United States of America v. Hoagland et al
Filing
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OPINION entered by Judge Richard Mills on 9/5/2012. Motion for Judgment of Forfeiture/Foreclosure, d/e 18 GRANTED. (SEE WRITTEN OPINION.)(MAS, ilcd)
E-FILED
Wednesday, 05 September, 2012 05:18:32 PM
Clerk, U.S. District Court, ILCD
of the United States. Defendant City of Lincoln consents to entry of judgment against it
in favor of the United States.
II. EVIDENTIARY FINDINGS
1. Defendant, Ann R. Hoagland, executed a mortgage, attached as Exhibit A to
the complaint, dated August 28, 1989, and on August 28, 1989, she executed a note
(attached to the complaint as Exhibit B), in the amount of $39,500 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 defendant as mortgagor. Said mortgage
pertaining to the property described herein was recorded on August 28, 1989, as Vol.
110, Page 86, Document No. 349563, in the Office of the Logan 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 enter a Judgment of Foreclosure in this cause and
has filed with said Motion an Affidavit of Costs by Colleen Hallahan, State Director,
Rural Development. That pleading and Affidavit state that as of July 13, 2012, Plaintiff
was owed (via a Note and Mortgage hereinafter described) the sum of $59,710.66, plus a
daily per diem accrual of $8.5373 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.
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5. 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:
Beginning at a point on the East line of State Street, in the City of
Lincoln, 514 feet South of the South line of Third Street, thence
South 40 feet, thence East 190 feet, thence North 44 - 1/6 feet on a
line parallel with State Street, thence West 190 feet to the place of
beginning, reserving 10 feet off of the rear of said lot for private
alley, situated in Logan County, Illinois.
PIN NO. 54 12 475 019 00
6. 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 . . . . . . . . . . . . $200.00
Recording Notice of a Suit to Foreclose Mortgage . . . . . . . . . . $40.00
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $590.00
b) Unpaid principal and interest:
Unpaid principal balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . $32,079.74
Accrued interest at $8.5373 per day
due and unpaid as of 7/13/12 . . . . . . . . . . . . . . . . . . . . . . . . $4,690.63
Subsidy recapture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $19,624.28
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Late charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45.00
Interest on Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $137.54
Fees assessed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,543.47
Total amount due plaintiff as of 7/13/12,
exclusive of foreclosure costs . . . . . . . . . . . . . . . . . . $59,710.66
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, 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.
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7. The present owner of the above-described real estate is:
Ann R. Hoagland
8. Logan 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
Logan County, resulting from taxes, general or special, which are a valid lien against
the above-described property.
9. State Bank of Lincoln, claims an interest in these proceedings by virtue of a
mortgage dated December 1, 2010 and recorded December 6, 2010 as Doc. No.
201000066479 made by Ann R. Hoagland, to State Bank of Lincoln, to secure an
indebtedness in the principal amount of $10,000.00 with interest as therein specified and
subject to covenants, agreements and conditions therein contained. The interest of said
defendant is inferior to that of the plaintiff.
10. City of Lincoln, claims an interest in these proceedings by virtue of a notice
of lien in favor of the City of Lincoln, against Ann R. Hoagland, recorded June 21, 2011
as Doc No. 201100068873, in the amount of $358.64. The interest of said defendant is
inferior to that of the plaintiff.
11. The above-described property is abandoned and plaintiff is entitled to a
shortened redemption period pursuant to 735 ILCS 5/15-1603.
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
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premises would be subject to vandalism, waste, loss and possible destruction.
13. Plaintiff is also entitled to a shortened redemption period for the following
reasons: (i) 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 (ii) the mortgagee waives any and all rights to a personal
judgment for a deficiency against the mortgagor(s) and against all other persons liable
for the indebtedness or other obligations secured by the mortgage.
14. 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.
15. 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.
16. 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.
17. 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.
18. Said real estate is free and clear of all liens and encumbrances except:
a) General real estate taxes for the years 2011, 2012 and thereafter and
special assessments, if any.
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b) Said mortgage given to plaintiff.
c) A mortgage dated December 1, 2010 and recorded December 6, 2010 as
Doc. No. 201000066479 made by Ann R. Hoagland, to State Bank of
Lincoln, which mortgage is inferior to the lien of plaintiff's mortgage.
d) A lien in favor of the City of Lincoln, against Ann R. Hoagland,
recorded June 21, 2011 as Doc No. 201100068873, which lien is inferior to
the lien of plaintiff's mortgage.
e) Easements and restrictions of record.
19. 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 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
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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 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,
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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 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 hereinbelow 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 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
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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;
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
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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.
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
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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 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
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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 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 the above-described property is abandoned and plaintiff is
entitled to a shortened redemption period pursuant to Chapter 735, Paragraph 5/151603(b)(4), Illinois Compiled Statutes. The redemption period shall end 30 days after
the date of entry of this Judgment.
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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.
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 15-1701(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
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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 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. 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 defendant-mortgagors 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:
September 5, 2012
FOR THE COURT:
s/Richard Mills
RICHARD MILLS
UNITED STATES DISTRICT JUDGE
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