Hernandez v. TCF Banking & Savings (In re Hernandez)

493 B.R. 46
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedMay 10, 2013
DocketBankruptcy No. 12 B 14383; Adversary No. 12 A 00748
StatusPublished
Cited by6 cases

This text of 493 B.R. 46 (Hernandez v. TCF Banking & Savings (In re Hernandez)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. TCF Banking & Savings (In re Hernandez), 493 B.R. 46 (Ill. 2013).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JACK B. SCHMETTERER, Bankruptcy Judge.

Ignacio Hernandez and Julia Hernandez (“Plaintiffs”) filed this Adversary Complaint pursuant to 11 U.S.C. §§ 506(a), (d) and Fed. R. Bankr.P. 3012 to determine [48]*48the nature and extent of liens held by TCF Bank (“Defendant”) and secured by Plaintiffs’ residence. It relates to their chapter 13 bankruptcy case. Following trial, the following Findings of Fact and Conclusions of Law are made and entered.

FINDINGS OF FACT

1. Plaintiffs filed a voluntary petition for relief under Chapter 13 of Title 11 of the United States Code on April 9, 2012 (the “Petition Date”).

2. Plaintiffs are joint owners of a parcel of real estate commonly known as 4447 S. Keating Avenue, Chicago, IL 60632 (the “Property”).

3. Plaintiffs occupy the Property as their primary residence.

4. The Property is encumbered by three mortgages. Each mortgage is owned by Defendant TCF Bank. Plaintiffs contend that the two junior mortgages are unsupported by equity in the Property and that those mortgages should be found to be unsecured.

5. The first mortgage (hereinafter “First Mortgage”) on the Property owned by Defendant is properly recorded in the Office of the Cook County Recorder of Deeds as document number 0412511281. As of the Petition Date, the loan secured by this First Mortgage had a balance of $55,850.91.

6. The second mortgage (hereinafter “Second Mortgage”) on the Property owned by Defendant is properly recorded in the Office of the Cook County Recorder of Deeds as document number 0805004069. As of the Petition Date, the loan secured by the Second Mortgage had a balance of $92,698.10.

7. The third mortgage (hereinafter “Third Mortgage”) on the Property owned by Defendant is properly recorded in the Office of the Cook County Recorder of Deeds as document number 0805004070. As of the Petition Date, the loan secured by the Third Mortgage had a balance of $5,000.

9.Steven Orlowski is a certified real estate appraiser, licensed by the State of Illinois.

10. Orlowski was hired by Plaintiffs to perform an appraisal of the value of the Property. He personally inspected the Property and valued it at $50,000 as of February 18, 2012. (Pl. Ex. A)

11. James. J. Farrelly is a certified real estate appraiser, licensed by the State of Illinois.

12. Farrelly was hired by Defendant to perform an appraisal of the value of the Property. He personally inspected the Property and valued it at $110,000 as of September 25, 2012. (Def. Ex. A)

13. Both appraisers were qualified as experts in the field of residential home appraisals.

14. For reasons discussed below, the fair market value of the Property is found to have been $110,000 as of the date of the related bankruptcy case was filed.

15. Additional facts set forth in the Conclusions of Law will stand as additional Findings of Fact.

CONCLUSIONS OF LAW

Jurisdiction

Jurisdiction lies over this proceeding under 28 U.S.C. § 1334(b), and authority over this matter has been referred here by Internal Operating Procedure 15(a) of the District Court for the above-titled District. [49]*49This is a proceeding to determine the validity, extent, or priority of a lien and therefore a core matter under 28 U.S.C. § 157(b)(2)(k). Venue is properly placed in this court under 28 U.S.C. § 1409(a).

Expert Testimony on Value of Property

Each party called an appraiser to testify at trial. The appraisers were each qualified as experts in the field of residential home appraisals and each submitted written appraisals of the Property that reflected their opinion of its value. To estimate the Property’s value, both appraisers used the “sales comparison approach.” Under that approach, the sales prices of recently marketed and sold homes asserted to be comparable to the Property and in the vicinity of Property were adjusted to reflect the differences between those homes and the Plaintiffs’ Property. The adjusted sales prices were then averaged by each expert to estimate the Property’s market value.

Using the sales comparison approach, Plaintiffs’ appraiser Orlowski estimated the Property’s value to be $50,000 as of February 18, 2012. In reaching this conclusion, Orlowski compared the price of three sales of homes that were, in his view, similar in location, size, and condition to Plaintiffs’ Property. All three sales were cash sales and each occurred within twelve months of Orlowski’s appraisal. Orlowski testified that he inspected the Property’s exterior and interior to determine what properties would be comparable. In his opinion, the Property should be compared to other less desirable or inexpensive properties due to the Property’s age, lack of basement, and need of a space heater. The Property was not recently updated but needs no major repairs. Orlowski emphasized that he compared Property to others of similar frame construction with aluminum and shingle siding.

Orlowski also described Property as being in a neighborhood with declining home values. Looking at the median sale price over the preceding 12 months, Orlowski found a 14.5% decrease in prices, a decline he described as significant. Orlowski then researched MLS listings for recent sales of properties similar to Property. On cross-examination, Orlowski testified that the declining real estate market was the single most important factor in his valuation. He stated that Property was located in an area where distressed sales and foreclosures were prevalent and bank owned properties abundant. Orlowski testified that there were no properties similar to Property that were not distressed, justifying a lower valuation in his view.

Also using the sales comparison approach; Defendant’s appraiser, Farrelly, estimated the Property’s value to be $110,000 as of September 25, 2012. In reaching his conclusion, Farrelly also used the sales prices of three properties that he viewed as similar in location, size, and condition to Plaintiffs’ Property. Two of the sales used in Farrelly’s appraisal were labeled as “arm’s length” with the third labeled as a “short” sale. Two others were active listings, meaning no sale has taken place. Farrelly listed several factors he considered of most significance in his report: square footage, bedroom/bathroom count, proximity to the Property, and sales date.

Farrelly’s report also identified the market decline, noting that the median sales price decreased 9.7% over the 12 months preceding his analysis. He stated that seller concessions were common in sales and that 36% of sales involved bank owned properties.

Farrelly was also challenged about his choice of comparable properties. In his report, Farrelly used five properties he considered comparable to Property. As [50]

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Cite This Page — Counsel Stack

Bluebook (online)
493 B.R. 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-tcf-banking-savings-in-re-hernandez-ilnb-2013.