United States of America v. Chaney et al
Filing
18
OPINION (See Written Opinion): The Court now considers Plaintiff United States of America's Motion to Enter Judgment (d/e 17 )(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. Entered by Judge Sue E. Myerscough on 10/18/2012. (VM, ilcd) Modified on 10/18/2012 to correct signature date. (VM, ilcd).
E-FILED
Thursday, 18 October, 2012 09:35:59 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,
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Plaintiff,
v.
TINA CHANEY ET AL.,
Defendant.
No. 12-3070
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
The Court now considers Plaintiff United States of America's Motion to
Enter Judgment (d/e 17)(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.
I. JURISDICTION
The Court has jurisdiction over the subject matter and parties
pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. Defendant, Tina Chaney,
returned Waiver of Service of Summons on March 16, 2012, pursuant to Federal
Rule of Civil Procedure 4 and has acknowledged receipt of the complaint as shown
by the file in this case. Defendant has acknowledged receipt of the Complaint
pursuant to Federal Rule of Civil Procedure 4. Defendant has not voluntarily
appeared in these proceedings.
II. EVIDENTIARY FINDINGS
1. Defendant, Tina Chaney, executed a mortgage, attached as Exhibit A to
the Complaint, dated May 23, 2008, and on May 23, 2008, she executed a note
(attached to the complaint as Exhibit B), in the amount of $95,500.00 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 Defendant as mortgagor. Said
mortgage pertaining to the property described herein was recorded on May 27, 2008
as Document No. 200800053355, in the Office of the Logan County, Illinois,
Recorder.
2. The material factual allegations stated in the Complaint 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 that the court enter a Default Judgment of Foreclosure in
this cause and has filed with this Motion an Affidavit of Costs by Julie K. Wilson,
Acting State Director, Rural Development. The Motion and Affidavit stated that as
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of October 1, 2012, Plaintiff was owed (via a Note and Mortgage hereinafter
described) the sum of $105,719.14, plus a daily per diem accrual of $14.7599
thereafter to the date of judgment. No objection was made to the Motion or
Affidavit. Therefore, the Court allows the Motion and admits the Affidavit into
evidence in this cause.
5. There are no persons with potential claims to an interest in the abovedescribed property, but who are now foreclosed from asserting their claim, if any,
because of their default in this action.
6. All of the material allegations contained in the Complaint are true and 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:
Common Address: 419 South Kickapoo, Lincoln,
Illinois
Legal Description:
Lot 11 and the Southwest Half of Lot 12 in Block 26 in
the original town, now City of Lincoln, Logan County,
Illinois, except the underlying coal and the right to mine
and remove the same
PIN No. 54-08-210-268-00
7. By virtue of the mortgage and the indebtedness thereby secured, as
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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 . . . . . . . . . . . . $270.60
Recording Notice of a Suit to Foreclose Mortgage . . . . . . . . . $40.00
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $660.60
b) Unpaid principal and interest:
Unpaid principal balance . . . . . . . . . . . . . . . . . . . . $83,974.28
Accrued interest at $14.7599 per day
due and unpaid as of 10/1/12 . . . . . . . . . . . . . . . . . . $8,627.45
Subsidy Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . $6,400.32
Late Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $53.07
Interest on Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $190.04
Fees Assessed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,813.38
Total amount due Plaintiff as of 10/1/12,
exclusive of foreclosure costs . . . . . . . . . . $105,719.14
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
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title, certificates, foreclosure minutes, a title insurance policy and
fees, charges, and expenses provided by law incurred by or owing to
the United States Marshal, including such fees and expenses relating
to conducting of the judicial sale as required by this judgment of
foreclosure.
d) Under the terms of the mortgage, all such advances, costs and
other fees, expenses and disbursements are made a lien upon the
mortgaged real estate and Plaintiff is entitled to recover all such
advances, costs, expenses and disbursements, together with interest
on all advances at the rate provided in the mortgage, or, if no rate,
from the date on which such advances are made.
e) In order to protect the lien of the mortgage, Plaintiff may
necessarily have to pay taxes and assessments which have been or
may be levied upon the mortgaged real estate.
f) In order to protect and preserve the mortgaged real estate, Plaintiff
may have to make such repairs to the real estate as may reasonably be
deemed necessary for the proper preservation thereof.
g) Under the terms of the mortgage, any money so paid or expended
has or will become an additional indebtedness secured by the
mortgage and will bear interest from the date such monies are
advanced at the rate provided in the mortgage, or, if no rate is
provided, at the statutory judgment rate.
8. The present owner of the above-described real estate is: Tina Chaney
9. 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.
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10. Plaintiff is 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 and against all other
persons liable for the indebtedness or other obligations secured by the mortgage.
11. By reason of the defaults alleged and proved, if the indebtedness had
not matured by its terms, the same became due by the exercise, by Plaintiff or
other persons having such power, of a right or power to declare immediately due
and payable the whole of all indebtedness secured by the mortgage.
12. 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.
13. 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.
14. 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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15. 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.
16. 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 Plaintiff as declared herein.
2. Defendant is ordered to pay to Plaintiff before expiration of any
redemption period (or, if no redemption period, within seven days after the date of
this judgment) whatever sums may appear to be due upon the taking of such
account, together with fees and costs of the proceedings (to the extent provided in
the mortgage or by law).
3. In default of such payment in accordance with this judgment, the
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mortgaged real estate shall be sold as directed by the Court, to satisfy the amount
due to 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 Plaintiff is a purchaser of the mortgaged real estate at such
sale, Plaintiff may offset against the purchase price of such real estate the amounts
due under the judgment for the foreclosure and order confirming the sale.
5. In the event of such sale and the failure of the person entitled thereto to
redeem prior to such sale pursuant to statutory provisions, the defendants made
parties to the foreclosure in accordance with statutory provisions, and all nonrecord 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
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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 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. The sale will occur at the time
announced by the U.S. Marshal as provided below. Further, the sale will be
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
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ILCS 200/31-1, et. seq.), which shall be paid by buyer. 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 from the date of 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;
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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) That 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; 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 already 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
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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 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
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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. The deed shall identify the Court and the caption of the case in
which judgment was entered authorizing issuance of the deed. Signature and a
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:
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
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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 of a mortgage of residential real estate, the court finds
that (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 ILCS 735 5/15-1603(d);
and (ii) the mortgagee waives any and all rights to a personal judgment for a
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deficiency against the mortgagor(s) and against all other persons liable for the
indebtedness or other obligations secured by the mortgage.
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.
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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 vacate immediately and voluntarily at the U.S. Marshal’s
direction. Additionally, any and all personal property left on the mortgaged
premises by 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.
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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 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.
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 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.
ENTERED: October 17, 2012
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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