United States of America v. Starkey et al
Filing
9
OPINION granting 8 Motion for Default Judgment. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 04/17/2019. (SKN, ilcd)
E-FILED
Friday, 19 April, 2019 03:22:30 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
)
v.
)
)
TRACY L. STARKEY and
)
ILLINOIS HOUSING
)
DEVELOPMENT AUTHORITY, )
)
Defendants.
)
Case No. 18-cv-02164
OPINION
Sue E. Myerscough, U.S. District Judge:
The Court now considers Plaintiff United States of
America's Motion to Enter Judgment (hereinafter the
"Motion"). Pursuant to Federal Rule of Civil Procedure 55,
28 U.S.C. ' 2001, and for the reasons stated below, the
Motion is ALLOWED. In connection with its decision, the
Court has considered all of the pleadings and evidence
submitted to date. Based thereon, the Court makes these
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FINDINGS:
I.
JURISDICTION
1. The Court has jurisdiction over the subject matter
and parties pursuant to 28 U.S.C. '' 1345 and 1391,
respectively. The Defendant-Mortgagor, TRACY L.
STARKEY, returned her signed Waiver of Service of
Summons (R.6) that was filed with the Court on July 2,
2018. The Defendant, ILLINOIS HOUSING DEVELOPMENT
AUTHORITY, returned its signed Waiver of Service of
Summons (R.5) that was filed with the Court on June 21,
2018. Neither party thereafter voluntarily appeared in
these proceedings. Further, the Defendant, TRACY L.
STARKEY, is not currently in the military service in either
an active duty or reserved status.
II.
EVIDENTIARY FINDINGS
1. Defendant-Mortgagor, TRACY L. STARKEY,
executed a mortgage and a note (attached to the complaint
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as Exhibits A and B) in the amount of $137,600.00 secured
by said mortgage. The United States of America, acting
through Rural Development, United States Department of
Agriculture, was the mortgagee on the mortgage executed
by defendant as mortgagor. The mortgage pertaining to the
property described herein was recorded on September 24,
2008, in the Office of the Recorder of Deeds, Kankakee
County, Illinois as Document No. 200819982.
2. The material factual allegations stated in the
complaint filed herein have not been denied in any
responsive pleading.
3. Plaintiff is the owner of the note and mortgage
described in the complaint.
4. Plaintiff moved the Court to enter a Default
Judgment of Foreclosure in this cause and has filed with
the Motion the sworn Affidavit for Judgment of Douglas
Wilson, State Director, Rural Development, dated August
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13, 2018, and the sworn Declaration of Amounts Due and
Owing by Meleah Smith, Rural Development, dated August
13, 2018, setting forth that as of August 13, 2018, there
was due Plaintiff under the Note and Mortgage hereinafter
described the sum of $182,076.53 plus a per diem accrual
of $22.0604 thereafter to date of judgment and no objection
being made to said Motion or Affidavits of said Motion, said
motion is allowed and Affidavits admitted into evidence in
this cause.
5. The following are names of persons who may have
claimed an interest in the above-described property, but
who are foreclosed from asserting their claim, if any,
because of their default in this action: TRACY L. STARKEY
and ILLINOIS HOUSING DEVELOPMENT AUTHORITY.
6. All of the material allegations contained in the
complaint are true and by virtue of the mortgage and
indebtedness thereby secured, Plaintiff, United States of
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America, has a valid and subsisting lien arising out of a real
estate mortgage on the property described as follows:
Lot 6 Limestone Acres, being a
Subdivision of the North 360 feet of the
Southwest Quarter of the Northwest
Quarter of Section 32, Township 31
North, Range 11 East of the Third
Principal Meridian, in Kankakee County,
Illinois.
Tax No: 07-08-32-101-006
7. By virtue of the mortgage and the indebtedness
thereby secured, as alleged in the complaint, there is due
Plaintiff, United States of America, as follows:
a) For its own use and benefit for the costs of this
suit and for:
U.S. Attorney's Docket Fee…………………..$400.00
Recording Fee - Notice of Foreclosure……..$47.00
Total………………………………………………$447.00
b) Unpaid principal and interest:
Unpaid principal balance…….……….$121,850.57
Accrued interest at $22.0604 per day due and
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unpaid as of 8/13/2018 ……………...$38,333.54
Escrow/Impound Required……………$977.00
Late Fees……………………………………$81.90
Interest on Fees……………………………$2,648.48
Fees Assessed………………………………$18,185.04
Breakdown of fees: Title Search
($498.00); Negative Escrow ($17,687.04)
Total amount due plaintiff as of 8/13/2018
exclusive of foreclosure costs……..…..$182,076.53
c) In addition, Plaintiff may be compelled to
advance various sums of money in payment of
costs, fees, expenses and disbursements incurred
in connection with the foreclosure, including,
without limiting the generality of the foregoing,
filing fees, stenographer's fees, witness fees, costs
of publication, costs of procuring and preparing
documentary evidence and costs of procuring
abstracts of title, certificates, foreclosure minutes,
a title insurance policy and fees, charges, and
expenses provided by law incurred by or owing to
the United States Marshal, including such fees
and expenses relating to conducting of the judicial
sale as required by this judgment of foreclosure.
d) Under the terms of the mortgage, all such
advances, costs and other fees, expenses and
disbursements are made a lien upon the
mortgaged real estate and Plaintiff is entitled to
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recover all such advances, costs, expenses and
disbursements, together with interest on all
advances at the rate provided in the mortgage, or,
if no rate, from the date on which such advances
are made.
e) In order to protect the lien of the mortgage,
Plaintiff may necessarily have to pay taxes and
assessments, which have been or may be levied
upon the mortgaged real estate.
f) In order to protect and preserve the mortgaged
real estate, Plaintiff may have to make such
repairs to the real estate as may reasonably be
deemed necessary for the proper preservation
thereof.
g) Under the terms of the mortgage, any money
so paid or expended has or will become an
additional indebtedness secured by the mortgage
and will bear interest from the date such monies
are advanced at the rate provided in the mortgage,
or, if no rate is provided, at the statutory
judgment rate.
8. The present owner(s) of the above-described real
estate is: TRACY L. STARKEY.
9. Kankakee County, Illinois, has a valid lien on the
above-described property for taxes for the years 2018 and
all property taxes thereafter and the property will be sold
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subject to the interest of Kankakee County, resulting from
taxes, general or special, which are a valid lien against the
above-described property.
10. ILLINOIS HOUSING DEVELOPMENT AUTHORITY
claims an interest in these proceedings by virtue of a
Recapture Agreement, recorded September 17, 2013, as
Document No. 2013-13553. The interest of the defendant
is inferior to that of plaintiff.
11. That plaintiff is entitled to a shortened redemption
period for the following reasons: the above-described
property is abandoned, there are no other persons in
possession of said premise, and the value of the mortgaged
real estate as of this date is less than ninety percent (90%)
of the amount specified pursuant to the Code of Civil
Procedure, 735 ILCS 5/15-1603(d), and the mortgagee
waives any and all rights to a personal judgment for a
deficiency against the Defendant-Mortgagor, TRACY L.
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STARKEY, and against all other persons liable for the
indebtedness or other obligations secured by the mortgage.
12. The premises, which are the subject of this
proceeding, are valuable, and unless the purchaser, as
Plaintiff’s assignee, is placed in immediate possession
during the 30-day period following the confirmation of the
Report of Sale of Real Estate, the premises would be
subject to vandalism, waste, loss, and possible destruction.
13. By reason of the defaults alleged and proved, if
the indebtedness had not matured by its terms, the same
became due by the exercise, by Plaintiff or other persons
having such power, of a right or power to declare
immediately due and payable the whole of all indebtedness
secured by the mortgage.
14. Any and all notices of default or election to declare
the indebtedness due and payable or other notices required
to be given have been duly and properly given.
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15. Any and all periods of grace or other period of
time allowed for the performance of the covenants or
conditions claimed to be breached or for the curing of any
breaches have expired.
16. All lien or mortgage claimants defaulted are found
and declared to have no interest in the real estate
foreclosed, as they have offered no evidence of the interest.
17. The real estate is free and clear of all liens and
encumbrances except:
a) General real estate taxes for the years 2018
and thereafter and special assessments, if any.
b) The mortgage given to Plaintiff.
c) Easements and restrictions of record.
18. Plaintiff’s mortgage is prior and superior to all
other mortgages, claims of interest and liens upon the real
estate except for real estate taxes and special assessments,
if any, and except for any mortgages or liens found herein
to be prior and superior to plaintiff's mortgage or prior liens
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of non-parties.
WHEREFORE, IT IS ORDERED, ADJUDGED AND
DECREED:
III. ORDER UPON DEEMED REQUEST FOR
FORECLOSURE
1. An accounting has been taken under the direction
of the court of the amounts due and owing to Plaintiff as
declared herein.
2. The Defendant-Mortgagor, TRACY L. STARKEY, is
ordered to pay to Plaintiff before expiration of any
redemption period (or, if no redemption period, within
seven days after the date of this judgment) whatever sums
may appear to be due upon the taking of such account,
together with fees and costs of the proceedings to the
extent provided in the mortgage or by law.
3. In default of such payment in accordance with this
judgment, the mortgaged real estate shall be sold as
directed by the Court, to satisfy the amount due to Plaintiff
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as set forth in this judgment, together with the interest
thereon at the statutory judgment rate from the date of the
judgment.
4. In the event Plaintiff is a purchaser of the
mortgaged real estate at such sale, Plaintiff may offset
against the purchase price of such real estate the amounts
due under the judgment for the foreclosure and order
confirming the sale.
5. In the event of such sale and the failure of the
person entitled thereto to redeem prior to such sale
pursuant to statutory provisions, the Defendants made
parties to the foreclosure in accordance with statutory
provisions, and all non-record claimants given notice of the
foreclosure in accordance with statutory provisions, and all
persons claiming by, through or under them, and each and
any and all of them, shall be forever barred and foreclosed
of any right, title, interest, claim, lien or right to redeem in
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and to the mortgaged real estate.
6. If no redemption is made prior to such sale, a deed
shall be issued to the purchaser according to law and such
purchaser shall be let into possession of the mortgaged real
estate in accordance with statutory provisions.
IV. ORDER UPON SPECIAL MATTERS
1. Exceptions to which title in the real estate shall be
subject at the sale shall include general real estate taxes
for the current year and for the preceding year which have
not become due and payable as of the date of this
judgment and any special assessments upon the real estate
and easements and restrictions of record.
2. In the event any party to this foreclosure is a
successful bidder at the sale, such party may offset against
the purchase price to be paid for such real estate all
amounts due such party under this judgment of
foreclosure or the order confirming the sale.
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3. The property is being sold at this judicial sale “AS
IS” WITHOUT ANY WARRANTIES OF HABITABILITY OR
ANY OTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED.
V.
ORDER FOR JUDICIAL SALE
1. The real estate is ordered to be sold in accordance
with applicable statutory provisions by the U.S. Marshal or
his representative.
2. After expiration of the redemption and
reinstatement periods, the real estate shall be sold by the
United States Marshal for the Central District of Illinois
inside on the first floor, main lobby of the Kankakee
County Courthouse in the City of Kankakee, Illinois, at the
time announced by the United States Marshal as provided
hereinbelow subject to easements and restrictions of record
and taxes, general or special, due and owing to Kankakee
County, Illinois, in addition to the real estate transfer tax
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(35 ILCS 200/31-1, et seq.), shall be paid by buyer(s). Said
property shall be sold to the highest bidder who shall pay
ten percent (10%) of the bid purchase price at the time and
place of sale by Cashier’s/ Official Bank Check payable to
the United States Marshals Service and tendered to the
United States Marshal conducting the sale. The balance of
the bid purchase price shall be paid by Cashier’s/Official
Bank Check made payable to the United States Marshals
Service and received by the United States Marshals
Service-Central District of Illinois at 600 East Monroe
Street, Springfield, Illinois 62701, within thirty (30) days of
date of said sale. If the balance is not received within said
time period, the ten percent (10%) payment made at time of
sale shall be forfeited to the United States, the sale shall be
void and a new sale shall be scheduled by the Court. No
evidence of title will be provided.
IT IS FURTHER ORDERED, ADJUDGED AND
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DECREED that the U.S. Marshal for the Central District of
Illinois give public notice of the sale as follows:
a) The notice of sale shall include the following
information, but an immaterial error in the
information shall not invalidate the legal effect of
the notice:
i) The name, address and telephone number
of the person to contact for information
regarding the real estate;
ii) The common address and other common
description (other than legal description), if
any, of the real estate;
iii) A legal description of the real estate
sufficient to identify it with reasonable
certainty;
iv) A description of the improvements on the
real estate;
v) The real estate may be inspected prior to
sale upon making reasonable arrangements
with the person identified in paragraph (i)
above;
vi) The time and place of the sale;
vii) The terms of the sale;
viii) The case title, case number and the
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court in which the foreclosure was filed; and
ix) No other information is required.
b) The notice of sale shall be published at least
four consecutive calendar weeks (Sunday through
Saturday), once in each week, the first such
notice to be published not more than 45 days
prior to the sale, the last such notice to be
published not less than 7 days prior to the sale,
by:
i) An advertisement in a newspaper regularly
issued and of general circulation to the
general public in the county in which the real
estate is located in the section of that
newspaper where legal notices are commonly
placed; and
ii) No other publication shall be required.
c) The party who gives notice of public sale shall
also give notice to all other parties in the action
who have not heretofore been found by the court
to be in default for failure to plead. Such notice
shall be given in the manner provided in the
applicable rules of court for service of papers
other than process and complaint, not more than
45 days and not less than seven days prior to the
day of sale. After notice is given as required in
this section, a copy thereof shall be filed in the
Office of the Clerk of the Court together with a
certificate of counsel or other proof that notice has
been served in compliance with this section.
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d) The party who gives notice of a public sale
shall again give notice of any adjourned sale;
provided, however, that if the adjourned sale is to
occur less than 60 days after the last scheduled
sale, notice of any adjourned sale need be given
only once, not less than 5 days prior to the day of
the adjourned sale.
e) Notice of the sale may be given prior to the
expiration of the redemption period.
f) No other notice by publication or posting shall
be necessary.
g) The person named in the notice of sale to be
contacted for information about the real estate
shall not be required to provide additional
information other than that set forth in the notice
of sale.
3. Division of Property. If the real estate is
susceptible of division, the person conducting the sale may
order it to be sold as necessary to satisfy this judgment.
The person conducting the sale shall determine which real
estate shall be sold, and the person conducting the sale
may determine the order in which separate tracts may be
sold.
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4. Certificate of Sale. Upon the sale of mortgaged real
estate, the person conducting the sale shall give a
certificate of sale to the purchaser and cause such
certificate of sale to be recorded. The certificate shall be
freely assignable by endorsement thereon.
VI.
TRANSFER OF TITLE
1. Upon or after confirmation of sale, the person who
conducted the sale or the court shall execute a deed to the
holder of the certificate of sale sufficient to convey title,
which deed shall identify the court and the caption of the
case in which judgment was entered authorizing issuance
of the deed. Signature and the recital in the deed of the
title or authority of the person signing the deed as grantor
of authority pursuant to this judgment and of the giving of
the notices required by statute shall be sufficient proof of
the facts recited and of such authority to execute the deed,
but such deed shall not be construed to contain any
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covenant on the part of the person executing it.
2. Delivery of the deed executed on the sale of the real
estate, even if the purchaser or holder of the certificate of
sale is a party to the foreclosure, shall be sufficient to pass
the title thereto. Such conveyance shall be an entire bar of
(i) all claims of parties to the foreclosure and (ii) all claims
of any non-record claimant who is given notice of the
foreclosure as provided by statute.
VII. APPLICATION OF PROCEEDS
The proceeds resulting from the sale ordered herein
shall be applied in the following order:
1. The reasonable expenses of sale including but not
limited to costs of publication, notice of the sale, expenses,
fees, and commissions incurred by or owing to the U.S.
Marshal pursuant to law;
2. The reasonable expenses of securing possession
before sale, holding, maintaining, and preparing the real
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estate for sale, including payment of taxes and other
governmental charges, management fees, and to the extent
provided for in the mortgage or other recorded agreement
and not prohibited by law, payments made pursuant to
735 ILCS 5/15-1505, and other legal expenses incurred by
the mortgagee;
3. Satisfaction of claims in the order of priority
adjudicated in this judgment of foreclosure; and
4. Remittance of any surplus to the mortgagor or as
otherwise directed by the Court.
VIII. REDEMPTION - RESIDENTIAL
1. Only the owner of redemption may redeem from
this foreclosure, and such owner of redemption may
redeem only during the redemption period specified herein.
2. This is a foreclosure of a mortgage of residential
real estate.
3. The amount required to redeem shall consist of the
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Total Balance Due as declared above plus interest thereon
at the statutory rate hereafter and all additional costs and
other expenses allowed by the Court.
4. In this foreclosure of a mortgage of residential real
estate, the court finds that the value of the mortgaged real
estate as of this date is less than ninety percent (90%) of
the amount specified pursuant to the ILCS, 735 5/151603(d), and the mortgagee waives any and all rights to a
personal judgment for a deficiency against the DefendantMortgagor, TRACY L. STARKEY.
5.
If the purchaser at the judicial sale of residential
real estate is a mortgagee who is a party to this proceeding
or its nominee, and if the sale price is less than the amount
required to redeem specified in 735 ILCS 5/15-1603(d), an
owner of redemption has a special right to redeem for a
period ending 60 days after the date the sale is confirmed,
by paying the mortgagee the sale price plus all additional
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costs and expenses incurred by the mortgagee set forth in
the report of sale and confirmed by the Court.
6. Generally, the redemption period pursuant to 735
ILCS 5/15-1603, shall end at the later of the expiration of
the period of reinstatement as provided in 735 ILCS 5/151602, or 60 days after entry of this Judgment of
Foreclosure, whichever is later. In this case, the period of
reinstatement expired on October 2, 2018, being 90 days
after the Defendant-Mortgagor, TRACY L. STARKEY,
returned her signed Waivers of Service of Summons that
was filed in this cause on July 2, 2018 (R.6). The period of
redemption will expire 60 days after the entry of the
Judgment of Foreclosure.
7.
In this case, the Court hereby declares and finds
that the above-described mortgaged real estate has been
abandoned, and there are no other persons in possession
of said premises as set forth in the October 18, 2018,
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Affidavit of Abandonment by Angela M. Gardner, Rural
Development Specialist.
8.
The mortgagee waives any and all rights to a
personal judgment for a deficiency against the DefendantMortgagor, TRACY L. STARKEY.
IX. OTHER MATTERS
1.
The above-described property has been
abandoned, and there are no other persons in possession
of said premises as set forth in the October 18, 2018
Affidavit of Abandonment by Angela M. Gardner, Rural
Development Specialist. Therefore, the purchaser of the
foreclosed property shall be given possession effective
immediately upon approval of the judicial sale of this real
estate in compliance with 735 ILCS 5/15-1701(c)(1).
2.
Report of Sale. The person conducting the sale
shall file a report of sale with the Clerk of the Court
specifying the amount of proceeds of sale realized and the
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disposition thereof.
3.
Homestead Waiver. Defendant-mortgagor waived
her right to homestead or other exemptions in said real
estate in the body of said mortgage, which was duly signed
and acknowledged, and said defendant-mortgagor is
therefore barred from claiming any right of homestead or
other exemptions in said real estate.
4. That there is no deficiency judgment to be ordered
against the Defendant-Mortgagor, TRACY L. STARKEY, and
in favor of Plaintiff.
AND IT IS FURTHER ORDERED, ADJUDGED AND
DECREED, that there is no just reason for delaying the
enforcement of this judgment, or an appeal therefrom.
ENTER: April 17, 2019
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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