United States of America v. Swearingen et al
Filing
24
OPINION entered by Judge Sue E. Myerscough on 03/19/2013. SEE WRITTEN OPINION. Motion for Judgment of Foreclosure by USA (d/e 23 ) ALLOWED. There is no just reason for delaying the enforcement of this judgment, or an appeal therefrom. (DM, ilcd)
E-FILED
Wednesday, 20 March, 2013 05:00:40 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.
ROBERT E. SWEARINGEN, JR.,
SUSAN M. SWEARINGEN,
STATE BANK OF LINCOLN F/K/A
THE JOHN WARNER BANK
AND CITY OF CLINTON,
Defendants.
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12-3177
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
The Court now considers Plaintiff United States of America's
Motion to Enter Judgment (d/e 23)(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 Defendant,
City of Clinton, returned Waiver of Service of Summons on November
14, 2012, pursuant to Federal Rule of Civil Procedure 4 and has
acknowledged receipt of the Complaint as shown by the file in this case.
Defendants Susan M. Swearingen and Robert E. Swearingen, Jr. were
personally served with Summons and Complaint on September 19, 2012
and September 20, 2012, respectively, by the United States Marshal.
Defendants Susan M. Swearingen and Robert E. Swearingen, Jr. and City
of Clinton did not thereafter voluntarily appear in these proceedings.
2. Defendant State Bank of Lincoln f/k/a The John Warner Bank
consents to entry of judgment against it, in favor of the United States.
II. EVIDENTIARY FINDINGS
1. Defendants, Robert E. Swearingen, Jr. and Susan M. Swearingen,
executed a mortgage, attached as Exhibit A to the Complaint, dated
August 10, 1992, and on August 10, 1992, they executed a note, attached
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to the Complaint as Exhibit B, in the amount of $39,900.00 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 said
Defendants as Mortgagors. Said mortgage pertaining to the property
described herein was recorded as Document No. 160500, in the Office of
the Dewitt County, Illinois, Recorder.
2. No responsive pleading has been filed that denies the material
factual allegations stated in the Complaint.
3. Plaintiff is the owner of the note and mortgage described in said
Complaint.
4. Plaintiff has moved the Court to enter a Default Judgment of
Foreclosure in this cause and has filed with said Motion an Affidavit of
Costs by Molly K. Hammond, Acting State Director, Rural Development.
That pleading and Affidavit stated that as of January 28, 2013, Plaintiff
was owed, via a Note and Mortgage hereinafter described, the sum of
$43,832.88 plus a daily per diem accrual of $7.7480 thereafter to date of
Page 3 of 24
judgment and no objection being made to said Motion or Affidavit, said
Motion is allowed and the Affidavit is admitted into evidence in this
cause.
5. 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: Robert
and Susan Swearingen and the City of Clinton. The State Bank of
Lincoln f/k/a the John Warner Bank voluntarily consents to entry of
judgment against it and in favor of the United Stats of America in this
cause and admits that its interest in the subject property is inferior to that
of the United States (d/e 19).
6. That all of the material allegations contained in the Complaint
are true and that by virtue of the mortgage and indebtedness thereby
secured, Plaintiff, UNITED STATES OF AMERICA, has a valid and
subsisting lien arising out of a real estate mortgage on the property
described as follows:
Lot 10 in Evans and Scogin West Lawn
Subdivision as shown by Plat recorded August 5,
Page 4 of 24
1969, in Plat Book “F”, page 43 in the Recorder’s
Office of DeWitt County, Illinois, situated in the
County of DeWitt, in the State of Illinois
PIN No. 07-28-428-011
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 . . . . . $322.00
Recording Notice of a Suit to Foreclose Mortgage . . . $74.00
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . $746.00
b) Unpaid principal and interest:
Unpaid principal balance . . . . . . . . . . . . . . . . . . . $30,673.13
Accrued interest at $7.7480 per day
due and unpaid as of 1/28/13 . . . . . . . . . . . . . . . . . $5,192.77
Subsidy recapture . . . . . . . . . . . . . . . . . . . . . . . . . . $3,330.00
Late Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $74.22
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Interest on Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $211.30
Fees Assessed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,605.46
Total amount due plaintiff as of 1/28/13,
exclusive of foreclosure costs . . . . . . . . $43,832.88
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 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.
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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 are:
Robert E. Swearingen, Jr. and Susan Swearingen
9. DeWitt County, Illinois has a valid lien on the above-described
property for taxes for the years 2012 and 2013, and the property will be
sold subject to the interest of DeWitt County, resulting from taxes,
general or special, which are a valid lien against the above-described
property.
10. State Bank of Lincoln f/k/a The John Warner Bank, claims an
interest in these proceedings by virtue of a Mortgage dated December 15,
2004 and recorded December 28, 2004 in Book 517 on pages 197-208 as
Document No. 210671 made by Robert E. Swearingen, Jr. and Susan M.
Swearingen to the John Warner Bank to secure an indebtedness in the
principal amount of $20,000 with interest as therein specified and
subject to covenants, agreements, and conditions therein contained. The
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mortgage was modified by Agreement dated November 24, 2009 and
recorded November 25, 2009 in Book 663 on pages 357-360 as
Document No. 228100. The City of Clinton, Illinois claims an interest
in these proceedings by virtue of two notices of liens in favor of the City
of Clinton, Illinois, both recorded June 25, 2012 in book 379, on pages
66-67, as Document Number 236090 in the amount of $127.00 and in
Book 379, on pages 74-75 as Document Number 236094 in the amount
of $177.00, respectively. The interest of said Defendants is inferior to
that of Plaintiff.
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.
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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 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
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 2012 and 2013 and
thereafter and special assessments, if any.
Page 9 of 24
b)
Said mortgage given to Plaintiff.
c)
Mortgage dated December 15, 2004 and recorded December
28, 2004 in Book 517 on pages 197-208 as Document No.
210671 made by Robert E. Swearingen, Jr. and Susan M.
Swearingen, to the John Warner Bank, to secure an
indebtedness in the principal amount of $20,000 with interest
as therein specified and subject to covenants, agreements and
conditions therein contained. Modified by Agreement dated
November 24, 2009 and recorded November 25, 2009 in
Book 663 on pages 357-360 as Document No. 228100.
d)
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 non-parties.
19. The United States does not waive its right to subsequently
administratively collect from or reduce to judgment in a separate cause of
action against Defendants 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
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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 Plaintiff as declared herein.
2. Defendants are 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 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
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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 who is
entitled thereto to redeem prior to such sale pursuant to statutory
provisions, 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.
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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
provision by the U.S. Marshal or his representative.
2. Upon expiration of the redemption period, the real estate shall
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be sold by the U.S. Marshal for the Central District of Illinois at the
front door of the DeWitt County Courthouse in the City of Clinton,
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 DeWitt 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 201 S.
Vine, Urbana, Illinois 61802 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
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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
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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 and 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.
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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 sufficient to convey title, which deed shall identify the court and
the caption of the case in which judgment was entered authorizing
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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:
1. The reasonable expenses of sale including but not limited to
costs of publication, notice of said sale, expenses, fees, and commissions
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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
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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 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 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
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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
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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.
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.
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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: March 19, 2013
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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