United States of America v. Duerst, Brian et al

Filing 33

JUDGMENT of Foreclosure and Sale in favor of Plaintiff United States of America. (WMC /PAO). (nln),(ps) Modified on 10/10/2014 (nln).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
v.
Case No. 13-cv-874-wmc
BRIAN K. DUERST, et a1.,
Defendants.
JUDGEMENT

OF FORECLOSURE AND SALE

The above-captioned matter having come before the Court to be heard,
Honorable William M. Conley, United States District Judge for the Western District of
Wisconsin, presiding without a jury, on October 8, 2014, the Plaintiff, United States of
America ("Plaintiff"), having appeared by its attorney, the Office of the United States,
Attorney for the Western District of Wisconsin by Assistant United States Attorney
Barbara L. Oswald, and no appearance having been made on"behalf of the Defendants
herein except for Landmark Services Cooperative, LLC by its attorney Randall
Anderson; and it appearing by the Declaration of Barbara L. Oswald, Assistant United
States Attorney, Office of the United States Attorney, on file herein, that all Defendants
are in default, except Defendant Landmark Services; and it further appearing that due
notice of the Motion for Judgment of Default and for Judgment on the Pleadings has
been made to each of the Defendants, and that a Certificate of Service was filed with the
Clerk of the United States District Court for the Western District of Wisconsin; and it

further appearing by due proof that due notice of the pendency of this action was duly
filed in the Office of the Register of Deeds, Green County, Wisconsin, on March 19,
2014, said notice being filed subsequent to the filing of the Complaint herein, and more

than twenty (20) days prior to the trial of this action; and proofs of the matters and
things alleged in the Complaint and the computation of the amounts due Plaintiff
having been duly taken in in open court, and the Court having filed its Findings of Fact
and Conclusions of Law;
On application and motion of the Office of the United States Attorney for the
Western District of Wisconsin, attorneys for Plaintiff,
Real Estate

1.

IT IS ORDERED that there is now due and owing to Plaintiff as of and
I

. including October 8, 2014, the following sums: See Attachment A.
a.
. b.

Princi pal as of October 8, 2014

$ 379,990.63

Interest as of October 8, 2014

$ 70,328.06

Total as of October 8, 2014
c.

$ 450,318.69

Court Costs and Disbursements
(1) United States Marshals Fees

$

163.60

(2) Filing of Notice of Lis Pendens

$

30.00

$

193.60

Total Costs & Disbursements
TOTAL AS OF OCTOBER 8,2014

2

$ 450,512.29

2.

IT IS FURTHER ORDERED that the mortgaged premises, located in Green

County, Wisconsin, and describe,d as follows shall be sold as a whole at public auction
in Green County, Wisconsin, by or under the direction of the United States Marshal for
the Western District of Wisconsin:
All that part lying West of Argue Road in the North side of the
Northwest Quarter of Section 19 described as follows:
Commencing at a point on the Section Line at a point 65 rods South .
of the NW corner of Said Section 19, running thence North 65 rods,
thence East 94 rods, thence in a Southwesterly direction to the place
of beginning; all in section 19, Town 4 North, Range 8 East, Town
of Exeter, Green County, Wisconsin; Except Lots 1,2,3 of Certified
Survey Map No. 2333, recorded i~ Volume Eight of Certified
Survey Maps of Green County, WI on Page 39, as recorded in the
office of the Register of Deeds for Green County, Wisconsin; Except
Lots 4,5,6,7 of Certified Survey Map No. 2673, recorded in Volume
Nine of Certified Survey Maps of Green County, WI on Page 169, as
recorded in the office of the Register of Deeds for Green County,
Wisconsin.
Except lands conveyed for highway purposes in Vol. 247 of
Records, Page 247.
East Half of the Northeast Quarter lying East of Ward Creek in
Section 24; Town 4 North, Range 7 East, Town of New Glarus,
Green County, Wisconsin
. Tax Parcel Numbers: 23014013300002302401740000

3.

IT IS FURTHER ORDERED that in case of sale pursuant hereto, the

United States Marshal shall give public notice of the time and place of such sale in the
manner provided by law, and that publication of said notice be made in The Monroe
Times, a newspaper published in the City of Monroe, Green County, Wisconsin; that
3

the Marshal shall allow either or any of the parties to this action to purchase at such sale
the above-described premises; that the Marshal shall file with the Clerk of this Court his
report of said sale, and shall also immediately after said sale deposit the proceeds
thereof, after deducting the costs and expenses of the sale unless otherwise ordered by
the Court; that said United States Marshal may accept from the purchaser at such sale,
. as a deposit or down payment upon the same, not less than ten percent (10%)of the
purchase price, in which case such amount shall be so deposited as above provided, and
the balance of the sale price shall be paid to the United States Marshal's Service by said
purchaser at such sale, upon confirmation thereof, except that if Plaintiff be the
successful bidder at such sale, the said United States Marshal may take the receipt of
Plaintiff in lieu of said cash payment; that the Marshal, upon compliance on the part of
the purchaser with the terms of such sale as required by law, shall make and execute to
said purchaser a deed to the premises so sold, as above described, stating the price paid
therefor; that the United States Marshal shall deliver such deed to said purchaser, upon
compliance by said purchaser with the terms of such sale, and the payment by him of
any balance of the sale price to be paid.
4.

IT IS FURTHER ORDERED that the United States Marshal shall

thereupon pay from the proceeds of said sale all claims superior to Plaintiff as
determined by the Court and to Plaintiff the following sum: see Attachment A.
5.

IT IS FURTHER ORDERED THAT unless otherwise ordered by the

Court, the United States Marshal shall pay from the proceeds of the sale:

4 .

a. debt to the United States by virtue of the Mortgages executed on December 19,
2003, and March 31, 2004, in the amount of $268,684.10,plus necessary costs and
disbursements;
b. any remaining proceeds from the sale of the subject premises shall be paid to
satisfy Defendant Landmark Services Cooperative's docketed lien interest before
being applied to the remaining the amount in Paragraph 1 of said judgment,
together with interest on all of said sums from the /date of judgment at the rate
set forth in 28 U.S.C. S 1961(a), from the date hereof, or so much thereof as the
monies derived from the sale of said premises will pay the same, and take
receipts therefor; and
c. surplus money to the Clerk of Court, if any, shall be subject to the further order
of the Court.
6.

IT IS FURTHER ORDERED that ifthe proceeds of such sale be .

insufficient to pay the amounts aforesaid, said United States Marshal shall specify the
amount of said deficiency in his report of sale. Deficiency judgment is not being sought
herein.
7.

IT IS FURTHER ORDERED that upon confirmation of sale of the

mortgaged premises, the purchaser or purchasers, or his or their heirs, representatives
or assigns, be let into possession of the premises sold, upon production of the Marshal's
deed thereto or duly authenticated copy thereof; that each and everyone of the parties
5

to this ac!ion who may be in possession of said premises, and every other person who
since the filing of notice of the pendency. of this action has come into possession of the
same or any part thereof under them or either of them shall deliver to such grantee or
grantees named in such deed possession of the mortgaged premises, and that a writ of
assistance issue if necessary to secure such possession.
8.

IT IS FURTHER ORDERED that the defendants and each of them, their

.heirs, successors and assigns, and all persons claiming under them or either of them
after the filing of notice of the pendency of this action, be forever barred and foreclosed
of all right, title, interest and equity of redemption in said mortgaged premises.
9.

IT IS FURTHER ORDERED that Plaintiff may pay any taxes or insurance

premiums on said mortgaged premises now due or which shall hereafter become due
before the sale thereof and have a lien on said premises for the amount so paid with
interest thereon from date of payment at the rate set forth in 28 U.S.C. S 1961(a);and
that in the event any such payments are made, Plaintiff may obtain an order at the foot
of this judgment directing that the amounts so paid, with interest, be likewise paid froin:
the proceeds of the sale or redemption of said mortgaged premises.
10.

IT IS FURTHER ORDERED that the defendants and all persons claiming

under them be and they are hereby enjoined from committing waste upon said
mortgaged premises and from doing any other act that may impair the value of the
same.

6

Chattels

11.

IT IS HEREBY ORDERED that there is now due and owing to Plaintiff as

of and including the 8th day of October, 2014, under the provisions of the promissory
notes and security agreements set forth in the Complaint, the following sums:
a.

$ 379,990.63

b.

Interest as of October 8,2014

$ 71,720.69

TOTAL AS OF OCTORBER 8,2014

12.

Princi pal as of October 8, 2014

$ 451,711.32

IT IS FURTHER ORDERED that Plaintiff is entitled to immediate

possession of the items of security on which Farm Service Agency has a first security
interest, set out in the complaint on file herein, as listed in Exhibit A.
13.

IT IS FURTHER ORDERED that Plaintiff may exercise its right to have

execution issued and require the United States Marshal to take possession of said items
of security at any time after the date of this judgment, and deliver the items of security
to Plaintiff, and that a writ of execution issue if necessary to secure such possession.
14.

IT IS FURTHER ORDERED that these items of security, described in

paragraph 12 above, may be sold individually or as a whole at public sale or private
sale by or under the direction of the United States Marshal or Farm Service Agency.
15.

IT IS FURTHER ORDERED that if these items of security, described in

paragraph 12 above, are sold, the United States shall deposit the proceeds thereof, after
deducting the costs and expenses of the sale, and unless otherwise ordered by the
Court, the United States shall thereupon pay from the proceeds of said sale all claims
7

superior to Plaintiff as determined by the Court and to Plaintiff to the sums set forth in
Paragraph 12, the amount of said judgment, together with interest on all of said sums at
the rate of set forth in 28 U.S.C. S 1961(a) from the date hereof, or so much thereof as the
monies derived from the sale of said items of security will pay the same, and take
receipts therefor; that the surplus money, if any, shall be subject to the further order of
the Court.
. 16.

IT IS FURTHER ORDERED that if the proceeds from the sale of the items

of security, together with the proceeds from the sale of the real estate, be insufficient to
pay the amounts aforesaid, then the United States may report the amount of the
deficiency to the Court. Deficiency judgment is not being sought herein.
17.

IT IS FURTHER ORDERED that the Defendants, their heirs, successors

or assigns, and all persons claiming under them, be forever barred and foreclosed of all
right, title, interest and equity of redemption in said mortgaged collateral.
18.

IT IS FURTHER ORDERED that the Defendants and all persons claiming

under them be and they are hereby enjoined from doing any act that may impair the
value of the mortgaged collateral.
Dated this 8th day of October, 2014.
BYTHE COURT:

LIAM M. CONLEY
ted States District J

8

Entered

at Madison,

Wisconsin,

this ~day

of October,

~eeli&(j~

PETER OPPENEBR ~
Clerk of Court

9

2014.

UNITED STATES V. BRIAN DUERST, et al.
Case No. 13-cv-874-wmc
ATTACHMENT A

Notes and Mortgages

a.

Principal as of October 8, 2014

$ 379,990.63

b.

Interest as of October 8, 2014

$ 70,328.06

Total as of October 8, 2014

$ 450,318.69

Court Costs and Disbursements
c.

United States Marshals Fees

$

163.60

d.

Filing of Notice of Lis Pendens

$

30.00

$

193.60

Total Costs & Disbursements

TOT AL AS OF OCTOBER 8, 2014

$ 450,512.29

ATTACHMENT

B

UNITED STATES OF AMERICA V. BRIAN K. DUERST, et al.
Case Number 13-cv-00874-wmc
LIST OF ITEMS OF SECURITY
A. All crops, annual and perennial, and other plant or farm products now planted,
growing or grown, or harvested or which are planted after this instrument is
signed or otherwise become growing or harvested

crops or other plant products

(a) within the one-year period or any longer period of years permissible
State law, or (b) at any time after this instrument

under

is signed if no fixed maximum

period is prescribed by State law, including the crops and plant products now
planted, to be planted, growing or grown or harvested

on the following

described real estate:
ITEM NO.

OWNER

NO. OF
ACRES

1

50

Brian K.
Duerst

DESCRIPTION

LOCATION
Green,
Wisconsin

All crops and plant
products wherever grown
on ro er

B. All farm and other equipment (except small tools and small equipment such as
hand tools, power lawn mowers and other items of like type unless described
below), and inventory, now owned or hereafter acquired by Debtor, together
with all replacements, substitutions, additions, and accessions thereto, including
but not limited to the following:
QTY

ITEM
NO.

DESCRIPTION

MANUFACTURER

New Holland
AC
ACw/ AC500
loader
AC
AC
New Idea

1
2
3

1
1
1

Haybine
Tractor
Tractor

4
5
6

1
1
1

Tractor
Tractor
Manure
Spreader

SIZE
AND
TYPE
4899'
Two-Ten
D-17
Series IV
D19
1702WD
3622

SERIAL
OR
MODEL
NO.
1505D
78863
12391
9345

7
8
9
10

1
2
1
1

Silo Blower
Chopper Box
Chopper
Small Sq. Baler

11

1

Com Planter

Gehl
Gehl
Gehl
New Holland w /
thrower
AC

99
920/940
600
282

93024

330

2571

C. All livestock (except livestock and poultry kept primarily for subsistence
purposes), fish, bees, birds, furbearing animals, other animals produced or used
for commercial purposes, other farm products, and supplies, now owned or
hereafter acquired by Defendant Brian Duerst, together with all increases,
replacements, substitutions, and additions thereto, including but not limited to
the following:

QTY

ITEM NOo.

1

8

2

3

3

54

4

10

5

6

DESCRIPTION
Dairy Cattle Calves - Heifer
Dairy CattleBrd~. - Bulls
Dairy Cattle - .
Brdg. - Cows
Dairy Cattle Brdg. - Heifers
- Bred
Dairy Cattle Brdg. - Heifers
- Open

2

BREED
Holstein

COLOR
Black/White

Holstein

Black/White

Holstein

Black/White

Holstein

Black/White

Holstein

Black/White