USA v. Wade et al

Filing 32

ORDER granting 31 Motion for Default Judgment. See Order for specifics. Signed by Judge David R. Herndon on 10/9/2016. (dsw)

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

Civil No. 16-cv-330-DRH-DGW

CRYSTAL M. WADE, ILLINOIS
HOUSING DEVELOPMENT AUTHORITY,
and CITY OF HERRIN
Defendants.
JUDGMENT DECREE AND ORDER
DIRECTING SALE OF MORTGAGED PROPERTY
Herndon, Judge:
On March 25, 2016, the United States of America ("USA") commenced the
above-captioned mortgage foreclosure suit against Crystal M. Wade, Illinois
Housing Development Authority, and City of Herrin. The parcel of property in
question is located in Herrin, Illinois, which lies within this Judicial District.
Defendant, Crystal M. Wade, was 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 May 25, 2016, pursuant to Federal
Rule of Civil Procedure 55(a).
Now before this Court is the USA's third motion for judgment under Rule
55(b) as to Defendant Crystal M. Wade. Additionally, the USA indicates that the
City of Herrin and the Illinois Housing Development Authority 1 consent to
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On May 25, 2016, a Clerk’s Entry of Default was entered as to defendants Crystal M. Wade and Illinois Housing
Development Authority (Doc. 13). On July 27, 2016, Illinois Housing Development Authority filed an untimely
answer without seeking leave and without filing a Motion to Set Aside the Clerk’s Entry of Default (Doc. 22). The

judgment and an order directing the sale of the subject property. Having carefully
reviewed the record, the Court GRANTS the motion for judgment (Doc 31), after
FINDING as follows:
1.
this suit.

This Court has jurisdiction of the parties to and subject matter of
Defendant, Crystal M. Wade, was properly served and having failed to

answer or otherwise enter any appearance herein, is properly defaulted. The City
of Herrin filed an answer to the complaint on May 20, 2016, and has consented to
the Judgment Decree and Order Directing Sale of Mortgaged Property. Further,
the Illinois Housing Development Authority has consented to the Judgment
Decree and Order Directing Sale of Mortgaged Property.
2.

The USA, acting through the Rural Housing Service or successor

agency, United States Department of Agriculture, made a loan to Crystal M. Wade,
secured by a mortgage dated July 13, 2007 (Exh. A of the complaint), in the total
principal amount of $37,500.00. The mortgage was recorded on July 13, 2007, in
Mortgage Record 259 at Page 759, as Document Number 7803, in Williamson
County, Illinois. The loan is evidenced by a promissory note dated July 13, 2007
(Exh. B). Defendant, Crystal M. Wade, defaulted on the note. On January 11,
2014, the USA, acting through the United States Department of Agriculture, Rural
Development, issued a notice of acceleration (Exh. C).
3.

The following person may have claimed an interest in the above

answer and accompanying affidavit were stricken by the Court (Doc. 25). However, the order striking the untimely
answer was later vacated for the reasons described in the Court’s October 5, 2016 minute order (Doc. 29). In that
minute order, the Court directed counsel for Illinois Housing Development Authority to review the docket and file a
responsive pleading by a date certain. Thereafter, the government’s third motion for default was filed. The motion
and attached exhibits indicate that both Illinois Housing Development Authority and the City of Herrin consent to
the relief requested by the government.

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described property, but is foreclosed from asserting her claim, if any, because of
her default in this action:
Crystal M. Wade
4.

By virtue of the mortgage and indebtedness thereby secured, the USA

has a valid and subsisting lien as follows:
Common address: 309 South 18th Street, Herrin, Illinois 62948
Beginning Fifty (50) feet West and One Hundred Twenty (120) feet South of the
Northwest corner of Lot Two (2) in Block Seven (7) in W.N. Stotlar's Third
Addition to Herrin, Illinois; running thence West One Hundred Forty (140) feet,
thence South Sixty (60) feet, thence East One Hundred Forty (140) feet; thence
North Sixty (60) feet to the point of beginning, also known and described as
North Sixty (60) feet of the South half Assessment Lot One (1) in Sarah Stotlar’s
First Addition to the City of Herrin, Illinois.
Permanent Index No. 02-30-140-011
5.

By virtue of the mortgage and the indebtedness thereby secured, as

alleged in the complaint, the following amounts are due to the USA:

(a)

$

435.00

U.S. Marshals costs for service of summons ........

$

151.60

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

$

400.00

Escrow Fees .......................................................

$11,984.81

Interest on Fees ....................................................

$

742.65

Late Charges .......................................................

$

27.37

TOTAL
(b)

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

$13,741.43

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

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:
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Unpaid principal balance ......................................

$31,357.94

Accrued interest at $6.8081 per day due and
unpaid as of August 17, 2016 ..............................

$ 5,735.34

TOTAL

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

$37,093.28

Total amount due plaintiff as of July 6, 2016,
Including costs detailed in 5(a) .............................

$50,834.71

(c)

(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.

(f)

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.

(g)

6.

In addition, the USA 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 and a
title insurance policy.

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 2016, 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 third motion for default
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judgment (Doc. 31).
JUDGMENT IS HEREBY ENTERED against Crystal M. Wade, for
$50,834.71. Unless Defendants 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 $ 50,834.71 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
County Courthouse in the City of Marion, Illinois.
The property shall be sold free and clear of any claimed lien of Crystal M.
Wade, Illinois Housing Development Authority, and City of Herrin.
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
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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 5/15-1604, 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 redemption period shall end at the later of the expiration of any
reinstatement period provided for in 735 ILCS § 5/15-1602 or the date 60 days
after the date the Judgment/Order is entered, since the Court finds that (1) the
value of the mortgaged property as of the date of the Judgment/Order is less than
90% of the amount due under 735 ILCS § 5/15-1603, and (2) the mortgagee
waives any and all rights to a personal deficiency judgment against the mortgagor
and against all other persons liable for the indebtedness or other obligations
secured by the mortgage. 735 ILCS § 5/15-1603 (b) (3).
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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 $50,834.71, 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 mortgagor shall be entitled to retain possession of the abovedescribed 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 mortgagor 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
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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.
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

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his actions to this Court at the earliest possible time.
IT IS SO ORDERED.
Signed this 9th day of October, 2016.

Judge Herndon
2016.10.09
07:29:39 -05'00'
United States District Judge

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