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Hsbc Bank Usa, Na, As Trustee For the Registered Holders of Ace v. Erik J. anderson

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION


October 7, 2011

HSBC BANK USA, NA, AS TRUSTEE FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2005- HE2, ASSET BACKED PASS-THROUGH CERTIFICATES, PLAINTIFF,
v.
ERIK J. ANDERSON, STACEY ANDERSON, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, AS NOMINEE FOR FREMENT INVESTMENT & LOAN, AND UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE, DEFENDANTS.

The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Tuesday, 11 October, 2011 10:19:56 AM

Clerk, U.S. District Court, ILCD

ORDER & OPINION

This matter is before the Court on Plaintiff's Motion to Set Aside Judgment and Dismiss without Prejudice, filed on September 9, 2011. (Doc. 24). For the reasons stated below, Plaintiff's Motion is granted.

On November 15, 2010, Plaintiff filed its Complaint for Foreclosure, and a judgment was entered against Defendants on June 14, 2011. (Docs. 1 & 23). Defendant represents in the instant Motion that on August 5, 2011, a loan modification was accepted, and asks the Court to set aside the judgment against Defendants and dismiss this case without prejudice. (Doc. 24). Responses were due by September 26, 2011, and none have been filed, so the Motion is unopposed.

Plaintiff does not specify what Federal Rule of Civil Procedure under which it seeks to have the judgment set aside, but the Court assumes that it would be Rule 60(b)(5), which allows the Court to set aside a judgment where "the judgment has been satisfied, released or discharged;.or applying it prospectively is no longer equitable." In this matter, the loan at issue has been modified, so it could be said either that the judgment has been satisfied, released or discharged, or that it would no longer be equitable to foreclose on the property. Further, no party objects to the request to set aside the judgment. The June 14, 2011 judgment will be set aside.

Under Rule 41(a)(2), a plaintiff may ask the court to dismiss an action "on terms that the court considers proper."*fn1 Here, no party has objected to Plaintiff's request, and the Court finds that in this situation, it is proper to dismiss the action without prejudice.

IT IS THEREFORE ORDERED that Plaintiff's Motion to Set Aside Judgment and Dismiss without Prejudice (Doc. 24) is GRANTED. The Clerk is directed to VACATE the June 14, 2011 Judgment. This matter is DISMISSED WITHOUT PREJUDICE.

Joe B. McDade


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