No. 10-42145, No.: 10-02331.United States Bankruptcy Court, N.D. Illinois, Eastern Division.
March 14, 2011
WILLIAM J. MORONEY, Atty No.: 6186591, Attorney for Plaintiffs, EDWIN L. FELD Associates, LLC, Chicago, IL.
AMENDED PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
JACK SCHMETTERER, Bankruptcy Judge
NOW COMES the Debtors herein, John C. Taylor and Emily D. Cunningham-Taylor, (“Debtors”), by and through their attorneys, William J. Moroney, and Edwin L. Feld Associates, LLC and set forth their proposed findings of fact and conclusions of law as follows:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court has jurisdiction over this adversary pursuant to 28 U.S.C. sec. 151 et seq and 28 U.S.C. sec 1334 and Local Rule 2.33 of the United States District Court for the Northern District of Illinois. This is a core proceeding. The Debtor’s Chapter 13 case was filed on August 4, 2009. It has not been confirmed. Among Debtors’ scheduled assets is the Debtors’ residence, commonly known as 5231 Southwick Court, Matteson, IL 60443. The appraised value of said real estate is $145,000.00 as demonstrated by the Uniform Residential Appraisal Report of record. HSBC Finance Corp., d/b/a Beneficial holds a second mortgage on the subject premises. The lien of the first mortgage held by Wells Fargo Bank, NA is $163,782.68 and lien of the second mortgage held by HSBC Finance Corp., d/b/a Beneficial is $17,060.13 at this time. Under sections 506(a) and 506(d) of the Bankruptcy Code, Beneficial’s second mortgage would be an allowed secured claim to the extent of
Page 2
the value of the estate’s interest in the property securing the claim, and would be void to the extent it is not an allowed secured claim. The amount owed on the first mortgage, $163,782.68, exceeds the value of the real estate, $145,000.00. HSBC Finance Corp., d/b/a Beneficial’s second mortgage is wholly unsecured and may be stripped off.
The above referenced adversary case was filed on November 12, 2010. The return date for the Summons was November 16, 2010. The Debtors servedHSBC Finance Corp., d/b/a Benficial, via first class US mail on its registered agent and via certified US Mail on Patrick J. Burke, HSBC Finance Corp, 1441 Schilling Place, Salinas CA, 93901. HSBC Finance Corp., d/b/a Beneficial has failed to Answer or otherwise plead in this case.
The Certification of Terry L. Smith, Certified Residential Appraiser establishes that the value of the debtor’s residential real estate is $145,000.00. HSBC Finance Corp., d/b/a Beneficial holds a second mortgage on the subject premises. The lien of the first mortgage held by Wells Fargo Bank, NA is $163,782.68, and lien of the second mortgage held by HSBC Finance Corp., d/b/a Beneficial is $17,060.13 at this time. Under sections 506(a) and 506(d), Beneficial’s second mortgage would be an allowed secured claim to the extent of the value of the estate’s interest in the property securing the claim, and would be void to the extent it is not an allowed secured claim. The amount owed on the first mortgage $163,782.68, exceeds the value of the real estate, $145,000.00. HSBC Finance Corp., d/b/a Beneficial’s second mortgage is wholly unsecured and may be stripped off.
WHEREFORE, for the foregoing reasons, a judgment by default will be entered in favor of the Plaintiffs and against HSBC Finance Corp., d/b/a Beneficial, stripping the Defendant’s second mortgage on the Plaintiffs’ residential real estate.