Opinion
Case No.: 12-34960 Adversary No.: 12-01861
01-28-2013
In re: Walther Vargas, Debtor. Walther Vargas, Plaintiff, v. JPMorgan Chase Bank, Defendant.
Prepared by: Debra J. Vorhies Levine DVL Law Offices, LLC
Chapter: 13
Judge: Jack B. Schmetterer
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Pursuant to a Default Order declaring that all allegations in Plaintiff's complaint have been taken as confessed against Defendant, JPMorgan Chase Bank, the following findings of fact and conclusions of law are made and will be entered:
1. This Honorable Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157.
2. This adversary proceeding is brought pursuant to FRBP 7001 and 11. U.S.C. §§ 502 and 506.
3. Venue is appropriate under 28 U.S.C. §1409.
4. This is a core proceeding as defined by 28 U.S.C. §157(b)(2)(K).
5. On August 31, 2012, WALTHER VARGAS, the Debtor in the above-captioned bankruptcy case and the Plaintiff in the instant action, filed a voluntary petition under Chapter 13 of the United States Bankruptcy Code.
6. JPMORGAN CHASE BANK ("Chase") is a lender and/or servicer of mortgages.
7. The Plaintiff is an individual residing at 5904 W. Roscoe, Chicago, Illinois 60634.
8. The Plaintiff is the owner of the real estate commonly known as 5904 W. Roscoe, Chicago, Illinois 60634, ("the Property") which is legally described as follows:
SEE PRELIMINARY TITLE REPORT LOT 39 (EXCEPT THE EAST 2 FEET THEREOF) IN BLOCK 8 IN AUSTIN GARDENS SUBDIVISION OF THE EAST 20 ACRES OF THE NORTH 1/2 OF THE SOUTHWEST 1/4 AND THE NORTH.OF THE WEST HALF OF THE SOUTHEAST 1/4 OF SECTION 20, TOWNSHIP 40 NORTH, RANGE 13, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
9. The Fair Market Value of the above mentioned property is approximately one-hundred-ninety-thousand dollars ($190,000.00). See Zillow Property Value Estimate for 5904 W. Roscoe, attached and incorporated as Exhibit "A" on the original Complaint.
10. A senior mortgage lien is currently held on the Property by Wells Fargo Home Mortgage in the amount of approximately two-hundred-thirty-thousand dollars ($230,000.00). A copy of this mortgage is attached and incorporated as Exhibit "B" on the original Complaint.
11. Defendant holds a junior mortgage lien on the Property in the amount of approximately twenty-two-thousand-eighty-nine dollars ($22,089.00). A copy of this mortgage is attached and incorporated as Exhibit "C" on the original Complaint.
12. Plaintiff seeks in his original Complaint to determine the nature and extent of the Defendant's junior mortgage lien.
13. Under 11 U.S.C §506(a) and §506(d), the Defendant's junior mortgage lien is an allowed secured claim only 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 that it is not an allowed secured claim.
14. The amount owed on the senior mortgage, approximately two-hundred-thirty-thousand dollars ($230,000.00), exceeds the value of the underlying property, which is approximately one-hundred-ninety thousand dollars ($190,000.00).
15. Because the Junior Mortgage lien held by the Defendant is wholly unsecured, it should not be allowed as a secured claim and the mortgage lien may be stripped off. In re Mann, 249 B.R. 831, 840 (1st Cir BAP 2000); In re McDonald, 205 F.2d 606 (3rd Cir. 2000); Bartee vs. Tara Colony Homeowners Assoc., 212 F.3d 277 (5th Cir. 2000).
Signed: _____
Jack B. Schmetterer
United States Bankruptcy Judge
Prepared by:
Debra J. Vorhies Levine
DVL Law Offices, LLC