1 

### NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: CAROL LEE DEPUYDT

- MEIER , Debtor

. BAP No s

. NC

- 21

- 100 1

- SFB NC

- 21

- 1002

- SFB ( Related Appeals)

Bk. No. 4:20

- bk

- 41288

M EMORAN DUM * CAR OL LEE DEPUYDT

- MEIER , Appellant,

v. U.S. BANK, NA, as Legal Tr u s tee , Appellee.
Appeal from the United States Bankruptc y Court for the Northern District of California William J. Lafferty , III , Bankruptcy Judge, Presiding
Before: SPRAKER , FARIS , and B RAND , Bankruptcy Judge s

.

* This disposition is not appropriat e for publicat ion. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9t h C i r. BAP R ule 8024

- 1. INTRODUCTION

D ebtor Carol Lee DePuydt

- Meier ( “ Meier ” ) appeal s from two order s: ( 1) an or der overruling her objection t o the proof of claim f iled by U.S. Bank, NA as Legal Title Trustee for Truman 2016 SC6 Title Trust ( “ Truma n
Trus tee ” ) ; and (2) a n orde r granting the Truman Trustee ’ s motion for relief from stay to proc e ed with foreclosure against M eier ’ s residence. All of
Meier ’ s arguments on appeal challenge the Truman Trustee ’ s standi ng. 

# FILED

JUN 28 2021

SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT2 The bankruptcy court held a claim object io n hearing at which it weighed the evidence presented by the parties

. T he court found that the

note had been i ndorsed in blank and the Truman Trustee possessed the

note . As s uch , the Truman Trustee was e ntitl ed to enforce the n ote and had

stan ding to file a proo f of claim.
As for the relief from stay motion , the bankr uptcy co urt g ranted the
motion under § 362(d )(1) , 1 finding tha t the Truman Trustee ’ s evidence was more th an suffic ient to establish that it held a colorable right under
Ca lif ornia law to enfor c e the recorded deed o f trust assigned to it

. We agree with the bankruptcy co urt ’ s disp osition of both matters , so we AFFIRM.
FACTS 2
On March 30, 2006, Meier bo r rowed $600 ,000 f r om Downey Savings and Loan Association, F.A. ( “ Downey ” ) . In exch ange , Meier s i gned a n Adjustable Rate Note ( “ Note ” ) promising to repa y the l oan, with inte rest.
Meier also executed a Deed of Trust , which was promptly recorded

. In November 20 08 , the Federal Deposit Insurance Corporation (“FDIC”) began serving as rec eiver for Downey an d thereby took control of

1 Unless specified othe rwise, all chapter and section references are to the Bankrup t cy Code, 11 U .S.C. §§ 101

– 1532, and all “R ule” references are to the Federal Rules of Bankruptcy Procedure

. 2 We exercise ou r discretion to take jud ici a l n oti ce of documents electronically f iled in Meier ’ s bankrupt cy case s

. See Atwood v. Chase Manhattan M o rtg. Co. (In re Atwood) , 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).3 Dow n e y ’ s assets at t h at ti me. In turn, the FDIC transferred Downey ’ s loan portfolio to U.S. Bank

. Meier ceased maki ng payments o n th e N ote in or ar ound February
2010. In an apparent attempt to imped e U.S. B ank ’ s effo rts t o foreclo s e,
Meier co mmenced a series of b ankruptcy cases a s well as state court litigation

. S he has initiated a total of fo ur bankruptcy case s over t he last ten
ye ars

. Meier filed her latest chapter 13 peti tion on August 3, 2020. Shortly
thereafter , the Truman Tr ustee filed it s proof of secured claim in the
amount of $924,688.73. The Assistant Secretary of Rus hmore Loan Management Ser v i c es ( “ Rushmore ” ) s igned the p roof o f c laim on behalf of
the Truman Trustee as its servicin g agent.
In accordance wi th R u l e 3 0 0 1 ( c ) ( 1 ) , the Truman Trustee attached to
its proo f of claim a copy of the Note . The attac h ed documentation also
in cluded

— immediately following the N ote

— two allon ges

. The first one ( “ First Allonge ” ) co rrectly identifie d the Note by Meier ’ s nam e, address,

an d the date and amount of th e Note . It further provides for payment of

t h e Not e “ to the Order of U.S. Bank National Association

. ” The F irst
A llonge is s igne d on b ehalf of the FDIC as receiver for Downey by Faustino S. Barrera, as “ Atto rney

- In

- Fact

. ” H e is i dentified e lsewhere a s U.S . Bank ’ s

“ Records / Lien

- Release Manager. ” According to the F irst A llonge, B arre ra

was authorized to sign the First Al longe on beha l f of the FDIC as receiver4 for Downey under a Limit ed Power of Attorney r eco rded in Dal las Co u nty , Te xas , in October 2012.
The s econd allonge ( “ Second Allonge ” ) also correctly identified the Note by Meier’s name, address, and the date and amount of the No te

. Th e

“ pay to the o rder of ” line was left bla n k , meaning the re is no specific

nam ed p ayee identifie d in the Second All on ge. The S e cond A llonge is

s igned on behalf of U.S. Bank National Association by Debra R. Wiese , who
is identified as its Vice Presiden t

. Th e documentatio n att ached to the proof of claim also inclu d ed copies of two record ed a s signments of the Deed of Trust . The fi rst o ne assigned the beneficial i nter est in the Deed of Trust from the FDIC as
recei ver for Downey to U.S. Bank National Assoc iation , and the sec o nd o ne assigned the beneficial i nter est in the Deed of Trust from U .S. Bank
Natio nal Asso ciation to th e Truman Tr us tee

. The proof of claim also
included the other stat ements and documents as required by the Rules.
Meie r then f iled her c laim o bjection a nd supporting declarations. Her claim objection larg ely hinged on a chr onologica l “ L o an A nalysis” she

p rep ared cataloguing a num ber o f perceived errors , omissions , a nd d efects
in th e origination of h e r loan and in the transfer of rights and i nter es ts in
the Note and Deed of Trust.
Based on her Loan Analysis , Meier contended a s follows : (1) Downey
sold or secur itized her loan in 2006, so the FDIC never took control of any property int e r est in her loan when it was appointed as receiver of Down ey5 in 2008; (2) none of the FDIC ’ s various agreements with U.S. Bank specifically refer red to any tra nsfer of a n ownership interest in Meier ’ s loan ; (3) U. S. Bank never paid any si gnificant consid era tion for i ts
purp o rted rece ipt of an ownership interest i n Meie r ’ s loan ; (4) neither the First Allonge nor the Secon d Allonge were properly affi xed to the Not e, so the y were ineff e ctive to give the Truman T ruste e the right t o enforce the
Note ; 3 (5) Meier notified Downey in Septem ber 2008 of her decis io n to

re sci nd the loan transaction ; (6) the FDIC

- U.S. B ank Loan Sale Agr e eme n t
contai n ed a number of defects , in cluding but not limit ed to sometimes identifying U.S. Bank a s the purchaser of the su bject loans and at othe r times merely as servi cer of the subject loans ; (7) in c onju n ction with M e i er ’ s
20 1 1 bankruptcy case, Meier made a total of four paym ents on accoun t of
the loan that ne ithe r U.S. Bank nor the Truman Trustee ever credited Meier
for ; and (8) the record ed assig nmen ts of the Deed of T rust from th e FDIC to
U.S. Bank , and from U.S. Bank to the Truman Trustee , both were defective.
In O ctober 2020, the Tru man Trustee filed a r eply in response to
Meier ’ s claim objectio n

. It also filed evidentiary ob jecti ons challeng i n g

3 In a variation of this argumen t, Meier contended that the re was plenty of room

on the Note i tself fo r an indorsement, so it w as improper for t he FDIC and U.S. Bank to use allonges at al l. But Cal. Co m

. Code § 3204 does not make insuffi cient space on the instrument itself a prerequisite to the validity of an allonge. As the official Uni f orm Commer cial Code comment accompanying th e statute specific a lly provides, “ [a]n indorsement on an all onge is valid even though there is sufficient space on the instrument for an indorsement. ”6 most o f Meier ’ s claim objection document a tion as irrelevant , lacking
authentication , and inadmissible he arsay

. Most import antl y, the Truman Trustee file d the dec laration of C alvin
Daw son , with exh ibits, in further support o f its standing to file its proof of

c laim. Dawson identified himself as an emp loyee of Rushmore and
identified Rus hmore as the Truman Trustee ’ s loan servi cer. H e also
ide nti fied hims e lf as a cus todian of records for Rushmore , which records
he stated Ru sh more maintains in the or dinary cou r s e of business

. A ccording to Dawson, th e fact s set forth in his declaration we re know n to him based on personal knowledge o r b ased on his re view of Rushmore ’ s bo oks and records.
Dawson state d that true and c o r rect copies of the Note , with the First Allonge and Second Allonge, and the Deed of T rust, were attached to his
declaration as exhibits. The copies attached to the declarat ion appear
id e ntical t o the copies at t ached to the Tru m a n Trustee ’ s proof of claim.
Daw son specified that he was “ inform ed and believe [s] ” that the Fi r st Allonge and the Secon d Allonge are “ physically attached ” to the or iginal
N ote , inasmu ch as “ they appea r in [the Trum an Trustee ’ s] chain o f c ustody

an d ti tle a s s uch according to [Rushmore ’ s] and [the Truman Trustee ’ s ]
business records. ” Import antly, Dawson additionall y stat ed that th e Truman Trustee ,

“ direct ly or th rough its Agent , is in poss ession, cust ody, and contr ol of the original e ndorsed Note and Allonges attached the r e to . . . . ”7 Meier later filed a s upplemental d eclaratio n, in whic h she attempted
to attack Dawson ’ s cr edib ility. Meier e sse n tially argue d that Dawson ’ s account of her loan documents in Rushmore ’ s custody w as un trustworthy. In support of this point, Meier ref erred to Ru shmore ’ s Se p tember 2 3, 2020

r e s po nse to her Q ualified Writte n Request for information r eg ardi ng her
loan ( “ QWR Resp onse ” )

. Meier noted that the copies of her loan
d ocum ents attached to R ushmor e ’ s QWR Response did not include an y allonges. Theref or e, she opined that D a wson ’ s a ccount re g a rding the First Allonge and Second Allonge being affi xed to th e original Note must be
inaccurate.
Meier further attacked the Dawson de cl aration by p oi nting out that the QWR Response stat ed that t he loan docum e nt s were held in a se cure l ocation in Irvine , Californ ia, whereas D awson stated th at he signed his
decl aratio n in Farmers Branch , Texa s. Based on these two points, Meier
concl uded tha t the QWR R esp onse and th e Dawson Declaration we re fatally a t odds with e a ch other , and she t herefore expressed the belie f that
Rushmore did not have a n y of her original loan d ocumen ts

— with o r without any allonges

. In Novemb er 2 020, t he Truman Trustee f iled its motio n for reli e f from
the automatic s tay under § 362( d ) ( 1) to exercise its remedies under the
Deed o f Trust against Meier ’ s residence. The Truman Trustee supported it s
moti on with a nother declaration by Da wson. This declaration in support of
reli ef from stay w as v irtually iden tical t o Dawson ’ s declaration in support8 of the Truman Trustee ’ s claim. Moreover, the copies of the loan documents
attached to both declaration s matche d those attached to the Truma n
Truste e ’ s proof o f claim.
Meier opp osed th e relief from stay motion. The typ es of arguments
she ma de in opposition mirrored those she made in her claim o bjection
papers. On Dece mber 9 , 2020, the ban kruptcy court held a reli ef f rom sta y hearing. After considering the parties ’ arguments and evide nc e , the court

g ranted the relief from stay motion, finding that the Truman Trustee had
established both its standing to seek relief from stay and cause for t h e
reque sted relie f

. O n D ecember 1 0 , 2020, the ban kruptcy court held a hearing on th e claim objec ti on

. Th e court acknowledged the di stinct standard s governing standing to seek rel ief f rom stay an d standing to file a pr oof of claim, citing
Veal v. Am erican Home Mortg age Servicing, I nc. (I n re Veal) , 450 B.R. 897, 91 3

- 15 (9th Cir. BAP 2011). Ultimately, t he c ourt concl uded that the Truman
Trustee had presented suffi c ient evidenc e t o e s tablish its standing to file a proof of claim and to establish a prima facie case regarding the v ali di ty a n d amount of its claim against Meier

. The court further found that M eier had
faile d to present an y rel evant probative e vidence to rebut the Tr uman
Trustee ’ s prima facie case supporting its claim

. On December 1 5 , 2015, the bankruptcy court entered i ts ord e r granting the Truman Trustee ’ s motion for relief from the automati c sta y.9 And on December 16, 2015 , the b a nkruptcy c ou rt en t e red its order overruling Meier ’ s claim objection. Meier timely a p pealed both orders

. JURISDICTION
The bank ruptcy co urt h ad jurisd i c t ion under 28 U.S. C

. §§ 1334 and 157(b)(2)( B ) and (G) . We have jur isdiction unde r 2 8 U.S.C. § 158.
ISSUE S
1

. Did the bankruptcy court commit reversible err or when it ove rrule d
Meier ’ s claim objection?

2

. Did the bankruptcy court commit reve rsible e rr or w h e n it grant ed
the T r u man Trustee ’ s m otion for relief from stay ?
STA N DARD S OF REVI EW
We review order s granting relief from stay for abuse of dis cretion. In
re Veal , 450 B.R. at 91 5

. Under the abuse of discretion standard, we review legal issue s de no vo and f a ct ual findi ngs un d e r the clearly erroneous
standard. Id. (citing United States v. Hinkson , 585 F.3d 1247, 1261

– 63 ( 9th Cir. 2009) (en banc) )

. Factual findings are clearly erroneo us if they are “illogical, implausible, or without support in i nferenc es tha t m ay be drawn from t h e record.” Id. (quoting Hinkson , 585 F.3d at 1263 ).
Order s overruling c l aim objections can pr esent legal issues as well as
factual issue s. Id. at 918. The f ormer are reviewed d e novo and the latter are
reviewed under t he clea rly er r o n eous standa rd

. Id

. (citing Campbell v.
Ver izon Wireless S

- CA (In re Campbell) , 33 6 B.R. 430, 434 (9 th Cir. BAP 2005) ).10 W e may affirm on any ground supported by the r ecord. Lakhany v. Khan (In re Lakhany) , 538 B.R. 555, 559 (9th Cir. BAP 2015)

. DISCUSSI ON
In b oth of her appe al s , Meier focuses exclusiv el y on standing issue s.
S he challen ges both the o r d er overruling her claim objectio n and the relief from stay order on some of the same grounds she asserted in the bankruptcy court. Moreove r, the standing a rgumen t s she asserted in h e r rel ief from stay appeal are derivati ve of those she asse rted in her claim appeal. B ecause the s tandard s g overning standing t o file a claim and to seek relief from stay a re distinct , see In re Veal , 450 B.R. at 913

- 15 , we will

a ddre ss h er two appeal s se p a rate ly.
A. Appeal from o rder overruling clai m objecti on . 1. R e l e v a n t l a w . Standing is a n “ indep endent t hreshold issue ” in all federal litigation

. Id. a t 921 (citing W arth v. Seldin , 422 U.S. 490, 498 (1975) )

. It is a n inher ently
f actual issue , and the party s e e king relief fro m the court bears the burd en of proo f to establish its stan ding. Id . at 921

- 22. In the context of a c laim objection proceeding, a duly

- filed proof of claim compliant wi th all applicable Rule s is prima fa cie ev i dence of the valid ity and amo u n t of the claim. Rule 3001(f); In re V eal , 450 B.R. at 921. However, Veal makes clear11 t hat the standing inquiry is both independent of , an d a prerequisite to , the Rule 3001(f) presumption. Id. at 921

- 22. 4 As we explain e d in V eal , a “ person entitled to en f o rce ” a note ( “ PETE ” ) has sta nding to file a proof o f claim. See i d. at 913 (r ecognizin g tha t the alleged servicer had to show that it was a PETE or the agent of a
PETE in order to claim a di stribution from the maker ’ s bankru p tcy estate in payment of the n o te ). A s V eal also pointed out , the re are several di fferent

met hods for a creditor to q ualif y as a PETE. See i d. at 910

- 1 3. Un der t he

most common an d straightforward of these methods, the cred itor becomes

a holder of th e note

— and hence a PETE

— by the p r o cess of

“ negotiation. ” Id. at 9 10

- 11. A negotiable promissory note is negotiated
when posse ssion of the original n ote is tr ansferred along with any necessary indorsements. Id. ; see also Stephen C. Veltri, Greg Cavanagh ,

4 There is one other presumption worth mentioning

. With so me exce ptions not relevant here, each si gnature o n a negot iabl e pr omissory note “ i s pre sumed to be authenti c and authoriz ed

. . . . ” Cal. Co m. Code § 3308. A s ignature on an indorsement on the face o f a promissory note qualifie s for this presumption. See, e.g. , Ba ron i v. Wells Fargo Bank, N.A

. (In re Baroni) , B AP No. CC

- 14

- 1579

- K uDTa , 2015 WL 6941625 , at *5

– 6 (9 th Cir. B AP No v. 10, 2 015)

. But a signature on an indorsement set forth on a separate piece of paper

— known as an “ allonge ”

— only qualifies as a valid indo rse ment and a s part of the instrument if it is properly affixed to the instr ument. See In re Veal , 450 B.R. at 91 1 n.24 ( c iting U. C.C. § 3

- 204(a) and relev ant case law); see also Cal. Com

. Code § 3204(a) (same). Here, Meier has not challenged the authenticit y o f th e signatures or the authorization of the signatories on th e First and Second Allo nges. Ins tead , she ch al lenges th at the tw o allonges were properly affixed to the Note. If she were corre ct, the t wo allonges would not qualify as valid indorsements. Se e I n re Veal , 450 B.R. at 911 n.2 ; Cal. Com

. Code § 3204(a)

. In short , the Cal. Com

. Code § 3 308 presumption is nei ther relevant n or h elpful to our resolution of the val idity of the a llonges

.12 Paym e nts , 67 Bus. L . 1257, 1267 ( 2 012) (citing U.C.C. § § 1

- 201(b)(21)(A), 3

- 201, 3

- 204 & 3

- 205 ). 5

2. The Truman Trustee established its standing to file a pr oof of clai m. Here, the Truman Trust e e presented all of the evidence ordinarily required to e stabli sh that it w a s a holder of th e No te and thus quali fied as a PETE. In hi s de claration, Dawson state d his knowledge base d on his role as
one of the custodian s of records f or Rus hmore , which serve s as the Truman
Trustee ’ s ser vic ing ag ent. Base d on those recor ds, he state d th at the original Note, with the Fi r st and S e cond Allo nge s atta ched , wa s in the
po ssession , custody, and control of e ither the Truman Trus t ee or
Rus hmore, a ct ing as the Truman Truste e ’ s agent. He also attached to his
declaration a “ [ t ] r ue and co rrect ” copy of the Note, along with the accompanying allonges.
An e xamina tion of the allonges attache d as exhibits reflect s that the
Firs t A llonge , e x ecuted by the FDIC ’ s attorney

- in

- fact , made the Note payable to the order of U.S. Bank Nat i o nal Associ ati on . And the Second Allonge, executed by a vice president of U.S. Ban k Nati onal Ass ociation , made the Note payable to whoever h eld possession of the or iginal Note,
because the Second Allonge contain ed an indorse ment in blank. See Lane v.

5 B oth parties have assumed that the N ot e qualifies as a negotia ble ins trument within the meaning of Cal. Com . Code § 3 104(a). T he bankruptcy co urt also treated the No te as a ne g otiable instrument

. We do the same. A ny issue regar ding whether the Note a ctually qualifies as a negotiable instrument has be en forfei ted

. See Go lden v. Chi

.13 Bank o f N

. Y

. Mellon ( In re Lane ) , 959 F.3d 1226 (9th Cir. 2020) (ci ting Cal.
Com. Code § 3205(b) ) ; Zi pser v. Ocwen Loan Servicing, LLC (In re Zi pser) , BAP No. CC

- 15

- 1 258

- FT a K u , 2016 WL 1168736, at *3 ( 9th Cir. BAP Mar. 23,
201 6), aff'd , 699 F. App ’ x 673 (9t h Cir. 2017) ( “ We h ave repeatedly held that a possessor of a note endorsed in blank is a party entitl ed to enforce the note and foreclose on any collateral. ” ).
The bankruptcy court considered the documents th e Truman Trustee
prese nted in support of its pr o o f of claim and co nsidered them to be strong

ev idence supporting the Truman Trustee ’ s st anding. Meie r has consistently disagreed and believes that the Truman Trustee ’ s evidence was unreliab le.
In addition , she repea t e dly ha s expressed the concern that the Truma n
Trus tee is not really the person entitled to enforce t h e Note. Despite over a d ecade of n onpa yment , fou r bankruptcy filings, and several state court lawsuits, there is no evidence that any other entity has claimed a right to
enforce th e Note adverse to U .S. Ba nk or t he Truman Trustee

. Still, w e
examine the grounds she has asserted in suppo rt of he r concer n s.
Meier asse rts that D awson ’ s declar ation and his l oa n docu m ent
exhibits a re untrustworthy and inaccurate

. She point s to three different

ver sions or sets of copies of her loan documents th at she has received during he r years of lit igati on with t he Truman Trustee ’ s pre decess or in
interes t U.S. Bank

. One of these sets of copies was attached to U.S. Bank ’ s proof of c laim filed in Meier ’ s 2011 ban kr uptcy c a se

. An other set of copies

Title Ins. Co. (In re Choo) , 273 B.R. 608, 613 (9th Cir. BAP 2002).14 allegedly was filed by U.S. Bank in Meier ’ s state court l itigation

. A nd y et
another set was included in Rushmore ’ s QWR Response

. Of the se three versions of loan d ocument copies , the 2 0 11 proo f of
clai m version and the QW R Respo nse version included no allonges . But
one set of loan document copies

— the set allegedly from the sta t e court litigation

— contained a single allonge f rom th e FDIC to U.S. Bank (the
“Old A llonge”)

. The Old A l l onge differ s from the Firs t Allonge

. 6 Howeve r, unlike the First and Secon d Allonges, the Old Allonge was not attached to
the i dentical copie s of the Note accompanying the Truman Trustee ’ s proof
of claim and t he Dawson declarati ons

. Meier also continues to challeng e the trustworthiness of th e Dawso n declarati on based upon Dawson ’ s sign ing of his declaration in Texas,
whereas Rus hmore stated i n its QWR Response that the original loa n documents were held in a secure loca t ion in Ir vine, California.
Meier ’ s arguments on appeal do not differ f ro m those she made to
the ba nkruptcy court. In short, she contends that the court erred bec ause it
did no t adopt her argum ents and view of the evidence that it was impossible to discern which of the l oan document copies is the true and correct copy of the or iginal loan documents. This lea ds her to conclude that

6 The Old All on ge differs f rom the First Al longe in several respects. The Old Allonge is signed by a different person as attorney

- in

- fact for the FDIC and rel ies on a di ffe rent li mited power of attorney , whi ch was recorde d on a different da te

— an earlier date. The Old A llonge also listed a different (incorrect ) date for the Note. In any event, both the Old Allonge and the Firs t Allonge purport to accomplish the exact sam e t hing :15 the Truman Trustee ’ s loan d o cument copies are in ac curate and that the First Allonge and the Second Allonge are not act ually affixed to the Note. But the bankruptcy court considered all of the evide nce and we igh ed
it in the context of the argument s presented. It found th e Truman Trustee’s
evidence stron g ly supported its standing. It also found Meier ’ s evidence to be lacking and susceptible to evidentiary challenges . The court considered
Meier ’ s evide nce but i ncl uded its evidentia ry concerns in facto ring the

w eigh t it should be given

. This l e d the court t o co n clude that it could not

“ really give them as mu ch credit as Ms. Meier would like me to

. ” Dec

. 1 0,
2 020 Hr ’ g Tr. at 20:6

- 7. Ind eed, our review of th e evide nce shows that Meier failed to lay any foundati on t ying her loan doc ument copies to a specific ti me period and a specific procedural posture that would tend to
d emonstrate that they are true, correct, and complete copies of the original
loan d ocu men ts as t hey appea r ed at the time U.S. Bank transferred
poss ession of the ori ginal Note to t he Truman Trus tee. Under similar circumstances, we have observed that “ the absence of indorsements [or allonges] on some note copies does not by itself cast genuin e d oubt on the
auth enticity of indorsements [or allonges] app earing on other c opies of the

sa me note. ” Arri ola v. Naylor ( In re Arriola ) , BAP No. CC

- 15

- 1092

- K u FT a , 2016 WL 1384788, at *2 n.3 ( 9th Cir. BAP Apr. 5, 2016) (citing In re Baroni , 2015 WL 6941625 at *5

– 6 )

.

t he transfer of the right to enforce the No te fr om the FDIC to U .S. Bank

.16 Put bl untly, Meier sim ply does not believe t hat t he documents the
Truman Trustee submitted as t he Note, including the two allonges, are

accurate or that the Truman Trus tee quali fies as a PETE. But the bankruptcy court wei ghed the e vidence

. It cred i t ed th e Truman Trustee ’ s documentary ev idenc e and the Dawson declaration while finding Me ier ’ s evidence le d to nothing but mere speculation. Based on its view o f the

ev idence , the bankruptcy court determined that the Truman Trustee i s the
holder of the No t e , i s the “ person entitled to enforce ” it, a nd th us ha d standing to file its proof of c la im. None of Me ier ’ s argumen t s regarding the allonges and the varying copies of the loan documents demonstrate any factual or legal error in the bankruptcy court ’ s con t rol lin g det ermination. 7

7 Even if the all o nges were not ade quately affixed to her Note , this at most wo uld h ave prevented the Truman Trustee from qualifying as a “ holder ” of the Note

. Veal

o bserve d tha t a cre d ito r al ternatel y can establish i ts PE TE status by demonstrating that it is a “nonholder in possession of the [note] who has the rights of a holder.” I n re Veal , 450 B.R. a t 911 ( quo ti ng U

. C

. C

. § 3

– 301(ii) ) ; se e also Cal. Com. Code § 3301( same)

. A s V

ea l exp l ain ed, the failure of the transfer ee in possession of the note to obtain v ali d indorsem e nts “ does not prevent [the transfer ee in possession] from bein g the ‘ person entitle d to enforce ’ the note

. . . . ” 450 B.R. at 911. The transfer ee in possession stil l qu alifies for PETE s t atu s so long as the transferee can de monstrate both the fact of del ivery of the n ote and the fact that delivery of the note was given for the purpose of qu alifying the tra nsferee for PETE sta tus. Id. at 911

- 12 (citing U

. C

. C

. § 3

– 203(a) ) ; see als o C al. Com

. Co de § 3203 (a) ( “ A n instrument is tr ansferred when it is delivered by a person o ther th an its issuer for the purpose of giving to the person receivin g del i very the right to enforce the instrument

. ” ). In this case, the Fi r st and Second A llonge s

— e ven if i nad equately affixed to the Note

— stil l evidenced th e chain of deli ver ies of the original Note from the FDIC to U.S. Bank , and from U.S. Bank to the Tr uman Trustee

. They al so evidenced the purpose of these deliveries : to enable the transf eree i n eac h i n sta n ce to enforce the Note.17 3

. Any s ecu riti zat ion of the Not e does not affect th e Truman T rustee ’ s stand ing t o file the proof of cl aim.
Aside from her a rguments regarding th e allonges, all of Meie r ’ s other arguments on appeal pertain to owner ship of the N ot e

— a s opposed to
who is ent itled to enfo rce the Note. These owne rship

- related arguments
incl ude her c ont ention th at Downe y secu ritized o r sold her loan at the time of orig ination , that Meier ’ s l oan was not part of the portfolio of loan s the
FDIC transfe rr ed to U.S. Bank, and t hat U.S. Bank never pa id any
consideration in exchange for own ersh ip of th e loan

. Meier ’ s ownership

- related arguments d o not im p rove her position.
As reco gnized by the bankruptcy court, s ecuritiza t ion does not defeat the
notehold er ’ s PE TE status , nor i s it o f any con ce rn t o Me ier as the maker of

t he Note . Indeed, it is we ll establish ed t hat “ [s] ecuritization merely creates a separate contract, disti nct from [ the maker ’ s] debt obligations under the note and does not change the relat io nsh ip of the parties in a ny way.” Boone

v . D eutsche Bank Nat ’ l Tr . Co. , Case No. 2 : 16

- CV

- 1293

- GEB

- KJN P S, 2017 WL 117966, at *6 (E.D. Cal. Jan. 12, 2017) ( clea ned up). In any event, Meier conf late s the issue of ownersh ip with the issue of
who is entitle d to en force her No te

. T he Commercial Code mak es clear that

a pa rty may qualify for PETE st atus even thou gh it do es not own the promisso ry note. As st ated in Cal. Com. Code § 3301, “ [a] person may be a person entitled to e nforce the instrument even though th e per so n is not the

owner o f the instrument or is in wrongful posse ssion of the instrumen t. ”18 Ve al expl aine d the importance of the dis tin ction between PETE statu s

an d ownership of the note : [T] he rules that determine who is entitled to enforce a note are

c on cer ne d primarily with the maker of the no te. They are designed to provide for the maker a relatively simpl e way of determining to whom the obligatio n is owed and, thus, [ who ] the maker must pay in order to avoid defaulting on the obligation. By contrast, t he ru les concerni ng trans fer of ownership a n d other interests in a note identify who, a mong competing clai mants, is entitled to the note ’ s economic value (that is, the value of the maker ’ s promise to pay).
In re Veal , 450 B.R. at 912 ( cleaned up )

. As V ea l h el d, PETE status

— not ownership of th e n ote

— determines
who has standing to file a proof of clai m. I d

. at 913. The ultimate ownersh ip
of the no te

— w ho ultimately is supposed to receive the payments the
debtor has not made in this instance

— does no t imp ac t our PETE anal ysis,
nor is it the d ebt or ’ s concern where he r payments are ultimat ely supposed

t o go

. In s hort, Meier ’ s argument s pertaining to ownership of the Note are
irrelevant to the issue of who was entitled to enforce the Note and who
thus ha d st and ing to file a proof of clai m.
B. Appeal from or der granting relief fr om stay.
Mei er essentiall y relie s on the s ame arguments in support of her appeal from the relief from stay order. She makes the same irrel evant points challenging the Truman Trustee ’ s own er sh ip o f the N ote

— as
oppo sed t o its e ntitle ment to enforce the Note . She also reiterates he r contentions reg arding Dawson ’ s declaration testimony and regarding her19 belief that the First and Second Al longes were not affix ed to the original
Note.
T he lega l stand ard fo r establishing standing to seek relief from stay is
si gnificantly more liberal t han the standard for standing to file a p roof of

c laim. In the relief from stay context, the creditor can establish its standing merely by demonstrating the e xis te nce of “ a colorabl e claim to enforce a right against propert y of the estate

. ” I d

. at 914

- 15 ( c iting United States v. Gould (In re Gould) , 401 B.R. 415, 425 n. 14 (9th Cir. BAP 2009) ).
There a re several rea son s why a more

- liberal st an di ng sta ndard is
ap pli ed in the relief f rom stay conte xt . These reasons include the su mmary

a nd expe di ted nature of relief from stay proc eedings a nd the fact that such proceeding s canno t and do not finally determine the parties ’ respective rights in the p ro per ty that is the su bject of the motio n

. I d . a t 914 (citing Jo hnson v. Righetti (In re Johnson) , 756 F. 2d 738, 740

– 41 (9th Cir. 1985) ). Here, th e Daws on declaration filed in support of the Truman
Trust ee ’ s relief from sta y motion not only covered the sa me po ints regarding th e Note and the all onge s we discuss abo ve but al so atteste d to
the existen ce and r e cording of th e De ed of Trust and the two a ssign ments
of the D eed of T rust . Under California law, the beneficiary under a deed of

tru st

— or its succ e ss or by assi gnment

— may initiate nonjudic ial foreclosure proceedi ng s against the borrower regardless of w h ether the
ben eficiary demonstrates its pos s ession of the note secured by the deed of

trust

. See Jimenez v. ARCPE 1, LL P (In re Jimenez) , 613 B.R. 53 7 , 54 5 ( 9th Cir.20 BAP 2020 ) (citing Debrunne r v. Deutsche Bank Nat'l Tr

. Co. , 204 Cal. App. 4th 433, 440

– 42 (2012) ). This right to foreclose under st ate law cons titutes the requisite colorable claim and the attendan t standing to se ek rel ief from stay
to f o re cl os e

. Id.
Alternatel y, the same facts that established the Tru man Trustee ’ s standing to file the proof o f c laim also w ere s ufficie nt to establish its standing to seek relief from stay. Once the Truman Trustee established its

en titlement to enforce the no te , i ts righ t to addit ionally enforce th e de ed of
trust naturall y fo llowed as a matter of law

. See Yvanov a v. New Centur y Mortg. Corp. , 62 Cal. 4th 919, 927 (2016) (citing Cal. Civ. Code § 2936); see also Carpenter v. Longan , 83 U.S. 271, 274 (1872) (“T h e tr ans fer of the note

c arries with it the sec urity, without any f ormal assignment or delivery, or

even men t ion of the lat ter.”). Accordingl y, the T ruman Trustee more than met its burden to establish its standing t o seek relief from sta y. And the bankrup t cy c our t

correc tly deter mined that the Tru man Trustee ha d standing

. Meier forfeited a ny other argument s s h e might have m ade to challenge the court ’ s relief from stay order by failing to include them in her
open ing appeal brief. See Christian Lega l Soc'y v. W u , 626 F.3d 483, 487

– 88 (9th Cir. 2010 ); B rownfield v. City of Yakima , 612 F.3d 1140, 1149 n.4 (9th Cir

. 2010)

.21 C O NC LUSION
For the reasons set fo rth above, we AFFIRM both the bankruptcy

court ’s order overruling Meier ’s claim objection and the order gr ant i ng the
Truman Trustee ’s m otion for rel ief f rom the automatic s tay.