Issuu on Google+

SO ORDERED. Dated: February 6, 2012

Redfield T. Baum, Bankruptcy Judge _________________________________

1

2 3

4 UNITED STATES BANKRUPTCY COURT

5 6 7

8 9

DISTRICT OF ARIZONA

In re: Case No. 2:09-bk-33211-RTB SAMUEL R. SANCHEZ, SR. AND MARTIIA H. SANCHEZ,

ADVERSARIALPROCEEDING

10

11

Debtors.

SAMUEL R. SANCHEZ, SR AND

12

MARTHA H. SANCHEZ,

13

Plaintiffs,

14

v.

15

FANNIE MAE, its assigns and/or successors in interest, SETERUS, INC., its assigns and/or successors in interest; mM LENDER BUSINESS PROCESS SERVICES, INC., its assigns and/or successors in interest; SUNTRUST MORTGAGE, INC., its assi~ andlor successors in interest; CHASE HOME FINANCE, LLC, its assigns andlor successors in interest; HOMEQ SERVICING CORPORATION, its assigns andlor successors in interest

16 17 18 19 20 21

Chapter 13 Proceedings

NO: 2:1l-ap-01756-RTB STIPULATED ORDER FOR MODIF1CATION OF FIRST DEED OF TRUST AND NOTE

Defendants.

22 23

24 25

26

This matter comes before the Court pursuant to the Stipulation and agreement between Samuel R. Sanchez, Sr. and Martha H. Sanchez ("Plaintiff/Debtors") and Fannie Mae, a secured creditor, and Seterus, Inc., fka mM Lender Business Process Services, Inc. ("Seterus"), servicer for the secured creditor and a party-in-interest

Case 2:11-ap-01756-RTB Doc 29 Filed 02/06/12 Main Document - Stipulation

Entered 02/06/12 13:06:26 Page 1 of 5

By this

Desc


1

Stipulated Order PlaintifflDebtors, Fannie Mae and Seterus, have agreed to the entry of an

2

order for the reduction of principal and interest rate by modification of Fannie Mae's first

3

position Deed of Trust on the Plaintiffi'Debtors' residence located at 14751 W. Cortez St.,

4

Surprise, AZ 85379 (the "Property"), subject to the terms and conditions stated herein. The Court FINDS and CONCLUDES as follows:

5 6

FINDINGS OF FACT

7

1.

8 9

The PlaintifflDebtors filed a voluntary petition commencing a Chapter 13

proceeding on December 23,2009, under Case No. 2.

10

2:09-bk~33211-RTB.

The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§

11

157 and 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (K) and

12

(0).

13 14 15

3.

PlaintiffiDebtors are the owner of the real properly located at 14751 W.

Cortez Street, Surprise, AZ 85379 (the "Property"). The Property is legally described as:

18

LOT 399, OF RANCHO GABRIELA PHASE 2, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK 608 OF MAPS, PAGE 2. A.P.N.: 509-14-399 1

19

4.

16 17

Fannie Mae is the holder of a promissory note ("Note") executed by the

20

Debtors dated December 14, 2006 in the principal amount of $326,177.70 and a first

21

position Deed of Trust securing the Property.

22 23 24 25 26

This Deed of Trust was recorded on

December 15,2006, at Doc. No. 20061642318 at the Maricopa County Recorder's Office. The parties agree that on the date of the Petition, the value of the Property was approximately $226,000.00.

5.

On November 1, 2010, PlaintiffiDebtors filed their Second Amended

Chapter 13 Plan.

On October 25, 2011, PlaintifflDebtors filed their First Amended

-2­

Case 2:11-ap-01756-RTB Doc 29 Filed 02/06/12 Main Document - Stipulation

Entered 02/06/12 13:06:26 Page 2 of 5

Desc


1 Adversary Proceeding to detennine secured status of parties-in~interes~ and arguing that 2 no Defendant has standing to enforce the Note or Deed of Trust by foreclosure or 3 othervvise.

Fannie Mae and Seterus filed an Answer to Adversary Complaint on

4 November 9,2011 in opposition to PlaintifflDebtors' Adversary Proceeding. S

6.

PlaintifflDebtors and Fannie Mae and Seterus stipulate and agree to

6 resolution of the Adversary Proceeding as between them, upon the tenns and conditions 7 set forth in this Stipulated Order. The Court finds that the StipUlation is in the best 8 interest of the Estate.

ORDER

9

10

Based upon the foregoing, the entire record before the Court, and good cause

11 appearing, IT IS HEREBY ORDERED as follows: 12

13

A.

Approval of Loan Modification. The Note and Deed of Trust are hereby

modified to reduce the principal balance due on the Note to $226,000.00 ("Adjusted Loan

14 Balance"). Interest on the Adjusted Loan Balance shall be revised to a fixed rate of 4.0% 15

16

17

18

19

20

21

per annum. Upon entry of this Order, the Adjusted Loan Balance shall be reamortized and payable monthly over a period of 30 years (360 months). All arrearages, penalties, fees, and other charges are waived. The Note shall be payable in equal principal and interest payments each month in the approximate amount of $1,078.96. The Deed of Trust is hereby modified to secure the principal balance of $226,000.00. In addition, the Debtor shall continue to pay the loan servicer for the escrow amounts monthly which currently is $200.07 per month. This amount may change from time to time pursuant to escrow account statements which will be provided to Debtors. Except as set forth in the

22

Stipulation and this Order, the tenns of the Note and Deed of Trust shall apply. Payments 23

by the PlaintifflDebtors shall begin on the first of the month following the entry of this

24

25

Order. Payments shall be made outside of the Chapter 13 Bankruptcy and Plan. The Stipulation and Order may be recorded after entry.

26

~

3~

Case 2:11-ap-01756-RTB Doc 29 Filed 02/06/12 Main Document - Stipulation

Entered 02/06/12 13:06:26 Page 3 of 5

Desc


B.

1

Interests or Other Parties. The Lender and secured creditor is Fannie

2

Mae, the servicer of the loan is Seterus. No other Defendant in this Adversary Proceeding

3

has any interest in the Deed of Trust or Note. Defendant SunTrust has an interest in a

4

second position note and deed of trust which has already being addressed through a

5

separate Order issued by this Court (Doc. 25).

c.

6

Representations and Warranties of Fannie Mae. Fannie Mae represents

7

and warrants that it is the Lender and secured creditor under the Note and Deed of Trust,

8

and the servicer of the loan is Seterus. No other Defendant in this Adversary Proceeding

9

has any interest in the Deed of Trust or Note. Fannie Mae represents and warrants that

10

Fannie Mae, and no other entity, owns the Note and is entitled to enforce it. Fannie Mae

11

represents and warrants that it is the only legal, secured party under the Deed of Trust.

12

Fannie Mae and Seterus represent that as of the date of execution of the Stipulation, no

13

other entity is the servicer of the Note and Deed ofTrust.

D.

14 15 16

this Stipulated Order, will survive and remain in effect after the discharge, dismissal, or conversion ofthis case to another chapter under the Bankruptcy Code.

E.

17 18

19

Effect After Discharge, Dismissal or Conversion. The Stipulation and

Attorney's Fees. Costs, and Other Expenses. The parties agree that each

shall bear its own attorney's fees, costs, and any and all other expenses associated with this Adversary Proceeding and any default by the PlaintifflDebtors.

20

DATED:_______________________________

21 22

UNITED STATES BANKRUPTCY JUDGE

23 24 25

26

III III

1/1

-4足

Case 2:11-ap-01756-RTB Doc 29 Filed 02/06/12 Main Document - Stipulation

Entered 02/06/12 13:06:26 Page 4 of 5

Desc


1

APPROVED AS TO FORM AND CONTENT:

2

3

4 5 6 7

8

SHAPIRO, VAN ESS and SHERMAN, LLP

BARBARA J. FORDE, p.e.

BY:~~

By:CP;;~{k I Jason .Shem1an

Barbara J. Forde Attorney for PlaintifJlDebtors

Kristin E. Mathers Attorney for Fannie Mae c/o Seterus, Inc. fka IBM Lender Business Process Services, Inc.

9 10

11

12 13

14 15 16 17 18

19

20 21 22 23 24 25

26

-5足

Case 2:11-ap-01756-RTB Doc 29 Filed 02/06/12 Main Document - Stipulation

Entered 02/06/12 13:06:26 Page 5 of 5

Desc


Sanchez Stipulated Order for Modification of First Deed of Trust and Note