United States of America v. Kindred et al
Filing
11
OPINION entered by Judge Sue E. Myerscough on 6/15/2011. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that there is no just reason for delaying the enforcement of this judgment, or an appeal therefrom. Plaintiff United States of America's Motion to Enter Judgment (d/e 10) is GRANTED. (MAS, ilcd)
E-FILED
Thursday, 16 June, 2011 12:02:34 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
STEVEN R. KINDRED AND
JOANNE M. KINDRED,
Defendants.
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No. 11-3062
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
The Court now considers Plaintiff United States of America's
Motion to Enter Judgment (d/e 10) (Motion). Pursuant to Federal Rule
of Civil Procedure 55, 28 U.S.C. § 2001, and for the reasons stated
below, the Motion is GRANTED. In connection with its decision, the
Court has considered all of the pleadings and evidence submitted to date.
Based thereon, the Court makes these FINDINGS:
I.
JURISDICTION
1. The Court has jurisdiction over the subject matter and parties
pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. Defendants
Steven R. Kindred and Joanne M. Kindred each returned their Waiver of
Service of Summons on March 14, 2011. Each Defendant has
acknowledged receipt of the Complaint pursuant to Federal Rule of Civil
Procedure 4. No Defendant has voluntarily appeared in these
proceedings.
II.
EVIDENTIARY FINDINGS
1. Defendant, Steven R. Kindred and Joanne M. Kindred, executed
a mortgage, attached as Exhibit A to the complaint, dated September 29,
2004, and on September 29, 2004, they executed a note (attached to the
complaint as Exhibit B), in the amount of $57,179 secured by said
mortgage. The UNITED STATES OF AMERICA, acting through the
RURAL DEVELOPMENT, UNITED STATES DEPARTMENT OF
AGRICULTURE, was the mortgagee on said mortgage executed by said
defendants as mortgagors. Said mortgage pertaining to the property
described herein was recorded on September 30, 2004, as Document No.
0033223, in the Office of the Logan County, Illinois, Recorder.
2. The material factual allegations stated in the Complaint filed
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herein have not been denied in any responsive pleading.
3. Plaintiff is the owner of the note and mortgage described in said
complaint.
4. Plaintiff moved the Court to enter a Default Judgment of
Foreclosure and filed with said Motion an Affidavit of Costs by Barry L.
Ramsey, Acting State Director, Rural Development. That pleading and
Affidavit stated that as of May 3, 2011, Plaintiff was owed (via a Note
and Mortgage hereinafter described) the sum of $54,037.28, plus a
daily per diem accrual of $9.2643 thereafter to date of judgment, and no
objection being made to said Motion or Affidavit of said Motion, said
Motion is allowed and Affidavit admitted into evidence in this cause.
5. That 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:
Steven R. Kindred and Joanne M. Kindred
6. That all of the material allegations contained in the Complaint
are true and that by virtue of the mortgage and indebtedness thereby
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secured, the Plaintiff, UNITED STATES OF AMERICA, has a valid and
subsisting lien arising out of a real estate mortgage on the property
described as follows:
That part of the Northeast Quarter of Section 30
in Township 20 North, Range 2 West of the 3rd
P.M., particularly described as follows, to-wit:
Commencing at the intersection of the Northwest
line of Ottawa Street with the Northeast line of
Omaha Avenue in the City of Lincoln, Logan
County, Illinois, running thence Northeast upon
and along said Northwest line of Ottawa Street a
distance of 80 feet, thence Northwest and
perpendicular to said Northwest line of Ottawa
Street for a distance of 150 feet; thence Southwest
and parallel with said Northwest line of Ottawa
Street 80 feet to the Northeast line of Omaha
Avenue; and thence Southeast upon and along
said Northeast line of Omaha Avenue 150 feet to
the point of beginning.
PIN NO. 54 08 030 015 00
Commonly known as: 1301 N. Ottawa Street,
Lincoln, Illinois 62656
7. That by virtue of the mortgage and the indebtedness thereby
secured, as alleged in the complaint, there is due the Plaintiff, UNITED
STATES OF AMERICA, as follows:
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a. For its own use and benefit for the costs of this suit and
for:
U.S. Attorney's Docket Fee
$350.00
Recording Notice of a Suit to Foreclose Mortgage $38.00
Total
$388.00
b. Unpaid principal and interest:
Unpaid principal balance
$52,852.72
Accrued interest at $9.2643 per day
due and unpaid as of 5/3/11
$590.79
Late charge
$13.84
Interest on Fees
$1.93
Fees Assessed
$190.00
Total amount due Plaintiff as of 5/3/11
exclusive of foreclosure costs
$54,037.28
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
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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 the Plaintiff is entitled to
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 owners of the above-described real estate is/ are:
Steven R. Kindred and Joanne M. Kindred
9. Logan County, Illinois, has a valid lien on the above-described
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property for taxes for the years 2010 and 2011, and the property will be
sold subject to the interest of Logan County, resulting from taxes, general
or special, which are a valid lien against the above-described property.
10. 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 the 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.
11. 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.
12. 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.
13. 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 said interest.
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14. Said real estate is free and clear of all liens and encumbrances
except:
a. General real estate taxes for the years 2010 and 2011 and
thereafter and special assessments, if any;
b. Said mortgage given to Plaintiff;
c. Easements and restrictions of record.
15. 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 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 the Plaintiff as declared herein.
2. Defendants are ordered to pay to the 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
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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 the Plaintiff 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 the 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 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
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forever barred and foreclosed of any right, title, interest, claim, lien or
right to redeem in 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.
3. Said property is being sold at this judicial sale “AS IS”
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WITHOUT ANY WARRANTIES OF HABITABILITY OR ANY
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED.
V. ORDER FOR JUDICIAL SALE
1. The real estate is ordered sold in accordance with the statutory
provision by the U. S. Marshal or his representative.
2. Upon expiration of the redemption period, the real estate shall
be sold by the U. S. Marshal for the Central District of Illinois at the
front door of the Logan County Courthouse in the City of Lincoln,
Illinois, at the time announced by the U. S. Marshal as provided herein
below subject to easements and restrictions of record and taxes,
general or special, due and owing to Logan County, Illinois, in addition
to the real estate transfer tax (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 or Money Order made payable to
U.S. Marshals Service, tendered to the U. S. Marshal conducting the
sale. The balance of the bid purchase price shall be paid by
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Cashier's/Official Bank Check or Money Order made payable to the U. S.
Marshals Service, to be received by the U. S. Marshal at 100 N.E.
Monroe, Peoria, Illinois 61601 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.
IT IS FURTHER ORDERED, ADJUDGED, AND 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;
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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 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;
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
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the applicable rules of court for service of papers other than
process and complaint, not more than 45 days 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 this Court together with a certificate of
counsel or other proof that notice has been served in
compliance with this section;
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
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determine the order in which separate tracts may be sold.
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
covenant on the part of the person executing it.
2. Delivery of the deed executed on the sale of the real estate, even
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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 said 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 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 Illinois Compiled
Statutes, Ch. 735, Section 5/15-1505, and other legal expenses incurred
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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. In this foreclosure of a mortgage of residential real estate, the
redemption period shall end on the later of (i) the date 7 months from
the date the mortgagor or, if more than one, all the mortgagors (A) have
been served with summons or by publication or (B) have otherwise
submitted to the jurisdiction of this Court, or (ii) the date three months
from the date of entry of this judgment or foreclosure.
3. This is a foreclosure of a mortgage of residential real estate.
4. The amount required to redeem shall consist of the Total
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Balance Due as declared above plus interest thereon at the statutory rate
hereafter and all additional costs and other expenses allowed by the
Court.
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 30 days after the date the sale is confirmed, 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
confirmed by this Court.
7. The redemption period shall end in this case 3 months, from
date of entry of the judgment. The time for reinstatement expires 90 days
from the date the mortgagor has been served with summons or by
publication or otherwise has submitted to the jurisdiction of the Court.
IX. OTHER MATTERS
1. Possession of Mortgaged Real Estate:
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A. Unless the mortgagor's right to possess this foreclosed residential
real estate is or has been terminated, the mortgagor (homeowner) has the
right to possess the foreclosed premises in accordance with Section 151701(c) of the Illinois Mortgage Foreclosure Law.
B. Unless sooner ordered to vacate the premises, the mortgagor and
all persons claiming a possessory right to said mortgaged premises
through said mortgagor shall peaceably remove themselves and all of their
possessions from the mortgaged premises in compliance with 735 ILCS
5/15-1701 on the 31st day after the judicial sale of this mortgaged
property has been approved.
C. If any persons referenced in the above subparagraph remain on
said premises on or after the 31st day of the approval of the judicial sale
of this mortgaged real estate, the U. S. Marshal is hereby directed as soon
as practicable thereafter to use any and all necessary reasonable force to
enter the above described mortgaged premises, including
any outbuildings and vehicles located thereon and to remove all
occupants located thereon, who are present on the premises and refuse to
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vacate immediately and voluntarily at the U. S. Marshal's direction; in
addition any and all personal property left on the mortgaged premises by
the defendant mortgagor and/or any and all other persons having left said
property, is hereby declared forfeited to the United States. If
the U.S. Marshal determines that the above-described personal property
is without value or of di minimus value that would neither exceed nor
equal the costs of notice, storage, and sale, the U.S. Marshal may leave
the personal property, at his discretion, on the premises for the purchaser
of this real estate to claim, or dispose of, at will.
Upon taking possession and custody of the premises, and removing
all occupants who are unauthorized to remain on the premises, the U. S.
Marshal is then hereby directed to remit possession and custody of the
premises to the purchaser of said property at the sale judicially approved
by this Court.
2. Report of Sale. The person conducting the sale shall file a
report of sale with the Clerk of this Court specifying the amount of
proceeds of sale realized and the disposition thereof.
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3. Homestead Waiver. Defendant-mortgagors waived their right to
homestead or other exemptions in said real estate in the body of said
mortgage, which was duly signed and acknowledged, and said defendantmortgagors are therefore barred from claiming any right to homestead or
other exemptions in said real estate.
4. Deficiency. If the money arising from said sale shall be
insufficient to pay the amounts due to Plaintiff with interest and the
costs and expenses of sale, the person conducting the sale shall specify
the amount of such deficiency in the report of sale, and a judgment shall
be entered therefore, if appropriate.
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. Plaintiff United States of
America's Motion to Enter Judgment (d/e 10) is GRANTED.
ENTER: June 15, 2011
FOR THE COURT:
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s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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