Opinion
Case No. 11-14968-j7
06-15-2012
In re: Linda Sotelo and Jorge H Sotelo Debtors
DEFAULT ORDER GRANTING RELIEF FROM STAY AND ABANDONMENT
(2513 Fairway Dr SE, Deming, NM 88030-7328)
This matter comes before the Court on the Motion for Relief from Stay and Abandonment ("Motion") filed on 5/15/2012, by Flagstar Bank, FSB ("Movant").
The undersigned counsel for Movant certifies under penalty of perjury that on 6/12/2012, McCarthy, Holthus & Levine accessed and conducted a search of the data banks of the Department of Defense Manpower Data Center (DMDC), and found that the DMDC does not possess any information indicating that Linda Sotelo and Jorge H Sotelo is currently on active military duty of the United States of her allies.
The Court, having reviewed the record and considered the Motion, and being sufficiently advised, FINDS: that the undersigned counsel for Movant represents that (a) on 5/15/2012, Movant served the Motion and Notice ("Notice") of the Motion by United States first class mail in accordance with Bankruptcy Rule 7004, made applicable to service of this Motion by Bankruptcy Rule 9014, on the Debtors, Linda Sotelo and Jorge Sotelo, counsel of record for the Debtors, Oralia B Franco, case Trustee (the "Trustee"), Philip J. Montoya, the US Trustee and all members of the mailing matrix, (b) the Notice specified an objection deadline of twenty one days from the date of mailing of the Notice, to which three days is added under Bankruptcy Rule 9006(f); (c) the notice given of the Motion was sufficient in form and content; (d) the objection deadline, including three days added under Bankruptcy Rule 9006(f), expired on 6/8/2012, and the undersigned counsel certifies that as of 6/12/2012, neither the Debtors, Linda Sotelo and Jorge Sotelo, counsel of record for the Debtors, Oralia B Franco, case Trustee (the "Trustee"), Philip J. Montoya, the US Trustee and all members of the mailing matrix have filed an objection to the Motion; and (e) the Motion is well taken and should be granted as provided herein. It is, therefore,
ORDERED:
1. Movant and any and all holders of any liens against the Property (defined below), pursuant to11 USC§362 (a); hereby are granted relief from the automatic stay:
(a) To enforce their rights in the Property, including foreclosure of liens, under the terms of any prepetition notes, mortgages, security agreements and/or other prepetition agreements to which the Debtors are a party by commencing or proceeding with appropriate action against the Debtors and/or the Property in any court of competent jurisdiction; and
(b) To exercise any other right or remedy available to Movant under law or equity with respect to the Property.
2. The Property consists of: Lot Fifty-four (54), Country Club Estates Replat No. 1, Amendment No. 1, in the City of Deming, Luna County, New Mexico, as the same is shown and designated on Plat Slide No. B-14, thereof filed for record in the Office of the County Clerk of said County on January 9, 1998, Plat Records, Luna County.
Also known as 2513 Fairway Dr SE, Deming, NM 88030-7328.
3. The automatic stay is not modified to permit any act to collect any amounts as an individual liability of the Debtors. Movant may name the Debtors as defendants in litigation to obtain an in rem judgment and exercise any right to repossess the Property in accordance with applicable nonbankruptcy law.
4. The terms of this order do not waive Movant's claim against the estate for any deficiency owed by the Debtors to Movant after any foreclosure sale or other disposition of the Property.
______________
HONORABLE ROBERT H. JACOBVITZ
United States Bankruptcy Judge
RESPECTFULLY SUBMITTED BY:
Matthew Silverman #24751
MCCARTHY HOLTHUS LEVINE
Matthew A. Silverman, NM Bar #24751
Attorney for Movant,
8502 E. Via de Ventura, Suite 200
Scottsdale, AZ 85258
(480) 302-4103
submitted by electronic mail M _EfileDat
matthew.silverman@azbar.org
DEBTORS COUNSEL
Oralia B Franco
2000 E Lohman Suite A-1
Las Cruces, NM 88001 francolawfirm@qwestoffice.net
DEBTORS
Linda Sotelo
PO Box 1306
Deming, NM 88031
Jorge H Sotelo
PO Box 1306
Deming, NM 88031
TRUSTEE
Philip J. Montoya
PO Box 159
Albuquerque, NM 87103
US TRUSTEE
PO Box 608
Albuquerque, NM 87103-608
ALL MEMBERS OF THE MAILING MATRIX
Notice Recipients
District/Off: 1084-1
Case: 11-14968-J7
User: frances
Form ID: pdfor1
Date Created: 6/15/2012
Total: 7
Recipients of Notice of Electronic Filing:
ust United States Trustee ustpregion20.aq.ecf@usdoj.gov
tr Philip J. Montoya pmontoya@swcp.com
aty Matthew Allen Silverman msilverman@mhlevine.com
aty Oralia B Franco francolawfirm@qwestoffice.net
aty Philip J Montoya pmontoya@swcp.com
TOTAL: 5
Recipients submitted to the BNC (Bankruptcy Noticing Center):
db Linda Sotelo PO Box 1306 Deming, NM 88031
jdb Jorge H Sotelo PO Box 1306 Deming, NM 88031
TOTAL: 2