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French v. Bmo Harris Bank

April 30, 2012

FRENCH
v.
BMO HARRIS BANK, N.A.



Name of Assigned Judge or Magistrate Judge Amy J. St. Eve Sitting Judge if Other than Assigned Judge

CASE TTLE

DOCKET ENTRY TEXT

The Court vacates the March 9, 2012 order of the bankruptcy court that lifted the automatic stay as to Appellee BMO Harris Bank N.A. The case is remanded to the U.S. Bankruptcy Court, Northern District of Illinois (Chicago) for further proceedings consistent with the enclosed Order.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Appellant Thomas R. French ("French") appeals the March 9, 2012 order of the United States Bankruptcy Court for the Northern District of Illinois that granted the motion of Appellee BMO Harris Bank, N.A. ("Harris Bank") for relief from the automatic stay. For the following reasons, the Court vacates the order of the bankruptcy court, and remands this case for further proceedings consistent with this Order.

Continued...

Courtroom Deputy KF

Initials:

BACKGROUND

On or about October 31, 2003, Ann K. Sobotta executed a mortgage in the amount of $160,000 in favor of Harris Trust and Savings Bank, successor in interest to Appellee Harris Bank, that was secured by certain real estate at 34901 North Hiawatha Trail, McHenry, Illinois, 60051 (the "Property"). (R. 1, Ex. 3, Record on Appeal ("Record") at 56-78.) The mortgage contained a "due on sale" clause, which provides that:

If all or any part of the Property or any Interest in the Property is sold or transferred . . . without Lender's prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.

(Id. at 66, Mortgage § 18.)

In or about July of 2009, Sobotta defaulted on her regular mortgage payments by failing to make required payments of principal and interest. (Id. at 53-54.) Harris Bank thereafter filed a foreclosure action against the Property in the Circuit Court of Lake County on February 5, 2010. (Id.) On or about June 16, 2010, following Sobotta's death, the ...


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