Opinion
Case No. 11-27266-PM
2011-12-20
In re: Valerie L Dailey Astoria Federal Savings, Movant v. Valerie L Dailey, Debtor and Robert E. Dailey, Jr., Non Filing Co-Debtor Harriet R. Dailey, Non Filing Co-Debtor Douglas A Dailey, Non Filing Co-Debtor, Nancy Spencer Grigsby, Trustee Respondents
SO ORDERED
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U. S. BANKRUPTCY JUDGE
CONSENT ORDER AND STIPULATION MODIFYING AUTOMATIC STAY
The Movant, Astoria Federal Savings, Movant, by its attorney, Diana C. Theologou, Esq., and the Debtor, Valerie L Dailey Robert and the Non-Filing Co-Debtors, Robert E. Dailey, Jr., Harriet R. Dailey, Douglas A Dailey, by their attorney, Timothy J. Sessing, do hereby consent to the following:
1. The Debtors shall cure the post-petition arrears due of $12,372.44, which includes payments in the amount of $3,735.71 and late charges in the amount of $424.13 for the months of September 2011 thru November 2011 as well as bankruptcy legal fees and costs of $826.00, by making "additional" monthly payments of $2,062.08 commencing in December 2011 and continuing each month thereafter for a total of six (6) months until the arrears are paid in full. The "additional" payments must be received by the 25TH day of the month. Note: Should the Debtors provide sufficient proof of payments made but not yet credited by Movant, the above arrears will be adjusted accordingly.All payments tendered in accordance with this Order should be sent directly to Astoria Federal Savings, Movant, at the following address:
2. Commencing, in December 2011 the Debtors shall resume making the regular monthly payments of $3,735.71, or as adjusted for interest rate or escrow changes and shall continue to be bound by all other provisions in the Note and Deed of Trust. The regular payments are due on the first day of the month with a late charge of $186.79 assessed after the fifteenth.
Astoria Federal Savings, Movant
1 Corporate Drive
Suite 360
Lake Zurich, Illinois 60047-8945
3. Should the Debtors default under Paragraph 1 or 2 herein, or should any payment be returned for insufficient funds, the Movant may file with the court and mail to the Debtors and their attorney an Affidavit of Default and Notice of Termination of Automatic Stay. Should the Debtors then fail to cure the default including any amounts which have become due between the execution of the Affidavit and the expiration of the cure period, within ten (10) days from the date of the filing of the affidavit, and/or should the Debtors fail to file an opposition to the Default Affidavit pursuant to Bankruptcy Rule 4001(a)(3), the stay shall terminate without further court action and without further court order. Should the Debtors file an Objection, Response or Motion to Strike the Affidavit of Default, the Debtors shall bear the burden of proof as to the inaccuracy of the Affidavit. Any payment(s) tendered to cure a default arising under the provisions of this consent agreement must be in the form of certified or cashier's check or money orders. If the Debtors fail to cure the default noted, the Noteholder may proceed to enforce its rights, including but not limited to foreclosure, under the provisions of the Deed of Trust recorded among the land records of Frederick County, Maryland, at Liber 6319 and folio 0485 and which is secured by the property of the Debtors located at 1205 North Market Street, Frederick, Maryland 21701. The additional stay provided by Bankruptcy Rule 4001(a)(3) is hereby waived.
4. Should there be more than two (2) defaults in payment as provided in this agreement, there shall be no ten day "cure period"; the Movant shall file the Affidavit of Default with the court and mail copies to the Debtors and their attorney and may proceed with collection and/or foreclosure actions immediately.
5. This agreement shall be and become null and void on the termination of this bankruptcy proceeding. Should the Debtors convert to a Chapter 7 proceeding, this agreement shall constitute the Debtor's consent to the termination of the automatic stay and the repayment provisions in Paragraph (1, 2 or 3) shall be and become null and void. This agreement shall apply to proceedings for possession of the real property after the foreclosure sale and shall apply to successors and/or assigns of Movant.
6. The Movant and/or its successors and assigns may, at its option, offer, provide and enter into a potential forbearance agreement and/or loan modification or other loan workout/loss mitigation
agreement which does not otherwise require court approval. The Movant may contact the Debtor via telephone or written correspondence to offer such an agreement. Any such agreement shall be non-recourse unless included in a reaffirmation agreement.
SEEN AND APPROVED:
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Diana C. Theologou, Esq.
Attorney for Movant
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Timothy J. Sessing
Attorney for Debtors
I HEREBY CERTIFY that the terms of the copy of the consent order submitted to the court are identical to those set forth in the original consent order; and the signatures represented by the /s/_on the copy of the consent order submitted to the Court reference the signatures of consenting parties obtained on the original consent order.
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Diana C. Theologou, Esq.
Copies to:
Valerie L Dailey
1205 North Market Street
Frederick, Maryland 21701
Robert E. Dailey, Jr.
1205 North Market Street
Frederick, Maryland 21701
Harriet R. Dailey
1205 North Market Street
Frederick, Maryland 21701
Douglas A Dailey
1205 North Market Street
Frederick, Maryland 21701
Copies were sent electronically thru the CM/ECF system to Deborah K. Curran, Esq., Timothy J. Sessing, and Nancy L. Spencer Grigsby, Trustee.