United States of America v. Racine et al

Filing 39

JUDGMENT, DECREE of Foreclosure and Order of Sale re: 38 MOTION for Order/Judgment filed by United States of America. It is ordered: Pltf has jgmt against Defts, Racine, Rose, Calf Looking, Lynell Rose and Ronelle Rose totaling $53,028.69 and post-jgmt interst. SEE ORDER FOR COMPLETE DETAILS. Signed by Judge Brian Morris on 9/5/2018. (LJM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
UNITED STATES OF AMERICA,
CV 18-04-GF-BMM
Plaintiff,
JUDGMENT, DECREE OF
FORECLOSURE AND ORDER OF
SALE

vs.
LINDA RACINE, LEE ALLEN
CALF LOOKING, RONELL LEA
ROSE, JANAL LYNN ROSE, and
LYNELL RONNI ROSE,
Defendants.

This matter having been brought before this Court by Plaintiff, United States
of America, by and through its attorney, Keith A. Jones, Assistant U.S. Attorney,
for the District of Montana, and upon considering the pleadings filed herein, it
appears there is no issue of material fact, and the Court now makes the following
Finding of Fact and Conclusions of Law.
FINDINGS OF FACT
1.

This Court has jurisdiction of this action for the reason that the United

States of America is the party Plaintiff under 28 U.S.C. § 1345. The United States

1

of America seeks to foreclose a note and mortgage made under the provisions of
Section 184 of the Housing and Community Development Act (12 U.S.C. Section
1715z-13a), which mortgage provides as security interests in real property held in
trust for Defendants Lee Allen Calf Looking, Ronelle Lea Rose, Janal Lynn Rose
and Lynell Ronni Rose, and a life estate interest in real property held by
Defendant, Linda Racine.
2.

On November 9, 2009, Linda Racine, Janal Lynn Rose, Lee Allen

Calf Looking, Lynell Ronni Rose and Ronelle Lea Rose received a loan in the
amount of $51,901.00 from Bank2 pursuant to the Housing and Community
Development Act of 1992. The loan is evidenced by a promissory note dated
November 9, 2009. A true and correct copy of the promissory note is attached to
the Complaint as Exhibit A. The loan and deed of trust were subsequently
assigned to the U.S. Department of Housing and Urban Development (HUD).
3.

As security for the above described loan, Linda Racine, Janal Lynn

Rose, Lee Allen Calf Looking, Lynell Ronni Rose and Ronell Lea Rose, executed
a Deed of Trust on November 9, 2009, providing as security real property in
Browning, Montana and appurtenances thereto. The real property is situated in the
County of Glacier, State of Montana, on the Blackfeet Indian reservation more
particularly described as follows:
Lot 12, Block 22 Browning Townsite, Browning, Montana 59417
Allotment 5431 Section 3, Township 032.00n Range 011.00w
2

A true and correct copy of this deed of trust is attached to the Complaint as Exhibit
B. This deed of trust was approved by the Bureau of Indian Affairs on December
10, 2009. A true and correct copy of the Certificate of Approval is attached to the
Complaint as Page 16 of Exhibit B. The deed of trust was insured by HUD under
the Housing and Community Development Act of 1992. The deed of trust was
also filed with the Bureau of Indian Affairs under document number 201 41610.
4.

Defendants went into default under the terms of the promissory note

and deed of trust due to failure to make timely payments of principal and interest
as agreed. The account went into default on November 1, 2012. An Assignment
of the deed of trust and promissory note from Mortgage Electronic Registration
Systems to Bank2 was made on November 15, 2013. An Assignment of the deed
of trust and promissory note from Bank2 to the United States Department of
Housing and Urban Development was executed on November 15, 2013. A true
and correct copy of the assignments is attached to the Complaint as Exhibit C.
5.

Defendants, Linda Racine, Janal Lynn Rose, Lee Allen Calf Looking,

Lynell Ronni Rose, and Ronelle Lea Rose are indebted to the Plaintiff for the loans
outlined above in the principal amount of $48,332.29, plus accrued interest in the
amount of $4,696.40 as of June 30, 2011, for a combined total of $53,028.69 as of
June 30, 2011. Plaintiff seeks post-judgment interest pursuant to 28 U.S.C. § 1961.

3

6.

Defendant, Linda Racine, executed a Waiver of Service of Summons;

it was filed with the Court on February 9, 2018 (Doc. 7). David Gordon, Attorney
for Defendants, Linda Racine, Ronell Lea Rose, Janal Lynn Rose and Lynell Ronni
Rose, executed a Waiver of Service of Summons; it was filed with the Court on
March 23, 2018 (Doc.13). On June 6, 2018, a stipulation was filed between the
United States and Defendants, Linda Racine, Ronell Lea Rose, Janal Lynn Rose
and Lynell Ronni Rose, consenting to entry of judgment, decree of foreclosure, and
order of sale. It was further stipulated that Defendants agree to vacate the property
by no later than July 31, 2018, and that no Deficiency Judgment would be sought.
(Doc. No. 31).
7.

Attorney David Gordon executed a Waiver of Service of Summons on

behalf of Defendant, Lee Allen Calf Looking; it was filed with the Court on March
23, 2018 (Doc.13). On June 28, 2018, a stipulation was filed between the United
States and Defendant, Lee Allen Calf Looking, consenting to entry of judgment,
decree of foreclosure, and order of sale. It was further stipulated that Defendant
agreed to vacate the property by no later than July 31, 2018 and that no Deficiency
Judgment would be sought. (Doc. No. 37).
8.

Derek Kline, Attorney for Blackfeet Tribe, executed a Waiver of

Service of Summons; it was filed with the Court on April 9, 2018 (Doc. 21). A
Stipulation To Dismiss Blackfeet Tribe was filed on June 21, 2018 (Doc. 35). It
4

was further stipulated that the United States would seek to include language in any
foreclosure judgment that upon public auction, prior to consummating the sale of
all of the property interests that are the subject of this foreclosure to the highest
auction bidder, the United States will notify the Blackfeet Tribe of the proposed
auction sale price. The Blackfeet Tribe will then have 20 days after the date of the
letter in which to make a firm and binding offer to purchase all of the property
interests that are the subject of this foreclosure at the price set out in the letter. An
Order was filed on June 21, 2018 dismissing Blackfeet Tribe (Doc. 36).
CONCLUSIONS OF LAW
9.

The Plaintiff, United States, is entitled to judgment against

Defendants, Linda Racine, Lee Allen Calf Looking, Ronelle Lea Rose, Janal Lynn
Rose and Lynell Ronni Rose, in the principal amount of $48,332.29, plus accrued
interest in the amount of $4,696.40 as of June 30, 2011, for a combined total of
$53,028.69 as of June 30, 2011. Plaintiff is entitled to post-judgment interest
pursuant to 28 U.S.C. ' 1961.
10.

Pursuant to stipulation (Doc. 35), upon public auction, prior to

consummating the sale of all of the property interests that are the subject of this
foreclosure to the highest auction bidder, the United States will notify the
Blackfeet Tribe of the proposed auction sale price. The Blackfeet Tribe will then
have 20 days after the date of the letter in which to make a firm and binding offer
5

to purchase all of the property interests that are the subject of this foreclosure at the
price set out in the letter.
11.

The Plaintiff, United States, is entitled to an order of sale of the real

property described herein.
Wherefore, based upon the foregoing Findings of Fact and Conclusions of
Law,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1.

Plaintiff, United States of America, have judgment against

Defendants, Linda Racine, Janal Lynn Rose, Lee Allen Calf Looking, Lynell
Ronni Rose, and Ronelle Lea Rose, in the principal amount of $48,332.29, plus
accrued interest in the amount of $4,696.40 as of June 30, 2011, for a combined
total of $53,028.69 as of June 30, 2011. Plaintiff is entitled to post-judgment
interest pursuant to 28 U.S.C. ' 1961.
2.

The life estate interest of Linda Racine and the trust interests of Janal

Lynn Rose, Lee Allen Calf Looking, Lynell Ronni Rose, and Ronelle Lea Rose in
the real property described in the deed of trust, located in Glacier County,
Montana, together with all improvements, tenements, rights, privileges, and
appurtenances, be foreclosed and ordered sold at public auction by the U.S.
Marshal for the District of Montana in the manner provided by law and according
to the course and practice of this Court.
6

3.

Pursuant to 12 U.S.C. § 1701(k) there is no right of redemption.

4.

The real property be sold in one unit.

5.

If Plaintiff is the purchaser at the sale of the real property, payment to

the U.S. Marshal need not be in cash, but be in the form of suitable documentary
evidence as a debit against the judgment.
6.

The U.S. Marshal be required to provide a Marshal’s Deed upon

completion of the sale.
7.

In the event Plaintiff is the purchaser at the sale and possession of the

premises is not surrendered to Plaintiff upon issuance of a Marshal’s deed, a writ
of assistance be issued directing the United States Marshal to deliver possession of
the premises to Plaintiff.
8.

The U.S. Marshal for the District of Montana, out of the proceeds of

the sale of the real property, shall retain his fee, disbursements, and expenses of the
sale, and any excess sale proceeds shall be paid in the following amounts to the
following entities with the following priorities:
A.

To the Plaintiff, United States, to satisfy the judgment set forth in
paragraph 1 above.

B.

Any overplus remaining after the payments to Plaintiff shall be paid
by the United States Marshal for the District of Montana to the Clerk
of this Court for further order of this Court.

7

9.

Upon public auction, prior to consummating the sale of all of the

property interests that are the subject of this foreclosure to the highest auction
bidder, the United States will notify the Blackfeet Tribe, by registered letter to the
Blackfeet Tribal Chairman and by copy to counsel for the Blackfeet Tribe, of the
proposed auction sale price. The Blackfeet Tribe will then have 20 days after the
date of the letter in which to make a firm and binding offer to purchase all of the
property interests that are the subject of this foreclosure at the price set out in the
letter. The firm and binding offer will be accomplished only by the Blackfeet Tribe
providing a bank cashier’s check that matches the highest auction bid, made
payable to the United States Marshal’s Service, within 20 days after the date of the
notice letter. If the Blackfeet Tribe fails to make a firm and binding offer within 20
days after the date of the letter, the United States may consummate the sale to the
highest auction bidder. The notice letter will be sent to Blackfeet Tribal Chairman,
P.O. Box 850, Browning, Montana 59417, with a copy to Blackfeet Tribal
Counsel, Blackfeet Legal Department, P.O. Box 849, Browning, Montana 59417.
10.

The United States Marshal’s Service is authorized by this order to

hold the highest auction bidder’s payment for a period of time sufficient to
accommodate the 20-day notice outlined above. Should the Blackfeet Tribe
provide the matching bid before the expiration of the 20-day deadline, the United

8

States Marshal Service will return the highest auction bidder’s payment to the
highest auction bidder.
11.

Defendants, and any and all persons claiming under them, and all

persons having liens subsequent and inferior to the lien of Plaintiff's mortgage,
either by mortgage, judgment, or decree, upon the real property described in the
mortgage subject of this foreclosure, and their personal representatives and all
persons claiming to have acquired any estate or interest in the premises, subsequent
to the filing of this action, be forever barred and foreclosed of and from all equity
of redemption and claim to the mortgage or premises, and every part or parcel
thereof, from and after the delivery of the U.S. Marshal's Deed.
12.

All or any of the parties to this action be entitled to purchase at the

sale. If Plaintiff purchases at the sale, then the rents, issues and profits arising or in
any manner accruing to or from the premises, be due and payable to Plaintiff.
DATED this 5th day of September, 2018.

9