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Deutsche Bank National Trust v. Kevin L. Parker and Dennis Myracle

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


January 29, 2013

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR THE REGISTERED HOLDER OF SOUNDVIEW HOME LOAN TRUST 2006-EQ1 ASSET-BACKED CERTIFICATES, SERIES 2006-EQ1, PLAINTIFF,
v.
KEVIN L. PARKER AND DENNIS MYRACLE, DEFENDANTS.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter is before the Court on the Plaintiff's Motion to Set Aside Judgment and Dismiss the Case (Doc. 29). The Plaintiff seeks to set aside the judgment pursuant to Federal Rule of Civil Procedure 60(b)(5) or (6) on the grounds that applying the judgment prospectively would no longer be equitable in light of the loan modification agreement into which the parties have entered. It further asks the Court to dismiss this case without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

In light of the loan modification agreement, it would no longer be equitable to enforce the judgment of foreclosure in this case, and vacating the judgment is warranted. Furthermore, in the absence of a judgment, Rule 41(a)(1)(A)(i) allows the Plaintiff to dismiss this action without a court order since no opposing party has served an answer or a motion for summary judgment. For the foregoing reasons, the Court:

 GRANTS the Motion to Set Aside Judgment and Dismiss the Case (Doc. 29);

 VACATES the judgment of foreclosure (Doc. 27);

 DISMISSES this case without prejudice; and

 DIRECTS the Clerk of Court to close this case.

J. Phil Gilbert

20130129

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