standing order prime asset fund ii is not a holder

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UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEVADA

* * * * * *

In re:

VLADISLAV KHOMUTOV and MICHIKOKHOMUTOV,

Debtors.

)))))))))

Case No.: BK-S-10-25290-BAM

Chapter 13

Date: March 15, 2011Time: 2:30 p.m.Courtroom: 3

MEMORANDUM DECISION REGARDING STANDING TO MOVE FOR RELIEF FROM

STAY

I. INTRODUCTION

Vladislav Khomutov and Michiko Khomutov (the “Debtors”) filed Chapter 13 bankruptcy

on August 12, 2010. (Dkt. No. 1). On October 13, 2010, Prime Asset Fund II, LLC (“PAF”), filed1

three motions for relief from stay. (Dkt. Nos. 68, 71, 74; the “Motions”). Debtors opposed the

Motions, arguing that PAF lacked standing to move for relief from stay. (Dkt. No. 190 at 3).

Specifically, Debtors maintained that the endorsements by allonge were deficient because: (i)

allonges are only permissible if there is no blank space remaining on the note to be endorsed and (ii)

the endorsements were not affixed to the Notes. (Id. at 3, 5). These deficiencies, they argued, were

fatal to PAF’s claim that it was entitled to enforce the Notes. (Id. at 6). On this basis, Debtors

Unless specified otherwise, all “Chapter” and “Section” references are to the Bankruptcy Code,1

11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, Rules

1001-9037, and all “Civil Rule” references are to the Federal Rules of Civil Procedure.

__________________________________Hon. Bruce A. Markell

United States Bankruptcy Judge___________________________________________________________

Entered on Docket October 13, 2011

Case 10-25290-bam Doc 374 Entered 10/13/11 08:02:44 of 13

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argued, PAF lacked standing to bring the Motions. (Id. at 6). Having considered the evidence

presented at the hearing on this matter and the papers filed by the parties, this court concludes that

PAF has standing to bring the Motions.

II. FACTS

A. The Notes, Deeds, Assignments, and Endorsements by Allonge

Debtors executed three promissory notes (each a “Note,” and collectively, the “Notes”) and,

contemporaneously therewith, three deeds of trust (each a “Deed,” and collectively, the “Deeds”) to

finance three properties (the “Properties”) situated at: 6033 Shenandoah Avenue, Las Vegas, NV

89156 (the “Shenandoah Property”); 6012 Bryce Canyon Avenue, Las Vegas, NV 89156 (the “Bryce

Canyon Property”); and 6255 Mt. McKinley Avenue, Las Vegas, NV 89156 (the “Mt. McKinley

Property”). (Dkt. No. 306; Exs. A, B, C, D, E, F). M&I Bank FSB (“M&I”) was the original payee2

on the Notes and the original beneficiary on the Deeds. (Dkt. No. 306; Exs. D, E, F). PAF

subsequently came into possession of the Notes and Deeds, as well as the endorsements (the

“Endorsements by Allonge”) and assignments (the “Assignments”) corresponding to those Notes3 4

and Deeds. (Dkt. No. 306 at 3).

PAF included copies of the Deeds in its Supplemental Brief in Support of Motions for Relief2

From the Automatic Stay Re: Bankruptcy Estate (“PAF’s Supplemental Brief”). Dkt. No. 306; Exs.

A, B, C. PAF also included copies of the Notes. Dkt. No. 306; Exs. D, E, F.

PAF’s Supplemental Brief also included copies of the endorsements by allonge (the3

“Endorsements by Allonge”). Dkt. No. 306; Exs. G, H, and I..

PAF’s Supplemental Brief included copies of these Assignments along with the Deeds to the4

properties. Dkt. No. 306; Exs. A, B, C. The Assignments clearly identify M&I as the party granting,

assigning and transferring its interests. Dkt. No. 306, Exs. A, B, C. They clearly identify PAF as the

party receiving those interests. Id. Each Assignment references the respective Deed by date. Id. Each

identifies the respective Note by reference to the Deed. Id. Each Assignment also lists the parcel

identification number of the property to which it relates. Id.

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B. The Motions for Relief from Stay

On October 13, 2010, PAF moved for relief from stay on all three properties. (Dkt. Nos. 68,

71, 74). At the time of filing, PAF claimed a lack of adequate protection sufficient to show cause5

for relief under Section 362(d)(1). (Dkt. Nos. 68, 71, 74). The court heard the Motions on6

February 15, 2011. At the hearing, PAF produced the original Deeds, Notes, Endorsements by

Allonge, and Assignments. The court continued the hearing to March 15, 2011. The court took all7

three matters under submission on June 16, 2011. (Dkt. No 271).

On June 17, 2011, Debtors filed a document, which the court deemed an Ex Parte Motion to

Vacate Submission, and requested that the court allow additional briefing on this issue. (Dkt. No.

274). On June 29, 2011, the court vacated submission of the three matters and ordered the parties to

submit supplemental, “blind,” briefs on the issue of whether PAF had standing to move for relief

from stay. (Dkt. No. 290). The court’s order specified that the matter would be deemed under

submission upon the briefing deadline: 5:00 p.m. on July 22, 2011. (Id.)

1. Debtors Challenge PAF’s Standing to Move for Relief From Stay

The Motions did not include copies of the Notes or the Endorsements by Allonge, only copies5

of the Deeds and corresponding Assignments, collectively attached to each of the Motions as Exhibit

B. See Dkt Nos. 68, 71, 74.

In the Motions, PAF estimated the value of the Shenandoah Property at $79,500.00; the6

combined total of outstanding principal ($84,794.39) and arrears ($14,802.40) was $99,596.79. Dkt.

No. 74 at 3. The estimated value for the Bryce Canyon Property was $88,500.00; the total amount of

outstanding principal ($101,455.76) and arrears ($17,069.11) was $118,524.87. Dkt. No. 71 at 3. The

Mt. McKinley Property’s estimated value was $70,500.00; the total amount of outstanding principal

($78,623.33) and arrears ($14,727.42) was $93,350.75. Dkt. No. 68 at 3.

At the continued hearing, the parties raised the applicability of Reswick v. Reswick (In re7

Reswick), 446 B.R. 362 (B.A.P. 9th Cir. 2011) as a Civil Rule 60 issue. In order to provide the parties

an opportunity to address the issue, the court did not take the matters under submission at the

conclusion of the continued hearing. On June 14, 2011, the court heard PAF’s Motion for Application

Of In Re Reswick (B.A.P. 9 [sic] Cir. 2011 Per FRCP Rule 60. After the hearing, the court took theth

matters that are the subject of this memorandum decision under submission. Dkt No. 271.

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Debtors argue that PAF did not have standing to move for relief from stay because the

Endorsements by Allonge are deficient. (Dkt. No. 190 at 3). Debtors claim that the endorsements

do not satisfy applicable requirements because: (i) allonges are only permissible if there is no blank

space remaining on the note to be endorsed and (ii) the endorsements were not affixed to the Notes.

(Id. at 3, 5). Debtors maintain that this deficiency is fatal to PAF’s claim that it is entitled to enforce

the Notes and that it therefore has standing to move for relief from stay. (Id. at 6.)

2. PAF Claims It Has Standing to Move for Relief From Stay

PAF argues that it is entitled to enforce the Notes because it is in possession of the Deeds,

together with the assignments of the Deeds from M&I to PAF, and the Notes, with the

Endorsements by Allonge. (Dkt. No. 306 at 6).

PAF maintains that the transactions involving the notes between M&I and PAF constituted a

“negotiation,” and that it is thus the proper “holder” of the Notes. (Id. at 6, 7). PAF claims that the

Notes were properly endorsed, as required by NEV. REV. STAT. § 104.3204. (Id. at 6). According

to PAF, the endorsements specify PAF’s right to payment of each of the Notes; they identify each of

the subject properties by date of the Note, the original principal amount, and the property address;

and they bear the stamped signature of M&I’s Vice President, John A. Muroni. PAF contends that

the only deficiency in these transactions between it and M&I is that each Endorsement by Allonge

was not physically affixed to its respective Note. (Id.) But this deficiency, PAF contends, is not

fatal to its claim that it are entitled to enforce the Notes because the Endorsements by Allonge

satisfy the specificity requirements set forth in the UCC. (Id. at 7-8).

Alternatively, PAF argues that even if it is not a proper holder of the Notes, it is still entitled

to enforce the Notes as a transferee. (Id. at 8.) It claims the Notes were properly transferred by M&I

to PAF. (Id.) PAF argues that the Endorsements by Allonge, the Assignments of the Deeds, and the

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affidavits of custodian of records (the “Affidavits”) “evidence intent by M&I to transfer holding8

and ownership of the documents, and the rights as a holder to collect on the subject indebtedness

along with all other rights of ownership, to PAF” and “PAF’s desire and intent to succeed as the

holder and to be the person entitled to enforce those rights as a subsequent holder.” (Id.) PAF

contends that “[t]here can be no doubt that PAF as possessor of the notes has thus demonstrated

both the fact of actual delivery (it holds the notes) and the purpose of the delivery by M&I to PAF . .

. .” (Id.)

III. DISCUSSION

A. Standing

“In every federal case, the party bringing the suit must establish standing to prosecute the

action.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98

(2004). Standing is a “threshold question in every federal case, determining the power of the court

to entertain the suit.” Warth v. Seldin, 422 U.S 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). A

party seeking to establish standing must make the requisite showing under constitutional standing

requirements and prudential standing principles. Newdow, 542 U.S. at 11.

1. Constitutional Standing

To satisfy constitutional standing requirements, a party must establish an injury-in-fact, that

is caused by, or fairly traceable to, the defendant’s allegedly unlawful conduct, which the requested

relief will likely redress. Arizona Christian Sch. Tuition Org. v. Winn, — U.S. —, —, 131 S.Ct.

The court places little weight on the Affidavits by Ms. Kimberly Henson, a Foreclosure8

Specialist for PAF. The Affidavits, identical in all respects except for the property referenced in each,

read, in pertinent part: “All of the, [sic] records and documents which I have examined are in the

custody, supervision and control of Prime Asset Fund II, LLC and are complete, accurate and correct.”

Dkt. No. 306; Exs. J, K, L. However, the Affidavits do not describe in any degree of detail which

records and documents are the subject of the Affidavits nor were the records and documents referenced

therein attached to the affidavits. Id. While the court could assume that the records and documents

are the Notes, Deeds, Endorsements by Allonge, and Assignments at issue here, the court declines to

do so.

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1436, 1442, 179 L.Ed.2d 523 (2011); Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269,

273-74, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008); United Food & Comm’l Workers Union Local 751

v. Brown Grp., Inc., 517 U.S. 544, 551, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996).

With respect to constitutional standing requirements, PAF has made the requisite showing.

PAF has shown an injury-in-fact: the automatic stay prohibits its right to exercise its alleged

remedies against the Debtors. PAF has established causation: PAF may not exercise its

nonbankruptcy remedies as a result of the existence of the automatic stay. PAF has also

demonstrated that the requested relief from the automatic stay would permit it to do that which the

stay prevents: exercise its alleged remedies against the Debtors.

2. Prudential Standing

A party seeking to establish standing must also make the requisite showing under principles

of prudential standing. Newdow, 542 U.S. at 11; County of Kern, 581 F.3d at 845. Prudential

standing “embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction.’”

Newdow, 542 at 11 (quoting Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed.2d 556, 104 S. Ct. 3315).

These limits include “‘the general prohibition on a litigant’s raising another person’s legal rights, the

rule barring adjudication of generalized grievances more appropriately addressed in the

representative branches, and the requirement that a plaintiff’s complaint fall within the zone of

interests protected by the law invoked.’” Id. A party satisfies prudential standing requirements

where it asserts its own legal rights and interests, and not the legal rights of others. Sprint, 554 U.S.

at 289; Warth, 422 U.S. at 499. Accordingly, Civil Rule 17, applicable to relief from stay motions

by Rule 9014 “‘generally falls within the prudential standing doctrine.’” In re Weisband, 427 B.R.

13, 18 (Bankd. R. Ariz. 2010) (citing In re Wilhelm, 407 B.R. 392, 400 (Bankr. D. Idaho 2009)).

Here, PAF will not satisfy prudential standing principles if, under applicable substantive law,

PAF has no legal right to enforce an obligation or seek a remedy with respect to it. Veal v. Am.

Home Mortg. Servicing (In re Veal), 450 B.R. 897, 907 (B.A.P. 9th Cir. 2011) (citing Doran v. 7-

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Eleven, Inc., 524 F.3d 1034, 1044 (9th Cir. 2008)). Put another way, PAF will not make the

requisite showing unless it establishes “a colorable claim to enforce a right against property of the

estate.” In re Veal, 450 B.R. at 914-15 (citing United States v. Gould (In re Gould), 401 B.R. 415,

425 n.14 (B.A.P. 9th Cir. 2009); Biggs v. Stovin (In re Luz Int’l, Ltd.), 219 B.R. 837, 842 (B.A.P.

9th Cir. 1998) (further citations omitted)). A showing that PAF is a entitled to enforce translates to

a colorable claim. In re Veal, 450 B.R. at 913.

B. The Applicable Substantive Law

Under Nevada law, Article 3 provides the rules governing the payment obligations arising

under a negotiable instrument, such as a mortgage note, and the rules for identifying the proper9 10

party the maker of the note must pay to satisfy and discharge those obligations. NEV. REV. STAT. §11

104.3102. See Leyva v. Nat’l Default Servicing Corp., 127 Nev. —, —, 255 P.3d 1275, 1279-80

(Nev. 2011) (clarifying the applicability of Article 3 to mortgage notes).

A mortgage note can be made payable to bearer or payable to order. NEV. REV. STAT. §

104.3109. See Leyva, 255 P.3d at 1280. A note is payable to bearer if it “[s]tates that it is payable

to bearer or to the order of bearer or otherwise indicates that the person in possession of the [note] . .

. is entitled to payment.” NEV. REV. STAT. § 104.3109. A note “that is not payable to bearer is

A “negotiable instrument” means an unconditional promise or order to pay a fixed amount of 9

money, with or without interest or other charges described in the promise or order, if it:

(a) Is payable to bearer or to order at the time it is issued or first comes into possession

of a holder;

(b) Is payable on demand or at a definite time; and

(c) Does not state any other undertaking or instruction by the person promising or

ordering payment to do any act in addition to the payment of money . . . .

NEV. REV. STAT. § 104.3104(1). See Leyva, 255 P.3d at 1280.

“A mortgage note is a negotiable instrument, and any negotiation of a mortgage note must be10

done in accordance with Article 3.” Leyva, 255 P.3d at 1280.

The maker of a note is “a person who signs or is identified in the note as a person undertaking11

to pay.” NEV. REV. STAT. § 104.3103(1)(d).

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payable to order if it is payable to the order of an identified person or to an identified person or

order.” Id. A party other than the original payee of the note must show that the note was properly

negotiated or transferred. Leyva, 255 P.3d at 1280.

1. A “Person Entitled to Enforce” under Article 3

A “person entitled to enforce” an instrument is “(a) The holder of the instrument; (b) A12

nonholder in possession of the instrument who has the rights of a holder;[ ] or (c) A person not in13

possession of the instrument who is entitled to enforce the instrument pursuant to [NEV. REV. STAT.

§] 103.3309 or subsection 4 of [NEV. REV. STAT. §] 104.3418.” NEV. REV. STAT. § 104.3301.14

a. A Holder as a Person Entitled to Enforce

Where a party can show the “negotiation” of a note, it may enforce the note as a “holder.”

Leyva, 255 P.3d at 1280. The “holder” of a note is “[t]he person in possession of a negotiable

instrument that is payable either to bearer or to an identified person that is the person in possession

[of the note].” NEV. REV. STAT. § 104.2101(2)(u)(1). A negotiation is the “transfer of possession,15

whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who

thereby becomes its holder.” NEV. REV. STAT. § 104.3201(1). If a note is payable to “an identified

person, negotiation requires transfer of possession of the instrument and its endorsement by the

holder.” NEV. REV. STAT. § 104.3201(2) (emphasis added). See also NEV. REV. STAT. §

“‘Instrument’ means a negotiable instrument.” NEV. REV. STAT. § 104. 3104(2).12

Because a person acquires this status by way of a transfer as opposed to a negotiation, the13

court will use the expression “transferee” as a shorthand for the lengthier variant “nonholder in

possession of the instrument who has the rights of a holder.”

Because PAF is in possession of the Notes, the court will not discuss the third way a party14

may obtain “person entitled to enforce” status.

To determine whether a person is a “holder,” then, the court must examine the actual note and15

any indorsements. In re Veal, 450 B.R. at 911. This includes assessing whether any purported allonge

was properly affixed to the note as required by UCC § 3-204(a). Id. at n.24 (citing In re Weisband, 427

B.R. at 19-20; In re Shapoval, 441 B.R. 392, 394 (Bankr. D. Mass. 2010)).

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104.3109, cmt. 2 (“An instrument that is payable to an identified person cannot be negotiated

without the indorsement of the identified person.” (citing UCC § 3-201(b))). If a note is payable to

bearer, negotiation simply requires “transfer by possession alone.” Id.

b. A Transferee as a Person Entitled to Enforce

Where a party can show the “transfer” of a note, it may enforce the note as a as a “transferee”

as opposed to a “holder.” NEV. REV. STAT. § 104.3203(2). See Leyva, 255 P.3d at 1281. A

transfer occurs where an instrument “is delivered by a person other than its issuer for the purpose of

giving to the person receiving delivery the right to enforce the instrument.” NEV. REV. STAT. §

104.3203(1). A transfer “vests in the transferee any right of the transferor to enforce the instrument,

including any right as a holder in due course.” NEV. REV. STAT. § 104.3203(2). A transfer differs

from a negotiation in that it does not require an endorsement of the note by the transferor. NEV.16

REV. STAT. § 104.3203, cmt. 2. See Leyva, 255 P.3d at 1281.

Because a transferee cannot supply a proper endorsement of the note, it “must account for

possession of the unendorsed instrument by proving the transaction through which the transferee

To borrow from a pending commentary to the Permanent Editorial Board for the Uniform16

Commercial Code:

For example, assume that the payee of a note sells it to an assignee, intending to transfer all of

the payee’s rights to the note, but delivers the note to the assignee without indorsing it. The

assignee will not qualify as a holder (because the note is still payable to the payee) but, because

the transaction between the payee and the assignee qualifies as a transfer, the assignee now has

all of the payee’s rights to enforce the note and thereby qualifies as the person entitled to

enforce it.

See John A. Sebert, Draft Report of the PEB on the UCC Rules Applicable to the Assignment of

Mortgage Notes and to the Ownership and Enforcement of Those Notes and the Mortgages Securing

Them (Mar. 29, 2011), available at http://extranet.ali.org/directory/files/PEB_Report

_on_Mortgage_Notes-Circulation_Draft.pdf (last visited Oct. 6, 2011).

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acquired it.” Id. (citing UCC § 3-203 cmt. 2). This showing also requires that the transferee17 18

establish “it was given possession of the note for the purpose of enforcing it.” Id. Thus, as the

Ninth Circuit Bankruptcy Appellate Panel noted, “while the failure to obtain the indorsement of the

payee or other holder does not prevent a person in possession of the note from being the ‘person

entitled to enforce’ the note, it does raise the stakes.” In re Veal, 450 B.R. at 911-12.

C. PAF Has Standing to Move for Relief From Stay

A party seeking relief from stay “need only establish that it has a colorable claim to enforce a

right against property of the estate.” In re Veal, 450 B.R. at 914-15 (citations omitted). A showing

that PAF is a entitled to enforce translates to a colorable claim. In re Veal, 450 B.R. at 913.

1. PAF is a Person Entitled to Enforce

Because PAF is not the original payee of the Notes, it must establish that the Notes were

properly negotiated or transferred. PAF cannot show that the Notes were properly negotiated, and

thus, it is not a holder of the Notes. PAF can, however, show that the Notes were properly

transferred. PAF is therefore a transferee, and as such, a person entitled to enforce the Notes. This

is sufficient to show a colorable claim.

A transferee “must present evidence sufficient to establish that it is more likely than not that17

the transaction took place.” Leyva, 255 P.3d at 1281, n.9 (citing NEV. REV. STAT. §§ 104.3203(2)

(defining “prove”), 104.1201(h) (defining “burden of establishing”)).

Comment 2 to UCC Section 3-203 explains:18

Because the transferee is not a holder, there is no presumption under Section 3-308 that the

transferee, by producing the instrument is entitled to payment. The instrument, by its terms,

is not payable to the transferee and the transferee must account for possession of the unindorsed

instrument by proving the transaction through which the transferee acquired it. Proof of a

transfer to the transferee by a holder is proof that the transferee has acquired the rights of a

holder. At that point the transferee is entitled to the presumption under Section 3-308.

UCC § 3-203, cmt. 2.

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a. PAF is not a Holder

Debtors’ argument that the Endorsements by Allonge are deficient because they were not

affixed to the Notes has merit. See In re Weisband, 427 B.R. 13, 19 (Bankr. D. Ariz. 2010)19

(unattached allonge fatal to creditor’s claim that it was the holder of the note); In re Shapoval, 441

B.R. 392, 394 (D. Mass. 2010) (creditor’s standing to prosecute relief from stay motion depended on

whether the purported allonge was affixed to the note, as “the indorsement of a note set forth in an

allonge is not valid if the allonge is not affixed to the note”); Adams v. Madison Realty & Dev., Inc.,

853 F.2d 163, 166-67 (3d Cir. 1988) (improperly affixed endorsements fatal to creditor’s claim that

it was the holder of the note). Cf. In re Nash, 49 B.R. 254, 261 (Bankr. D. Ariz. 1985) (evidence

that the assignment of the note was signed and notarized the same day as the trust deed, listed the

escrow number, identified the maker of the note and its date, and recited that the note was to be

attached to the assignment demonstrated clear intent sufficient to save creditor’s claim to holder

status even though the allonge was not properly affixed to the note).

The evidence is insufficient to support a finding that the Endorsements by Allonge were

properly affixed to the Notes. No staple marks or other marks of adhesion appear on the Notes to

suggest that they had been previously attached to any document. The original Motions did not

include copies of the Notes or the Endorsements by Allonge, only copies of the Deeds and

corresponding Assignments, attached to each of the Motions as Exhibit B. While PAF included

copies of the Endorsements by Allonge and the Notes in its Supplemental Brief, each Note and

corresponding Endorsement by Allonge were not attached as consecutive exhibits. Instead, PAF

For this reason, the court need not address Debtors’ argument that the Endorsements by19

Allonge are also deficient because allonges may not be used when there is space remaining on the note

itself. Although, it seems Article 3 has relaxed the requirement. See UCC § 3-204(a) (“For the

purpose of determining whether a signature is made on an instrument, a paper affixed to instrument

is part of the instrument.”).

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filed the Notes separately from the Endorsements by Allonge–the Notes appearing as consecutive

exhibits and separately, the Endorsements by Allonge appearing as consecutive exhibits.

The evidence is also insufficient to show clear intent to properly affix each Assignment to its

corresponding Note. The Assignments and Endorsements by Allonge were not signed and notarized

the same day, and nor do they include language indicating that the Notes would be physically

attached to either the Assignments or the Endorsements by Allonge.

PAF’s failure to make this showing is fatal to its claim that it is entitled to enforce the Notes

as a holder.

b. PAF is a Transferee

Debtors’ argument does not similarly defeat PAF’s claim that it is entitled to enforce the

Notes as a transferee.

The evidence shows that the transaction between M&I and PAF constituted a proper transfer.

PAF has shown delivery. It possesses the Notes and it possesses the Assignments that indicate a

transaction occurred between M&I and PAF whereby the PAF acquired the rights, which were

previously held by M&I, to the Notes.

PAF has also shown that the delivery occurred for the purpose of giving PAF the right to

enforce the Notes. Cf. In re Wilhelm, 407 B.R. at 403, 404 (the movants did not make the requisite

showing under Idaho’s version of Article 3 where (a) they failed to establish they possessed the

notes at issue; and (b) the assignments on which they relied to prove the transaction by which they

acquired possession of the notes were transferred by MERS, even though the deeds of trust at issue

did not authorize MERS to do so). The specificity of the Assignments is key here. The

Assignments clearly identify the relevant parties. They show that M&I, the original beneficiary

under the Deeds, is the party granting, assigning and transferring its interests. They also show that

PAF is the party receiving those interests. Cf. Pasillas v. HSBC Bank USA, 127 Nev. —, —, 255

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P.3d 1281, 1286 n.9 (stating that assignment of a mortgage note that did not include the name of the

assignee was defective for the purposes of Nevada’s Foreclosure Mediation Program) (quoting U.S.

Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 652, 941 N.E.2d 40, 53 (Mass. 2011) (“‘We have long

held that a conveyance of real property, such as a mortgage, that does not name the assignee conveys

nothing and is void; we do not regard as assignment of land in blank as giving legal title in land to

the bearer of the assignment.’”)); Leyva, 255 P.3d at 1279 (noting, in the context of Nevada’s

Foreclosure Mediation Program, that the proper assignment of a party’s interest in land via a deed of

trust to another party requires a signed writing by that party demonstrating that transfer of interest).

Each Assignment references the respective Deed by date. Each identifies the respective Note by

reference to the corresponding Deed. Each Assignment also lists the parcel identification number of

the property to which it relates.

This evidence shows that M&I properly transferred the Notes to PAF. PAF possesses the

Notes, Deeds, and Assignments. This, combined with the specificity of the Assignments,

establishes delivery of the Notes by M&I to PAF and further establishes that such delivery occurred

for the purpose of giving PAF the right to enforce the Notes. Therefore, the transaction between

M&I and PAF was a proper transfer. By way of such transfer, M&I’s rights as the original payee on

the Notes vested in PAF.

PAF is thus entitled to enforce the Notes as a transferee.

IV. CONCLUSION

For the reasons set forth above, the court concludes that PAF is a person entitled to enforce

the Notes, and as such, has standing to prosecute the Motions.

This opinion constitutes the court’s findings of fact and conclusions of law under Rule 7052,

made applicable here by Rule 9014(c).

# # #

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standing order prime asset fund ii is not a holder

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