United States of America v. Sass et al
Filing
18
OPINION: Plaintiff United States of America's 17 Motion to Enter Judgment is ALLOWED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 1/8/2014. (MJ, ilcd)
E-FILED
Thursday, 09 January, 2014 11:58:01 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. 13-3005
)
THOMAS S. SASS,
)
JESSICA K. VOWELS n/k/a
)
JESSICA K. WEESE AND GEM )
CITY ACCOUNT SERVICE,
)
)
Defendants.
)
OPINION
Sue E. Myerscough, U.S. District Judge:
The Court now considers Plaintiff United States of
America’s Motion to Enter Judgment (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 this decision, the Court has
considered all of the pleadings and evidence submitted to date.
Based thereon, the court makes these FINDINGS:
I. JURISDICTION
The Court has jurisdiction over the subject matter and
parties pursuant to 28 U.S.C '' 1345 and 1391, respectively.
Defendant Gem City Account Service returned Waiver of
Service of Summons on January 14, 2013 (d/e 3); Defendant
Jessica Vowels-Weese returned Waiver of Service of Summons
on January 27, 2013 (d/e 4); and Defendant Thomas Sass was
served by the U.S. Marshal on September 9, 2013 (d/e 13). All
defendants have been served pursuant to Federal Rule of Civil
Procedure 4 and have acknowledged receipt of the Complaint.
Defendants have not voluntarily appeared in these proceedings.
Page 2 of 27
II. EVIDENTIARY FINDINGS
1. On February 11, 2000, Defendants Thomas S. Sass and
Jessica K. Vowels n/k/a Jessica K. Weese assumed a mortgage
from Randall P. and Dana J. Glover, in the amount of
$37,000.00. This mortgage, dated February 4, 1992, is attached
to the Complaint as Exhibit A, and the Assumption Agreement is
attached to the Complaint as Exhibit D. The mortgage was
recorded on February 4, 1992, commencing at Page 973 of
Volume 422, as Document No. 92662, in the Office of the
Adams County, Illinois, Recorder. On February 11, 2000,
Defendants Thomas S. Sass and Jessica K. Vowels n/k/a Jessica
K. Weese executed another mortgage, attached to the Complaint
as Exhibit B, in the assumed amount of $33,964.80 and an
additional amount of $27,910.20. This mortgage was recorded
on February 14, 2000, commencing at Page 1164 of Volume
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445, as Document No. 098324, in the Office of the Adams
County, Illinois, Recorder. On February 11, 2000, they executed
a note, attached to the Complaint as Exhibit E, in the amount of
$27,910.80 secured by said mortgage.
The United States of America, acting through Rural
Development, United States Department of Agriculture, was the
mortgagee on the mortgages executed by Defendants Thomas S.
Sass and Jessica Vowels-Weese as mortgagors.
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 notes and mortgages
described in the complaint.
4. Plaintiff moved the Court to enter a Default Judgment
of Foreclosure in this cause and has filed with the Motion an
Affidavit of Costs Colleen Callahan, State Director, Rural
Page 4 of 27
Development. That pleading and Affidavit stated that as of
September 30, 2013, Plaintiff was owed (via Notes and
Mortgages hereinafter described) the sum of $87,901.47, plus a
daily per diem accrual of $14.7276 thereafter to date of
judgment. Because there have not been any objections to the
Motion or Affidavit of the Motion, the 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: Thomas S. Sass, Jessica K. Vowels-Weese,
and Gem City Account Service.
6. All of the material allegations contained in the
complaint are true and by virtue of the mortgage and
indebtedness thereby secured, Plaintiff, UNITED STATES OF
Page 5 of 27
AMERICA, has a valid and subsisting lien arising out of a real
estate mortgage on the property described as follows:
Lot Two (2) in Block Three (3) in Briarwood
Subdivision First Addition,
an Addition to the Village of Payson, situated in the
County of Adams, in the State of Illinois
PIN No. 18-0-0699-010
7. That by virtue of the mortgage and the indebtedness
thereby secured, as alleged in the complaint, there is due
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 ........................ $1,633.27
Recording Notice of a Suit to
Foreclose Mortgage .................................... $35.00
Total .............................................. $2,018.27
Page 6 of 27
b) Unpaid principal and interest:
Unpaid principal balance .................... $65,671.93
Accrued interest at $14.7276 per day
due and unpaid as of 9/30/13 ............. $13,356.58
Late Fees ..................................................... $57.80
Interest on Fees ........................................ $577.25
Fees Assessed ......................................... $7,217.28
Total amount due plaintiff as of 9/30/13,
exclusive of foreclosure costs .............. $86,880.40
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.
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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 owners of the above-described real estate
are: Thomas S. Sass and Jessica K. Vowels-Weese.
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9.
Adams 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 Adams
County, resulting from taxes, general or special, which are a valid
lien against the above-described property.
10. Gem City Account Service claims an interest in these
proceedings by virtue of a memorandum of judgment filed July
13, 2007. The interest of Defendant is inferior to that of
Plaintiff.
11. 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 mortgagors and
Page 9 of 27
against all other persons liable for the indebtedness or other
obligations secured by the mortgage.
12. 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.
13. 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.
14. 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.
15. All lien or mortgage claimants defaulted are found and
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declared to have no interest in the real estate foreclosed, as they
have offered no evidence of the interest.
16. The 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;
b) The mortgage given to Plaintiff;
c) Easements and restrictions of record.
17. 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:
Page 11 of 27
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 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 judgment.
4. In the event Plaintiff is a purchaser of the mortgaged
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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
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
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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. The property is being sold at this judicial sale AAS IS@
WITHOUT ANY WARRANTIES OF HABITABILITY OR ANY
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OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED.
V. ORDER FOR JUDICIAL SALE
1. The real estate is ordered to be sold in accordance with
applicable statutory provisions 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 Adams County Courthouse in
the City of Quincy, Illinois, at the time announced by the U.S.
Marshal subject to easements and restrictions of record and
taxes, general or special, due and owing to Adams County,
Illinois. In addition the real estate transfer tax (35 ILCS
200/31-1, et. seq.), shall be paid by buyer(s). The 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
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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 600 E. Monroe, Springfield, Illinois 62701
within thirty (30) days of date of the sale. If the balance is not
received within the 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:
Page 16 of 27
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;
ix) No other information is required.
b) The notice of sale shall be published at least four
consecutive calendar weeks (Sunday through
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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
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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
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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.
Page 20 of 27
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 the 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
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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 mortgagors 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.
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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 deficiency against the mortgagors 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
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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 mortgagors’ right to possess this
foreclosed residential real estate is or has been terminated, the
mortgagors (homeowners) have 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
mortgagors and all persons claiming a possessory right to the
mortgaged premises through the mortgagors 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 the 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
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immediately and voluntarily at the U.S. Marshal=s direction; in
addition any and all personal property left on the mortgaged
premises by the defendants mortgagors and/or any and all other
persons having left the 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 the
property at the sale judicially approved by this Court.
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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.
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: January 8, 2014
FOR THE COURT:
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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