United States of America v. Estate of Mary K. Cooper et al
OPINION FOR JUDGMENT OF FORECLOSURE entered by Judge Sue E. Myerscough on 2/9/2018. Plaintiff United States of America's Motion to Enter Judgment, d/e 34 is GRANTED. (SEE WRITTEN OPINION) (MAS, ilcd)
Monday, 12 February, 2018 10:55:16 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA
ESTATE OF MARY K. COOPER,
JEFFERY L. COOPER, SCOTT A.
COOPER, LONNIE R. COOPER,
SEYLA HAMM, C.C., NOW KNOWN )
AS C.T., A MINOR BY AND
THROUGH MARK K. WYKOFF, SR., )
GUARDIAN AD LITEM TO C.T.,
KEVIN N. MCDERMOTT, SPECIAL )
REPRESENTATIVE TO THE
ESTATE OF MARY K. COOPER,
DECEASED, UNKNOWN OWNERS, )
INCLUDING UNKNOWN HEIRS AND )
LEGATEES OF MARY K. COOPER, )
DECEASED, AND NON-RECORD
Case No. 16-cv-3237
OPINION FOR JUDGMENT OF FORECLOSURE
SUE E. MYERSCOUGH, U.S. District Judge:
The Court now considers Plaintiff United States of America’s
Motion to Enter Judgment (d/e 34) (hereinafter the “Motion”).
Pursuant to Federal Rules of Civil Procedure 12, 55, and 56, and 28
U.S.C. § 2001, and for the reasons stated below, the Motion is
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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:
The Court has jurisdiction over the subject matter and
parties pursuant to 28 U.S.C. §§ 1345 and 1391, respectively.
Pursuant to Federal Rule of Civil Procedure 4, Waivers of Service of
Summons were returned for defendants, Seyla Hamm (d/e 8),
Jeffrey L. Cooper (d/e 9), Scott A. Cooper (d/e 10), and Lonnie R.
Cooper (d/e 11). Between July 26, 2017 and August 17, 2017,
publication was made in the Mason County Democrat, Havana,
Illinois (d/e 29), and unknown owners, including unknown heirs
and legatees of the Estate of Mary K. Cooper were properly served,
and did not thereafter voluntarily appear in these proceedings.
Defendant C.C., a minor, now known as C.T., was
personally served by the U.S. Marshals Service on June 21, 2017
and has consented to the entry of judgment. (d/e 20).
On June 28, 2017, Kevin McDermott was appointed as
Special Representative for the deceased mortgagor Mary K. Cooper
in the Sixth Judicial Circuit, Mason County, Illinois. On October
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16, 2017, a hearing was held by Judge Alan Tucker on the Report of
Special Representative, who entered an Order approving the Special
Representative’s Report and discharged the Special Representative
in this case.
Mary K. Cooper executed mortgages on the property in
the amounts of $52,400.00 and $9,300.00, secured by said
mortgages. The United States of America, acting through Rural
Development, United States Department of Agriculture, was the
mortgagee on the mortgages executed by Mary K. Cooper as
mortgagor, and both mortgages were recorded in Mason County,
Illinois. (See Exhibits A-C to Doc. 25).
The material factual allegations stated in the amended
complaint filed herein have not been denied in any responsive
Plaintiff is the owner of the note and mortgages described
in the amended complaint.
Plaintiff moved the Court to enter a Motion to Enter
Judgment of Foreclosure in this cause and has filed with the Motion
an Affidavit of Costs by Douglas Wilson, State Director, Rural
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Development. That Motion and Affidavit stated that as of January
10, 2018, Plaintiff was owed (via a Note and Mortgages hereinafter
described) the sum of $70,495.16 plus a daily per diem accrual of
$14.7642 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.
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: Seyla Hamm, Jeffrey Cooper, Scott Cooper, and
All of the material allegations contained in the amended
complaint are true and by virtue of the mortgages and indebtedness
thereby secured, Plaintiff, United States of America, has a valid and
subsisting lien arising out of a real estate mortgages on the property
described as follows:
A 1.19 acre tract of land off the East end of a three (3) acre
tract of land located in the Southeast Quarter (SE ¼) of
Section 5, Township 21 North, Range 8 West of the Third
Principal Meridian and recorded in Book 301 of Real
Estate Record on page 470 in the Recorder’s Office of
Mason County, Illinois, said 1.19 acre tract of land being
described by metes and bounds as follows: Commencing
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at an iron pipe found marking the Southeast corner of said
Section 5; thence North along the East line of said Section
5, 1070.36 feet (record 1069.97 feet) to a found iron pin,
said iron pin being the actual point of beginning; thence
North 89º 30’06” West (record Westerly),
250.00 feet to an iron pin; thence North 208.00 feet to an
iron pin; thence South 89º 30’ 06” East (record Easterly),
250.00 feet to a found iron located on the East line of said
Section 5; thence South along said East line, 208.00 feet to
the actual point of beginning:
The above described tract contains 1.19 acres and is
subject to a right of way for public road purposes across
the East end thereof and is also subject to all utility
easements of record:
Situated in the County of Mason, in the State of Illinois
Tax ID No. 005-272000
By virtue of the mortgages and the indebtedness thereby
secured, as alleged in the complaint, there is due Plaintiff, United
States of America, as follows:
For its own use and benefit for the costs of this suit
U.S. Attorney’s Docket Fee....................................$400
U.S. Marshals’ Costs for Service of Summons……...$65
Recording Notice of a Suit to Foreclose Mortgage….$45
Cost of Notice of Publication..................................$676
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Filing Fee – Mason County …….....……...……...……$201
Kevin McDermott, Special Representative Fee.…….$500
Unpaid principal and interest:
Unpaid principal balance ...........................$40,889.91
Accrued interest at $14.7642 per day
due/unpaid as of January 10, 2018…….....$15,339.69
Interest on Fees............................................$5,544.32
Total amount due plaintiff as of
January 10, 2018, exclusive
of foreclosure costs ………..……....$113,084.20
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
Under the terms of the mortgage, all such advances,
costs and other fees, expenses and disbursements are
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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 mortgages, or, if no rate, from the
date on which such advances are made.
In order to protect the lien of the mortgages, Plaintiff
may necessarily have to pay taxes and assessments which
have been or may be levied upon the mortgaged real estate.
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.
Under the terms of the mortgages, 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
The present owner(s) of the above-described real estate
is/are: Mary K. Cooper, deceased.
Mason County, Illinois, has a valid lien on the above-
described property for taxes for the years 2017 (payable in 2018)
and the property will be sold subject to the interest of Mason
County, resulting from taxes, general or special, which are a valid
lien against the above-described property.
There are no other liens recorded against said property.
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The above-described property is abandoned, and Plaintiff
is entitled to a shortened redemption period pursuant to 735 ILCS
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
Defendant C.C., a minor, now known as C.T., by and
through Mark Wykoff, Sr., has executed a Consent to Enter
Judgment. (d/e 20)
Kevin N. McDermott as Special Representative to the
Estate of Mary Cooper, deceased, has completed the requirements
of his appointment, has reported that there do not appear to be any
viable defenses to this foreclosure proceeding and to this requested
judgment of foreclosure, and does not deny the allegations in the
Complaint for Foreclosure filed in this cause. Based on the
foregoing, the Court approves the services rendered by the Special
Representative in this foreclosure case as summarized in said
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attached Final Report, determines that the Special Representative
has satisfied the requirements of his appointment insofar as said
requirements pertain to the Special Representative’s responsibility
to represent the named decedent defendant in this foreclosure
proceeding, determines that there are no further services required
by the Special Representative in this foreclosure proceeding, as his
attached Final Report states there do not appear to be any viable
defenses to this foreclosure. Further, this Court enters summary
judgment against said Personal Representative and approves the
Special Representative’s request recited in said Final Report for an
award of fees of $500 plus the expenses recited therein to be paid to
the Special Representative by the Plaintiff, with said fees and
expenses being added to and becoming part of the monetary
amount of this Judgment hereby being entered in favor of the
United States of America.
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 mortgages.
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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.
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.
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.
The real estate is free and clear of all liens and
a) General real estate taxes for the years 2017 (payable
in 2018) and thereafter and special assessments, if
b) The mortgages given to Plaintiff.
c) Easements and restrictions of record.
Plaintiff’s mortgages are 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 mortgages or prior liens of non-parties.
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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 mortgages in this cause even though no
such deficiency judgment is sought in this foreclosure proceeding.
WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
ORDER UPON DEEMED REQUEST FOR FORECLOSURE
An accounting has been taken under the direction of the
court of the amounts due and owing to Plaintiff as declared herein.
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
mortgages or by law).
In default of such payment in accordance with this
judgment, the mortgaged real estate shall be sold as directed by the
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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.
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.
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.
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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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 and easements and restrictions of
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.
The property is being sold at this judicial sale “AS IS”
WITHOUT ANY WARRANTIES OF HABITABILITY OR ANY OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED.
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
Upon expiration of the redemption period, the real estate
shall be sold by the U.S. Marshal for the Central District of Illinois
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at the front door of the Mason County Courthouse in the City of
Havana, 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 Mason 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 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:
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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
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
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;
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
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
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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.
f) No other notice by publication or posting shall be
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.
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
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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.
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.
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 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.
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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.
APPLICATION OF PROCEEDS
The proceeds resulting from the sale ordered herein shall be
applied in the following order:
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
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 735 ILCS 5/15-1505, and other legal expenses
incurred by the mortgagee;
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Satisfaction of claims in the order of priority adjudicated
in this judgment of foreclosure; and
Remittance of any surplus to the mortgagor or as
otherwise directed by the court.
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.
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.
This is a foreclosure of a mortgage of residential real
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.
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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.
Possession of Mortgaged Real Estate:
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.
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
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on the 31st day after the judicial sale of this mortgaged
property has been approved.
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 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
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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.
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.
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).
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.
AND IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED, that there is no just reason for delaying the
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enforcement of this judgment, or an appeal therefrom.
ENTERED: February 9, 2018
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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