United States of America v. Jones et al

Filing 13

OPINION FOR JUDGMENT granting 11 Motion for Default Judgment. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 05/25/2018. (SKN, ilcd)

E-FILED

Friday, 25 May, 2018 03:01:36 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN W. JONES and VILLAGE
OF SAN JOSE,
Defendants.

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Civil No. 17-3231

OPINION FOR JUDGMENT
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 (d/e 11) is GRANTED. In
connection with its decision, the Court has considered all of the
pleadings and evidence submitted to date. Based thereon, the
Court makes these FINDINGS:
I. JURISDICTION
1. The Court has jurisdiction over the subject matter and
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parties pursuant to 28 U.S.C. '' 1345 and 1391, respectively.
Defendant, John W. Jones, executed a Waiver of Service of
Summons (d/e 5), pursuant to Federal Rule of Civil Procedure 4.
Defendant, Village of San Jose, accepted service of the Complaint
and consents to entry of this Judgment (d/e 8).
II. EVIDENTIARY FINDINGS
1. Defendant, John W. Jones, executed a mortgage and
executed a note in the amount of $70,932.00 secured by said
mortgage (attached to the complaint as Exhibits A, B). The United
States of America, acting through Rural Development, United States
Department of Agriculture, was the mortgagee on the mortgage
executed by defendant, John W. Jones, as mortgagor. The mortgage
pertaining to the property described herein was recorded on August
8, 2005 in the Office of the Recorder of Deeds, Mason County,
Illinois.
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.
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4. Plaintiff moved the Court to enter Judgment of Foreclosure
in this cause and has filed with the Motion an Affidavit of Costs by
Lindsey M. Keyes, Acting State Director, Rural Development. That
Motion and Affidavit stated that as of March 7, 2018, Plaintiff was
owed the sum of $124,088.45, plus a daily per diem accrual of
$13.9612 per day, to the date of judgment. No objection being made
to the Motion or Affidavit of the Motion, the Motion is granted 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 or consent
to judgment in this action: John W. Jones and Village of San Jose.
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:
Ninety five (95) feet off from the North side of the North
half (N1/2) of block two (2) in the Hicks Addition to the
Village of San Jose, Illinois and is more fully described
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as follows:
Beginning at a point two hundred five (205) feet due
North of the Southeast corner of said Block two (2) and
running thence North ninety five (95) feet to the
Northeast corner of said block two (2), thence due
West to the lands of the Chicago and Alton Railroad
Company, thence in a Southwesterly direction of
course along the line of said Chicago and Alton
Railroad Company to a point directly West of the point
of beginning, thence due East to the place of
beginning, Situated in the County of Mason, State of
Illinois
001-650000
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 Fee for Notice of Foreclosure ................. $45.00
U.S. Marshal Fee for Service…….……….…………..$288.09
Title Cost/Appraisal ........................................... $926.25
Total ................................................................ $1,659.34

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b)

Unpaid principal and interest:

Unpaid principal balance ............................... $65,789.72
Accrued interest at $13.9612 per day due and unpaid as
of March 7, 2018 ……….................................$24,821.08
Late Charges........................................................... $0.00
Interest on Fees ............................................... $3,734.87
Fees Assessed ................................................ $29,009.69
Total amount due plaintiff as of 1/25/2018
exclusive of foreclosure costs ………………….$123,355.36
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.
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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
John W. Jones.
9. Mason County, Illinois, has a valid lien on the abovedescribed property for taxes for the year 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.
10. The above-described property is abandoned and Plaintiff
is entitled to a shortened redemption period pursuant to 735 ILCS
5/15-1603.
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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. 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 5/151603(d); and (ii) the mortgagee waives any and all rights to a
personal judgment for a deficiency against the mortgagor(s) and
against all other persons liable for the indebtedness or other
obligations secured by the mortgage.
13. By reason of the defaults alleged and proved, if the
indebtedness had not matured by its terms, the same became due
by the exercise, by Plaintiff or other persons having such power, of
a right or power to declare immediately due and payable the whole
of all indebtedness secured by the mortgage.
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14. Any and all notices of default or election to declare the
indebtedness due and payable or other notices required to be given
have been duly and properly given.
15. Any and all periods of grace or other period of time
allowed for the performance of the covenants or conditions claimed
to be breached or for the curing of any breaches have expired.
16. All lien or mortgage claimants defaulted are found and
declared to have no interest in the real estate foreclosed, as they
have offered no evidence of the interest.
17. The real estate is free and clear of all liens and
encumbrances except:
a) General real estate taxes for the year 2017 (payable in
2018) and thereafter and special assessments, if any.
b) The mortgage given to Plaintiff.
c) Easements and restrictions of record.
18. Plaintiff's mortgage is prior and superior to all other
mortgages, claims of interest and liens upon the real estate except
for real estate taxes and special assessments, if any, and except for
any mortgages or liens found herein to be prior and superior to
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plaintiff's mortgage or prior liens of non-parties.
19. 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:
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(s) are ordered to pay to Plaintiff before
expiration of any redemption period (or, if no redemption period,
within seven days after the date of this judgment) whatever sums
may appear to be due upon the taking of such account, together
with fees and costs of the proceedings (to the extent provided in the
mortgage or by law).
3. In default of such payment in accordance with this
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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 Defendant(s) made part(ies) 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
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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
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
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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 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
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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) The real estate may be inspected prior to sale
upon making reasonable arrangements with the
person identified in paragraph i above;
vi) The time and place of the sale;
vii) The terms of the sale;
viii) The case title, case number, and the court in
which the foreclosure was filed; and
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ix) No other information is required.
b) The notice of sale shall be published at least four
consecutive calendar weeks (Sunday through Saturday),
once in each week, the first such notice to be published
not more than 45 days prior to the sale, the last such
notice to be published not less than 7 days prior to the
sale, by:
i) An advertisement in a newspaper regularly issued
and of general circulation to the general public in
the county in which the real estate is located in the
section of that newspaper where legal notices are
commonly placed; and
ii) No other publication shall be required.
c) The party who gives notice of public sale shall also
give notice to all other parties in the action who have not
heretofore been found by the Court to be in default for
failure to plead. Such notice shall be given in the
manner provided in the applicable rules of court for
service of papers other than process and complaint, not
more than 45 days and not less than seven days prior to
the day of sale. After notice is given as required in this
section, a copy thereof shall be filed in the Office of the
Clerk of this Court together with a certificate of counsel
or other proof that notice has been served in compliance
with this section.
d) The party who gives notice of a public sale shall again
give notice of any adjourned sale; provided, however, that
if the adjourned sale is to occur less than 60 days after
the last scheduled sale, notice of any adjourned sale need
be given only once, not less than 5 days prior to the day
of the adjourned sale.
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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 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
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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.
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:
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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
made pursuant to 735 ILCS 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.
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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
Balance Due as declared above plus interest thereon at the
statutory rate hereafter and all additional costs and other expenses
allowed by the Court.
5. If the purchaser at the judicial sale of residential real estate
is a mortgagee who is a party to this proceeding or its nominee, and
if the sale price is less than the amount required to redeem
specified in 735 ILCS 5/15-1603(d), an owner of redemption has a
special right to redeem for a period ending 30 days after the date
the sale is confirmed, by paying the mortgagee the sale price plus
all additional costs and expenses incurred by the mortgagee set
forth in the report of sale and confirmed by this Court.

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IX. OTHER MATTERS
1. Possession of Mortgaged Real Estate:
A. Unless the mortgagor=s right to possess this foreclosed
residential real estate is or has been terminated, the mortgagor
(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.
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
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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 de minimis 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.
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3. The purchaser of the foreclosed property shall be given
possession effective immediately upon approval of the judicial sale
of this real estate in compliance with 735 ILCS 5/15-1701(c) (1).
4. Homestead Waiver. 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
enforcement of this judgment, or an appeal therefrom.
ENTERED: May 25, 2018
__s/Sue E. Myerscough_________________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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