Sutton Funding, LLC v. Beedie et al
Filing
19
OPINION entered by Judge Sue E. Myerscough on 06/17/2011. SEE WRITTEN OPINION. Plaintiff's Motion for Judgment of Foreclosure and Sale (d/e 18) is GRANTED subject to the terms set forth in written opinion. (DM, ilcd)
E-FILED
Saturday, 18 June, 2011 10:39:02 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SUTTON FUNDING LLC,
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Plaintiff,
vs.
MANDY N. BEEDIE,
Defendant.
11-3029
OPINION
JUDGE SUE E. MYERSCOUGH:
The Court now considers Plaintiff’s Motion for Judgment of
Foreclosure and Sale (d/e 18). For the reasons stated below, the Motion
is GRANTED.
I. FINDINGS
Because the amount in controversy exceeds $75,000 and the parties
are completely diverse, the Court has diversity jurisdiction pursuant to 28
U.S.C. § 1332. Venue is appropriate in this judicial district because the
property at issue is situated in Springfield, Illinois. See 28 U.S.C. 1391.
Page 1 of 21
Service of process has been properly made. The last owner of
redemption was served on February 17, 2011. Pursuant to 735 ILCS
5/15-1602, the statutory right to reinstate expired on May 17, 2011.
The statutory right of redemption, pursuant to 735 ILCS 5/15-1603,
shall expire September 17, 2011, unless shortened by further order of the
Court.
All the material allegations of the Complaint (d/e 1) filed pursuant
to 735 ILCS 5/15-1504 (including those required by statute) have been
proven true. U.S. Magistrate Judge Byron G. Cudmore made an entry of
default on March 16, 2011. See d/e 14. The Mortgage and Note which
is the subject matter of these proceedings is extinguished and replaced by
this Judgment. By virtue of the Mortgage and the evidence of the
indebtedness secured by it, there is due and owing to Plaintiff the
following amount which shall continue to be a valid and subsisting lien
upon the subject property described hereinafter.
Principal Balance, Accrued
Interest and Other Amounts Due
as Stated in Plaintiff’s Affidavit
$109,416.80
Page 2 of 21
Plaintiff’s Attorney Fees and Costs
$1,650.00
TOTAL JUDGMENT AMOUNT
$111,066.80
Any advances made in order to protect the judgment lien and
preserve the real estate shall become so much additional indebtedness
secured by the judgment lien. Such advances include but are not limited
to payment for property inspections, real estate taxes or assessments,
property maintenance, and insurance premiums incurred by Plaintiff and
not included in this Judgment but paid prior to the judicial sale. Any
such advance shall bear interest from date of the advance at the
Judgment rate of interest, except in the case of Redemption or Payoff, in
which case the note rate of interest shall apply pursuant to 735 ILC 5/151603(d).
Under the provisions of the Mortgage, the costs of foreclosure and
reasonable attorney fees are an additional indebtedness for which
Plaintiff should be reimbursed; such expenses and reasonable attorney
fees are hereby allowed to the Plaintiff.
The Court approves the portion of the lien attributable to attorney
Page 3 of 21
fees only for purposes of the foreclosure sale, and not for purposes of
determining the amount of a deficiency judgment required to be paid
personally by Defendant in the event of redemption or otherwise. In the
event of redemption by Defendant or for purposes of any personal
deficiency judgment, this Court reserves the right to review the amount
of attorney fees to be included for either purpose. Plaintiff’s counsel is
required to notify Defendant of the provisions of this paragraph by
mailing a copy of this Judgment to Defendant.
The Mortgage described in the Complaint and hereby foreclosed
appears of record in the Office of the Logan County Recorder of Deeds as
Document No. 0039641, and the subject property encumbered by said
Mortgage and directed to be sold is legally described as follows:
Lot 152 and the South 10 feet of Lot 153 of WANLESS
PARK DRIVE ADDITION to the City of Springfield, Illinois.
Except all coal, minerals and mining rights heretofore
conveyed or reserved of record. Situated in SANGAMON
COUNTY, ILLINOIS.
The property is commonly known as: 2147 South Walnut, Springfield,
IL 62704.
Page 4 of 21
The rights and interests of all the other parties to this cause in the
subject property are inferior and subordinate to the lien of the Plaintiff.
Copies of the Note and the Mortgage or Affidavit of Documents as are
attached to Plaintiff’s Complaint have been offered in evidence. Plaintiff
is hereby given leave to withdraw, if any, the Original Note and the
Original Mortgage and substitute copies of those documents.
Plaintiff has been compelled to employ and retain attorneys to
prepare and file the Complaint and to represent and advise the Plaintiff
in the foreclosure of the mortgage. Defendant is liable for the usual,
reasonable and customary fees incurred by Plaintiff.
Plaintiff has been compelled, and may be compelled after entry of
this Judgment, to advance various sums of money in payment of costs,
fees, expenses and disbursements incurred in connection with the
foreclosure. These sums may include filing fees, service of process fees,
copying charges, stenographer’s fees, witness fees, costs of publication,
costs of procuring and preparing documentary evidence, and costs of
procuring abstracts of title, foreclosure minutes, and a title insurance
Page 5 of 21
policy, costs of sale, etc. Under the terms of the mortgage, all such
advances, costs, attorney fees, and other fees, expenses and
disbursements are made a lien upon the mortgaged real estate. Plaintiff
is entitled to recover all such advances, costs, attorney fees, expenses, and
disbursements, together with interest on all advances at the judgment
rate of interest, from the date on which such advances are made, except
in the case of Redemption or Payoff, in which case the note rate of
interest shall apply pursuant to 735 ILCS 5/15-1603(d).
In order to protect the lien of the mortgage, it may or has become
necessary for Plaintiff to pay taxes and assessments which have been or
may be levied upon the mortgaged real estate. In order to protect and
preserve the mortgaged real estate, it has or may also become necessary
for Plaintiff to make other payments, including but not limited to fire
and other hazard insurance premiums on the real estate or payments for
such repairs to the real estate as may reasonably be deemed necessary for
the proper preservation thereof. Under the terms of the mortgage, any
money so paid or expended has or will become an additional
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indebtedness secured by the mortgage and will bear interest from the
date such monies are advanced at the judgment rate of interest except in
the case of Redemption or Payoff, in which case the note rate of interest
shall apply pursuant to 735 ILCS 5/15-1603(d).
The allegations of Plaintiff’s Complaint are true substantially as set
forth, and the equities favor Plaintiff. Plaintiff is entitled to the relief
prayed for in the Complaint, including foreclosure of the mortgage upon
the real estate described therein for the Total Judgment Amount as found
above, together with interest at the statutory judgment rate after the
entry of this judgment, and additional advances, expenses, reasonable
attorney fees, and court costs, including but not limited to publication
costs and expenses of sale.
This real estate is free and clear of all liens and encumbrances that
have been named herein, or of any claims that are subject to a recorded
notice of foreclosure, subject to any rights of redemption available to a
Defendant pursuant to 735 ILCS 5/15-1603(a).
Plaintiff’s mortgage is prior and superior to all other mortgages,
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claims of interests and liens upon said real estate that have been named
herein or any claims that are subject to a recorded notice of foreclosure.
The sum of attorney fees allowed herein as stated above is the fair
reasonable and proper fee to be allowed to Plaintiff as attorney fees in
this proceeding through the date of this Judgment, in accordance with the
terms of the Note and Mortgage given by said Defendants. That sum
should be added to and become a part of the indebtedness due to
Plaintiff.
IT IS THEREFORE ORDERED AND DECREED AS FOLLOWS:
1. JUDGMENT OF FORECLOSURE AND SALE:
Judgment is entered pursuant to 735 ILCS 5/15-1506 against the
subject property and against all Defendants not previously dismissed.
a.
In the event Defendants do not pay to Plaintiff the
amounts required pursuant to the Illinois mortgage
foreclosure law before expiration of any redemption
period (or, if no redemption period, within seven days
after the date of this judgment), together with attorney
fees, costs, advances, and expenses of the proceedings
(to the extent provided in the mortgage or by law), the
mortgaged real estate shall be sold as directed by the
Court. The proceeds of such sale will be used to satisfy
the amount due to Plaintiff as set forth in this
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Judgment, together with the interest, advances, and
expenses incurred after Judgment at the statutory
judgment rate from the date of the Judgment.
b.
In the event Plaintiff is a purchaser of the mortgaged
real estate at such sale, the Plaintiff may offset against
the purchase price of such real estate the amount due
under the judgment for foreclosure and order confirming
the sale.
c.
If no redemption is made prior to such sale, such a sale
shall forever bar and foreclose the Defendants made
parties to the foreclosure and all persons claiming by,
through or under them, and each and any and all of
them, from any right, title, interest, claim, lien, or right
to redeem in and to the mortgaged real estate.
d.
If no redemption is made prior to such sale, a deed shall
be issued to the purchaser at sale according to law and
such purchaser shall be allowed possession of the
mortgaged real estate in accordance with statutory
provisions relative thereto.
2. SALE:
The subject real estate is ordered to be sold pursuant to 735 ILCS
5/15-1507.
3. SALE PROCEDURES:
a.
The subject real estate shall be sold pursuant to statute
at the expiration of both the reinstatement period and
the redemption period. The premises herein above
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described, covered by the security foreclosed in this
action, shall be sold at public venue by the U.S.
Marshal’s Service.
b.
The judicial sale to be conducted pursuant to this
Judgment for foreclosure and sale shall be by public
auction. The opening bid shall be a verbal bid provided
to the U.S. Marshal’s Service by Plaintiff and conducted
by the U.S. Marshal’s Service and shall be conducted in
full compliance with the statutory requirements
contained in 735 ILCS 5/15-1507. In the event that
Plaintiff fails to notify the U.S. Marshal’s Service of its
initial bid, then the U.S. Marshal’s Service shall
continue the sale to a date mutually agreed upon by the
U.S. Marshal’s Service and Plaintiff’s counsel and in
compliance with 735 ILCS 5/15-1507(c)(4). If the sale
is erroneously held without Plaintiff having notified the
U.S. Marshal’s Service of Plaintiff’s initial bid, Plaintiff
shall have the option to have the sale vacated and held
for naught.
c.
The real estate shall be sold to the highest bidder for
cash, in the form of a cashier’s check, certified funds, or
other good bank funds, with all sums due at the time of
sale unless other terms are agreed to by Plaintiff. The
U.S. Marshal’s Service shall not accept cash in the form
of currency, nor shall the U.S. Marshal’s Service accept
personal checks or other funds that in the discretion of
the U.S. Marshal’s Service are not “good funds”. The
sale terms are a down-payment of 10% in certified
funds, with the remaining balance due within 24 hours
in the form of a cashier’s check, certified funds, or other
good bank funds. In the event the bidder fails to
comply with the terms of the purchase, then upon
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demand by Plaintiff, in a notice served on the U.S.
Marshal’s Service and the bidder, the funds submitted
shall be forfeited to Plaintiff, or in the alternative,
Plaintiff shall have the option to demand that the
property be sold to the next highest bidder. In the event
there is a third party bidder other than the Plaintiff, the
U.S. Marshal’s Service shall obtain the name, address
(other than a post office box), and telephone number of
that bidder. Notice by regular mail, to the address given
by the bidder and to the U.S. Marshal’s Service, shall be
deemed sufficient notification by the Plaintiff to exercise
its option to forfeit the funds.
d.
Any purchaser at the Judicial Sale takes subject to any
and all liens, encumbrances, or existing defects in title.
The subject property is offered for sale without any
representation as to quality or quantity of title. Plaintiff
shall not be responsible for any damages resulting from
existing liens, encumbrances, or title defects, nor does
Plaintiff make any warranties as to the condition of title,
either express or implied, by virtue of the judicial sale.
4. NOTICE OF SALE:
a.
In a foreclosure under Article 15, the mortgagee, its
Attorney, the U.S. Marshal’s Service, or such other
party designated by the Court, shall give public notice of
the Sale pursuant to statute. The Notice of Sale shall
include all information as required by 735 ILCS 5/151507(c) parts (A)-(H) where such information is
available to Plaintiff or counsel for Plaintiff. Immaterial
errors in the information shall not invalidate the legal
effect of the notice. Plaintiff shall include any
information regarding improvements to the property,
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where such information is available, to the Plaintiff;
provided, however, that Plaintiff is not obligated to
make a determination as to such improvements where
such a determination would cause the incurrence of
additional cost to the Plaintiff unless otherwise ordered
by the Court. The Notice of Sale shall contain at least
the following information:
i.
The name, address, and telephone 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 times specified in the Judgment or separate
order, if any, when the real estate may be
inspected prior to sale.
vi.
The time and the place of the sale.
vii.
The terms of the sale.
viii. The title, case number, and the court in which the
foreclosure was filed.
ix.
In the case of a condominium unit, to which
Subsection (g) of Section 9 of the Condominium
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Act applies, the statement required by subsection
(g)(5) of the Condominium Property Act.
x.
Any other information required herein or by
separate order.
b.
The notice of sale shall be published in four consecutive
calendar weeks (Sunday through Saturday), once in
each week. The first such notice to be published not
more than 34 days prior to the sale, and the last such
notice shall be published not less than 7 days prior to
the sale. Publication shall be by advertisement in a
newspaper circulated 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. In
addition, except in counties with a population in excess
of 3,000,000, publication shall include a separate
advertisement in the section of such newspaper which
real estate, other than real estate being sold as part of
legal proceedings, is commonly advertised to the general
public. Such a separate advertisement in the real estate
section need not include a legal description. However,
where both advertisements could be published in the
same newspaper and that newspaper does not have
separate legal notices and real estate advertisement
sections, a single advertisement with the legal
description shall be sufficient, and that no other
publications shall be required unless otherwise ordered
by the Court.
c.
The party who gives notice of public sale shall also give
notice of public sale to all parties in the action who have
appeared and have not heretofore been found by the
Court to be in default for failure to plead. Such notice
Page 13 of 21
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 34 days nor less than 7
days prior to the day of sale. After notice is given as
required by statute, a copy thereof shall be filed in the
office of the Clerk of the Court together with a
certificate of counsel or other proof of that notice has
been served in compliance with this Section.
d.
The party who gives notice of 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
not be given.
e.
Notice of the sale may be given prior to the expiration
of any reinstatement period or redemption period. No
other notice by publication or posting shall be necessary.
f.
The person named in the notice of sale to be contacted
for information about the real estate may, but shall not
be required to, provide additional information other
than that set forth in the notice of sale.
5. SALE PROCEEDS:
a.
In the event that Plaintiff is the 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 of Foreclosure
together with interest at the statutory interest rate from
the date of Judgment through the date of sale, plus any
fees, costs, and advances made after the entry of this
Judgment of Foreclosure and Sale pursuant to 735 ILCS
Page 14 of 21
5/15-1505 and 15-1603.
b.
The proceeds of the sale shall be distributed in the
following order pursuant to 735 ILLCS 5/15-1512:
i.
The reasonable expenses of sale.
ii.
The reasonable expenses of securing possession
before sale, holding, maintaining, and preparing
the real estate for sale, including payment of taxes
and other governmental charges, premiums on
hazard and liability insurance, management fees,
and, to the extent provided for in the mortgage or
other recorded agreement and not prohibited by
law, reasonable attorney fees, payments made
pursuant to Section 15-1505, and other legal
expenses incurred by the mortgagee.
iii.
Satisfaction of all claims in the order of priority as
set forth in the Judgment of Foreclosure and Sale.
If the issue of priorities was reserved pursuant to
735 ILCS 5/15-1506(h), the proceeds will be
distributed as set forth in the order confirming
sale.
iv.
Any balance of proceeds due after the above
distribution shall be held by the U.S. Marshal’s
Service conducting the sale until further order of
the Court.
6. RECEIPT UPON SALE AND CERTIFICATE OF SALE:
Upon and at the sale of mortgaged real estate, the U.S. Marshal’s
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Service shall give to the purchaser a receipt of sale. The receipt shall
describe the real estate purchased and shall show the amount paid or to
be paid for the real estate. An additional receipt shall be given at the
time of each subsequent payment. Upon payment in full of the amount
bid, the U.S. Marshal’s Service shall issue, in duplicate, and give to the
purchaser, a Certificate of Sale in recordable form, which describes the
real estate purchased and states the amount paid. The Certificate of Sale
shall be freely assignable.
7. REPORT OF SALE:
The U.S. Marshal’s Service shall promptly make a report to the
Court. The Report of Sale may be prepared by the Plaintiff to be
reviewed and executed by the U.S. Marshal’s Service. The U.S.
Marshal’s Service shall submit the report, or cause it to be submitted, for
review by the Court at the time of Confirmation of Sale. The report shall
include a copy of all receipts of sale.
8. CONFIRMATION OF SALE:
Upon motion and notice in accordance with court rules applicable
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to motions generally, the Court shall conduct a hearing to confirm the
sale pursuant to 735 ILCS 5/15-1508. The Mortgagee, its Attorney, the
U.S. Marshal’s Service or such other party designated by the Court, shall
send notice of such hearing.
a.
Unless the Court finds that a notice required in
accordance with 735 ILCS 5/15-1507(c) was not given,
that the terms of the sale were unconscionable, that the
sale was conducted fraudulently, or that justice was
otherwise not done, the Court shall then enter an Order
Confirming the Sale.
b.
The Order Confirming the Sale may include an Order
for Possession. In the alternative, the Order for
Possession may be by separate order.
c.
If the proceeds of the sale are not sufficient to satisfy
those sums due to the Plaintiff, the Court shall enter a
personal deficiency judgment pursuant to 735 ILCS
5/15-1508(e). A personal deficiency judgment may be
entered only if the Court finds that it has personal
jurisdiction over the parties personally liable on the
note, and that said liability has not been discharged in
bankruptcy. If the Court does not have personal
jurisdiction over those parties liable on the note, or if
there is no personal liability based on other findings by
the Court, the Court shall enter an in rem deficiency
judgment.
9. SPECIAL RIGHT TO REDEEM:
Page 17 of 21
If the subject real estate has been found to be residential, as defined
by statute, and if the purchaser at the judicial sale was a mortgagee who
was a party to the foreclosure, or its nominee, and the sale price is less
than the amount specified in 735 ILCS 5/15-1603(d), then an owner of
redemption, as set forth in Section 15-1603(a), shall have a special right
to redeem, for a period ending by paying the mortgagee the sale price
plus all additional costs and expenses incurred by the mortgagee set forth
in the report of sale and confirmation by the Court. The period for such
a special right to redeem ends 30 days after the date the sale is
confirmed. Any real property so redeemed shall be subject to a lien for
any deficiency remaining with the same lien priority as the underlying
mortgage foreclosed herein, without any rights of homestead. If the
United States is a party to this action by virtue of a lien of the Internal
Revenue Service, the United States shall have 120 days from the date of
sale within which to redeem the property from the sale. If the United
States is otherwise a party to this action, the United States shall have one
year from the date of the sale to redeem the property.
Page 18 of 21
10. TERMINATION OF SUBORDINATE INTEREST:
a.
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, all
parties notified by a recorded notice of foreclosure, and
all persons claiming by, through or under them, and for
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 and to the mortgaged real estate.
b.
This Judgment and all orders entered pursuant to said
Judgment are valid as stated above. The inadvertent
failure to name a subordinate record claimant will not
invalidate this Judgment. Plaintiff may amend the
complaint for foreclosure to name such a party if it is
made aware of the claim prior to the judicial sale
without affecting the validity of the Judgment as to the
other party Defendant(s). If a property has gone to sale
or a sale has been confirmed, Plaintiff may vacate the
sale and/or confirmation of sale and then proceed to
amend its Complaint as noted above in this
subparagraph b.
11. ISSUANCE OF DEED:
After the expiration of the mortgagor’s reinstatement and
redemption rights, payment of the purchase price by the successful bidder
and confirmation of the sale, the U.S. Marshal’s Service shall promptly
execute and issue a deed to the owner and holder of the Certificate of
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Sale pursuant to 735 ILCS 5/15-1509. Delivery of the deed shall be
sufficient to pass title and will bar all claims of parties to the foreclosure
and parties having notice by virtue of a recorded notice of foreclosure.
12. JURISDICTION:
The Court retains jurisdiction over the parties and subject matter of
this cause for the purpose of enforcing this Judgment or vacating said
Judgment if a reinstatement is made as set forth in this Judgment.
13. EFFECT ON LEASES:
The successful bidder at sale shall, upon confirmation of the sale,
take its interest in the property subject to all bona fide leases or tenancies
existing as of the date of initiation of this action for foreclosure, pursuant
to and as defined by the Protecting Tenants at Foreclosure Act of 2009,
12 U.S.C. § 5201, et seq.
Page 20 of 21
II. CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Judgment of
Foreclosure and Sale (d/e 18) is GRANTED subject to the terms set forth
above.
IT IS SO ORDERED.
ENTERED: June 17, 2011
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATE DISTRICT JUDGE
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