SUE E. MYERSCOUGH, District Judge.
The Court now considers Plaintiff United States of America's Motion to Enter Judgment (d/e 34) (hereinafter the "Motion"). Pursuant to Federal Rules of Civil Procedure 12, 55, and 56, and 28 U.S.C. § 2001, and for the reasons stated below, the Motion is ALLOWED. In connection with its decision, the Court has considered all of the pleadings and evidence submitted to date. Based thereon, the Court makes these FINDINGS:
1. The Court has jurisdiction over the subject matter and parties pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. Pursuant to Federal Rule of Civil Procedure 4, Waivers of Service of Summons were returned for defendants, Seyla Hamm (d/e 8), Jeffrey L. Cooper (d/e 9), Scott A. Cooper (d/e 10), and Lonnie R. Cooper (d/e 11). Between July 26, 2017 and August 17, 2017, publication was made in the Mason County Democrat, Havana, Illinois (d/e 29), and unknown owners, including unknown heirs and legatees of the Estate of Mary K. Cooper were properly served, and did not thereafter voluntarily appear in these proceedings.
2. Defendant C.C., a minor, now known as C.T., was personally served by the U.S. Marshals Service on June 21, 2017 and has consented to the entry of judgment. (d/e 20).
3. On June 28, 2017, Kevin McDermott was appointed as Special Representative for the deceased mortgagor Mary K. Cooper in the Sixth Judicial Circuit, Mason County, Illinois. On October 16, 2017, a hearing was held by Judge Alan Tucker on the Report of Special Representative, who entered an Order approving the Special Representative's Report and discharged the Special Representative in this case.
1. Mary K. Cooper executed mortgages on the property in the amounts of $52,400.00 and $9,300.00, secured by said mortgages. The United States of America, acting through Rural Development, United States Department of Agriculture, was the mortgagee on the mortgages executed by Mary K. Cooper as mortgagor, and both mortgages were recorded in Mason County, Illinois. (See Exhibits A-C to Doc. 25).
2. The material factual allegations stated in the amended complaint filed herein have not been denied in any responsive pleading.
3. Plaintiff is the owner of the note and mortgages described in the amended complaint.
4. Plaintiff moved the Court to enter a Motion to Enter Judgment of Foreclosure in this cause and has filed with the Motion an Affidavit of Costs by Douglas Wilson, State Director, Rural Development. That Motion and Affidavit stated that as of January 10, 2018, Plaintiff was owed (via a Note and Mortgages hereinafter described) the sum of $70,495.16 plus a daily per diem accrual of $14.7642 thereafter to date of judgment. No objection being made to the Motion or Affidavit of the Motion, the Motion is allowed and the Affidavit is admitted into evidence in this cause.
5. The following are names of persons who may have claimed an interest in the above-described property, but who are foreclosed from asserting their claim, if any, because of their default in this action: Seyla Hamm, Jeffrey Cooper, Scott Cooper, and Lonnie Cooper.
6. All of the material allegations contained in the amended complaint are true and by virtue of the mortgages and indebtedness thereby secured, Plaintiff, United States of America, has a valid and subsisting lien arising out of a real estate mortgages on the property described as follows:
7. By virtue of the mortgages and the indebtedness thereby secured, as alleged in the complaint, there is due Plaintiff, United States of America, as follows:
b) Unpaid principal and interest:
8. The present owner(s) of the above-described real estate is/are: Mary K. Cooper, deceased.
9. Mason County, Illinois, has a valid lien on the above-described property for taxes for the years 2017 (payable in 2018) and the property will be sold subject to the interest of Mason County, resulting from taxes, general or special, which are a valid lien against the above-described property.
10. There are no other liens recorded against said property.
11. The above-described property is abandoned, and Plaintiff is entitled to a shortened redemption period pursuant to 735 ILCS 5/15-1603.
12. The premises which are the subject of this proceeding are valuable, and unless the purchaser, as Plaintiff's assignee, is placed in immediate possession during the 30-day period following the confirmation of the Report of Sale of Real Estate, the premises would be subject to vandalism, waste, loss and possible destruction.
13. Defendant C.C., a minor, now known as C.T., by and through Mark Wykoff, Sr., has executed a Consent to Enter Judgment. (d/e 20)
14. Kevin N. McDermott as Special Representative to the Estate of Mary Cooper, deceased, has completed the requirements of his appointment, has reported that there do not appear to be any viable defenses to this foreclosure proceeding and to this requested judgment of foreclosure, and does not deny the allegations in the Complaint for Foreclosure filed in this cause. Based on the foregoing, the Court approves the services rendered by the Special Representative in this foreclosure case as summarized in said attached Final Report, determines that the Special Representative has satisfied the requirements of his appointment insofar as said requirements pertain to the Special Representative's responsibility to represent the named decedent defendant in this foreclosure proceeding, determines that there are no further services required by the Special Representative in this foreclosure proceeding, as his attached Final Report states there do not appear to be any viable defenses to this foreclosure. Further, this Court enters summary judgment against said Personal Representative and approves the Special Representative's request recited in said Final Report for an award of fees of $500 plus the expenses recited therein to be paid to the Special Representative by the Plaintiff, with said fees and expenses being added to and becoming part of the monetary amount of this Judgment hereby being entered in favor of the United States of America.
15. By reason of the defaults alleged and proved, if the indebtedness had not matured by its terms, the same became due by the exercise, by Plaintiff or other persons having such power, of a right or power to declare immediately due and payable the whole of all indebtedness secured by the mortgages.
16. Any and all notices of default or election to declare the indebtedness due and payable or other notices required to be given have been duly and properly given.
17. Any and all periods of grace or other period of time allowed for the performance of the covenants or conditions claimed to be breached or for the curing of any breaches have expired.
18. All lien or mortgage claimants defaulted are found and declared to have no interest in the real estate foreclosed, as they have offered no evidence of the interest.
19. The real estate is free and clear of all liens and encumbrances except:
20. Plaintiff's mortgages are prior and superior to all other mortgages, claims of interest and liens upon the real estate except for real estate taxes and special assessments, if any, and except for any mortgages or liens found herein to be prior and superior to plaintiff's mortgages or prior liens of non-parties.
21. The United States does not waive its right to subsequently administratively collect, including by offset, any resulting deficiency if the sale price for the foreclosed property sold in this cause at judicial sale does not pay the judgment amount and subsequently accrued interest, advances, and costs owed on either the promissory note or mortgages in this cause even though no such deficiency judgment is sought in this foreclosure proceeding.
WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
1. An accounting has been taken under the direction of the court of the amounts due and owing to Plaintiff as declared herein.
2. Defendants are ordered to pay to Plaintiff before expiration of any redemption period (or, if no redemption period, within seven days after the date of this judgment) whatever sums may appear to be due upon the taking of such account, together with fees and costs of the proceedings (to the extent provided in the mortgages or by law).
3. In default of such payment in accordance with this judgment, the mortgaged real estate shall be sold as directed by the court, to satisfy the amount due to Plaintiff as set forth in this judgment, together with the interest thereon at the statutory judgment rate from the date of the judgment.
4. In the event Plaintiff is a purchaser of the mortgaged real estate at such sale, Plaintiff may offset against the purchase price of such real estate the amounts due under the judgment for the foreclosure and order confirming the sale.
5. In the event of such sale and the failure of the person entitled thereto to redeem prior to such sale pursuant to statutory provisions, the Defendants made parties to the foreclosure in accordance with statutory provisions, and all non-record claimants given notice of the foreclosure in accordance with statutory provisions, and all persons claiming by, through or under them, and each and any and all of them, shall be forever barred and foreclosed of any right, title, interest, claim, lien, or right to redeem in and to the mortgaged real estate.
6. If no redemption is made prior to such sale, a deed shall be issued to the purchaser according to law and such purchaser shall be let into possession of the mortgaged real estate in accordance with statutory provisions.
1. Exceptions to which title in the real estate shall be subject at the sale shall include general real estate taxes for the current year and for the preceding year which have not become due and payable as of the date of this judgment and any special assessments upon the real estate and easements and restrictions of record.
2. In the event any party to this foreclosure is a successful bidder at the sale, such party may offset against the purchase price to be paid for such real estate all amounts due such party under this judgment of foreclosure or the order confirming the sale.
3. The property is being sold at this judicial sale "AS IS" WITHOUT ANY WARRANTIES OF HABITABILITY OR ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED.
1. The real estate is ordered to be sold in accordance with applicable statutory provisions by the U.S. Marshal or his representative.
2. Upon expiration of the redemption period, the real estate shall be sold by the U.S. Marshal for the Central District of Illinois at the front door of the Mason County Courthouse in the City of Havana, Illinois, at the time announced by the U.S. Marshal subject to easements and restrictions of record and taxes, general or special, due and owing to Mason County, Illinois. In addition, the real estate transfer tax (35 ILCS 200/31-1, et. seq.) shall be paid by buyer(s). The property shall be sold to the highest bidder who shall pay ten percent (10%) of the bid purchase price at the time and place of sale by Cashier's/Official Bank Check made payable to the U.S. Marshals Service, tendered to the U.S. Marshal conducting the sale. The balance of the bid purchase price shall be paid by Cashier's/Official Bank Check made payable to U.S. Marshals Service, to be received by the United States Marshal at 100 N.E. Monroe, Peoria, Illinois, 61602 within thirty (30) days of date of the sale. If the balance is not received within the time period, the ten percent (10%) payment made at time of sale shall be forfeited to the United States, the sale shall be void, and a new sale shall be scheduled by the Court.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the U.S. Marshal for the Central District of Illinois give public notice of the sale as follows:
f) No other notice by publication or posting shall be necessary.
3. Division of Property. If the real estate is susceptible of division, the person conducting the sale may order it to be sold as necessary to satisfy this judgment. The person conducting the sale shall determine which real estate shall be sold, and the person conducting the sale may determine the order in which separate tracts may be sold.
4. Certificate of Sale. Upon the sale of mortgaged real estate, the person conducting the sale shall give a certificate of sale to the purchaser and cause such certificate of sale to be recorded. The certificate shall be freely assignable by endorsement thereon.
1. 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 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 such deed shall not be construed to contain any covenant on the part of the person executing it.
2. Delivery of the deed executed on the sale of the real estate, 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. Such 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.
The proceeds resulting from the sale ordered herein shall be applied in the following order:
1. The reasonable expenses of sale including but not limited to costs of publication, notice of the sale, expenses, fees, and commissions incurred by or owing to the U.S. Marshal pursuant to law;
2. The reasonable expenses of securing possession before sale, holding, maintaining, and preparing the real estate for sale, including payment of taxes and other governmental charges, management fees, and to the extent provided for in the mortgage or other recorded agreement and not prohibited by law, payments made pursuant to 735 ILCS 5/15-1505, and other legal expenses incurred by the mortgagee;
3. Satisfaction of claims in the order of priority adjudicated in this judgment of foreclosure; and
4. Remittance of any surplus to the mortgagor or as otherwise directed by the court.
1. Only the owner of redemption may redeem from this foreclosure, and such owner of redemption may redeem only during the redemption period specified herein.
2. In this foreclosure, the above-described property is abandoned and Plaintiff is entitled to a shortened redemption period pursuant to Chapter 735, Paragraph 5/15-1603(b)(4), Illinois Compiled Statutes. The redemption period shall end 30 days after the date of entry of this Judgment.
3. This is a foreclosure of a mortgage of residential real estate.
4. The amount required to redeem shall consist of the Total Balance Due as declared above plus interest thereon at the statutory rate hereafter and all additional costs and other expenses allowed by the court.
5. If the purchaser at the judicial sale of residential real estate is a mortgagee 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 ILCS 5/15-1603(d), 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.
1. Possession of Mortgaged Real Estate:
Upon taking possession and custody of the premises, and removing all occupants who are unauthorized to remain on the premises, the U.S. Marshal is then hereby directed to remit possession and custody of the premises to the purchaser of the property at the sale judicially approved by this Court.
2. Report of Sale. The person conducting the sale shall file a report of sale with the Clerk of this Court specifying the amount of proceeds of sale realized and the disposition thereof.
3. The purchaser of the foreclosed property shall be given possession effective immediately upon approval of the judicial sale of this real estate in compliance with 735 ILCS 5/15-1701(c) (1).
4. Homestead Waiver. Defendants-mortgagors waived their right to homestead or other exemptions in the real estate in the body of the mortgage, which was duly signed and acknowledged, and the defendants-mortgagors are therefore barred from claiming any right to homestead or other exemptions in the real estate.
AND IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that there is no just reason for delaying the enforcement of this judgment, or an appeal therefrom.