Case No. 11 -40480 Adversary No. 12-00734
Counsel For Debtors/Plaintiffs: John H. Redfield (Atty. No 2298090) Crane, Heyman, Simon, Welch & Clar
Judge Jack B. Schmetterer
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Findings of Fact
1. On October 4, 2011, the Debtors filed a petition in the above captioned case for an order of relief under chapter 7 of the Bankruptcy Code.
2. On March 21, 2012, the Debtors converted the Chapter 7 case to a case under Chapter 13 of the Bankruptcy Code.
3. This court has jurisdiction over this matter pursuant to 28 U.S.C. §§157 and 1334, and it is predicted on 11 U.S.C, §§ 506.1322(b)(2) and 1325(a)(5). This matter is a core matter pursuant to 28 U.S.C. §§ 157(b)(2)(K)(L) and (O).
4. The Debtors are the investors and owners of real property improved by a two-flat real property commonly known as 835 N. Fairfield, Chicago, Illinois 60622 (the "Property").
5. BOA holds a first mortgage against the Property of the Debtors within an unpaid principal balance of approximately $300,000.00.
6. The Property has a fair market value not exceeding $250,000.00.
7. BOA, holds a second mortgage against the Property with an approximate unpaid principal balance in the amount of $100,000.00 as of the date of filing. Conclusions of Law
1. The second mortgage held by BOA is a wholly unsecured claim pursuant to 11 U.S.C.§ 506, and pursuant to In Re: Waters (Waters v. Money Store), 276 B.R. 879 (Bankr. N.D. Ill. 2002), may be stripped off and declared null and void.
2. Pursuant to 11 U.S.C. Section 1325(a)(5), the second mortgage lien of Bank of America, N.A., shall be stripped off and shall be null and void upon Plaintiffs obtaining a discharge under Section 1328 of Title 11.
By the Court:
Counsel For Debtors/Plaintiffs:
John H. Redfield (Atty. No 2298090)
Crane, Heyman, Simon, Welch & Clar