United States of America v. Butcher et al

Filing 8

Judgment and Order GRANTING 7 MOTION for Default Judgment as to Douglas L. Butcher and Debra A. Butcher by United States of America. DEFAULT JUDGMENT in favor of United States of America against Debra A. Butcher, Douglas L. Butcher. Signed by Chief Judge David R. Herndon on 09/15/2014. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
vs.

Civil No.

14-cv-724-DRH-SCW

DOUGLAS L. BUTCHER,
and DEBRA A. BUTCHER,
Defendants.
JUDGMENT DECREE AND ORDER
DIRECTING SALE OF MORTGAGED PROPERTY
HERNDON, Chief Judge:
On June 24, 2014, the United States of America ("USA") commenced the
above-captioned mortgage foreclosure suit against Douglas L. Butcher and
Debra A. Butcher.

The parcel of property in question is located in Herrin,

Illinois, which lies within this Judicial District.

Defendants were properly

served herein but failed to move, answer, or otherwise plead in response to the
complaint. Based on that failure, the USA secured the Clerk's entry of default
on August 28, 2014, pursuant to Federal Rule of Civil Procedure 55(a).
Now before this Court is the USA's motion for default judgment under
Rule 55(b).

Having carefully reviewed the record, the Court GRANTS the

motion for default judgment (Doc. 7), after FINDING as follows:
1.

This Court has jurisdiction of the parties to and subject matter of

this suit. The Defendants were properly served and having failed to answer or
otherwise enter any appearance herein, are properly defaulted.
2.

The USA, acting through the Rural Housing Service or successor

agency, United States Department of Agriculture, made a loan to Douglas L.
Butcher and Debra A. Butcher, secured by a mortgage dated April 22, 1999
(Exh. A of the complaint), in the total principal amount of $84,000.00. The
mortgage was recorded on April 22, 1999, in Williamson County, Illinois. The
loan is evidenced by a promissory note dated April 22, 1999 (Exh. B).
Defendants, Douglas L. Butcher and Debra A. Butcher, defaulted on the note.
On January 28, 2014, the USA, acting through the United States Department
of Agriculture, Rural Development, issued notices of acceleration (Exh. C). The
property has been abandoned as set forth in the affidavit of abandonment (Exh.
D) dated March 11, 2014.
3.

The following persons may have claimed an interest in the above

described property, but foreclosed from asserting claim, if any, because of
default in this action: Douglas L. Butcher and Debra A. Butcher.
4.

By virtue of the mortgage and indebtedness thereby secured, the

USA has a valid and subsisting lien as follows:
Common address: 813 Melody Lane, Herrin, Illinois 62948
Lot Thirteen (13) in Melody Acres Subdivision, City of Herrin,
County of
Williamson and State of Illinois, more specifically
described as follows: The Northwest One-fourth (NW 1/4) of the
Northwest One-fourth (NW 1/4) of
Section
Thirty-One
(31),
Township Eight (8) South, Range Two (2) East of the
Third
Principal Meridian, situated in the County of Williamson and State of
Illinois.
Permanent Index No. 02-31-127-016
5.

By virtue of the mortgage and the indebtedness thereby secured,

as alleged in the complaint, the following amounts are due to the USA:
Page 2 of 8

(a)

435.00

Title expenses ........................................

$

600.00

TOTAL
(b)

U.S. Attorney's docket and recording fees $

$

1,035.00

...........................................

For the use and benefit of the USA, holder of the note
secured by the mortgage aforesaid, but subject and
subordinate to the lien for payment of the items mentioned
in subparagraph (a) of this paragraph:
Unpaid principal balance .......................

$ 90,415.33

Subsidy recapture paid ..........................

$ 28,636.26

Accrued interest at $15.2885 per day due and
unpaid as of September 11, 2014 .......... $ 18,823.90
TOTAL

...........................................

$137,875.49

Total amount due USA as of September 11, 2014,
Including costs detailed in 5(a) ............... $138,910.49
(c)

In addition, the USA may be compelled to advance various
sums of 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 and a title insurance policy.

(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 the 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 is provided
therein, at the statutory judgment rate, from the date on
which such advances are made.

(e)

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.
Page 3 of 8

(f)

(g)

6.

In order to protect and preserve the mortgaged real estate, it
may also become necessary for the plaintiff to make such
repairs to the real estate as may reasonably be deemed 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 the date
such monies are advanced at the rate provided in the
mortgage, or, if no rate is provided, at the statutory
judgment rate.

Williamson County, Illinois, has a valid lien on the above-

described property for tax for the year 2014, and the property will be sold
subject to the interest of Williamson County, resulting from taxes, general or
special, which are a valid lien against the property.
Accordingly the Court GRANTS the USA's motion for default judgment
(Doc. 7). JUDGMENT IS HEREBY ENTERED against Douglas L. Butcher and
Debra A. Butcher, for $138,910.49. Unless Douglas L. Butcher and Debra A.
Butcher and their assigns and successors in interest to the above-described
property pay to the USA, acting through the Farmers Home Administration,
United States Department of Agriculture, within three days from the date of
this decree the sum of $138,910.49 with attorney's fees and court costs with
lawful interest to be computed thereon from this date until paid, the real estate
described in paragraph 4 of this Judgment and Order Directing Sale of
Mortgaged Property SHALL BE SOLD AT PUBLIC SALE to the highest bidder
for 10% at time of sale and balance within 72 hours, subject to taxes, general
or special, due and owing to Williamson County, Illinois, by the United States
Marshal for the Southern District of Illinois at the front door of the Williamson
Page 4 of 8

County Courthouse in the City of Marion, Illinois.
The property shall be sold free and clear of any claimed lien of Douglas L.
Butcher and Debra A. Butcher.
The United States Marshal for the Southern District of Illinois shall give
public notice of the time, place, and terms of such sale, together with a
description of the premises as referred to in paragraph 4 of this Judgment and
Order Directing Sale of Mortgaged Property to be sold, by previously publishing
the same once each week for three (3) consecutive weeks as provided by law in
a secular newspaper of general publication in the State of Illinois, the first
publication to be not less than four weeks before the date of such sale; that
said United States Marshal may adjourn the sale so advertised by giving public
notice by proclamation.
The USA or any party to this case may become the purchaser or
purchasers at such sale.

Upon such sale being made, the United States

Marshal shall execute and deliver to the purchaser or purchasers a certificate
of purchase, which certificate shall be freely assignable by endorsement
thereon.
The amount required to redeem shall consist of the total balance due as
declared above plus interest thereon at the statutory rate hereunder and all
additional costs and other expenses allowed by the Court.
If the purchaser at the judicial sale of residential property is a mortgagor
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 ILL. COMP. STAT 5/15Page 5 of 8

1604, 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.
The above-described mortgaged real estate has been abandoned.
Consequently, the redemption period pursuant to 735 ILCS § 5/15-1603 shall
end 30 days after entry of this Judgment/Order pursuant to 735 ILCS § 5/151603(b)(4). The reinstatement period shall not extend beyond the redemption
period as shortened. 735 ILCS § 5/15-1603(b)(4).
Out of the proceeds of sale the, the United States Marshal shall retain
his disbursements and fees. Out of the remainder of the proceeds, he shall pay
to the USA $138,910.49, together with lawful interest to be computed thereon
to the date of this Judgment and Order Directing Sale of Mortgaged Property
and any court costs of this action.
The United States Marshal shall take receipts from the respective parties
from whom he may make payments aforesaid and file the same together with
his report of sale to this Court. If the property shall sell for a sum more than
sufficient to make the aforesaid payments, then after making the payments,
the United States Marshal shall bring such surplus monies into Court without
delay for further distribution by order of this Court.
From the date of entry of this Judgment and Order Directing Sale of
Mortgaged Property through the 30th day after a foreclosure sale is confirmed
by this Court, the mortgagors shall be entitled to retain possession of the
Page 6 of 8

above-described property.
After the 30th day the foreclosure sale is confirmed, the holder of the
Certificate of Sale shall be entitled to immediate possession of the property
upon payment of the sale purchase price, without notice to any party or further
order of the Court. The mortgagors shall peaceably surrender possession of
the property to said certificate holder immediately upon expiration of the said
30-day time period. In default of mortgagors so doing, an Order of Ejectment
shall issue.
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 Order Directing
Sale of Mortgaged Property, 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 the deed shall not be construed to contain any covenant on the part
of the person executing it.
Delivery of the deed executed on the sale of the property, 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. The 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.
Page 7 of 8

If the monies from the sale are insufficient to pay sums due to the USA
with interest after deducting the costs, the United States Marshal shall specify
the amount of the deficiency in his report.
The Court RETAINS JURISDICTION over the subject matter and the
parties hereto for the explicit purpose of enforcing this Judgment and Order
Directing Sale of Mortgaged Property and the United States Marshal shall
report his actions to this Court at the earliest possible time.
IT IS SO ORDERED.
Signed this 15th day of September, 2014.

Digitally signed by
David R. Herndon
Date: 2014.09.15
14:27:04 -05'00'
Chief Judge
United States District Court

Page 8 of 8