USA v. Kubitz

Filing 9

ORDER granting 8 Motion for Default Judgment. Signed by Judge Nancy J. Rosenstengel on 9/29/2017. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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UNITED STATES OF AMERICA,
Plaintiff,
vs.
SHARON K. KUBITZ,
Defendant.

Case No. 3:17-CV-00446-NJR-DGW

JUDGMENT AND ORDER
DIRECTING SALE OF MORTGAGED PROPERTY
A Clerk’s Entry of Default (Doc. 7) having been entered against the Defendant,
the Court finds:
1.

That it has jurisdiction of the parties to and subject matter of this suit. The

Defendant having waived service (Doc. 5), and having failed to answer or otherwise
enter any appearance herein, is ordered defaulted.
2.
Department

The United States of America, acting through the United States
of

Agriculture,

Rural

Development

(formerly

Farmers

Home

Administration), made a loan to Sharon K. Kubitz, secured by a mortgage dated
December 28, 1998 (Doc. 1-1, pp. 1-7), in the total principal amount of $69,870.00. The
mortgage was recorded on December 30, 1998, in Cabinet 6, Drawer 1, Instrument No.
1881, Jefferson County, Illinois. That loan is evidenced by a promissory note dated
December 28, 1998 (Ex. B). Defendant, Sharon K. Kubitz, defaulted on the note. (Doc. 1).
On May 4, 2016, the United States of America, acting through the United States
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Department of Agriculture, Rural Development, issued notices of acceleration (Doc. 1-1,
pp. 11-13).
3.

That the following is the name of a person who may have claimed an

interest in the above described property, but who is foreclosed from asserting her claim,
if any, because of her default in this action: Sharon K. Kubitz.
4.

That by virtue of the mortgage and indebtedness thereby secured, the

plaintiff, United States of America, has a valid and subsisting lien as follows:
Common address: 13248 E. Idlewood, Mount Vernon, Illinois 62864.
That part of the Northwest Quarter of Fractional Section 5, Township 2
South, Range 3 East of the Third Principal Meridian, more particularly
described as follows: The South 200 feet of the following described tract:
Beginning at a point on the South line of said Northwest Quarter of
fractional section 5, lying 1288.10 feet West of the Southeast corner of said
Northwest Quarter; thence North a distance of 513.85 feet to an iron pin;
thence North 89 degrees 11 minutes 29 seconds East a distance of 107.0
feet to a point; thence South a distance of 515.36 feet to a point on the
South line of said Northwest Quarter lying 1181.10 feet West of the
Southeast corner of said Northwest Quarter; thence West along the South
line of said Northwest Quarter a distance of 107.0 feet to the point of
beginning; except all prior reservations, conveyances and exceptions of
the coal, oil, gas and other minerals underlying the same. Subject to all
public and private roads and easements. Situated in Jefferson County,
Illinois.
Property ID No. 56-1-011-10 n/k/a 07-05-100-010
5.

That by virtue of the mortgage and the indebtedness thereby secured, as

alleged in the Complaint, there is due the plaintiff, the United States of America, as
follows:
(a)

For its own use and benefit for the costs of this suit and for:

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U.S. Attorney's docket and recording fees
Title expenses
Escrow/Impound Required
Late Charges
Interest of Fees
Caretaker Expenses
Escrow Expenses
Appraisal
TOTAL

(b)

$ 464.00
$ 500.00
$ 396.57
$ 131.82
$ 232.75
$ 2,217.00
$ 3,310.54
$ 350.00
$ 7,602.68

For the use and benefit of the plaintiff, 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
Accrued interest at 9.2799 per
day due and unpaid as of July
20, 2017

$ 6,436.38

TOTAL

$55,359.27

Total amount due plaintiff as of July 20,
2017, including costs detailed in 5(a)
(c)

$48,922.89

$62,961.95

In addition, the 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 but not limited to: 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,

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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)

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.
6.

Jefferson 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 Jefferson
County resulting from taxes, general or special, which are a valid lien against the abovedescribed property.
WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED by this Court
that judgment is entered against Sharon K. Kubitz, for $62,961.95, and unless the
Defendant and/or her assigns and successors in interest to the above-described
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property pay to the plaintiff, the United States of America, acting through the Farmers
Home Administration, United States Department of Agriculture, within three days
from the date of this decree the sum of $62,961.95 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 decree 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 Jefferson County, Illinois, by the United States Marshal for the
Southern District of Illinois at the front door of the Jefferson County Courthouse in the
City of Salem, Illinois.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that judgment is
entered in favor of the United States and against Sharon K. Kubitz. The real estate shall
be sold free and clear of any claimed lien of Sharon K. Kubitz.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the United States
Marshal for the Southern District of Illinois 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 decree 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; that the plaintiff or any of the
parties to this cause may become the purchaser or purchasers at such sale; that upon
such sale being made, the United States Marshal shall execute and deliver to the
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purchaser or purchasers a certificate of sale and that said certificate of purchase shall be
freely assignable by endorsement thereon.
This is a foreclosure of a mortgage of residential real estate.
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 real estate 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 ILCS § 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 of foreclosure is entered since the value of the mortgaged real estate
as of the date of the judgment is less than 90% of the amount due, and 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.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that out of the
proceeds of such sale the United States Marshal shall retain his disbursements and fees,
and out of the remainder of said proceeds he shall pay to the plaintiff $62,961.95,
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together with lawful interest to be computed thereon to the date of this decree and any
court costs of this action in its behalf. Said 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, and in case said property shall sell
for a sum more than sufficient to make the aforesaid payments, then after making said
payments he shall bring such surplus monies into Court without delay for further
distribution by order of this Court.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED from the date of
entry of this judgment of foreclosure through the 30th day after a foreclosure sale
conducted pursuant to this judgment is confirmed by this Court, the mortgagor shall be
entitled to retain possession of the above-described real estate. After the 30th day said
foreclosure sale is confirmed, the holder of the certificate of sale shall be entitled to
immediate possession of the real estate 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 said 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.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED 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
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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.
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.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that if the monies
arising from said sale shall be insufficient to pay sums due to plaintiff with interest as
aforesaid after deducting the costs, said United States Marshal shall specify the amount
of the deficiency in her report.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Court hereby
retains jurisdiction of the subject matter of this cause and the parties thereto for the
purpose of enforcing this decree and the United States Marshal shall report her actions
regarding this Order at the earliest possible time.
DATED: September 29, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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