USA v. Harris et al
ORDER granting 14 Motion for Default Judgment. Signed by Judge David R. Herndon on 8/5/2018. (ceh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Civil No. 18-cv-542-DRH-SCW
CHARLES W. HARRIS and
LISA D. HARRIS,
JUDGMENT DECREE AND ORDER
DIRECTING SALE OF MORTGAGED PROPERTY
HERNDON, District Judge:
On March 7, 2018, the United States of America ("USA") commenced the
above-captioned mortgage foreclosure suit against Charles W. Harris and Lisa D.
Harris. The parcel of property in question is located in Metropolis, 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 May 17, 2018,
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. 14), after FINDING as follows:
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.
The USA, acting through the Rural Housing Service or successor
agency, United States Department of Agriculture, made a loan to Charles W.
Harris and Lisa D. Harris, secured by a mortgage dated February 24, 2014 (Exh.
A of the complaint), in the total principal amount of $120,800.00, this loan was
reduced to $85,600.00. The mortgage was recorded on April 2, 2014, as File No.
2014-00000614, in Book 853, Pages 461-466, Massac County, Illinois. The loan
is evidenced by promissory notes dated January 16, 2014 (Exh. B) and February
24, 2014 (Exh. C). Defendants, Charles W. Harris and Lisa D. Harris, defaulted
on the notes. On February 11, 2016, the USA, acting through the United States
Small Business Administration, issued notices of acceleration (Exh. D).
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:
Charles W. Harris and Lisa D. Harris
By virtue of the mortgage and indebtedness thereby secured, the USA
has a valid and subsisting lien as follows:
Common address: 1408 Girard Street, Metropolis, Illinois 62960
Lot numbered eight (8), in block numbered one hundred seventy-six
(176), of the 5th addition to the city of Metropolis, as per recorded
Plat thereof, situated in Massac County, Illinois, Except all coal, gas
and other minerals
Permanent Index No. 08-01-176-008
By virtue of the mortgage and the indebtedness thereby secured, as
alleged in the complaint, the following amounts are due to the USA:
U.S. Marshals costs for service of summons ........
U.S. Attorney's docket and recording fees ............
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
Unpaid principal balance ......................................
Accrued interest at $5.43 per day due and
unpaid as of July 27, 2018 ...................................
Total amount due plaintiff as of July 27, 2018,
Including costs detailed in 5(a) .............................
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, 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.
Massac County, Illinois, has a valid lien on the above-described
property for tax for the years 2016 and 2017, and the property will be sold
subject to the interest of Massac 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
JUDGMENT IS HEREBY ENTERED against Charles W. Harris and Lisa D.
Harris, for $94,926.55. Unless Defendants and/or 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 $94,926.55 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 Massac County, Illinois, by the United
States Marshal for the Southern District of Illinois at the front door of the Massac
County Courthouse in the City of Metropolis, Illinois.
The property shall be sold free and clear of any claimed lien of Charles W.
Harris and Lisa D. Harris.
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
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).
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 $94,926.55, 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 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 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
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
his actions to this Court at the earliest possible time.
IT IS SO ORDERED.
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?