed her response to Wells Fargo's motion for relief from stay. In her response, Edwards asserted that the Property was still hers, was unencumbered and was worth $180,000. Moreover, Edwards asserted that the Property was necessary for her reorganization.*fn3

In support of her response, Edwards argued:

Movant [Wells Fargo] unlawfully foreclosed this property, & executed an UNLAWFUL EVICTION against the debtor. [¶] Movant has NO STANDING to bring this motion, [¶] An ADVERSARY PROCEEDING is pending in this case against [Wells Fargo] to recover property and money, and the motion should be DENIED so that the debtor's rights are not prejudiced by defendant's wrongful actions against the debtor and the bankruptcy estate.

(Emphasis added.)

Other than a proof of insurance form, the only document that Edwards attached in support of her response was a copy of her notice of appeal of the Unlawful Detainer Judgment.*fn4

Despite Edwards' reference to a pending adversary proceeding, there was none, at least when she filed her response.

Edwards did not file her adversary proceeding until September 9, 2010 - the same day as the hearing on the motion for relief from stay.*fn5

On September 9, 2010, the bankruptcy court heard Wells Fargo's motion for relief from stay. Wells Fargo appeared through counsel, and Edwards appeared pro se. Edwards briefly argued that the foreclosure sale was invalid, arguing primarily that Gold Country Escrow was the original trustee on her deed of trust, and that she had never received notice of a change. She contended that this lack of notice rendered any change of trustee improper. In her ...


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