UNITED STATES BANKRUPTCY COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

In re: 

 Chapter 13 

CHARLES V. DEBERRY 

JACQUELINE NICOLE DEBERRY 

Case No. 16-29209 

 Judge A. BENJAMIN GOLDGAR 

Debtor(s) 

NOTICE OF MOTION

PLEASE TAKE NOTICE that on February 3, 2017, at the hour of 9:30 A.M., I shall appear 

before the Honorable Judge A. BENJAMIN GOLDGAR, Room in the courtroom usually occupied by 

him at the Round Lake Beach, of the NORTH BRANCH COURT, 1792 Nicole Lane, Round Lake 

Beach, IL , and then and there move the Court pursuant to the attached Motion, at which time and 

place you may appear if you see fit. 

/s/ Timothy R. Yueill 

By: Timothy R. Yueill, Esq. 

Served upon the following parties electronically: 

DAVID P. LEIBOWITZ, ESQ, Leibowitz Law Center 420 CLAYTON STREET, WAUKEGAN, IL 

60085-4232 - Counsel for Debtor(s) 

GLENN B STEARNS, 801 WARRENVILLE RD., STE. 650, LISLE, IL 60532 - Trustee 

PATRICK S. LAYNG 219 S. DEARBORN ST., ROOM 873, CHICAGO, IL 60604 - U.S. Trustee 

and served upon the following parties by mail: 

CHARLES V. DEBERRY, 1861 HAVEN LANE, GREEN OAKS, IL 60048 

JACQUELINE NICOLE DEBERRY, 1861 HAVEN LANE, GREEN OAKS, IL 60048 - Debtor(s) 

Certification of Service 

 I, the undersigned, an attorney, hereby certified that I have served a copy of this Notice 

along with the attached Motion upon the parties listed above, as to the Trustees and Debtor(s)’ 

counsel via electronic through ECF on January 18, 2017, and as to the Debtor(s) by causing same 

to be mailed in a properly addressed envelope, postage prepaid, in the U.S. Mail Chute at 175 North 

Franklin, Chicago, Illinois, before the hour of 5:00 p.m., on January 18, 2017. 

 By: /s/ Timothy R. Yueill 

LAW OFFICES OF IRA T. NEVEL, LLC 

Ira T. Nevel - ARDC #06185808 

Timothy R. Yueill - ARDC #6192172 

Greg Elsnic - ARDC #6242847 

Richard Drezek - ARDC #6301323 

Nathan J. Buikema - ARDC #6302969 

Aaron Nevel - ARDC #6322724 

175 North Franklin St. Suite 201

Chicago, Illinois 60606 

(312) 357-1125 

Pleadings@nevellaw.com 

MO 

# 16-03304

THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE 

USED FOR THAT PURPOSE

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Document Page 1 of 4
UNITED STATES BANKRUPTCY COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

In re: 

 Chapter 13 

CHARLES V. DEBERRY 

JACQUELINE NICOLE DEBERRY 

Case No. 16-29209 

 Judge A. BENJAMIN GOLDGAR 

Debtor(s) 

MOTION FOR RELIEF FROM AUTOMATIC STAY 

OR IN THE ALTERNATIVE FOR DISMISSAL

 NOW COMES MANUFACTURERS AND TRADERS TRUST A/K/A M &T BANK successor 

by merger to HUDSON CITY SAVINGS BANK, by and through its mortgage servicer, CitiMortgage, 

Inc., secured creditor herein, by and through its counsel, LAW OFFICES OF IRA T. NEVEL, LLC 

and moves this Honorable Court for an Order granting relief from the Automatic Stay, or alternatively, 

for dismissal, and in support thereof, states as follows: 

 1. Jurisdiction is proper and venue is fixed in this Court with respect to these parties. 

 2. The Debtors herein filed a Petition under Chapter 13 of Title 11, United States Bankruptcy 

Code on September 13, 2016. 

 3. Said Creditor is a mortgagee lien holder on the real property commonly known as 1861 

HAVEN LN, LIBERTYVILLE, IL 60048. 

4. The debtors have executed and delivered or are otherwise obligated with respect to that 

certain promissory note (the “Note”). A copy of the Note is attached hereto as Exhibit A. Movant is 

an entity entitled to enforce the Note. 

 5. Pursuant to that certain Mortgage (the “Mortgage”), all obligations (collectively, the 

“Obligations”) of the Debtors under and with respect to the Note and the Mortgage are secured by 

the Property. A copy of the Mortgage is attached hereto as Exhibit B. 

 6. All rights and remedies under the Mortgage have been assigned to the Movant pursuant 

to that certain assignment of mortgage, a copy of which is attached hereto as Exhibit C. 

 7. That enforcement of said security interest has been stayed automatically by operation of 

11 U.S.C. §362 of the Bankruptcy Code. 

 8. The proposed Chapter 13 Plan, specifically Special Terms [ as provided in Section G] set 

forth that the real property listed above is referred to as the “Residence”. (A copy of the Chapter 13 

Plan is attached hereto as Ex. E). 

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 9.That further, the proposed Chapter 13 Plan, specifically Special Terms [ as provided in 

Section G ] set forth that “ 5. In the event that the Debtors are unable to sell the Residence on or 

before May 31, 2016, the automatic stay shall be modified on June 1, 2016 to allow CitiMortgage to 

proceed with its state court rights and remedies against the Residence. With the consent of 

CitiMortgage and the Court, this term may be extended to any time within the remainder of the 

Chapter 13 Plan.” 

 10. That on information and belief, the Debtors have been unable to sell the Residence. 

 11. That additionally, Debtors are post due for the October 1, 2016 payment through and 

including December 1, 2016 with a total post-petition default through and including the December 1, 

2016 in the amount of $24,099.81 (as no post payments have been made). The January 1, 2017 

payment will be due as well by the anticipated hearing date. 

 12. That pursuant to the terms of the confirmed Plan as well as the failure to pay postpetition mortgage payments, sufficient grounds for relief from the Automatic Stay exist for cause 

pursuant to 11 U.S.C. §362(d)(1). 

 13. That alternatively, sufficient grounds exist to dismiss this proceeding under 11 U.S.C. 

§362 as: 

a. debtor's failure to timely pay post-petition mortgage payments as required under 

the plan and 11 U.S.C. §1322(b)(2) and (b)(5) constitutes and unreasonable delay 

that is prejudicial to moving creditor and the case should be dismissed under 11 

U.S.C. §1307(c)(1); 

b. debtor's failure to timely pay post-petition mortgage payments as required under 

the plan and 11 U.S.C. §1322(b)(2) and (b)(5) constitutes "cause" and the case 

should be dismissed under the general provision of 11 U.S.C. §1307; 

c. the default in post-petition mortgage payments constitutes a material default 

under paragraph C of the Chapter 13 plan and case should be dismissed under 

§1307(c)(6); 

 14. In addition to the other amounts due to Movant reflected in this Motion, as of the date 

hereof, about seeking the relief requested herein, Movant has also incurred $650 in legal fees and 

$176 in costs. Movant reserves all right to seek an award or allowance of such fees and expenses 

in accordance with applicable loan documents and related agreements, the Bankruptcy Code and 

otherwise applicable law. 

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 15. That this Court has the authority to order that Rule 4001(a)(3) is not applicable to the 

Order entered in granting this Motion, and this Creditor requests this Court to so order. 

 16. CitiMortgage, Inc. services the loan on the property referenced in this Motion for Relief. 

In the event the automatic stay in this case is modified, this case dismisses, and/or the debtor obtains 

a discharge and a foreclosure action is commenced on the mortgaged property, the foreclosure will 

be conducted in the name of MANUFACTURERS AND TRADERS TRUST A/K/A M &T BANK S/B/M 

HUDSON CITY SAVINGS BANK, “Noteholder”. 

Noteholder directly or through an agent, has possession of the promissory note. The 

promissory note is either made payable to Noteholder or has been duly endorsed. Noteholder is the 

original mortgagee or beneficiary or the assignee of the security instrument for the referenced loan. 

WHEREFORE, this Creditor, MANUFACTURERS AND TRADERS TRUST A/K/A M &T 

BANK S/B/M HUDSON CITY SAVINGS BANK, by its mortgage servicer, CitiMortgage, Inc., prays 

that this Court enter an Order, pursuant to 11 U.S.C. §362(d), granting relief from the Automatic Stay, 

alternatively for dismissal and/or for such other additional relief as this Court may deem fit. 

 Law Offices of Ira T. Nevel, LLC 

 

/s/ Timothy R. Yueill 

By: Timothy R. Yueill, Esq. 

Counsel for MANUFACTURERS AND TRADERS 

TRUST A/K/A M &T BANK S/B/M HUDSON 

CITY SAVINGS BANK 

LAW OFFICES OF IRA T. NEVEL, LLC 

Ira T. Nevel - ARDC #06185808 

Timothy R. Yueill - ARDC #6192172 

Greg Elsnic - ARDC #6242847 

Richard Drezek - ARDC #6301323 

Nathan J. Buikema - ARDC #6302969 

Aaron Nevel - ARDC #6322724 

175 North Franklin St. Suite 201

Chicago, Illinois 60606 

(312) 357-1125 

Pleadings@nevellaw.com 

MO 

# 16-03304

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