United States of America v. Hostetter et al
Filing
8
OPINION entered by Judge Sue E. Myerscough on 5/19/2014. Plaintiff's Motion for Judgment, d/e 7 ALLOWED. (SEE WRITTEN OPINION) (MAS, ilcd)
E-FILED
Monday, 19 May, 2014 04:52:33 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
DEBORAH A. HOSTETTER and
CHARLES W. HOSTETTER,
Defendants.
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13-03399
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”). Under
Federal Rule of Civil Procedure 55 and 28 U.S.C. § 2001, and for
the reasons stated below, the Motion is ALLOWED. The Court has
considered all of the pleadings and evidence submitted to date and
makes the following FINDINGS:
I.
JURISDICTION
The Court has jurisdiction over the subject matter and parties
pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. The
Defendants, Deborah A. Hostetter and Charles W. Hostetter, each
returned Waiver of Service of Summons on January 10, 2014,
pursuant to Federal Rule of Civil Procedure 4; acknowledged receipt
of the complaint as shown by the file in this case; and did not
thereafter voluntarily appear in these proceedings.
II.
1.
EVIDENTIARY FINDINGS
Defendants, Deborah A. Hostetter and Charles W. Hostetter,
executed a mortgage, attached as Exhibit A to the complaint, dated
October 23, 2009, and on the same day they executed a note
(attached to the complaint as Exhibit B) in the amount of $53,500
secured by said mortgage. The United States of America, acting
through Rural Development, United States Department of
Agriculture, was the mortgagee on the mortgage executed by the
Defendants as mortgagors. The mortgage pertaining to the property
described herein was recorded on October 23, 2009, as Document
No. 09-3970, in the Office of the Shelby 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 the
complaint.
4.
Plaintiff moved the Court to enter a Default Judgment of
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Foreclosure in this cause and has filed with the Motion an Affidavit
of Costs by Molly K. Hammond, Acting State Director, Rural
Development. That Motion and Affidavit stated that as of February
14, 2014, Plaintiff was owed (via a Note and Mortgage hereinafter
described) the sum of $49,986.79, plus a daily per diem accrual of
$7.3156 thereafter to date of judgment. No objection being made 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: Deborah A. Hostetter and Charles W. Hostetter.
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 AMERICA, has a valid and
subsisting lien arising out of a real estate mortgage on the property
described as follows:
234 North 4th Street, Cowden, Illinois 62422
Lot 10 in Block 1 in W.W. Nance’s Addition to the City of
Cowden, situated in the County of Shelby and State of Illinois
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PIN No. 0524-03-13-305-001
7.
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 ...................................... $400.00
Recording Notice of a Suit to Foreclose Mortgage ....... $46.00
Total ....................................................................... $446.00
b. Unpaid principal and interest:
Unpaid principal balance ................................... $49,986.79
Accrued interest at $7.3156 per day
due and unpaid as of 2/14/14 ............................. $5,368.45
Late Charges............................................................. $99.36
Interest on Fees ...................................................... $155.13
Fees Assessed ...................................................... $3,417.59
Total amount due plaintiff as of 2/14/14,
exclusive of foreclosure costs ......................... $59,027.32
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
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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 owners of the above-described real estate are
Deborah A. Hostetter and Charles W. Hostetter.
9.
Shelby County, Illinois has a valid lien on the above-described
property for taxes for the years 2013 and 2014, and the property
will be sold subject to the interest of Shelby County resulting from
taxes, general or special, which are a valid lien against the abovePage 5 of 18
described property.
10.
The above-described property is abandoned, and Plaintiff is
entitled to a shortened redemption period pursuant to 735 ILCS
5/15-1603.
11.
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.
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
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breached or for the curing of any breaches have expired.
15.
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 the interest.
16.
The real estate is free and clear of all liens and encumbrances
except:
a. General real estate taxes for the years 2013 and 2014 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:
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
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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 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 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
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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 other statutory provisions.
IV.
1.
ORDER UPON SPECIAL MATTERS
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, 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 “AS IS”
WITHOUT ANY WARRANTIES OF HABITABILITY OR ANY OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED.
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V.
1.
ORDER FOR JUDICIAL SALE
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 Shelby County Courthouse in the City of
Shelbyville, 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 Shelby 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 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 the 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
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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:
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.
vi.
vii.
viii.
The real estate may be inspected prior to sale
upon making reasonable arrangements with the
person identified in paragraph i above;
The time and place of the sale;
The terms of the sale;
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.
ii.
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
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.
f. No other notice by publication or posting shall be
necessary.
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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.
1.
TRANSFER OF TITLE
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
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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 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 sale,
holding, maintaining, and preparing the real estate for sale,
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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.
1.
REDEMPTION – RESIDENTIAL
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 5/15-1603(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
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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.
1.
OTHER MATTERS
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
the mortgaged premises through the 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.
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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 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 de minimus value that would neither
exceed nor equal the costs of notice, storage, and sale, the
U.S. Marshal may leave the personal property, at his
discretion, on the premises for the purchaser of this real
estate to claim, or dispose of, at will.
Upon taking possession and custody of the premises and
removing all occupants who are unauthorized to remain on the
premises, the U.S. Marshal is then hereby directed to remit
possession and custody of the premises to the purchaser of the
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
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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. Defendants-Mortgagors waived their right
to homestead or other exemptions in the real estate in the body of
the mortgage, which was duly signed and acknowledged, and the
Defendants-Mortgagors are therefore barred from claiming any right
to homestead or other exemptions in the real estate.
5.
Deficiency. If the money arising from the sale shall be
insufficient to pay the amounts due to Plaintiff with interest and the
costs and expenses of sale, the person conducting the sale shall
specify the amount of such deficiency in the report of sale, and a
judgment shall be entered therefore, if appropriate.
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.
IT IS SO ORDERED.
ENTER: May 19, 2014
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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