United States of America v. Jore et al

Filing 13

JUDGMENT, DECREE of Foreclosure and ORDER of Sale. Signed by Judge Donald W. Molloy on 1/8/2018. (NOS)

FILED
'JAN

08

2018

Clerk, U.S Courts
District Of Montana
Missoula Division

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
UNITED STATES OF AMERICA,
CV 17-135-M-DWM
Plaintiff,
JUDGMENT, DECREE OF
FORECLOSURE AND ORDER
OF SALE

vs.
TONYA Y. JORE f/k/a TONYA Y.
AZURE, and LAKE COUNTY, a
political subdivision of the State of
Montana,
Defendants.

This matter having been brought before the Court by Plaintiff, United States
of America, by and through its attorney, Keith A. Jones, Assistant United States
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 Findings of Fact and Conclusions of Law.

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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 real property
that is subject to this foreclosure action is located in Lake County, and more
particularly described as follows:
A portion of the SYzNEY.i of Section 22, Township 18 North, Range 20
West, P .M.M., Lake County, Montana. Further identified as being
Tract 1 on Certificate of Survey No. 5351, on file and of record in the
office of the Clerk and Recorder of Lake County.
2.

The United States loaned Tonya Y. Jore f/k/a Tonya Y. Azure the sum

of $66,280.00 in the form of a Section 502 Rural Housing loan. This loan is
evidence by a promissory note for $66,280.00, dated August 19, 1997. In addition,
Tonya Y. Jore f/k/a Tonya Y. Azure, executed a second promissory note on
October 24, 1997, in the amount of $7,500.00. True and correct copies of the
promissory notes are attached to the Complaint as Exhibit A and B.
3.

As security for the above-described loans Tonya Y. Jore f/k/a Tonya

Y. Azure executed a real estate mortgage on October 24, 1997, providing the
United States a security interest in the real property described above. The
mortgage was filed for record with the Clerk and Recorder of Lake County on
October 24, 1997, as document number 385619. Additionally, Rural Housing
Service holds a prior mortgage, which is still of record (recorded August 19, 1997),
which mortgage was executed by Tonya Y. Jore f/k/a Tonya Y. Azure. True and
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correct copies of the mortgages are attached to the Complaint as Exhibit C and
Exhibit D.
4.

Defendant, Tonya Y. Jore f/k/a Tonya Y. Azure, is in default under the

terms of the promissory notes described above due to failure to make timely
payments of principal and interest as agreed. The account was accelerated on
April 10, 2008.
5.

Defendant, Tonya Y. Jore f/k/a Tonya Y. Azure, is indebted to the

Plaintiff for the loans outlined above in the principal amount of $42,4 72.4 7, plus
interest computed at the daily rate of $8.861 per day for the accrued total amount
of$4,572.43 , plus fees in the amount of$2,281.46 ($71.75 late charges, fees
currently assessed $2,138.41 and required fees of $71.30), for a combined total of
$49,326.36 as of August 14, 2017. In addition, if the value of the real property
exceeds the principal and accrued interest ($49,326.36), the Rural Housing Service
is entitled to repayment of the interest credit subsidy pursuant to the repayment
agreement dated August 19, 1997, attached to the Complaint as Exhibit E. The
interest subject to recapture will be $11 ,555.02, making a total of $60,881.38 due
and owing. Interest continues to accrue from August 14, 2017, at the rate of
$8.861 per day until the date of entry of judgment. A true and correct copy of the
Affidavit of Kimberly Maines of Rural Housing Service is attached to the

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Complaint as Exhibit F, which verifies the amount due. Plaintiff seeks postjudgment interest pursuant to 28 U.S .C. § 1961.
6.

Defendant, Lake County, has or may have an interest in the property by

virtue of real property taxes that may be due and owing. The principal amount of
such takes priority over the United States.
7.

Defendant Tonya Y. Jore f/k/a Tonya Y. Azure was personally served

by the Lake County Sheriff's office with a copy of the Summons and Complaint.
(Dkt. 7.) Defendant Tonya Y. Jore f/k/a Tonya Y. Azure, did not make an
appearance. Her Default was entered on December 8, 2017. (Dkt. 10.)
8.

Steven N. Eschenbacher, Lake County Attorney, executed a Waiver of

Service of Summons; it was filed with the Court on October 5, 2017. (Dkt. 4.) On
October 5, 2017, Defendant Lake County, filed a stipulation with the United States
consenting to entry of judgment, decree of foreclosure, and order of sale. It was
further stipulated that any judgment shall recognize the priority of the principal
amount of any real property taxes owed or to be assessed against the property that
is subject of the foreclosure to the date of sale. (Dkt. 5.)
CONCLUSIONS OF LAW
9.

Lake County, Montana has priority for the principal amount of any

assessed taxes to the date of sale.

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10.

Plaintiff, United States of America, is entitled to foreclosure judgment

against Defendant, Tonya Y. Jore f/k/a Tonya Y. Azure in the principal amount of
$42,4 72.4 7, plus interest computed at the daily rate of $8.861 for the accrued total
amount of$4,572.43 as of August 14, 2017, plus fees in the amount of$2,281.46
($71.75 late charges, fees currently assessed $2,138.41 and required fees of
$71.30), for a combined total of $49,326.36 as of August 14, 2017. In addition, if
the value of the real property exceeds the principal and accrued interest
($49,326.36), the Rural Housing Service is entitled to repayment of the interest
credit subsidy pursuant to the repayment agreement dated August 19, 1997. The
interest subject to recapture will be $11,555.02, making a total of $60,881.38 due
and owing as of August 14, 2017. Interest continues to accrue from August 14,
2017, at the rate of $8 .861 per day until the date of entry of judgment. Plaintiff is
entitled to post-judgment interest pursuant to 28 U.S.C. § 1961.
11.

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

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

Plaintiff, the United States of America, have judgment against

Defendant Tonya Y. Jore f/k/a Tonya Y. Azure, in the principal amount of
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$42,472.47, plus interest computed at the daily rate of $8.861 for the accrued total
amount of $4,572.43 as of August 14, 2017, plus fees in the amount of $2,281.46
($71.75 late charges, fees currently assessed $2,138.41 and required fees of
$71.30), for a combined total of$49,326.36 as of August 14, 2017. In addition, if
the value of the real property exceeds the principal and accrued interest
($49,326.36), the Rural Housing Service is entitled to repayment of the interest
credit subsidy pursuant to the repayment agreement dated August 19, 1997. The
interest subject to recapture will be $11,555.02, making a total of $60,881.38 due
and owing as of August 14, 2017. Interest continues to accrue from August 14,
2017, at the rate of $8 .861 per day until the date of entry of judgment. Plaintiff is
entitled to post-judgment interest pursuant to 28 U.S.C. § 1961.
2.

Each and all of the material allegation contained in Plaintiffs Amended

Complaint are true and correct.
3.

The real property described hereafter, together will 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 with
Counsel for Plaintiff to prepare a Notice of Sale and to file the Affidavit of
Publication with the Petition for Confirmation of U.S. Marshal's Sale. The real
property is located in Lake County, Montana, and described as follows:
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A portion of the SYzNE 'i4 of Section 22, Township 18 North, Range 20
West, P .M.M., Lake County, Montana. Further identified as being
Tract 1 on Certificate of Survey No. 5351, on file and of record in the
office of the Clerk and Recorder of Lake County.
Common Address: 31159 Hwy 93, Saint Ignatius, Montana.
4.

The real property be sold with the right of redemption as provided in

Mont. Code Ann.§§ 25-13-801through25-13-825.
5.

The real property be sold in one unit.

6.

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

the U.S. Marshal need not be in cash, but in the form of suitable documentary
evidence as a debit against the judgment.
7.

The U.S. Marshal be required to provide a Certificate of Sale to the

purchaser at the time of sale of the real property. The purchaser be entitled to a
deed to the premises at the expiration of one year from the date of the sale, unless
the premises are previously redeemed as provided by law.
8.

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 U.S. Marshal to deliver possession of the
premises to Plaintiff.
9.

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

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sale and any excess sale proceeds shall be paid in the following amounts to the
following entities with the following priorities:
A.

To Lake County, Montana, to satisfy the principal amount of any
assessed taxes, to date of sale.

B.

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

C.

Any overplus remaining after the payments to Lake County and
Plaintiff shall be paid by the U.S. Marshal for the District of Montana
to the Clerk of this Court for further order of this Court.

10.

That ifthe monies from the sale are insufficient to pay the amounts

due to Plaintiff, the expenses of sale, and the costs, Plaintiff have a deficiency
judgment against Tonya Y. Jore f/k/a Tonya Y. Azure.
11.

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

persons having lien 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, and every
part or parcel thereof, from and after the delivery of the U.S. Marshal's Deed.

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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

fj

~

day of January, 2018.

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