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Fay et al v. StellarOne Bank (In re Fay) (Case No. 11-61498-LYN; A.P. No. 11-06067) 02/28/12

Debtors sought to avoid the lien of StellarOne Bank. StellarOne opposed the complaint. 11 U.S.C. § 1322(b)(2) states that a chapter 13 may modify the rights of holders of secured claims, other than a claim secured only by a security interest in the real property that is the debtor’s principal residence.  Case law provided that a chapter 13 debtor may avoid a wholly unsecured lien on his residence of a second deed of trust if the amount of the first deed of trust is greater than the fair market value of the property. The parties disagreed as to the fair market value of the Subject property. The Court concluded that the Debtors’ assessment represented the fair market value. That amount was less than the amount of the first deed of trust on the Subject Property. Accordingly, the Debtors were allowed to avoid the lien of StellarOne Bank.

Date: 
Tuesday, February 28, 2012
Category: 
Burden of Proof
Lien Avoidance
Proofs of Claim
Chapter: 
13