Case No. 10-35233, Adv. Pro. No. 10-01947.United States Bankruptcy Court, N.D. Illinois.
January 25, 2011
FINDINGS OF FACT
JACQUELINE COX, Bankruptcy Judge
A. The Parties
1. The Plaintiff is Iwona Gunerka.
2. The Defendant is BAC Home Loans Servicing, LP.
B. Factual Background
1. On or about August 06, 2010, Plaintiff filed a petition for relief under Chapter 13 of the Bankruptcy Code.
2. The Plaintiff owns the real estate commonly known as 3337 North Pioneer Ave., Chicago, IL 60634 with Property Identification N number 12-23-420-004-0000.
3. That BAC Home Loans Servicing, LP holds a first mortgage lien on the real property commonly known as 3337 North Pioneer Ave., Chicago, IL 60634, with a secured claim of $286,870.45 pursuant to the proof of claim #02 filed on 09/20/2010 by Jose Moreno of Codilis Associates, PC.
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4. The Defendant holds a second mortgage lien on the real property known as 3337 North Pioneer Ave., Chicago, IL 60634 in the approximate amount of $72,065.73 pursuant to proof of claim #03 filed on 10/11/2010 by Defendant.
5. That the Plaintiff obtained a valuation of the property on 07/29/2010 indicating the value of 3337 North Pioneer Ave., Chicago, IL 60634 as $187,284.
6. The first mortgage lien of BAC Home Loans Serving, LP is a secured claim based on the mortgage recorded on 04/30/2007 as document number 0712034097 with the Cook County Recorder of Deeds, Illinois.
7. The second mortgage lien of the Defendant is a claim based on the mortgage recorded 04/30/2007 as document number 0712034098 with the Cook County Recorder of Deeds, Illinois.
8. The current Chapter 13 plan provides that the Plaintiffs will make monthly payments to the Chapter 13 Trustee in the amount of $635.00 per month.
9. Under the Plan, general unsecured creditors will be paid a dividend of twenty percent (20%) of their allowed claims.
10. On 10/11/2010, Plaintiff issued a summons and complaint pursuant to 11 U.S.C. § 506(a) and the Bankruptcy Rule 3012 to determine the validity of Defendant’s lien on Plaintiff’s property located at 3337 North Pioneer Ave., Chicago, IL 60634.
11. That on 10/11/2010, a copy of the summons and complaint was served in accordance with the Federal Rules of the Bankruptcy Procedure by certified mail, postage prepaid upon Brian T. Moynihan, CEO, Bank of America Corporation, 101 S. Tryon Street, NCI-002-29-01, Charlotte, NC 28255.
12. The summons indicated that a motion or answer was required within 30 days of issuance; to date, no responsive pleading has been filed.
13. No evidence has been presented to challenge the validity of the secured claim that holds priority over the second mortgage lien.
14. No evidence has been presented to challenge the appraised value of $187,284.
15. The first secured claim of BAC Home Loans Servicing, LP in the amount of $286,870.45 exhausts the value and equity in Plaintiff’s residence.
16. There is no value and equity to support the claim of the Defendant.
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CONCLUSIONS OF LAW A. Jurisdiction
1. This contested matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(K). This court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a) and 1334(b).
2. Venue is proper in this district pursuant to U.S.C. § 1409.
B. Argument
1. Is action was initiated under 11 U.S.C. § 506(a) and F.R. Bankr. P. 3012.
2. The Debtor scheduled the first secured claim of BAC Home Loans Servicing, LP in the amount of $286,571 and the second secured claim of the Defendant in the amount of $69,850.
3. BAC Home Loans Servicing, LP filed a proof of claim on 09/20/2010 for the amount of $286,870.45. Said claim is secured by a first mortgage on the Plaintiff’s property commonly known as 3337 North Pioneer Ave., Chicago, IL 60634.
4. The Defendant filed a proof of claims on 10/11/2010 for the amount of $72,065.73. Said claim is second in priority to the first mortgage lien.
5. That the value of Plaintiffs’ property is $187,284.
6. As there is no value or equity to support the second priority lien of the Defendant, its claim is not a claim secured at all by a security interest in the Debtors’ residence, as the term is used in § 1322(b) of the Bankruptcy Code. The Chapter 13 Plan may value the collateral under F.R. Bankr. P. 3012, and determine the respective rights of secured creditors through the language used therein, contingent on confirmation thereof, completion of the Plan by the Debtors, and entry of the discharge. In re Meyer, 2009 B 20268, Docket Entry 69 (Bankkr.N.D.Ill. January 29, 2010).
Dated: 1/25/11
Ledford Wu, Chicago, IL.
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