Deutsche Bank National Trust Company v. Brueggemann et al

Filing 60

JUDGMENT of Foreclosure and ORDER of Sale, granting 57 MOTION for Default Judgment as to Motion for Default Judgment of Foreclosure and Sale filed by Deutsche Bank National Trust Company, granting 49 MOTION to Appoint Receiver Motion f or Appointment of Foreclosure Sale Officer filed by Deutsche Bank National Trust Company, and granting 58 MOTION Motion to Clerk to mail Notice of Default submitted filed by Deutsche Bank National Trust Company. Signed by Chief Judge David R. Herndon on 5/10/2013. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Deutsche Bank National Trust Company,
Trustee on behalf of the Certificateholders
of Morgan Stanley ABS Capital I Inc.
Trust 2004-HE7, Mortgage Pass-Through
Certificates, Series 2004-HE7,
Plaintiff,
v.
Paul Steven Brueggemann a/k/a Paul S.
Brueggemann; Christina M. Brueggemann a/k/a
Christina M. Bruns; United States of America;
Washington County Hospital; Pinckneyville
Community Hospital; Personal Finance
Company, LLC,
Defendants.

No. 11-cv-981-DRH-DGW

JUDGMENT AND ORDER OF FORECLOSURE AND SALE
HERNDON, Chief Judge:
I.

INTRODUCTION

Plaintiff Deutsche Bank National Trust Company, Trustee on behalf of the
Certificateholders of Morgan Stanley ABS Capital I Inc. Trust 2004-HE7, Mortgage
Pass-Through Certificates, Series 2004-HE7 (Deutsche Bank), now moves for a
default judgment of foreclosure and sale against defendants Paul Steven
Brueggemann a/k/a Paul S. Brueggemann, Christina M. Brueggemann a/k/a
Christina M. Bruns, Washington County Hospital, Pinckneyvillle Community
Hospital, and Personal Finance Company, LLC (Doc. 57).
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II.

FINDINGS

1.

The Court has jurisdiction over the parties and the subject matter.

2.

Deutsche Bank filed this complaint to foreclose mortgage in the Circuit
Court of the Twentieth Judicial Circuit, Perry County, Illinois on October
11, 2011 (Doc. 2-2).

3.

Deutsche Bank timely served defendant United States of America (USA)
on October 28, 2011 (Doc. 9).

4.

The United States timely removed to this Court on November 3, 2011,
pursuant to 28 U.S.C. §§ 1441(c), 1442(a), and 1444, due to its tax lien
on the subject property (Doc. 2).

5.

The USA answered the complaint on December 23, 2011, stating that as
of December 30, 2011, it had valid tax liens against the real property in
the amount of $17,5006.42 [sic] (Doc. 6).

6.

Deutsche Bank timely served defendants Paul Steven Brueggemann,
Christina M. Brueggemann, Washington County Hospital, Pinckneyvillle
Community Hospital, and Personal Finance Company, LLC with
summons and a copy of the complaint in this matter (Docs. 7, 8, 10, and
11).

7.

Defendants Paul Steven Brueggemann, Christina M. Brueggemann,
Washington County Hospital, Pinckneyvillle Community Hospital, and
Personal Finance Company, LLC, have failed to answer or otherwise
plead in response to the complaint.
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8.

The Clerk entered an entry of default against defendants Paul Steven
Brueggemann, Christina M. Brueggemann, Washington County Hospital,
Pinckneyvillle Community Hospital, and Personal Finance Company,
LLC, on May 4, 2012 (Doc. 16), and March 15, 2013 (Doc. 45), pursuant
to FEDERAL RULE OF CIVIL PROCEDURE 55(a).

9.

The Court granted Deutsche Bank’s motion to voluntarily dismiss the
parties herein known as Unknown Owners and Nonrecord Claimants
without prejudice, on May 4, 2012 (Doc. 17).

10.

On December 18, 2012, the Court granted Deutsche Bank’s motion for
summary judgment against the United States (Doc. 42).
III.

FEDERAL RULE

OF

DEFAULT JUDGMENT

CIVIL PROCEDURE 55 authorizes a party to seek a default

judgment. Under this rule, the Court may enter a judgment by default when the
non-moving party has “failed to plead or otherwise defend” itself. FED. R. CIV. P.
55(a).

The decision to grant or deny default judgment lies within the district

court’s discretion. Homer v. Jones-Bey, 415 F.3d 749, 753 (7th Cir. 2005). “As
a general rule, a ‘default judgment establishe[s], as a matter of law, that
defendants [are] liable to plaintiff as to each cause of action alleged in the
complaint,’” as long as plaintiff’s allegations are well-pleaded. Dundee Cement
Co. v. Howard Pipe & Concrete Products, Inc. 722 F.2d 1319, 1323 (7th Cir.
1983) (citing Breuer Electric Mfg. Co. v. Toronado Systems of America, Inc., 687

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F.2d 182, 186 (7th Cir. 1982)).

Plaintiff must then establish a right to the

requested relief sought. In re Catt, 368 F.3d 789, 793 (7th Cir. 2004).
The Court finds default judgment in favor of Deutsche Bank and against
defendants Paul Steven Brueggemann, Christina M. Brueggemann, Washington
County Hospital, Pinckneyvillle Community Hospital, and Personal Finance
Company, LLC, is warranted in this instance on the basis of the above findings
and the assertions of Deutsche Bank’s motion (Doc. 57). As to the proper amount,
a party obtaining a default judgment in its favor is not entitled to an award
“exceed[ing] [the] amount” demanded in the pleadings.”

FED. R. CIV. P. 54(c).

Further, allegations within the complaint regarding damages are not deemed true
upon the rendering of a default judgment. In re Catt, 368 F.3d at 793 (citations
omitted); Dundee Cement Co., 722 F.2d at 1323 (citations omitted). Instead, the
district court must determine with reasonable certainty the proper amount to
award as damages to the prevailing party.

Id.

The Court may base its

determination either upon an evidentiary hearing or from “definite figures
contained in the documentary evidence or in detailed affidavits.” Dundee Cement
Co., 722 F.2d at 1323 (citations omitted); see also In re Catt, 368 F.3d at 793.
Additionally, under Illinois law, when a party does not submit a verified
answer denying the facts in the complaint, then a “sworn verification of the
complaint or a separate affidavit setting forth such fact is sufficient evidence
thereof against such party and no further evidence of such fact shall be required.”
735 ILCS 5/15-1506(a)(1). The Court may enter a judgment of foreclosure “upon
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motion supported by an affidavit stating the amount which is due the mortgagee .
. . where all the allegations of fact in the complaint have been proven by
verification of the complaint or affidavit.” 735 ILCS 5/15-1506(a)(2).
In

this

case,

defendants

Paul

Steven

Brueggemann,

Christina

M.

Brueggemann, Washington County Hospital, Pinckneyvillle Community Hospital,
and Personal Finance Company, LLC, have failed to participate in or defend
against this foreclosure action. Further, the amount of damages is readily
ascertainable from the terms of the note and mortgage, and the documentary
evidence and affidavits on record (Doc. 57). On this basis, Deutsche Bank’s
motion for default judgment of foreclosure and sale against defendants Paul
Steven Brueggemann, Christina M. Brueggemann, Washington County Hospital,
Pinckneyvillle Community Hospital, and Personal Finance Company, LLC, is
GRANTED (Doc. 57). 1
IV.

CONCLUSION

The Court hereby FINDS AS FOLLOWS:
1. That all the material allegations of the complaint and those deemed to be
made pursuant to 735 ILCS 5/15-1504(c)(1-11), of the Illinois Code of Civil
Procedure are true and proven; and this judgment is fully dispositive of the

1

The Court notes that at the time it granted summary judgment against the USA, the servicer of
the loan had changed from Bank of America to the current servicer, Select Portfolio Servicing, Inc.
An affidavit from Mark Syphus, a Consumer Ombudsman Specialist of Select Portfolio Servicing,
Inc., is offered in support of Deutsche Bank’s instant motion for default judgment of foreclosure
and sale. This change in servicers has no effect on the Court’s previous Order granting summary
judgment (Doc. 42), nor does it affect the Court’s instant grant of default judgment. The Court
finds Mark Syphus is competent to testify to the statements of his affidavit, similarly to Judy
Johnson.

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interests of all defendants, and that by virtue of the mortgage and the
affidavits presented as evidence of indebtedness, there is due to Deutsche
Bank, and it has a valid and subsisting lien on the property described
below, the following amounts:
Principal, Accrued Interest, Advances
and other amounts due Plaintiff:

$ 156,593.25

Costs of Suit/Attorneys’ Fees:

$ 3,371.00

TOTAL .........................................................
$ 159,964.25
2. All the foregoing amounts have been accounted for in the affidavits filed by
Deutsche Bank.
3. That there is due and owing to the following defendant the sums set forth,
as a lien upon the subject premises, subordinate and inferior to the lien
and

interest

of

Deutsche

Bank,

pursuant

to

the

responsive

pleadings/documents filed herein:
United States of America, $17,506.42, as of December 30, 2011. 2
4. By the terms of the subject mortgage Deutsche Bank is entitled to an
award of reasonable attorneys' fees. The following sum is hereby
allowed to Deutsche Bank:
$3,371.00
5. That under the provisions of the mortgage, Deutsche Bank is entitled to be
The USA’s answer to the complaint states it has valid tax liens in the amount of $17,5006.42
(Doc. 6). Although this pleading is the only pleading on file with the Court in which the USA
addresses the amount of its tax liens, the Court can only presume that the amount as of December
30, 2011, is in fact $17,506.42.

2

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reimbursed for the expenses incurred in this case.
6. That advances made to protect the lien of Deutsche Bank and preserve the
real estate, shall become an additional indebtedness secured by the
Judgment lien pursuant to 735 ILCS 5/15-1504(d).
7. That the mortgage described in the complaint is recorded in the Office of
the Recorder or Registrar of Deeds, Perry County, Illinois, as Document
No. 2004-3135, and the property herein referred to and directed to be
sold is described as follows:
PART OF THE NORTHEAST QUARTER (NE ¼) OF SECTION
TWENTY-ONE 21, TOWNSHIP FIVE (5) SOUTH, RANGE THREE
(3) WEST OF THE THIRD PRINCIPAL MERIDIAN, PERRY
COUNTY, ILLINOIS, MORE PARTICULARLY DESCRIBED AS
FOLLOWS: BEGINNING AT A POINT ON THE EAST LINE OF
THE NORTHEAST QUARTER (NE ¼) OF SECTION TWENTY-ONE
(21) TOWNSHIP FIVE (5) SOUTH RANGE THREE (3) WEST OF
THE THIRD PRINCIPAL MERIDIAN, SAID POINT BEING FOUR
HUNDRED FORTY (440) FEET NORTH OF THE INTERSECTION
OF THE SAID EAST LINE OF THE NORTHEAST QUARTER (NE
¼) AND THE NORTH RIGHT OF WAY LINE OF STATE ROUTE
154; THENCE, SOUTHERLY ON THE SAID EAST LINE OF THE
NORTHEAST QUARTER (NE ¼) A DISTANCE OF FOUR
HUNDRED FORTY (440) FEET TO THE SAID NORTH RIGHT OF
WAY LINE OF STATE ROUTE 154; THENCE WESTERLY ON THE
SAID NORTH RIGHT OF WAY LINE A DISTANCE OF THREE
HUNDRED EIGHTY SEVEN (387) FEET; THENCE NORTHERLY A
DISTANCE OF FOUR HUNDRED TEN (410) FEET; THENCE
EASTERLY A DISTANCE OF THREE HUNDRED SEVENTY TWO
(372) FEET TO THE POINT OF BEGINNING, EXCEPT ALL COAL,
OIL, GAS AND OTHER MINERALS AND ALL RIGHTS AND
EASEMENTS IN FAVOR OF THE STATE OF SAID MINERALS.
COMMONLY KNOWN AS:
3803 STATE ROUTE 154
PINCKNEYVILLE, IL 62274
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PARCEL NUMBER:
1-53-0330-100
8. That upon sale of "residential" real estate to Deutsche Bank or its nominee,
for a sale price less than the amount required to redeem as specified in 735
ILCS 5/15-1603(d) an owner of redemption as specified in 735 ILCS 5/151603(a) shall have a special right to redeem for a period ending 30 days
after the date the sale is confirmed. Redemption shall be made by paying
the amount required by the procedures specified in 735 ILCS 5/15-1604.
Property so redeemed shall be subject to a lien for any deficiency remaining
with the sale lien priority as the underlying mortgage herein foreclosed,
without any rights of Homestead.
9. After confirmation of the sale, payment of the purchase price, and any other
amount required to be paid by the purchaser at sale, the Court (or if the
Court shall so order, the person who conducted the sale or such person's
successor or some persons specifically appointed by the court for that
purpose), shall upon the request of the holder of the Certificate of Sale (or
the purchaser if no Certificate of Sale was issued), immediately execute a
Deed to the holder or purchaser sufficient to convey title.
10. As the United States of America has filed responsive pleadings and is
included in this Judgment of Foreclosure and Sale, the United States of
America, pursuant to 28 U.S.C. § 2410, shall have a redemption period
subsequent to the completion of any sale held pursuant to this Judgment of
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Foreclosure and Sale, pursuant to the stated statute.
11. The Court retains jurisdiction of the subject matter of this cause and of
all parties hereto, for the purpose of enforcing this judgment.
IT IS FURTHER ORDERED that the motion for appointment of
foreclosure sale officer is GRANTED (Doc. 49). IT IS HEREBY ORDERED that
the Private Sales Corporation is appointed selling officer for the purpose of the
sale at public auction of the property that is the subject matter of this action,
pursuant to this Judgment of Foreclosure and Sale.
IT IS FURTHER ORDERED that the motion for clerk to mail notice of
default submitted by Deutsche Bank to the undersigned is GRANTED (Doc.
58). The Clerk is instructed to mail by regular mail said notice to all parties
listed therein.

IT IS SO ORDERED.
Signed this 10th day of May, 2013.

Digitally signed by
David R. Herndon
Date: 2013.05.10
08:44:27 -05'00'
Chief Judge
United States District Court

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