United States of America v. High, Daryl et al

Filing 33

Findings of Fact and Conclusions of Law. Signed by District Judge William M. Conley on 2/10/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 15-cv-519-wmc

DARYL E. HIGH, and
GLENDA R. HIGH, RHODA KNIGHT,
GARY RADTKE, K&K AGRONOMY,
LLC, SWIDERSKI EQUIPMENT, INC.,
LADYSMITH FEDERAL SAVINGS &
LOAN, PHILIP OSTROWSKI, RUSK
COUNTY CLERK OF COURTS, KUC'S
IMPLEMENT, CLOVERBELT LUMBER &
FEED COMP ANY, INC., FOOD MILL,
AGSTAR FINANCIAL SERVICES,
NORTHERN CENTRAL POWER, CO.,
INDIANHEAD TELEPHONE CO.,
Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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 February 10, 2016, 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, and no appearance having been made
on behalf of the Defendants herein except as may be noted on the record; and it
appearing by the Declaration of Barbara L. Oswald, Assistant United States Attorney,

Office of the United States Attorney, on file herein, that Defendant is in default, except
K&K Agronomy LLC; and it further appearing that due notice of the Motion for
Judgment by Default and for Judgment on the Pleadings has been made to 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 the Court having heard
arguments from Plaintiff's counsel, therefore makes and files the following Findings of
Fact and Conclusions of Law constituting its decision in this action.
FINDINGS OF FACT
1.

The allegations set forth in Plaintiff's complaint are proven true.

2.

There is now due and unpaid on all Notes and Mortgages as of February

10, 2016, the following sums: See Attachment A.
3.

No proceedings have been had at law or otherwise for the recovery of the

sum secured by said Notes and Mortgages.
4.

The mortgaged premises are described as follows:
The North One-Half of the Northeast Quarter of Section 14,
Township 33 North, Range 5 West, Town of Marshall, Rusk
County, Wisconsin.

5.

The real estate is so situated that it cannot be sold in parcels without

injury to the interest of the parties, and a sale of the whole will be more beneficial to the
parties hereto.
6.

Notice of the pendency of this action was duly given on August 21, 2015,

after the filing of the Complaint herein, by filing a Notice of Lis Pendens in the office of
the Register of Deeds for Rusk County, Wisconsin. This was done in the manner and

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form required by law, after the filing of the complaint herein, and more than twenty
(20) days prior to the trial or other resolution of this action.
7.

The following Defendants have not served an Answer or other response

in this matter, and the Clerk of Court has duly entered the default of each Defendant:
Daryl E. High
Glenda R. High
Rhoda Knight
Gary Radtke
Swiderski Equipment, Inc.
Ladysmith Federal Savings & Loan
Philip Ostrowski
Rusk County Clerk Of Courts
Kuc' s Implement
Cloverbelt Lumber & Feed Company, Inc,
Food Mill
Agstar Financial Services
Northern Central Power, Co.
Indianhead Telephone Co.
8.

The United States and K&K Agronomy LLC, have entered a Stipulation

regarding real estate mortgage priorities and entry of judgment. Stip., ECF No. 25.
9.

Based upon the stipulation of Plaintiff and Defendant K&K Agronomy,

LLC, a judgment of foreclosure should be entered in this matter reflecting that Plaintiff
United States has a superior lien interest in the real property by virtue of the Mortgages
executed to the United States by Defendants Daryl and Glenda High on June 7, 2007,
October 23, 2008, and March 12, 2009.
10.

Based upon the stipulation of Plaintiff and Defendant K&K Agronomy,

LLC, the judgment of foreclosure entered in this matter should further reflect that
Defendant K&K Agronomy, LLC, has a lien interest by virtue of a judgment docketed

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against Defendant Daryl High on April 4, 2013, in Rusk County Circuit Court Case No.
2013-SC-59.
Based upon the Complaint and the Stipulation between the United

11.

States and Defendant K&K Agronomy LLC, no Defendant holds a prior lien interest in
the property more particularly described as:
The North One-Half of the Northeast Quarter of Section 14,
Township 33 North, Range 5 West, Town of Marshall, Rusk
County, Wisconsin.
CONCLUSIONS OF LAW
1.

Plaintiff is entitled to judgment of foreclosure and sale of the mortgaged

premises in the usual form, as requested in Plaintiff's Complaint, and in accordance
with the above Findings of Fact.
2.

Plaintiff is entitled to recover from the Defendants the following sum: See

Attachment A.
3.

The Defendants subsequent to the filing of the notice of the pendency of

this action be and hereby are forever barred and foreclosed of all right, title, interest,
claim and equity of redemption in the mortgaged premises.
4.

The mortgaged premises shall be sold as a whole.

5.

That if necessary to secure possession of the premises, the Clerk of Court,

upon application by Plaintiff, shall issue a Writ of Assistance.
6.

The Defendants shall not be granted a right of redemption.

7.

Sale of the premises shall be conducted by or under the direction of the

United States Marshal for the Western District of Wisconsin. Notice of the sale shall be

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made by publication in The Ladysmith News, the newspaper published in the City of
Ladysmith, Rusk County, Wisconsin.
8.

Proceeds from the sale of the subject premises shall be paid first to satisfy

Defendant's debt to the United States as set forth in Attachment A, plus necessary costs
and disbursements.
9.

Any remaining proceeds from the sale of the subject premises shall be

subject to further order of the Court, including payment to satisfy any lien interests of
Defendants, including Defendant K&K Agronomy LLC' s docketed lien interest.
10.

Deficiency judgment is not being sought in this action.

Now, on application of Plaintiff United States of America,
IT IS THEREFORE ORDERED that foreclosure of said mortgage in the usual
form as provided by and in accordance with the above Findings of Fact and
Conclusions of Law be entered in this action.
Dated this /OtiAday of

r&ttJ.lv~ 2016.
I

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United States v. Daryl E. High, et al.

Case No. 15-cv-519-wmc
ATTACHMENT A

Notes and Mortgages

a.

Principal as of February 10, 2016

$ 364,223.77

b.

Interest as of February 10, 2016

$ 34,700.95

Total as of February 10, 2016

$ 398,924.72

Costs and Disbursements
c.

Filing of Notice of Lis Pendens
Total Costs & Disbursements

TOTAL AS OF FEBRUARY 10, 2016

$

30.00

$

30.00

$398.954.72