The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF )
AMERICA, )
)
Plaintiff, )
) Civil No. 19-cv-3205
v. )
)
DARREN D HOWARD, CITY )
OF LINCOLN, and STATE )
OF ILLINOIS DEPARTMENT )
OF HEALTHCARE AND )
FAMILY SERVICES, )
)
Defendants. )
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
The Court now considers Plaintiff United States of America's
Motion for Judgment of Defendant Darren D. Howard (hereinafter
the "Motion") (d/e 24). Pursuant to Federal Rule of Civil Procedure
55, 28 U.S.C. ' 2001, and for the reasons stated below, the Motion
is GRANTED. In connection with its decision, the Court has
considered all of the pleadings and evidence submitted to date.
Based thereon, the Court makes the following FINDINGS:
I. JURISDICTION
1. The Court has jurisdiction over the subject matter and
parties pursuant to 28 U.S.C. §§ 1345 and 1391, respectively.
Defendant Darren D. Howard was personally served with Summons
and Complaint by the United States Marshal on October 29, 2020,
and thereafter answered the amended complaint.
II. EVIDENTIARY FINDINGS
1. Defendant executed a mortgage and a note (attached to the
amended complaint as Exhibits B and C) in the amount of
$66,000.00 secured by said mortgage. The United States of
America, acting through Rural Development, United States
Department of Agriculture, was the mortgagee on the mortgage
executed by defendants Darren D. Howard and Diana L. Brown as
mortgagors. The mortgage pertaining to the property described
herein was recorded on November 10, 2003, in the Office of the
Recorder of Deeds, Logan County, Illinois.
2. The material factual allegations stated in the complaint
filed herein have not been denied in any responsive pleading.
3. Plaintiff is the owner of the note and mortgage described in
the complaint.
4. On August 18, 2021, the Court granted Plaintiff’s Motion
to Enter Default Judgment of Foreclosure as to Defendants City of
Lincoln and State of Illinois Department of Healthcare and Family
Services. The Default Judgment and attached exhibits have been
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: Darren D. Howard, City of Lincoln, and State of Illinois
Department of Healthcare and Family Services.
6. All of the material allegations contained in the complaint
are true and by virtue of the mortgage and indebtedness thereby
secured, Plaintiff, United States of America, has a valid and
subsisting lien arising out of a real estate mortgage on the property
described as follows:
309 Seventh Street, Lincoln, Illinois 62656
A strip of ground of the even width of 35 feet
off of the full West side of Lot 3 in Block 6 in E.
Wright’s First Addition to West Lincoln, now a
part of the City of Lincoln, Logan County,
Illinois.
TAX ID# 12-326-002-00
7. By virtue of the mortgage and the indebtedness thereby
secured, as alleged in the complaint, there is due Plaintiff, United
States of America, as follows:
a) Costs of this suit:
U.S. Attorney's Docket Fee……………………………...$400.00
USMS Costs for Service of Summons ………………...$240.43
Recording Fee - Notice of Foreclosure……………….….$50.00
Total……………………………………………………….....$690.43
b) Unpaid principal and interest:
Unpaid principal balance…….……………………..$74,545.33
Accrued interest at $16.6035 per day due and unpaid1 as of
5/12/2021 ………………………………………….$34,516.02
Subsidy Recapture……………………………………..$6,461.60
Late Charges……………………………………………….$220.70
Interest on Fees…………………………………………$3,968.09
Fees Assessed……………………………………..…..$20,518.25
Total amount due plaintiff as of 5/12/2021…$140,229.99
1 Unpaid principal continues to accrue interest at the rate of
$16.6035 per day.
c) In addition, Plaintiff may be compelled to advance
various sums of money in payment of costs, fees, expenses, and
disbursements incurred in connection with the foreclosure,
including, without limiting the generality of the foregoing, filing fees,
stenographer's fees, witness fees, costs of publication, costs of
procuring and preparing documentary evidence and costs of
procuring abstracts of title, certificates, foreclosure minutes, a title
insurance policy and fees, charges, and expenses provided by law
incurred by or owing to the United States Marshal, including such
fees and expenses relating to conducting of the judicial sale as
required by this judgment of foreclosure.
d) Under the terms of the mortgage, all such advances,
costs and other fees, expenses, and disbursements are made a lien
upon the mortgaged real estate and Plaintiff is entitled to recover all
such advances, costs, expenses, and disbursements, together with
interest on all advances at the rate provided in the mortgage, or, if
no rate, from the date on which such advances are made.
e) In order to protect the lien of the mortgage, Plaintiff may
necessarily have to pay taxes and assessments which have been or
may be levied upon the mortgaged real estate.
f) In order to protect and preserve the mortgaged real
estate, Plaintiff may have to make such repairs to the real estate as
may reasonably be deemed necessary for the proper preservation
thereof.
g) Under the terms of the mortgage, any money so paid or
expended has or will become an additional indebtedness secured by
the mortgage and will bear interest from the date such monies are
advanced at the rate provided in the mortgage, or, if no rate is
provided, at the statutory judgment rate.
8. The present owners of the above-described real estate are:
Darren D. Howard and Diana L. Brown.
9. Logan County, Illinois, has a valid lien on the above-
described property for taxes and special assessments for the years
2020 (payable in 2021), and for 2021 and thereafter, and the
property will be sold subject to the interest of Logan County,
resulting from taxes, general or special, which are a valid lien
against the above-described property.
10. The City of Lincoln, Illinois has a valid Sewerage Revenue
Lien against Darren D. Howard and Diana L. Brown and in favor of
the City of Lincoln, Illinois in the sum of $290.20 plus subsequent
interest pursuant to the state lien recorded in the Logan County
Recorder’s Office on March 25, 2014, which is subordinate to the
United States’ mortgage that is subject to this foreclosure.
11. The Illinois Department of Healthcare and Family Services
has a valid Notice and Claim of Lien against Diana L. Brown and in
favor of the Illinois Department of Healthcare and Family Services
recorded in the Logan County Recorder’s Office on June 13, 2014,
which is subordinate to the United States’ mortgage that is subject
to this foreclosure.
12. The Plaintiff is entitled to a 60 day shortened period of
redemption for the following reasons: (i) the value of the mortgaged
real estate as of this date is less than ninety percent (90%) of the
amount specified pursuant to the Code of Civil Procedure, 735 ILCS
5/15-1603(d); and (ii) Plaintiff has waived any and all rights to a
personal judgment for a deficiency against the mortgagors and
against all other persons liable for the indebtedness or other
obligations secured by the mortgage.
13. Although the Plaintiff is waiving any and all rights to a
personal judgment for a deficiency against the mortgagors and
against all other persons liable for the indebtedness or other
obligations secured by the mortgage, the Plaintiff is not seeking this
60-day redemption period.
14. Instead, the Plaintiff is entitled to and is awarded a 30-day
shortened period of redemption pursuant to 735 ILCS 5/15-1603
because this real estate is abandoned.
15. 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.
16. 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 mortgage.
17. 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.
18. 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.
19. 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.
20. The real estate is free and clear of all liens and
encumbrances except:
a) General real estate taxes for the years 2020 (payable
in 2021) and thereafter, and special assessments, if any.
b) The mortgage given to Plaintiff.
c) Easements and restrictions of record.
21. Plaintiff's mortgage is 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 mortgage or prior liens of non-parties.
WHEREFORE, IT IS ORDERED, ADJUDGED AND
DECREED:
III. ORDER UPON REQUEST FOR FORECLOSURE
1. An accounting has been taken under the direction of the
court of the amounts due and owing to Plaintiff as declared herein.
2. Defendant is 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 mortgage 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 that 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 Defendant made party 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.
IV. ORDER UPON SPECIAL MATTERS
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 AAS IS@
WITHOUT ANY WARRANTIES OF HABITABILITY OR ANY OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED.
4. The United States stated in its Amended Complaint that
Defendant Diana L. Brown is now deceased. (D/e 12, p. 2; d/e 18,
p. 6). The United States is ordered to comply with 735 ILCS
5/13-209(b) and the Illinois Supreme Court’s holding in ABN AMRO
Mortg. Grp., Inc. v. McGahan, 931 N.E.2d 1190 (2010) and name a
personal representative through the circuit court to represent the
interests of the estate.
V. ORDER FOR JUDICIAL SALE
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 Logan County Courthouse in the City of
Lincoln, 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 Logan County, Illinois. In addition, the
real estate transfer tax (35 ILCS 200/31-1 et. seq.), shall be paid by
the 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.
3. the U.S. Marshal for the Central District of Illinois give
public notice of the sale as follows:
a) The notice of sale shall include the following information,
but an immaterial error in the information shall not invalidate the
legal effect of the notice:
i) The name, address, and telephone number of the person to
contact for information regarding the real estate;
ii) The common address and other common description (other
than legal description), if any, of the real estate;
iii) A legal description of the real estate sufficient to identify it
with reasonable certainty;
iv) A description of the improvements on the real estate;
v) The real estate may be inspected prior to sale upon making
reasonable arrangements with the person identified in paragraph i
above;
vi) The time and place of the sale;
vii) The terms of the sale;
viii) The case title, case number, and the court in which the
foreclosure was filed; and
ix) No other information is required.
b) The notice of sale shall be published at least four
consecutive calendar weeks (Sunday through Saturday), once in
each week, the first such notice to be published not more than 45
days prior to the sale, the last such notice to be published not less
than 7 days prior to the sale, by:
i) An advertisement in a newspaper regularly issued and
of general circulation to the general public in the county in which
the real estate is located in the section of that newspaper where
legal notices are commonly placed; and
ii) No other publication shall be required.
c) The party who gives notice of public sale shall also give
notice to all other parties in the action who have not heretofore
been found by the court to be in default for failure to plead. Such
notice shall be given in the manner provided in the applicable rules
of court for service of papers other than process and complaint, not
more than 45 days and not less than seven days prior to the day of
sale. After notice is given as required in this section, a copy thereof
shall be filed in the Office of the Clerk of this Court together with a
certificate of counsel or other proof that notice has been served in
compliance with this section.
d) The party who gives notice of a public sale shall again give
notice of any adjourned sale; provided, however, that if the
adjourned sale is to occur less than 60 days after the last scheduled
sale, notice of any adjourned sale need be given only once, not less
than 5 days prior to the day of the adjourned sale.
e) Notice of the sale may be given prior to the expiration of the
redemption period.
f) No other notice by publication or posting shall be necessary.
g) The person named in the notice of sale to be contacted for
information about the real estate shall not be required to provide
additional information other than that set forth in the notice of sale.
4. 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.
5. 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.
VI. TRANSFER OF TITLE
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.
VII. APPLICATION OF PROCEEDS
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.
VIII. REDEMPTION - RESIDENTIAL
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.
IX. OTHER MATTERS
1. Possession of Mortgaged Real Estate:
a) Unless the mortgagor=s right to possess this foreclosed
residential real estate is or has been terminated, the mortgagor
(homeowner) has the right to possess the foreclosed premises in
accordance with Section 15-1701(c) of the Illinois Mortgage
Foreclosure Law.
b) Unless sooner ordered to vacate the premises, the
mortgagor and all persons claiming a possessory right to the
mortgaged premises through the mortgagor shall peaceably remove
themselves and all of their possessions from the mortgaged
premises in compliance with 735 ILCS 5/15-1701 on the 31st day
after the judicial sale of this mortgaged property has been approved.
c) If any persons referenced in the above subparagraph
remain on the premises on or after the 31st day after the approval of
the judicial sale of this mortgaged real estate, the U.S. Marshal is
hereby directed as soon as practicable thereafter to use any and all
necessary reasonable force to enter the above described mortgaged
premises, including any outbuildings and vehicles located thereon,
and to remove all occupants located thereon who are present on the
premises and refuse to vacate immediately and voluntarily at the
U.S. Marshal=s direction. Additionally, any and all personal
property left on the mortgaged premises by the Defendant
mortgagors and/or any and all other persons having left the
property is hereby declared forfeited to the United States. If the U.S.
Marshal determines that the above-described personal property is
without value or of de minimis value that would neither exceed nor
equal the costs of notice, storage, and sale, the U.S. Marshal may
leave the personal property, at his discretion, on the premises for
the purchaser of this real estate to claim, or dispose of, at will.
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.
ENTER: March 2, 2022
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE