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United States v. Gayton

July 10, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CORY GAYTON AND STEPHANIE GAYTON, DEFENDANTS.



The opinion of the court was delivered by: Joe B. McDADE United States District Judge

DEFAULT JUDGMENT OF FORECLOSURE

This matter having come on to be heard upon the plaintiff's complaint, and the subsequent pleadings, on this day and this Court, having considered the evidence and being advised in the premises, makes these FINDINGS:

I. JURISDICTION

1. That it has jurisdiction of the parties to and the subject matter of this suit.

That the defendants, Stephanie Gayton and Cory Gayton, returned the Waiver of Service of Summons on March 17, 2006 and May 9, 2006, respectively, pursuant to Federal Rule of Civil Procedure 4 and have acknowledged receipt of the complaint as shown by the file in this case, and did not thereafter voluntarily appear in these proceedings.

II. EVIDENTIARY FINDINGS

1. That the defendants, Stephanie Gayton and Cory Gayton, assumed a mortgage originally made by Thomas L. Gayton and Cathy Gayton, attached as Exhibit A to the complaint, dated October 29, 1993, and a Promissory Note, in the amount of $51,280.00, secured by said mortgage, attached as Exhibit B to the complaint. This Assumption Agreement, dated April 25, 2001, is attached as Exhibit C to the complaint. The UNITED STATES OF AMERICA, acting E-FILED through the RURAL DEVELOPMENT, UNITED STATES DEPARTMENT OF AGRICULTURE, was the mortgagee on said mortgage/assumption agreement executed by said defendants as mortgagors. Said mortgage pertaining to the property described herein was recorded on October 29, 1993, commencing at Page 368 of Book 1258, as Document No. 93-57374, in the Office of the Fulton County, Illinois, Recorder.

2. That the plaintiff is the owner of the note and mortgage described in said complaint.

3. That 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: Cory Gayton as owner of the property and Stephanie Gayton as owner and occupant of the property.

4. That all of the material allegations contained in the complaint are true and that by virtue of the mortgage and indebtedness thereby secured, the plaintiff, UNITED STATES OF AMERICA, has a valid and subsisting lien arising out of a real estate mortgage on the property described as follows:

Lot 13 in Keeling's Second Addition to Canton; and a part of the Northwest Quarter of Section 27, Township 7 North, Range 4 East of the Fourth Principal Meridian described as follows: Commencing at the Northeast corner of Lot 13 in Keeling's Second Addition to Canton, thence West 140 feet to the Northwest corner of Lot 13; thence South 54 feet to the Southwest corner of Lot 13, thence West 10 feet, thence North 60 feet, thence East 150 feet to the West line of Keeling Court, thence South along the West line of Keeling Court 6 feet to the point of beginning, all situated in Fulton County, Illinois.

PIN NO. 09-08-27-116-031 and 09-08-116-030

5. That by virtue of the mortgage and the indebtedness thereby secured, as alleged in the complaint, there is due the plaintiff, UNITED STATES OF AMERICA, as follows:

a) For its own use and benefit for the costs of this suit and for: U.S. Attorney's Docket Fee .............................. $250.00 Recording Notice of a Suit to Foreclose Mortgage ............. $41.00 Total .......................................... $291.00

b) Unpaid principal and interest: Unpaid principal balance .............................. $44,648.89 Accrued interest at $9.2505 per day due and unpaid as of May 17, 2006 ....................... $3,565.18 Subsidy recapture .................................... $14,475.30 Escrow shortage ...................................... $2,391.81 Interest on fees due .................................... $150.55 Fees due ............................................ $1,922.76

Total amount due plaintiff as of 05/17/06, exclusive of foreclosure costs .................... $67,445.49

c) In addition, the 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 or 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 the 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, it may or has become necessary for plaintiff 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, it may also become necessary for the plaintiff 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.

6. That the present owners of the above-described real estate are: Cory Gayton and Stephanie Gayton

7. That Fulton County, Illinois, has a valid lien on the above-described property for taxes for the years 2005 and 2006 and the property will be sold subject to the interest of Fulton County, resulting from taxes, general or special, which are a valid lien against the above-described property.

8. That plaintiff is entitled to a shortened redemption period because the value of the mortgaged real estate as of the date of entry of this judgment is less than 90% of the amount required to redeem as specified in subsection (b)(3) of §5/15-1603, Ch. 735, ILCS and the plaintiff-mortgagee upon entry of this judgment waives any and all rights to a personal judgment for a deficiency against the mortgagor and against all other persons liable for the indebtedness or other obligations secured by the mortgage.

9. 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 the 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.

10. 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.

11. 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.

12. All lien or mortgage claimants defaulted are found and declared to have no interest in the real estate foreclosed, as they have ...


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