Patrick Bernard Roberts and Chandelle Catherine Roberts

Motion for Relief from Stay, 34907 38th Avenue Ct E, Eatonville, WA 98328. Proof of Service.

Bankr. W.D. Wash.April 8, 2020

Motion for Relief - 1 MH# WA-19-157110 McCarthy & Holthus, LLP 108 1st Avenue South, Ste. 300 Seattle, WA 98104 (206) 596-4856 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 The Honorable Mary Jo Heston Chapter 13 Hearing Location: Telephonic Hearing Date: April 30, 2020 Hearing Time: 1:00 p.m. Response Date: April 23, 2020 UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF WASHINGTON In re: Patrick Bernard Roberts Chandelle Catherine Roberts aka Chandelle Catherine Osborne Debtors Case No.: 19-42678-MJH Chapter 13 MOTION FOR RELIEF FROM STAY AND MEMORANDUM IN SUPPORT THEREOF COMES NOW, Guild Mortgage Company (“Creditor”) and moves the Court pursuant to 11 USC §362(d) for an Order Terminating the Automatic Stay, allowing Creditor to proceed with any and all contractual and statutory remedies incident to the interest held by virtue of the note and deed of trust described below and attached as exhibits to this motion and memorandum. I. RELEVANT FACTS A. The Property On or about June 5, 2017, Patrick Roberts and Chandelle Roberts executed a note in favor of Guild Mortgage Company in the original principal amount of $397,664.00 (“Note”). The debt described by the Note is secured by a deed of trust (“Deed of Trust”) properly recorded and creating a lien against property commonly described as 34907 38th Avenue Ct E, Eatonville, WA 98328 (the “Property”). Case 19-42678-MJH Doc 29 Filed 04/08/20 Ent. 04/08/20 15:52:50 Pg. 1 of 5 Motion for Relief - 2 MH# WA-19-157110 McCarthy & Holthus, LLP 108 1st Avenue South, Ste. 300 Seattle, WA 98104 (206) 596-4856 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Creditor is the holder of the Note and thus has standing to enforce the Note pursuant to RCW §62A.3-301. The Deed of Trust was pledged as incident to the Note and thus, as the holder of the Note, Creditor also has the right to enforce the Deed of Trust that follows the note. Subsequent to the execution of the Note and Deed of Trust, Debtors have filed for protection under Chapter 13 of Title 11 of the United States Code. Upon information and belief, no foreclosure sale is pending as of the date of this motion. B. The Debt As of March 31, 2020, Debtor is due for the February 1, 2020 payment. The approximate amount owed under the terms of the Note is $380,529.04. This is an approximation of the lien, including principal balance plus accrued interest, late charges, escrow shortages and other fees and costs, as allowed under the terms of the Deed of Trust. This estimate is accurate as of the date provided to counsel for the Creditor and is intended only for the purposes of this motion. This amount cannot be relied upon for any other purposes, including payoff of the secured debt. A complete, date specific and itemized payoff figure may be obtained from Movant upon written request to counsel for Creditor. C. The Value of the Property The value of the Property as represented in Debtor’s sworn schedules is $450,000.00. D. The Post-Petition Default Debtors have defaulted post-petition for payments due on and after February 1, 2020. As of the date of this motion, the total post-petition default is itemized as follows: Case 19-42678-MJH Doc 29 Filed 04/08/20 Ent. 04/08/20 15:52:50 Pg. 2 of 5 Motion for Relief - 3 MH# WA-19-157110 McCarthy & Holthus, LLP 108 1st Avenue South, Ste. 300 Seattle, WA 98104 (206) 596-4856 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 2/01/2020 – 4/01/2020 $2,570.14 $7,710.42 Less suspense ($129.86) Total Due: $7,580.56 II. ARGUMENT AND AUTHORITY A. Standing To prosecute a motion for relief from the automatic stay as to enforcement of a note and deed, a movant must establish that it has an interest in the note, either as a holder, or as a party entitled to enforce the note. See In re Veal, 450 B.R. 897 (9th Cir. BAP 2011). In the case at bar, the declaration and exhibits supporting the motion establish that Creditor is the holder of the Note and thus has standing to prosecute the present motion. B. Basis for Relief from Stay Under 11 U.S.C. 362 (d)(1), the court shall grant relief from the stay for cause. Significant default under the terms of a Chapter 13 plan is cause sufficient to terminate the automatic stay. In re Ellis, 60 B.R. 432 (9th Cir. BAP 1985). In the case at bar, Debtor has failed to perform as promised under the terms of the Chapter 13 plan and thus there is cause to terminate the stay. III. RELIEF REQUESTED For the reasons stated above, Creditor requests: 1. An Order Terminating the Automatic Stay. 2. Alternatively, for an Order requiring adequate protection of Movant's interest in the Property. Case 19-42678-MJH Doc 29 Filed 04/08/20 Ent. 04/08/20 15:52:50 Pg. 3 of 5 Motion for Relief - 4 MH# WA-19-157110 McCarthy & Holthus, LLP 108 1st Avenue South, Ste. 300 Seattle, WA 98104 (206) 596-4856 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3. For such other relief as the Court deems proper. Dated: April 8, 2020 McCarthy & Holthus, LLP /s/ Lance E. Olsen Lance E. Olsen, Esq. WSBA #25130 Michael S. Scott, Esq. WSBA #28501 Attorney for Movant Case 19-42678-MJH Doc 29 Filed 04/08/20 Ent. 04/08/20 15:52:50 Pg. 4 of 5 Certificate of Service - 5 MH#WA-19-157110 McCarthy & Holthus, LLP 108 1st Avenue South, Ste. 300 Seattle, WA 98104 (206) 596-4856 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 CERTIFICATE OF SERVICE On 4/8/2020, I served the foregoing NOTICE OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY; MOTION FOR RELIEF FROM AUTOMATIC STAY; DECLARATION IN SUPPORT OF MOTION FOR RELIEF FROM AUTOMATIC STAY AND ALL EXHIBITS SUPORTING THE MOTION AND DECLARATION on the following individuals by electronic means through the Court’s ECF program: TRUSTEE Michael G. Malaier ecfcomputer@chapter13tacoma.org DEBTORS’ COUNSEL Brett L Wittner BLWittner@bvmm.com I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. /s/ Andrei Mihai Andrei Mihai On 4/8/2020, I served the foregoing NOTICE OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY; MOTION FOR RELIEF FROM AUTOMATIC STAY; DECLARATION IN SUPPORT OF MOTION FOR RELIEF FROM AUTOMATIC STAY AND ALL EXHIBITS SUPORTING THE MOTION AND DECLARATION on the following individuals by depositing true copies thereof in the United States mail, enclosed in a sealed envelope, with postage paid, addressed as follows: DEBTORS Patrick Bernard Roberts, 34907 38th Ave. Ct. E., Eatonville, WA 98328 Chandelle Catherine Roberts, 34907 38th Ave. Ct. E., Eatonville, WA 98328 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. /s/ Hue Banh Hue Banh Case 19-42678-MJH Doc 29 Filed 04/08/20 Ent. 04/08/20 15:52:50 Pg. 5 of 5