Opinion
Bankruptcy No. 13 B 26695 Adv No. 13 A 00939
09-03-2013
IN RE: BEVAN, WILLIAM, JR. AND JULIE, Debtors. BEVAN, WILLIAM, JR. AND JULIE, Plaintiffs, v. CITIFINANCIAL SERVICES, INC. Defendant.
Chapter 13
Hon. Jack B. Schmetterer
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court makes the following Findings of Fact and Conclusions of Law in the above-captioned Adversary Case:
FINDINGS OF FACT
1. The Plaintiffs, William Bevan, Jr. and Julie Bevan, filed a Chapter 13 Bankruptcy Case on June 29, 2013, and filed this Adversary Case on July 2, 2013.
2. The Plaintiffs are the owners of the real property commonly known as 4347 Mann Street, Oak Forest, Illinois ("Subject Property"), in fee simple.
3. The Subject Property has a value of $123,870.00.
4. The Subject Property is subject to a First Mortgage in favor of Wells Fargo Home Mortgage ("Wells Fargo"), in the amount of $164,835.00, and a Junior Mortgage in favor of Defendant Citifinancial Services, Inc ("Defendant").
5. The secured claim of Wells Fargo exhausts the equity in the Subject Property, and there is no equity in the Subject Property to secure the claim of Defendant.
CONCLUSIONS OF LAW
1. The claim of Wells Fargo is secured by a first priority mortgage on the Subject Property.
2. The mortgage lien belonging to Defendant is junior to that of Wells Fargo, or second in priority.
3. As there is no equity to support Defendant's mortgage lien, and Defendant's claim is not a claim secured solely by a security interest in the Plaintiffs' principal residence, Defendant's lien rights can be modified by the Court pursuant to Section 1322(b) of the Bankruptcy Code.
4. The Bankruptcy Court has the authority to strip of a wholly unsecured junior mortgage as exists in this case. First Bank, Inc. v. Van Wie, 203 WL 156959 (S.D. Ind., 2003); In Re Bartee, 212 F.3d 277, 288-89 (5th Cir. 2000); In Re Waters, 276 B.R. 879 (Bankr. N.D. III., 2002); In Re Holloway, 2001 WL 1249053 (N.D. III., 2001).
ENTERED:
______________________
The Honorable Jack B. Schmetterer
United States Bankruptcy Judge
Peter L Berk, Attorney # 6274567
Law Office of Peter L Berk
79 West Monroe, Suite 900
Chicago, IL 6063
312.759.2838