Opinion
CASE NO. 05-16401-JNF.
October 13, 2005
MOTION OF HOMEQ FOR RELIEF FROM STAY
Now Comes HomEq, servicing agent for Wells Fargo Bank, N.A. ("HomEq"), and hereby moves this Court, pursuant to 11 U.S.C. § 362(d) (1), Bankruptcy Rules 4001-1 and 9014, for relief from the automatic stay of 11 U.S.C. § 362(1) so that HomEq may continue to foreclose its mortgage on a certain real property commonly known as 23 Laurel Street, Arlington, MA 02476, title to which is believed to be held by Francis T. Furlong ("Debtor"), and so HomEq may evict the Debtor and all other occupants from the mortgaged premises. HomEq is entitled to relief from the automatic stay on the grounds that: 1) the Debtor is three (3) post-petition payments over due; and 2) the promissory note, which the mortgage secures, has been dishonored and is in default.
In further support of this motion, HomEq respectfully alleges as follows:
1. On or about August 17, 2004, the Debtor executed and delivered a note in the amount of four hundred, seventy five thousand 00/100 ($475,000.00) dollars to Argent Mortgage Company, LLC. See Exhibit A (a true and correct copy of the Note is attached hereto.)
2. To secure the obligation, the Debtor executed and delivered to Argent Mortgage Company, LLC, a mortgage dated August 17, 2004, and recorded in the Middlesex County Registry of Deeds, in Book 43549, Page 575 on real estate located at 23 Laurel Street, Arlington, MA 02476. See Exhibit B (a true and correct copy of the Mortgage is attached hereto.)
3. The Mortgage was then assigned to Ameriquest Mortgage and further assigned to Wells Fargo Bank, N.A. (a true and correct copy of the Assignment has been requested).
4. HomEq Servicing is the current Servicer of the first mortgage held by Wells Fargo, N.A. on the property and according to the Debtor's Schedules there is no second mortgage.
5. On July 15, 2005, the Debtor filed a voluntary petition for Bankruptcy under Chapter 13 of the United States Bankruptcy Code.
6. Upon information and belief, the Debtor's Chapter 13 Plan has yet not been confirmed.
7. As of the date the Debtor filed for bankruptcy, the total amount owed to HomEq was $495,064.47, and the Debtor was in arrears in the amount of $22,402.10. See Exhibit C (a true and correct copy of the Proof of Claim is attached hereto).
8. As of October 5, 2005, the total amount owed to HomEq was $500,898.09.
9. Upon information and belief, there are no other encumbrances on the property other than those referenced above.
10. The Debtors are currently three (3) post-petition payments in arrears in the amount of $10,062.48. (Representing the August — October payments @ $3,256.47); plus attorney costs and fees. It is estimated that $13,318.95 will be due as of the anticipated date of hearing exclusive of costs and fees.
To date the post-petition attorney costs and fees are $850.00.
11. The Debtor's Schedules value the property at $570,000.00, with a liquidation value of $532,700.80, calculated as the fair market value less a reasonable realtor's fee (6%); deed stamps ($2,599.20); and the anticipated costs incurred from a real estate closing ($500.00). See Exhibit D (a true and correct copy of the Debtors' Schedule D is attached hereto).
12. The total amount of liens on the property is approximately $500,898.09.
Based on the foregoing, HomEq is entitled to relief, pursuant to 11 U.S.C. § 362(d) (1), for cause on the grounds that the Debtor has failed to make three (3) post-petition payments.
WHEREFORE, HomEq respectfully requests that this Honorable Court grant it and its successor and/or assigns relief from stay pursuant to 11 U.S.C. § 362(d) by modifying the stay to permit it to exercise its rights under its agreements with the debtor and under applicable law including but not limited to foreclosing and/or accepting a Deed-in-Lieu on and further Mortgage on property located at 23 Laurel Street, Arlington, MA 02476; and to pursue its remedies under state law including, but not limited to, the eviction of any and all occupants of said premises, that the relief granted in this order is not be stayed pursuant to Federal Rule of Bankruptcy 4001(a) (3), together with such other and further relief as this Court may deem just and proper.
ORDER GRANTING HOMEQ RELIEF FROM STAY
At Boston, in the Eastern District of Massachusetts, having come on to be heard before me, and after notice to all parties, it is hereby
ORDERED and DECREED that the motion of HomEq, servicing agent for Wells Fargo Bank, N.A., ("HomEq"), as mortgagee for relief from the Automatic Stay imposed pursuant to 11 USC 362(a) on the filing of the Debtor's petition, dated July 15, 2005, is allowed; it is further
ORDERED that HomEq and its Successors and/or Assigns be and hereby are permitted to proceed with a foreclosure of a mortgage, dated August 17, 2004, in the amount of four hundred, seventy five thousand 00/100 ($475,000.00) dollars, on property commonly known as 23 Laurel Street, Arlington, MA 02476, title to which is believed to be held by Francis T. Furlong ("Debtor"); and shall be permitted to evict the Debtor and all occupants from said premises; and it is further
ORDERED that the case trustee receive notice of any surplus monies that may exist after the sale and it is further;
ORDERED that the relief granted in this order is not be stayed pursuant to Federal Rule of Bankruptcy 4001(a)(3);
SO ORDERED.
EXHIBIT A