Jack B. Schmetterer
Chapter: 13
Honorable Jack B. Schmetterer
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Pursuant to a Default Order and because the allegations in the Complaint have been taken as confessed against the Defendant, the following findings of fact and conclusions of law are made and will be entered:
1. On November 8, 2011, the Debtor filed a petition for relief under Chapter 13 of the United States Bankruptcy Code.
2. This Court has jurisdiction pursuant to § 157 and § 1334 of Title 28, United States Code.
3. This is a core proceeding within the meaning of § 157(B)(1) and (2) of Title 28, United States Code.
4. Venue is proper pursuant to § 1409 of Title 28, United States Code.
5. The Debtor is the owner of investment property located at 7615 S. Vernon Avenue, Chicago, Illinois ("the Property").
6. The holders of the claim on the property is the Defendant, HSBC Bank, USA. The Defendant filed a secured claim in the amount of $217,186.93.
8. At the time of filing of the Chapter 13 Bankruptcy Case, the Property was valued at $50,000.00.
9. That pursuant to 11 U.S.C. §506(a)(1) & §1322(b)(2), the secured claim should only extend to the value of the property, $50,000.00 and the remaining amount shall be treated as unsecured.
11. Because the value of the investment Property is less than the mortgage, the portion of the mortgage which extends beyond the value may be stripped off. Enewally v. Wash. Mut. Bank. (In re Enewally), 276 B.R. 643, 652 (Bankr. CD. Ca. 2002), rev'd in part on other grounds, 2002 U.S. Dist. LEXIS 28113 (C.D. Ca. 2002), upheld on other grounds, 368 F.3d 1165, 1172(9th Cir. 2004) (mortgage on rental property that is not the debtor's residence may be modified); In re Kimball, 247 B.R. 35 (Bankr. W.D. N.Y 2000); Adebanjo v. Dime Sav.Bank, FSB (In re Adebanjo), 165 B.R. 98, 100 (Bankr. D. Conn. 1994).
Enter:
Honorable Jack B. Schmetterer
United States Bankruptcy Judge
Prepared by:
Law Office of Ernesto Borges
105 West Madison, Suite 2300
Chicago, IL 60602
312-853-0200