Deutsche Bank National Trust Company v. Hellman et al
Filing
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JUDGMENT OF FORECLOSURE in favor of Plaintiff and against Defendants; ORDER granting 15 Motion for Default Judgment; ORDER adopting 21 Report and Recommendations with slight modifications. Signed by Judge William D. Stiehl on 1/10/12. (car)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for Ixis Real Estate
Capital Trust 2007-HE-1 Mortgage Pass
Through Certificates, Series 2007-HE-1,
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Plaintiff,
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v.
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SHANE A. HELLMAN, VALERIE M. )
HELLMAN, BENEFICIAL ILLINOIS, )
INC., MERS INC, as Nominee for First )
NLC Financial Services, LLC,
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Defendants.
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CIVIL NO. 11-cv-00061-WDS
JUDGMENT OF FORECLOSURE
STIEHL, District Judge:
Before the Court is the Report and Recommendation of Magistrate Judge Stephen C.
Williams (Doc. 21) regarding plaintiff’s pending amended motion for default judgment (Doc. 15).
Magistrate Judge Williams held an evidentiary hearing on November 14, 2011, to review the
evidence, including the original documents at issue in the case. Neither plaintiff nor defendants filed
any objections to the Report and Recommendation. Upon review of the record, the Court ADOPTS
the Report and Recommendation of Magistrate Judge Stephen C. Williams (Doc. 21) with slight
modifications, FINDS that plaintiff has met all of the requirements for default judgment, and
GRANTS plaintiff’s amended motion for default judgment (Doc. 15).
Accordingly, the Court HEREBY FINDS:
1. The court has jurisdiction of the parties and the subject matter, and service of process has
been properly made.
2. The last owner of right of redemption was served on February 7, 2011.
3. The statutory right to reinstate, pursuant to 735 ILCS 5/15-1602, expired May 7, 2011.
4. The statutory right of redemption, pursuant to 735 ILCS 5/15-1603, shall expire three
months from the entry of this order, unless shortened by further order of the court.
5. This judgment is fully dispositive of the interest of all Defendants. All the material
allegations of the Complaint filed pursuant to 735 ILCS 5/15-1504, including those required
by statute, are true and proven. By entry of this Judgment for Foreclosure and Sale, the
Mortgage and Note which are the subject matter of these proceedings is extinguished and
replaced by Judgment. By virtue of the Mortgage and the evidence of the indebtedness
secured by it, of the date and execution of Plaintiff’s supporting judgment affidavit, there is
due and owing to Plaintiff the following amounts which shall continue to be a valid and
subsisting lien upon the subject property described hereinafter.
Principal Balance, Accrued Interest and Other
Amounts Due as Stated in Plaintiffs Affidavit
Plaintiff’s Attorneys’ Fees
TOTAL JUDGMENT AMOUNT
$134,586.77
$2,149.00
$136,735.77
6. Any advance made in order to protect the lien of the judgment and preserve the real estate
shall become so much additional indebtedness secured by the judgment lien. Such advances
include, but are not limited to payment for property inspections, real estate taxes or
assessments, property maintenance, and insurance premiums incurred by Plaintiff and not
included in this Judgment, but paid prior to the Judicial sale. Such advances shall bear
interest from date of the advance at the Judgment rate of interest, except in the case of
Redemption or Payoff, in which case the note rate of interest shall apply pursuant to 735
ILCS 5/15-1603(d).
7. Under the provisions of the Mortgage, the costs of foreclosure and reasonable attorneys’ fees
are an additional indebtedness for which Plaintiff should be reimbursed; such expenses and
reasonable attorneys’ fees are hereby allowed to the Plaintiff.
8. The court approves the portion of the lien attributable to attorneys’ fees only for purposes
of the foreclosure sale, and not for purposes of determining the amount required to be paid
personally by Defendant in the event of redemption of a deficiency judgment, or otherwise.
In the event of redemption by Defendant or for purposes of any personal deficiency
judgment, this Court reserves the right to review the amount of attorneys’ fees to be included
for either purpose. Plaintiff’s counsel is required to notify Defendant of the provisions of
this paragraph by mailing a copy of this Judgment to Defendant.
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9. The Mortgage described in the Complaint and hereby foreclosed appears of record in the
Office of the Clinton County Recorder of Deeds as Document No. 2006R03974, and the
subject property encumbered by said Mortgage and directed to be sold is legally described
as follows:
LOT 23, IN BLOCK 4, IN THE ORIGINAL TOWN, NOW CITY OF BREESE,
CLINTON COUNTY ILLINOIS, AND SUBJECT TO EASEMENTS, RIGHTS-OFWAY, COVENANTS, RESERVATIONS AND RESTRICTIONS OF RECORDS.
10. The rights and interests of all the other parties to this cause in the subject property, are
inferior and subordinate to the lien of the Plaintiff.
11. Copies of the Note and the Mortgage or Affidavit of Documents as are attached to
Plaintiff’s Complaint have been offered in evidence. Plaintiff is hereby given leave to
withdraw, if any, the Original Note and the Original Mortgage and substitute copies of
those documents.
12. Plaintiff has been compelled to employ and retain attorneys to prepare and file the
complaint and to represent and advise the Plaintiff in the foreclosure of the mortgage.
Defendant is liable for the usual, reasonable and customary fees incurred by Plaintiff.
13. Plaintiff has been compelled and may be compelled after entry of this judgment, to
advance, various sums of money in payment of costs, fees, expenses and disbursements
incurred in connection with the foreclosure. These sums may include, without limiting
the generality of the foregoing, filing fees, service of process fees, copying charges,
stenographer’s fees, witness fees, costs of publication, costs of procuring and preparing
documentary evidence and costs of procuring abstracts of title, foreclosure minutes and a
title insurance policy, costs of sale, etc. Under the terms of the mortgage, all such
advances, costs, attorneys’ fees, and other fees, expenses and disbursements are made a
lien upon the mortgaged real estate. Plaintiff is entitled to recover all such advances,
costs, attorneys’ fees, expenses and disbursements, together with interest on all advances
at the Judgment rate of interest, from the date on which such advances are made, except
in the case of Redemption or Payoff in which case the note rate of interest shall apply
pursuant to 735 ILCS 5/15-1603(d).
14. In order to protect the lien of the mortgage, it may, or has become necessary for Plaintiff
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, it has or may also
become necessary for Plaintiff to make other payments, including but not limited to, fire
and other hazard insurance premiums on the real estate, or payments for such repairs to
the real estate as may reasonably be deemed necessary for the proper preservation
thereof. 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
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the date such monies are advanced at the judgment rate of interest except in the case of
Redemption or Payoff in which case the note rate of interest shall apply pursuant to 735
ILCS 5/15-1603(d).
15. The allegations of Plaintiff’s complaint are true substantially as set forth, and the equities
favor Plaintiff. Plaintiff is entitled to the relief prayed for in the Complaint, including
foreclosure of the mortgage upon the real estate described therein for the Total Judgment
Amount as found above, together with interest at the statutory judgment rate after the
entry of this judgment, and additional advances, expenses, reasonable Attorneys’ fees and
court costs, including, but not limited to, publication costs and expenses of sale.
16. Said real estate is free and clear of all liens and encumbrances that have been named
herein, or of any claims that are subject to a recorded notice of foreclosure, subject to any
rights of redemption available to a Defendant, pursuant to 735 ILCS 5/15-1603(a).
17. Plaintiff’s mortgage is prior and superior to all other mortgages, claims of interests and
liens upon said real estate that have been named herein, or any claims that are subject to a
recorded notice of foreclosure.
18. The sum of attorney fees allowed herein as stated above is the fair, reasonable, and
proper fee to be allowed to Plaintiff as attorney’s fees in this proceeding through the date
of this Judgment, in accordance with the terms of the Note and Mortgage given by said
Defendants. That sum should be added to and become a part of the indebtedness due to
Plaintiff.
IT IS THEREFORE ORDERED AS FOLLOWS:
1. REQUEST FOR FORECLOSURE: A Judgment of Foreclosure and Sale is entered
pursuant to 735 ILCS 5/15-1506 against the subject property and against all Defendants
not previously dismissed. Under the direction of the court, an accounting has been taken
of the amounts due and owing to Plaintiff herein.
a. In the event Defendants do not pay to Plaintiff the amounts required pursuant to
the Illinois Mortgage Foreclosure Law before expiration of any redemption period
(or, if no redemption period, within seven days after the date of this judgment),
together with attorneys’ fees, costs, advances, and expenses of the proceedings (to
the extent provided in the mortgage or by law), the mortgaged real estate shall be
sold as directed by the Court. The proceeds of such sale will be used to satisfy
the amount due to Plaintiff as set forth in this judgment, together with the interest
advances, and expenses incurred after judgment at the statutory judgment rate
from the date of the judgment.
b. In the event Plaintiff is a purchaser of the mortgaged real estate at such sale, the
Plaintiff may offset against the purchase price of such real estate the amount due
under the judgment for foreclosure and order confirming the sale.
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c. If no redemption is made prior to such sale, such a sale shall forever bar and
foreclose the Defendants made parties to the foreclosure and all persons claiming
by, through or under them, and each and any and all of them from any right, title,
interest, claim, lien or right to redeem in and to the mortgaged real estate.
d. If no redemption is made prior to such sale, a deed shall be issued to the
purchaser at sale according to law and such purchaser shall be allowed possession
of the mortgaged real estate in accordance with statutory provisions relative
thereto.
2. SALE: The subject real estate is ordered to be sold pursuant to 735 ILCS 5/15-1507.
3. SALE PROCEDURES:
a. The subject real estate shall be sold pursuant to statute at the expiration of both
the reinstatement period and the redemption period. The premises hereinabove
described, covered by the security foreclosed in this action, shall be sold at public
venue by a U.S. Marshal appointed by this Court, hereinafter referred to as “Sale
Officer.”
b. The Judicial Sale to be conducted pursuant to this Judgment for Foreclosure and
Sale shall be by public auction. The opening bid shall be a verbal bid provided to
the Sale Officer by Plaintiff and conducted by the Sale Officer and shall be
conducted in full compliance with the statutory requirements contained in 735
ILCS 5/15-1507. In the event that Plaintiff fails to notify the Sale Officer of its
initial bid, then the Sale Officer shall continue the sale to a date as mutually
agreed upon by the Sale Officer and Plaintiff’s counsel and in compliance with
735 ILCS 5/15-1507(c)(4). If the sale is erroneously held without Plaintiff having
notified the Sale Officer of Plaintiff’s initial bid, Plaintiff shall have the option to
have the sale vacated and held for naught.
c. The real estate shall be sold for cash in the form of a cashier’s check, certified
funds, or other good bank funds, to the highest bidder, with all sums due at the
time of sale unless other terms are agreed to by Plaintiff. The Sale Officer shall
not accept cash in the form of currency, nor shall the Sale Officer accept personal
checks or other funds that in the discretion of the Sale Officer are not “good
funds.” The sale terms are a down-payment of 10% in certified funds, with the
remaining balance due within 24 hours in the form of a cashier’s check, certified
funds or other good bank funds. In the event the bidder fails to comply with the
terms of the purchase as required, then upon demand by Plaintiff in a notice
served on the Sale Officer and the bidder, the funds submitted shall be forfeited to
Plaintiff or, in the alternative, Plaintiff shall have the option to demand that the
property be sold to the next highest bidder. In the event there is a third party
bidder other than Plaintiff, the Sale Officer shall obtain the name, address (other
than a post office box), and telephone number of that bidder. Notice by regular
mail to the address given by the bidder and to the Sale Officer shall be deemed
sufficient notification by the Plaintiff to exercise its option to forfeit the funds.
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d. Any purchaser at the Judicial Sale takes, subject to any and all liens,
encumbrances, or existing defects in title. The subject property is offered for sale
without any representation as to quality or quantity of title. Plaintiff shall not be
responsible for any damages resulting from existing liens, encumbrances or title
defects, nor does Plaintiff make any warranties as to the condition of title, either
express or implied, by virtue of the Judicial Sale.
4. NOTICE OF SALE:
a. In a foreclosure under Article 15, the mortgagee, its Attorney, the Sale Officer, or
such other party designated by the Court shall give public notice of the Sale
pursuant to statute. The Notice of Sale shall include all information as required
by 735 ILCS 5/15-1507(c) parts (A)-(H) where such information is available to
Plaintiff or counsel for Plaintiff. Immaterial errors in the information shall not
invalidate the legal effect of the notice. Plaintiff shall include any information
regarding improvements to the property where such information is available to the
Plaintiff; provided, however, that Plaintiff is not obligated to make a
determination as to such improvements where such a determination would cause
the incurrence of additional cost to the Plaintiff unless otherwise ordered by the
Court. The Notice of Sale shall contain at least the following information:
i.
The name, address and telephone 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 times specified in the Judgment or separate order, if
any, when the real estate may be inspected prior to sale.
vi.
The time and the place of the sale.
vii.
The terms of the sale.
viii. The title, case number and the court in which the
foreclosure was filed.
ix.
In the case of a condominium unit, to which Subsection (g)
of Section 9 of the Condominium Act applies, the statement
required by subsection (g)(5) of the Condominium Property
Act.
x.
Any other information required herein or by separate order.
b. The notice of sale shall be published in four consecutive calendar weeks (Sunday
through Saturday), once in each week. The first such notice to be published not
more than 34 days prior to the sale and the last such notice shall be published not
less than 7 days prior to the sale. Publication shall be by advertisement in a
newspaper circulated to the general public in the county in which the real estate is
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c.
d.
e.
f.
located, in the section of that newspaper where legal notices are commonly
placed. In addition, except in counties with a population in excess of 3,000,000,
publication shall include a separate advertisement in the section of such
newspaper which real estate other than real estate being sold as part of legal
proceedings is commonly advertised to the general public. Such a separate
advertisement in the real estate section need not include a legal description.
However, where both advertisements could be published in the same newspaper
and that newspaper does not have separate legal notices and real estate
advertisement sections, a single advertisement with the legal description shall be
sufficient, and that no other publications shall be required unless otherwise
ordered by the Court.
The party who gives notice of public sale shall also give notice of public sale to
all parties in the action who have appeared and 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 34 days nor less than 7 days prior to the day
of sale. After notice is given as required by statute, a copy thereof shall be filed
in the Office of the Clerk of this Court together with a certificate of counsel or
other proof of that notice has been served in compliance with this Section.
The party who gives notice of 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 not be given.
Notice of the sale may be given prior to the expiration of any reinstatement period
or redemption period. No other notice by publication or posting shall be
necessary.
The person named in the notice of sale to be contacted for information about the
real estate may, but shall not be required to, provide additional information other
than that set forth in the notice of sale.
5. SALE PROCEEDS:
a. In the event that Plaintiff is the 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 of Foreclosure together with interest at the
statutory interest rate from the date of Judgment through the date of sale, plus any
fees, costs and advances made after the entry of this Judgment of Foreclosure and
Sale pursuant to 735 ILCS 5/15-1505 and 15-1603.
b. The proceeds of the sale shall be distributed in the following order pursuant to
735 ILCS 5/15-1512:
i.
The reasonable expenses of sale.
ii.
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,
premiums on hazard and liability insurance, management fees, and,
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iii.
iv.
to the extent provided for in the mortgage or other recorded
agreement and not prohibited by law, reasonable attorneys’ fees,
payments made pursuant to Section 15-1505, and other legal
expenses incurred by the mortgagee.
Satisfaction of all claims in the order of priority as set forth in the
Judgment of Foreclosure and Sale. If the issue of priorities was
reserved pursuant to 735 ILCS 5/15-1506(h), the proceeds will be
distributed as set forth in the order confirming sale.
Any balance of proceeds due after the above distribution shall be
held by the Sale Officer conducting the sale until further order of
the Court.
6. RECEIPT UPON SALE AND CERTIFICATE OF SALE:
Upon and at the sale of mortgaged real estate, the Sale Officer shall give to the
purchaser a receipt of sale. The receipt shall describe the real estate purchased
and shall show the amount paid or to be paid for the real estate. An additional
receipt shall be given at the time of each subsequent payment. Upon payment in
full of the amount bid, the Sale Officer shall issue, in duplicate, and give to the
purchaser, a Certificate of Sale in recordable form, which describes the real estate
purchased and states the amount paid. The Certificate of Sale shall be freely
assignable.
7. REPORT OF SALE:
The Sale Officer shall promptly make a report to the Court. The Report of Sale
may be prepared by the Plaintiff to be reviewed and executed by the Sale Officer.
The Sale Officer shall submit the report, or cause it to be submitted, for review by
the Court at the time of Confirmation of Sale. The report shall include a copy of
all receipts of sale.
8. CONFIRMATION OF SALE:
Upon motion and notice in accordance with court rules applicable to motions
generally, the court shall conduct a hearing to confirm the sale pursuant to 735
ILCS 5/15-1508. The Mortgagee, its Attorney, the Sale Officer or such other
party designated by the Court, shall send notice of such hearing.
a. Unless the Court finds that a notice required in accordance with 735 ILCS 5/151507(c) was not given, that the terms of the sale were unconscionable, that the
sale was conducted fraudulently, or that justice was otherwise not done, the Court
shall then enter an Order Confirming the Sale.
b. The Order Confirming the Sale may include an Order for Possession. In the
alternative, the Order for Possession may be by separate order.
c. If the proceeds of the sale are not sufficient to satisfy those sums due the Plaintiff,
the Court shall enter a Personal Deficiency Judgment pursuant to 735 ILCS 5/151508(e), but only if the Court finds that it has personal jurisdiction over the
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parties personally liable on the note and that said liability has not been discharged
in bankruptcy. If the Court does not have personal jurisdiction over those parties
liable on the note, or if there is no personal liability based on other findings by the
Court, the Court shall enter an In Rem Deficiency Judgment.
9. SPECIAL RIGHT TO REDEEM:
If the subject real estate has been found to be residential as defined by statute, and
if the purchaser at the judicial sale was a mortgagee who was a party to the
foreclosure or its nominee, and the sale price is less than the amount specified in
735 ILCS 5/15-1603(d), then an owner of redemption as set forth in Section 151603(a) shall have a special right to redeem, for a period ending 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 confirmation by the Court. The
period for such a special right to redeem ends 30 days after the date the sale is
confirmed. Any real property so redeemed shall be subject to a lien for any
deficiency remaining with the same lien priority as the underlying mortgage
foreclosed herein, without any rights of homestead.
If the United States is a party to this action by virtue of a lien of the Internal
Revenue Service, the United States shall have 120 days from the date of sale
within which to redeem the property from the sale. If the United States is
otherwise a party to this action, the United States shall have one year from the
date of the sale to redeem.
10. TERMINATION OF SUBORDINATE INTEREST:
a. 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, all parties notified by a
recorded notice of foreclosure, and all persons claiming by, through or under
them, and for 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.
b. This Judgment and all Orders entered pursuant to said Judgment are valid as
stated above. The inadvertent failure to name a subordinate record claimant will
not invalidate this Judgment. Plaintiff may amend the complaint for foreclosure
to name such a party if it is made aware of the claim prior to the judicial sale
without affecting the validity of the Judgment as to the other parties Defendant. If
a property has gone to sale or a sale has been confirmed, Plaintiff may vacate the
sale and/or confirmation of sale and then proceed to amend its complaint as noted
above in this subparagraph b.
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11. ISSUANCE OF DEED:
After the expiration of the mortgagor’s reinstatement and redemption rights,
payment of the purchase price by the successful bidder and confirmation of the
sale, the Sale Officer shall promptly execute and issue a deed to the owner and
holder of the Certificate of Sale pursuant to 735 ILCS 5/15-1509. Delivery of the
deed shall be sufficient to pass title and will bar all claims of parties to the
foreclosure and parties having notice by virtue of a recorded notice of foreclosure.
12. JURISDICTION:
The Court retains jurisdiction over the parties and subject matter of this cause for
the purpose of enforcing this Judgment or vacating said Judgment if a
reinstatement is made as set forth in this Judgment.
13. EFFECT ON LEASES:
The successful bidder at sale shall, upon confirmation of the sale, take its interest
in the property subject to all bona fide leases or tenancies existing as of the date
of initiation of this action for foreclosure, pursuant to and as defined by the
Protecting Tenants at Foreclosure Act of 2009, 12 U.S.C. § 5201 et seq.
The Clerk of the Court is DIRECTED to provide a copy of this Order to the United
States Marshal’s Service.
IT IS SO ORDERED.
DATE: January 10, 2012
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE
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