United States of America v. Smith
Filing
13
OPINION: Pursuant to Federal Rule of Civil Procedure 55, 28 U.S.C. § 2001, the Motion 12 is ALLOWED. (SEE WRITTEN OPINION). Entered by Judge Sue E. Myerscough on 10/9/2015. (GL, ilcd)
E-FILED
Friday, 09 October, 2015 02:35:46 PM
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.
SHELLY SUE SMITH,
Defendant.
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No. 15-CV-3020
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
The Court now considers Plaintiff United States of America's
Motion to Enter Judgment (Motion) (d/e 12). 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
The Court has jurisdiction over the subject matter and parties
pursuant to 28 U.S.C. '' 1345 and 1391, respectively. The
defendant, Shelly Sue Smith was personally served with Summons
and Complaint by the United States Marshal on July 15, 2015, and
did not thereafter voluntarily appear in these proceedings.
II. EVIDENTIARY FINDINGS
1. Defendant, Shelly Sue Smith, executed a mortgage,
attached as Exhibit A to the complaint, dated September 29, 2004,
and on the same day she executed a note (attached to the complaint
as Exhibit B), in the amount of $54,929 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 defendant as mortgagor. The mortgage
pertaining to the property described herein was recorded on October
5, 2004, commencing at Page 362 of Book 1028, as Document No.
200400022069, in the Office of the Montgomery 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.
Page 2 of 21
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 by Colleen Callahan, State Director, Rural Development.
That Motion and Affidavit stated that as of August 5, 2015, Plaintiff
was owed (via a Note and Mortgage hereinafter described) the sum
of $54,935.67 plus a daily per diem accrual of $8.062 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: none.
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:
706 Capps Avenue, Nokomis, Illinois 62075
Page 3 of 21
That part of the East Half of the Northeast Quarter of the
Southwest Quarter of Section 23, Township 10 North,
Range 2 West of the Third Principal Meridian, described
as follows: Beginning at a point 510 feet South of a stone
situated 76 feet West and 45 feet South of the Northeast
corner of the Southwest Quarter of said Section 23,
running thence West 125 feet; thence South 99 ¼ feet;
thence East 125 feet; and thence North 99 ¼ feet to the
place of beginning.
Except all coal and minerals underlying said lands,
together with the right to mine and remove same
PIN NO 08-23-332-033
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
U.S. Marshals' Costs for Service of Summons… $539.50
Recording Notice of a Suit to Foreclose Mortgage…$50.00
Total………………………………………………………..$989.50
b) Unpaid principal and interest:
Unpaid principal balance……………………..$40,944.40
Page 4 of 21
Accrued interest at $8.062 per day
due and unpaid as of 8/5/15 ……………….$6,572.03
Late Charges…………………………………………….$66.50
Escrow/Impound………………………………………$786.53
Interest on Fees………………………………………..$361.36
Fees Assessed………………………………………..$5,215.05
Total amount due plaintiff as of 8/5/15,
exclusive of foreclosure costs……………..$53,945.87
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.
Page 5 of 21
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
Shelly Sue Smith.
9. Montgomery County, Illinois, has a valid lien on the abovedescribed property for taxes for the second installment of tax year
2014, and 2015, and the property will be sold subject to the interest
of Montgomery County, resulting from taxes, general or special,
which are a valid lien against the above-described property.
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 5/15Page 6 of 21
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 the interest.
Page 7 of 21
15. The real estate is free and clear of all liens and
encumbrances except:
a) General real estate taxes for the second half of year 2014,
and 2015, and thereafter and special assessments, if any.
b) The 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.
17. The United States does not waive its right to subsequently
administratively collect, including by offset, any resulting deficiency
if the sale price for the foreclosed property sold in this cause at
judicial sale does not pay the 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:
Page 8 of 21
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 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.
Page 9 of 21
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 Defendant made a party to the foreclosure in
accordance with statutory provisions, and all non-record claimants
given notice of the foreclosure in accordance with statutory
provisions, and all persons claiming by, through or under them,
and each and any and all of them, shall be forever barred and
foreclosed of any right, title, interest, claim, lien or right to redeem
in and to the mortgaged real estate.
6. If no redemption is made prior to such sale, a deed shall be
issued to the purchaser according to law and such purchaser shall
be let into possession of the mortgaged real estate in accordance
with statutory provisions.
IV. ORDER UPON SPECIAL MATTERS
1. Exceptions to which title in the real estate shall be subject
at the sale shall include general real estate taxes for the current
year and for the preceding year which have not become due and
payable as of the date of this judgment and any special
Page 10 of 21
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 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 Montgomery County Courthouse in the City
of Hillsboro, 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 Montgomery County, Illinois. In
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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 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 made payable to U.S.
Marshals Service, to be received by the United States Marshal at
100 N.E. Monroe, Peoria, Illinois, 61602 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:
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i) The name, address and telephone number of the
person to contact for information regarding the real
estate;
ii) The common address and other common description
(other than legal description), if any, of the real estate;
iii) A legal description of the real estate sufficient to
identify it with reasonable certainty;
iv) A description of the improvements on the real estate;
v) The real estate may be inspected prior to sale upon
making reasonable arrangements with the person
identified in paragraph i above;
vi) The time and place of the sale;
vii) The terms of the sale;
viii) The case title, case number and the court in which
the foreclosure was filed; and
ix) No other information is required.
b) The notice of sale shall be published at least four
consecutive calendar weeks (Sunday through Saturday), once
in each week, the first such notice to be published not more
than 45 days prior to the sale, the last such notice 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.
Page 13 of 21
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.
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
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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 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 15 of 21
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,
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
Page 16 of 21
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 deficiency
against the mortgagor 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.
Page 17 of 21
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.
Page 18 of 21
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.
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 defendant mortgagor
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
Page 19 of 21
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.
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-mortgagor waived her right
to homestead or other exemptions in the real estate in the body of
the mortgage, which was duly signed and acknowledged, and the
defendant-mortgagor is therefore barred from claiming any right to
homestead or other exemptions in the 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: October 8, 2015
FOR THE COURT:
___s/Sue E. Myerscough_______
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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