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In Re: Ralph Gifford and Betty J. Gifford v. Bac Home Loans Servicing

May 8, 2013

IN RE: RALPH GIFFORD AND BETTY J. GIFFORD, DEBTORS, GARY A. BARNEY, TRUSTEE, APPELLANT
(PLAINTIFF),
v.
BAC HOME LOANS SERVICING, L.P., ITS ASSIGNS AND SUCCESSORS, APPELLEE (DEFENDANT).



W.R.A.P. 11 Certified Question from the United States Bankruptcy Court for the District of Wyoming The Honorable Peter J. McNiff, Judge

The opinion of the court was delivered by: Hill, Justice.

Before KITE, C.J., HILL, BURKE, and DAVIS, JJ., and GOLDEN, J., Retired.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] The United States Bankruptcy Court for the District of Wyoming certified a question to this Court concerning the effect of two Wyoming statutes on a debtor's mortgage. Specifically, the bankruptcy court asks whether the mortgage must comply with Wyo. Stat. Ann. §§ 34-2-122 and 34-2-123. We answer the question in the negative.

ISSUE

[¶2] The United States Bankruptcy Court for the District of Wyoming certified the following question to this Court:

Whether the mortgage must comply with Wyo. Stat. Ann. §§ 34-2-122 and 34-2-123?

FACTS

[¶3] We draw the facts from the Statement of Undisputed Stipulated Facts filed by the parties in the bankruptcy adversary proceeding and referred to this Court with the certified question.

[¶4] On January 26, 2006, Betty J. Gifford (Debtor) borrowed $438,400.00 from The Jackson State Bank & Trust (JSB) to finance a real estate purchase in Pinedale, Wyoming. Debtor signed a promissory note (Note) agreeing to repay the loan and secured that loan with a mortgage (Mortgage). JSB sold the loan to Countrywide Bank, N.A. (Countrywide), and JSB endorsed the Note, making it payable to Countrywide. Countrywide later merged with and into Bank of America, N.A. (BANA), and BANA remains the current owner of the Note.

[¶5] On February 1, 2006, the Mortgage was recorded in the Sublette County land records. An assignment of the Mortgage from JSB to Mortgage Electronic Registration Systems, Inc. (MERS) was recorded in the Sublette County land records several days later on February 13, 2006.*fn1

[¶6] The recorded assignment of the Mortgage to MERS did not describe MERS as an agent or as acting in a representative capacity.

The recorded assignment instead provided:

FOR VALUE RECEIVED, the undersigned hereby grants, assigns and transfers to Mortgage Electronic Registration Systems, Inc. all the rights, title and interest of [the] undersigned in and to that certain Real Estate Mortgage dated January 26, 2006, executed by Betty J. Gifford, a married woman, to THE JACKSON STATE BANK & TRUST and whose address is 112 CENTER ST., P O BOX 1788 JACKSON, WY 83001 and recorded in Book/Volume No. 131 Mtg., page(s) 740, as Document No. 316732, Sublette Records, ...


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