Opinion
Case No. 10-31699-WIL
07-06-2012
In re: Terrence O. Lancaster And Michelle Johnson-Lancaster AKA Michelle Lancaster Deutsche Bank National Trust Company, as Trustee of the INDYMAC INDX Mortgage Loan Trust 2005-AR7, Mortgage Pass-Through Certificates, Series 2005-AR7 under the Pooling and Servicing Agreement dated April 1, 2005, Movant (OneWest Bank, FSB, Servicer) v. Terrence O. Lancaster, and Michelle Johnson-Lancaster AKA Michelle Lancaster, Debtors Respondents
Benjamin P. Smith, Esq. Attorney for Movant Adam Brown Ross Attorney for Debtors
SO ORDERED
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WENDELIN I. LIPP
U. S. BANKRUPTCY JUDGE
Chapter 13
AGREED ORDER AND STIPULATION MODIFYING AUTOMATIC STAY
The Movant, Deutsche Bank National Trust Company, as Trustee of the INDYMAC INDX Mortgage Loan Trust 2005-AR7, Mortgage Pass-Through Certificates, Series 2005-AR7 under the Pooling and Servicing Agreement dated April 1, 2005, Movant (OneWest Bank, FSB, Servicer), by its attorney, Benjamin P. Smith, Esq., and the Debtors, Terrence O. Lancaster and Michelle Johnson-Lancaster by their attorney, Adam Brown Ross, Esq., do hereby consent to the following:
1. The Debtors shall cure the post-petition arrears due of $52,421.55; this figure includes post-petition payments in the amount of $3,450.27 for the months of April 2011 through September 2011, payments in the amount of $3,639.16 for the months of October 2011 through November 2011, payments in the amount of $3,382.89 for the months of December 2011 through April 2012, and a payment in the amount of $3,350.58 for the months of May 2012 through June 2012, and includes current bankruptcy fees and costs in the amount of $826.00, by making "additional" monthly payments of $8,736.93 commencing in July 2012 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 15 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.
2. Commencing, in July 2012 the Debtors shall resume making the regular monthly payments and shall continue to be bound by all other provisions in the Note and Deed of Trust. The regular payments are due on the 15 day of the month with a late charge assessed after the fifteenth of every month.
3. All payments tendered in accordance with this Order should be sent directly to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC INDX MORTGAGE LOAN TRUST 2005-AR7, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AR7 UNDER THE POOLING AND SERVICING AGREEMENT DATED APRIL 1, 2005, MOVANT (ONEWEST BANK, FSB, SERVICER).
4. 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 a Notice 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 and co-debtor 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 Notice. 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 Montgomery County, Maryland, at Liber 29537 and folio 674 and which is secured by the property of the Debtors located at 14312 Layhill Hill Valley Ct, Silver Spring, Maryland 20906. The additional stay provided by Bankruptcy Rule 4001(a)(3) is hereby waived.
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, the automatic stay, and if applicable the co-debtor stay shall terminate effective with the conversion. 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. 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, the Stay and co-debtor stay shall be immediately terminated and the repayment provisions herein 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.
7. 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.
8. Upon termination of the stay, and any applicable co-debtor stay, the Movant, its successors and assigns shall be excused from filing notices of payment changes under Bankruptcy Rule 3002.1. SEEN AND APPROVED:
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Benjamin P. Smith, Esq.
Attorney for Movant
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Adam Brown Ross
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.
Benjamin P. Smith, Esq.
Copies to:
Terrence O. Lancaster
14312 Layhill Valley Court
Silver Spring, Maryland 20906
Michelle Johnson-Lancaster
AKA Michelle Lancaster
14312 Layhill Valley Court
Silver Spring, Maryland 20906
Copies were sent electronically thru the CM/ECF system to Benjamin P. Smith, Esq., Adam Brown Ross, Esq., Attorney for Debtors, and Nancy Spencer Grigsby, Esq., Trustee.