Opinion
No.: 14-00008 Adv. No.: 14-00454
09-11-2014
IN RE: Michael A. and Susan K. Maize, Debtors Michael A. and Susan K. Maize, Plaintiffs v. U.S. Bank National Association/Ocwen Loan Service, Defendant
Prepared by: George J. Koulogeorge Attorney for Plaintiffs Thcmian Law Offices, Ltd. 8501 W. Higgins Rd., Ste. 420 Chicago, IL 60631 P: 773-545-8849 F: 773-545-6337
Chapter 13
Findings of Fact and Conclusions of Law
Pursuant to a Default Order and because the allegations in the Complaint have been taken as confessed against U.S. Bank National Association/Ocwen Loan Service, the following findings of fact and conclusions of law are made and will be entered:
1. Plaintiffs, Michael A. and Susan K. Maize, are individuals residing at 470 Kathleen Dr., Des Plaines, IL 60016
2. U.S. Bank National Association/Ocwen Loan Sendee is a lender and/or servicer of residential mortgages.
3. Plaintiffs filed for relief under Chapter 13 of the United States Bankruptcy Code on January 2, 2014. In the Northern District of Illinois, case number 14-00008.
4. This adversary proceeding arises under sections 502 and 1322(b)(2) of the United States bankruptcy Code.
5. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 151, 157, and 1334 and this is a core proceeding under 28 U.S.C. § 157.
6. Plaintiffs arc the owners of real estate located at 470 Kathleen Dr., Des Plaines, 1L 60016. The Plaintiffs occupy 470 Kathleen Dr.. Des Plaines, IL 60016 as their primary residence.
7. 470 Kathleen Dr., Des Piames, IL 60016 is legally described as follows; PIN: 08-13-303-019-0000.
8. As of the March 21, 2014, 470 Kathleen Dr., Des Plaines, IL 60016 had a fair market value of $203,000.00, pursuant to Exhibit A of the original adversary complaint.
9. A. senior lien exists in favor of U.S. Bank National Association./Ocwen Loan Service in the amount of $209,226.38, pursuant to Exhibit B of the original adversary complaint.
10. Under 1.1 U.S.C §§ 506(a) and 1322(b)(2), Defendant's junior mortgage would be allowed a secured claim to the extent of the value of the estate's interest in the property securing the claim, and Defendant's lien is void to the extent it is not allowed a secured claim.
11. The amount owed on. the first mortgage, $.209,226,38, exceeds the value of the above real estate, $203,000.00
12. Due to the junior mortgage lien, which is held by Defendant, being wholly unsecured, it should not be allowed as a secured claim, and the.mortgage may be stripped off. See, e.g. Holloway v. U.S., 2001 W.L 1.249053 (N.D. Ill. Oct, 16. 2001): In re Waters, 276 B.R. 879 (N.D. Ill. 2002).; In re Pond, 252 .F.3d 122 (2nd Cir. 2001); In re McDonald, 205 F.3d 606 (3rd Cir. 2000); In re Baitee, 212 F.3d 277 (5th Cir. 2000); In re Lane, 280 F.3d 663 (6th Cir. 2002); In re Zimmerman, 313 F.3d 1220 (9th Cir. 2002); In re Tannter, 217 F.3rd 138) (11th Cir. 2000).
Signed: /s/_________
Jack B. Schmetterer, U.S. Bankruptcy Judge
Prepared by: George J. Koulogeorge
Attorney for Plaintiffs
Thcmian Law Offices, Ltd.
8501 W. Higgins Rd., Ste. 420
Chicago, IL 60631
P: 773-545-8849
F: 773-545-6337