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.: Plaintiff(s), vs. DEBTOR’S MOTION FOR DEFAULT JUDGMENT RE COMPLAINT TO AVOID JUNIOR LIEN ON PRINCIPAL RESIDENCE [11 U.S.C. § 506(a),(d), FRBP 3012] DATE: TIME: COURTROOM: PLACE: Defendant. NAME OF CREDITOR HOLDING JUNIOR LIEN: ________________________________________________________ ________________________________________________________________________________________________ 1. Name of Defendant(s) against whom default judgment is sought: _______________________________ (hereinafter, “Defendant”). 2. Plaintiff(s) filed the Complaint in the above-captioned proceeding on ________________. 3. The Summons and Complaint were served on Defendant by on the following date _______________. Personal Service Mail Service 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.DEFAULT.MOTION 4. A conformed copy of the completed Return of Summons form is attached hereto. 5. The time for filing an answer or other response expired on ______________. 6. No answer or other response has been filed or served by Defendant. 7. The default of Defendant: a. Has not yet been entered, but is hereby requested. b. Was Entered on _______________________. 8. A Status Conference: a. Is scheduled for . Specify date, time, and place b. Was held on ___________________________________________________________________ . Specify date, time, and place DECLARATION OF NON-MILITARY STATUS: No defendant named in Paragraph 1 above is in the military service so as to be entitled to the benefits of the Servicemembers Civil Relief Act (Pub. L. 108-189) (50 U.S. Code App. §§ 501-594). The undersigned declares under penalty of perjury that this statement of defendant’s non-military status is true and correct and is made under penalty of perjury under the laws of the United States of America based upon the undersigned’s review of said Defendant’s Statement of Affairs and Statement of Income and Expenditures filed in this case and is based upon the undersigned’s lack of any information or belief that there has been any change of circumstances as to the defendant’s non-military status. 9. 10. Defaulting party is not an infant or incompetent party. 11. Property at Issue: Plaintiff moves to avoid the junior deed of trust, mortgage or other encumbrance (hereinafter, “Junior lien”) encumbering the following real property (“Property”), which is principal residence of Plaintiff(s). Street Address: __________________________________________________________________________ Unit Number.: __________ City, State, Zip Code:______________________________________________________________________ Legal description or document recording number (including county of recording): See attached page. 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.DEFAULT.MOTION 12. Grounds for Determining Unsecured Status and 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 debtor seeks to have treated as indicated: _______________________________ in the amount of $ ____________________ i. __________________________ in the amount of $ _________________ is is not to be avoided; ii. __________________________ in the amount of $ _________________ is is not to be avoided; 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 Junior lien on the Property is wholly partially unsecured. 13. Evidence in Support of Motion: a. The amount of the 1st lien identified in paragraph 12(a)(i) is based on ___________________________, _______________________________________________ attached hereto and identified as Exhibit _____. b. The amount of the 2nd lien identified in paragraph 12(a)(ii) is based on __________________________ _____________________________________________ attached hereto and identified as Exhibit _____. c. The amount of the 3rd lien identified in paragraph 12(a)(iii) is based on __________________________ ______________________________________________, attached hereto and identified as Exhibit _____ . d. e. The value of the Property from paragraph 3(b) is based on ___________________________________, _______________________________________________________________attached as Exhibit ____: f. Plaintiff submits the attached Declaration. g. 14. The relative priority of the liens encumbering the Property is established by evidence attached as Exhibit ____. Other evidence (specify): . WHEREFORE, Plaintiff prays that this Court issue an Order granting the following relief: a. That the Property is valued at no more than $ _____________________. That Defendant’s claim related to the Junior lien shall be allowed as a non-priority general unsecured claim in the amount per the filed Proof of Claim. b. The avoidance of Defendant’s Junior lien is contingent upon Debtor's receipt of a chapter 13 discharge. plan, or Debtor's completion of the chapter 13 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.DEFAULT.MOTION c. 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. d. In the event that the holder of the first position lien or any senior lien on the Property forecloses on its Debtor's completion of the chapter 13 plan, interest and extinguishes Defendant’s lien rights prior to: Debtor's receipt of a chapter 13 discharge, Defendant’s lien shall attach to the proceeds greater or than necessary to pay the senior lien, if any, from the foreclosure sale. e. See attached continuation page for additional provisions. Respectfully submitted, Dated: 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 4 F 4003-2.5.DEFAULT.MOTION 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 MOTION FOR DEFAULT JUDGMENT RE 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 5 F 4003-2.5.DEFAULT.MOTION 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 a 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 6 F 4003-2.5.DEFAULT.MOTION 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 Proof of claim FDIC website Alternative/Additional Address Alternative/Additional Address 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: ___________________ _______________________________ 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 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: ___________________ _______________________________ 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 7 F 4003-2.5.DEFAULT.MOTION