USA v. Estate of Austin W. Holmes et al
JUDGMENT DECREE AND ORDER DIRECTING SALE OF MORTGAGED PROPERTY. Signed by Judge J. Phil Gilbert on 6/5/2018. (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
ESTATE OF AUSTIN W. HOLMES, Deceased,)
NICOLE E. HOLMES, BRITTANY HOLMES, )
LEISA J. HOLMES, as Administrator of the
Estate of Austin W. Holmes, Deceased, and
THE CITY OF JOHNSTON CITY, ILLINOIS, )
Civil No. 17-cv-1369-JPG-RJD
JUDGMENT DECREE AND ORDER
DIRECTING SALE OF MORTGAGED PROPERTY
J. PHIL GILBERT, DISTRICT JUDGE
This cause coming on to be heard upon the plaintiff's complaint, and an order of default
having been entered against the Defendants, the Court finds:
That it has jurisdiction of the parties to and subject matter of this suit. The
Defendants have each been properly served and having failed to answer or otherwise enter any
appearance herein, although the time for answering having expired, is ordered defaulted.
The United States of America, acting through the United States Department of
Agriculture, Rural Development (formerly Farmers Home Administration), made a loan to
Austin W. Holmes, deceased, and Nicole E. Holmes, secured by a mortgage dated October 8,
2009 (Ex. A of the complaint), in the total principal amount of $75,000.00. The mortgage was
recorded on October 8, 2009, in Mortgage Record 267, Page 216 as Document No. 10373,
Williamson County, Illinois. That loan is evidenced by a promissory note dated October 8, 2009
(Ex. B). Defendants, Austin W. Holmes, deceased, and Nicole E. Holmes, defaulted on the note.
On May 4, 2016, the United States of America, acting through the United States Department of
Agriculture, Rural Development, issued notices of acceleration (Ex. C).
That the following are the names of persons that may have claimed an interest in
the above described property, but who are foreclosed from asserting their claim, if any, because
of their default in this action: Estate of Austin W. Holmes, deceased, Nicole E. Holmes, Brittany
Holmes, Leisa J. Holmes, as Administrator of the Estate of Austin W. Holmes, deceased, and
The City of Johnston City, Illinois
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: 800 W. 9th Street Johnston City, Illinois 62951
Lot One (1) Block Two (2) in Duggan’s First Survey of Outlots to Johnston City,
Illinois, the plat of which is recorded in Plat Record 3 at page 67 in the Office of
the Recorder of Williamson County, Illinois, EXCEPT any interest in the coal,
oil, gas, and other minerals underlying the land which have been heretofore
conveyed or reserved in prior conveyances, an all rights and easements in favor of
the estate of said coal, oil, gas and other minerals, if any situated in Williamson
Property ID No. 02-13-381-009
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:
For its own use and benefit for the costs of this suit and for:
U.S. Attorney's docket and recording fees ............
U.S. Marshals costs for service of summons ........
Fee to publish notice of pendency of action .........
Title expenses .......................................................
Late Charges .......................................................
Interest on Fees .....................................................
Caretaker Expenses ...............................................
Escrow Expenses ..................................................
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 $12.8469 per day due and
unpaid as of April 30, 2018 ..................................
Total amount due plaintiff as of April 30, 2018,
Including costs detailed in 5(a) ............................
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, 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, 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.
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 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.
That Williamson County, Illinois, has a valid lien on the above-described property
for tax for the year 2017, 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 abovedescribed property.
WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED by this Court that
judgment is entered against Austin W. Holmes, deceased, and Nicole E. Holmes, for
$109,066.89, and unless the Defendants and/or their assigns and successors in interest to the
above-described 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 $109,066.89 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 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.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that judgment is entered
in favor of the United States and against Estate of Austin W. Holmes, deceased, Nicole E.
Holmes, Brittany Holmes, Leisa J. Holmes, as Administrator of the Estate of Austin W. Holmes,
deceased, and The City of Johnston City, Illinois. The real estate shall be sold free and clear of
any claimed lien of Estate of Austin W. Holmes, deceased, Nicole E. Holmes, Brittany Holmes,
Leisa J. Holmes, as Administrator of the Estate of Austin W. Holmes, deceased, and The City of
Johnston City, Illinois.
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
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/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).
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 $109,066.89, 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 mortgagors 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 mortgagors 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 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
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 as aforesaid, said United States Marshal shall specify the amount of said
deficiency in his 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 that said United States Marshal shall report his actions and doings in
the premises in this Court at the earliest possible time to which time this cause is hereby
DATED: JUNE 5, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
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