United States of America v. Overby et al

Filing 14

OPINION entered by Judge Sue E. Myerscough on 7/17/2012. Plaintiff United States of America's Motion to Enter Judgment, d/e 13 is ALLOWED. (SEE WRITTEN OPINION). (MAS, ilcd)

E-FILED

Wednesday, 18 July, 2012 09:34:05 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
) CIVIL NO. 12-3013
)
PEARL M. OVERBY, A DISABLED
)
ADULT, LISA STULLER, and
)
STATE OF ILLINOIS IN BEHALF OF )
ILLINOIS DEPARTMENT OF
)
HEALTHCARE AND FAMILY
)
SERVICES,
)
)
Defendants.
)
OPINION

SUE E. MYERSCOUGH, U.S. District Judge:
The Court now considers Plaintiff United States of America's
Motion to Enter Judgment (d/e 13) (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 FINDINGS:

I. JURISDICTION
1. The Court has jurisdiction over the subject matter and parties
pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. That the
defendant, Pearl M. Overby, by and through Lisa Stuller, Guardian of the
Estate of Pearl M. Overby, returned Waiver of Service of Summons on
January 19, 2012 pursuant to Federal Rule of Civil Procedure 4 and has
acknowledged receipt of the complaint as shown by the file in this case.
General Counsel Jeanette Badrov at the Illinois Department of Healthcare
and Family Services was personally served with Summons and Complaint
by the United States Marshal on March 16, 2012. Defendants have
acknowledged receipt of the Complaint pursuant to Federal Rule of Civil
Procedure 4. Defendants have not voluntarily appeared in these
proceedings.
II. EVIDENTIARY FINDINGS
1. Defendant, Pearl M. Overby and her husband William R. Overby
(now deceased), executed a mortgage, attached as Exhibit A to the
complaint, dated May 12, 1992, and on May 12, 1992 they executed a

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note (attached to the complaint as Exhibit B), in the amount of $35,200
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 May 12,
1992, commencing at Page 107 of Book 6, as Document No. 90821, in
the Office of the Greene County, Illinois, Recorder.
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 said
complaint.
4. Plaintiff moved the Court to enter a Default Judgment of
Foreclosure in this cause and has filed with said Motion an Affidavit for
Judgment by Julie K. Wilson, Acting State Director, Rural Development.
That pleading and Affidavit stated that as of June 5, 2012, Plaintiff was
owed (via a Note and Mortgage hereinafter described) the sum of

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$30,499.94, plus a daily per diem accrual of $6.2199 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: State
of Illinois in Behalf of Illinois Department of Healthcare and Family
Services.
6. That all of the material allegations contained in the complaint
are true and that by virtue of the mortgage and indebtedness thereby
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:
Commencing at the Southeast corner of block "E"
in Roodhouse's Continuation of his Seventh
Addition to the City of Roodhouse, according to
the recorded plat of said addition, thence North
One Hundred (100) feet, thence West Eighty (80)
feet, thence South One Hundred (100) feet to the
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south line of said Block "E", thence East along the
south line of said Block "E" Eighty (80) feet to the
point of beginning, all situated in block "E" in
Roodhouse's Continuation of the Seventh
Addition to the City of Roodhouse, situated in the
City of Roodhouse, County of Greene and State of
Illinois.
PIN No. 08-22-24-203-004
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:
a) For its own use and benefit for the costs of this
suit and for:
U.S. Attorney's Docket Fee . . . . . . . . . . . . . . . $350.00
U.S. Marshals' Costs for Service of Summons . . $56.02
Recording Notice of a Suit to Foreclose Mortgage $65.00
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $471.02
b) Unpaid principal and interest:
Unpaid principal balance . . . . . . . . . . . . . . . . $25,189.43
Accrued interest at $6.2199 per day
due and unpaid as of 6/5/12 . . . . . . . . . . . . . . $2,049.66

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Escrow Shortage . . . . . . . . . . . . . . . . . . . . . . . . . . $318.91
Interest on Fees . . . . . . . . . . . . . . . . . . . . . . . . . . $127.02
Fees Assessed . . . . . . . . . . . . . . . . . . . . . . . . . . $2,343.90
Total amount due plaintiff as of 6/5/12,
exclusive of foreclosure costs . . . . . . . . . $30,499.94
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 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,
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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 of the above-described real estate is:
Lisa Stuller, Guardian of the Estate of Pearl M. Overby, a
Disabled Adult
9. Greene County, Illinois, has a valid lien on the above-described
property for taxes for the years 2011 and 2012 and the property will be
sold subject to the interest of Greene County, resulting from taxes, general
or special, which are a valid lien against the above-described property.
10. The State of Illinois claims an interest in these proceedings by
virtue of a notice of lien in favor of the State of Illinois under the provisions
of Department of Healthcare and Family Services, against Pearl Overby,
recorded August 25, 2011 as Document No. 154288. The interest of said
defendant is inferior to that of the plaintiff.

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11. The above-described property is abandoned and plaintiff is
entitled to a shortened redemption period pursuant to 735 ILCS 5/151603.
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 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.
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.
15. Any and all periods of grace or other period of time allowed for

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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 said interest.
17. Said real estate is free and clear of all liens and encumbrances
except:
a) General real estate taxes for the years 2011 and 2012 and
thereafter and special assessments, if any.
b) Said 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 of nonparties.
19. The United States does not waive its right to subsequently
administratively collect from or reduce to judgment in a separate cause of
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action against the defendant(s) signing the promissory note secured by the
mortgage foreclosed herein any resulting deficiency if the sale price for the
foreclosed property sold in this cause at judicial sale does not pay the
judgment amount and subsequently accrued interest, advances and costs
owed on either the promissory note or mortgage in this cause even though
no such deficiency judgment is sought in this foreclosure proceeding.
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 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

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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 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

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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” 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

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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 Greene County Courthouse in the City of Carrollton, Illinois, at
the time announced by the U. S. Marshal as provided hereinbelow subject
to easements and restrictions of record and taxes, general or special, due
and owing to Greene 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 the U. S. Marshals Service,
tendered to the U.S. Marshal conducting the sale. The balance of the bid
purchase price shall be paid by Cashier's/Official Bank Check or Money
Order made payable to U.S. Marshals Service, to be received by the United
States 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

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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;
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
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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 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.

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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.
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

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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 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:

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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 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

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period specified herein.
2. In this foreclosure the above-described property is abandoned and
plaintiff is entitled to a shortened redemption period pursuant to Chapter
735, Paragraph 5/15-1603(b)(4), Illinois Compiled Statutes. The
redemption period shall end 30 days after the date of entry of this
Judgment.
3. This is a foreclosure of a mortgage of residential real estate.
4. The amount required to redeem shall consist of the 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.
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.

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IX. OTHER MATTERS
1. Possession of Mortgaged Real Estate:
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

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vehicles located thereon and to remove all occupants located thereon, who
are present on the premises and refuse to 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 de 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

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of sale with the Clerk of this Court specifying the amount of proceeds of
sale realized and the disposition thereof.
3. 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).
4. 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.
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: July 17, 2012
FOR THE COURT:
s/Sue e. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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