Attorney or Party Name, Address, Telephone & FAX Nos., State Bar No. & Email Address FOR COURT USE ONLY Attorney for Plaintiff(s): Plaintiff(s) appearing without attorney UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA - ________________________ DIVISION In re: CASE NO.: CHAPTER 13 Debtor(s). ADVERSARY NO.: DEBTOR’S COMPLAINT TO AVOID JUNIOR LIEN ON PRINCIPAL RESIDENCE [11 U.S.C. § 506(a),(d); FRBP 3012] Plaintiff(s), vs. TO BE FILED CONCURRENTLY WITH LBR FORM F 7004-1 SUMMONS AND NOTICE OF STATUS CONFERENCE AND FORM B-104 ADVERSARY PROCEEDING COVER SHEET Defendant. NAME OF CREDITOR HOLDING JUNIOR LIEN (“Defendant”): ____________________________________________ _________________________________________________________________________________________________ A. Introduction: This is an adversary proceeding brought by the Plaintiff(s), ________________________________, in order to determine the value of a claim secured by a lien on principal residence of Plaintiff(s) which the estate has an interest, and to avoid the junior deed of trust, mortgage or other encumbrance (hereinafter, “Lien”) of Defendant, pursuant to 11 U.S.C. § 506. B. Jurisdiction: This adversary proceeding arises out of and is related to the above-captioned chapter 13 case now pending in United States Bankruptcy Court. The complaint involves a “core” proceeding pursuant to 28 U.S.C. § 157(b)(2). The court has jurisdiction in this adversary proceeding pursuant to 28 U.S.C. §§ 157, 1334; and General Order No. 266 of the United States District Court for the Central District of California. This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California. October 2010 Page 1 F 4003-2.5.COMPLAINT C. Venue: Venue for this adversary proceeding is proper in this court pursuant to 28 U.S.C. § 1409(a). D. General Allegations: 1. Property at Issue: Plaintiff(s) owns real property (the “Property”), which is the principal residence of Plaintiff(s), described below, encumbered by a lien held by Defendant: Street Address: Unit Number: City, State, Zip Code: _______________________________________________________________________ __________________ _______________________________________________________________________ Legal description or document recording number (including county of recording): See attached page 2. Grounds for Avoidance of Junior Lien: a. As of________________, the Property is subject to the following liens in the amounts specified securing the debt against the Property, which the Plaintiff(s) seeks to have treated as indicated: i. _______________________________in the amount of $ _______________________: ii. _______________________________ in the amount of $ ___________________ be avoided; is is not to iii. ________________________________ in the amount of $ __________________ be avoided; is is not to See attached page for additional lien(s). b. As of__________________________, Property is worth no more than $ ______________________. c. As a result, Defendant’s claim related to the Lien on the Property is wholly partially unsecured. E. Claim For Relief: 1. Pursuant to 11 U.S.C. § 506(a), Defendant’s claim as of the date of filing is unsecured. 2. Pursuant to 11 U.S.C. § 506(d) the Defendant’s Lien may be avoided. F. Wherefore, Plaintiff prays for the following: 1. The Property is valued at no more than $_______________________. 2. The Defendant’s claim related to the Lien shall be allowed as a non-priority general unsecured claim in the amount per the filed Proof of Claim. 3. The avoidance of Defendant’s Lien is contingent upon Debtor's receipt of a chapter 13 discharge. Debtor's completion of the chapter 13 plan, or This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California. October 2010 Page 2 F 4003-2.5.COMPLAINT 4. The Defendant shall retain its lien in the junior position for the full amount due under the corresponding note and lien in the event of either the dismissal of Debtor's chapter 13 case, the conversion of Debtor's chapter 13 case to any other chapter under the United States Bankruptcy Code, or if the Property is sold or refinanced prior to: Debtor's completion of the chapter 13 plan, or Debtor's receipt of a chapter 13 discharge. 5. In the event that the holder of the first position lien or any senior lien on the Property forecloses on its interest and Debtor's completion of the chapter 13 plan, or Debtor's receipt extinguishes Defendant’s lien rights prior to: of a chapter 13 discharge, See attached continuation page for additional provisions. 6. Dated: _____________ Respectfully submitted, By: Signature of Plaintiff or Attorney for Plaintiff Name: Type Name of Plaintiff or Attorney for Plaintiff This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California. October 2010 Page 3 F 4003-2.5.COMPLAINT PROOF OF SERVICE OF DOCUMENT I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: A true and correct copy of the foregoing document described as DEBTOR’S COMPLAINT TO AVOID JUNIOR LIEN ON PRINCIPAL RESIDENCE will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner indicated below: I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”) – Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) (“LBR”), the foregoing document will be served by the court via NEF and hyperlink to the document. On___________________, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email address(es) indicated below: Service information continued on attached page II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL(indicate method for each person or entity served): On _____________________, I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. Service information continued on attached page III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on _________________, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no later than 24 hours after the document is filed. Service information continued on attached page I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Date Type Name Signature This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California. October 2010 Page 4 F 4003-2.5.COMPLAINT II. SERVED BY U.S. MAIL, CERTIFIED MAIL OR OVERNIGHT MAIL (indicate method for each person or entity served): (Attached page to Proof of Service-please include any additional or alternative addresses and attach additional pages if needed) (Certified Mail required for service on national bank.) st Name of 1 Name of 1st Lien Holder & Address Delivery Method Address from: Proof of claim FDIC website Name of 1st Lien Holder- Agent for Service of Process Address from: Proof of claim FDIC website Proof of claim FDIC website Name of 2nd Lien Holder & Address Secretary of State Other: specify Name of 2nd Lien Holder- Agent for Service of Process Name of 2nd Lien Holder – Servicing Agent US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ Delivery Method Address from: Proof of claim FDIC website US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ Delivery Method Secretary of State Other: specify Address from: Proof of claim FDIC website US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ Delivery Method Secretary of State Other: specify Address from: Proof of claim FDIC website US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ Delivery Method Address from: Name of 1st Lien Holder – Servicing Agent Secretary of State Other: specify Secretary of State Other: specify US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ Delivery Method Secretary of State Other: specify US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California. October 2010 Page 5 F 4003-2.5.COMPLAINT Name of 3rd Lien Holder & Address Delivery Method Address from: Proof of claim FDIC website Name of 3rd Lien Holder- Agent for Service of Process Address from: Proof of claim FDIC website Secretary of State Other: specify US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ Delivery Method Address from: Proof of claim FDIC website Alternative/Additional Address Secretary of State Other: specify Delivery Method Proof of claim FDIC website Alternative/Additional Address US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ Delivery Method Address from: Name of 3rd Lien Holder – Servicing Agent Secretary of State Other: specify Secretary of State Other: specify US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ Delivery Method Address from: Proof of claim FDIC website Secretary of State Other: specify US Mail Certified mail – Tracking # ______________________ Overnight mail – Tracking #______________________ Carrier Name: ___________________ _______________________________ This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California. October 2010 Page 6 F 4003-2.5.COMPLAINT