Judge: Schmetterer
Chapter: 13 Hearing Time: 10:30 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR ENTRY OF DEFAULT JUDGMENT
This matter coming to the Court on Plaintiff's Motion for Default and Default Judgment, no answer having been filed to the complaint, the allegations contained therein are admitted as confessed pursuant to Fed. R. Civ. P. 8, which applies to bankruptcy proceedings through Fed. R. Bankr. P. 7008. "An allegation - other than one relating to the amount of damages - is admitted if a responsive pleading is required and the allegation is not denied." Fed. R. Civ. P. 8(b)(6). Further, in this case, Plaintiff is not seeking an entry of judgment for a specific amount of damages, which makes a prove-up for damages unnecessary. See Fed. R. Civ. P(8)(6).
1. The following findings of fact are based on (i) the confessed allegations in the Complaint, and (ii) the attached exhibits to the Complaint which contain a valuation of the Plaintiff's real property and the amount of the first mortgage lien that is secured against the Plaintiff's primary residence.
2. The Debtor owns a home, her primary residence, commonly known as 7737 S. Cornell Ave., Chicago, IL 60649.
3. The value of the Debtor's property pursuant to the Cook County Assessor is $169,470.00. See Cook County Valuation Attached as Exhibit A.
4. Champion Mortgage holds a first mortgage lien that is secured against the Debtor's home, commonly known as 7737 S. Cornell Ave., Chicago, IL 60649. Said mortgage lien was secured against th edebtor's property on 11/27/2012.
5. Champion Mortgage's first mortgage lien is for an amount equal to or in excess of $169,470.00.
6. The amount owed on Champion Mortgage's first mortgage lien exceeds the value of the Debtor's primary residence, which is only $285,304.77. See Nationstar Mortgage LLC d/b/a Champion Mortgage Company's proof of claim attached as Exhibit B.
7. All Garage Services recorded their mechanics lien on January 26, 2015.
CONCLUSIONS OF LAW
7. Pursuant to 735 ILCS 5/15-1301, from the time a mortgage is recorded it "shall be a lien upon the real estate that is the subject of the mortgage for all moneis advanced or applied or other obligation secured in accordance with the terms of the mortgage."
8. Under 735 ILCS 5/15-1302(b)(2) a mechanic's lien priority is not superior to monies advanced or applied in accordance with the terms of a Reverse Mortgage.
7. Pursuant to 11 U.S.C. 506 (a) and 11 U.S.C. 506(d) All Garage Services Inc.'s lien is wholly unsecured and shall only be paid as a general unsecured claim.
8. Pursuant to 11 U.S.C. 506 (a) and 11 U.S.C. 506(d) upon entry of Debtor's discharge. All Garage Services Inc's lien shall be stripped-off of the property and considered null and void.
The Court concludes that All Garage Services Inc.'s is completely unsecured and shall be stripped-off of the Debtor's property upon discharge. The Court will enter a separate judgment order to that effect.
ENTER:
/s/_________
Hon. Jack B. Schmetterer
United States Bankruptcy Judge Joseph Olstein
Olstein Law LLC
Attorneys for Plaintiff and the Debtor in the underlying Bankruptcy
10450 S. Western Ave.
Chicago, Illinois 60643
(312) 725-4132