Judge Jack B. Schmetterer
Chapter 13
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. This is a core proceeding under Section 157(b)(2)(A), (I), (K), and (O) of Title 28 of the United States Code, and venue is proper by virtue of
28 U.S.C. 1409(a).
2. All schedules and statements have been filed.
3. The Plaintiff is an individual owning and residing at 9350 N. Delphia, Niles, IL 60714 ("Property").
4. The Defendant, HSBC BANK, is a lender and servicer of mortgages.
5. The fair market value of the Property at the time of filing of case number 14-12674 was $250,000.
6. Citimortgage currently holds a first mortgage lien in the amount of $295,000.
7. Defendant holds a junior mortgage originally granted in the amount of $76,000.
8. Plaintiff seeks to determine the nature and extent of the junior mortgage lien of the Defendant and avoid the junior mortgage lien.9. Defendant's junior mortgage would be an allowed secured claim to the extent of the value of the estate's interest in the property securing the claim under 11 USC 506(a) and (d). The Defendant's junior mortgage lien is void to the extent it is not an allowed secured claim.
10. The amount of the first mortgage is $295,000 which exceeds the value of the underlying property. Because the junior mortgage lien held by Defendant is wholly unsecured, it should not be allowed as a secured claim and the mortgage lien may be stripped off. Nobelman v. American Savings Bank, 508 U.S. 324 (1993); First Bank, Inc. v. Van Wie, 2003 WL 1563959 S.D.Ind., 2003.
11. This Complaint is also an objection to whatever claim might be allowed regarding the junior mortgage.
WHEREFORE, Plaintiff, ANNA DELIGIO, requests that this Court enter an order:
A. Finding Defendant in default of all allegations found in the Complaint filed by the Plaintiff;
B. Finding the Junior Mortgage held by HSBC BANK on the Debtor's residence located at 9350 N. Delphia, Niles, IL 60714 is wholly unsecured and will be paid as a General Unsecured Creditor.
C. Requiring Defendant to release its lien on Plaintiff's residence within 28 days of the order for discharge.
D. For any other relief that this Court deems just and proper.
Ben Schneider
8424 Skokie Blvd.
Suite 200
Skokie, IL 60077
Office: 847-933-0300
Fax: 847-676-2676
ARDC #6295667