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United States v. Abernathy

October 17, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CHRISTOPHER LEE ABERNATHY AND CITY OF RUSHVILLE, DEFENDANTS.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

JUDGMENT OF FORECLOSURE

This matter having come on to be heard upon the Plaintiff's Complaint, and the subsequent pleadings, 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 Defendant, City of Rushville, returned Waiver of Service of Summons on June 19, 2006, pursuant to Federal Rule of Civil Procedure 4 and has acknowledged receipt of the Complaint as shown by the file in this case. Defendant Christopher Lee Abernathy was personally served with Summons and Complaint by the United States Marshal on August 11, 2006. Said Defendants did not thereafter voluntarily appear in these proceedings.

II. EVIDENTIARY FINDINGS

1. That the Defendant, Christopher Lee Abernathy, did execute a mortgage, attached as Exhibit A to the Complaint, dated January 28, 2000, and on January 28, 2000, said Defendant executed a note attached to the Complaint as Exhibit B, in the amount of $47,375.00 secured by said mortgage. The United States of America, acting through the Rural Development, United States Department of Agriculture, was the mortgagee on said mortgage executed by said Defendant as mortgagor. Said mortgage pertaining to the property described herein was recorded on January 28, 2000, as Document No. 259937, in the Office of the Schuyler 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:

Christopher Lee Abernathy as owner of the property; City of Rushville by virtue of a Notice of Lien, dated January 18, 2006, and filed on February 14, 2006, in the Recorder's Office of Schuyler County, Illinois, as Document No. 273088 in the amount of $198.39.

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 One (1), Two (2) and Three (3) in Block Three (3) of West Lawn Addition of a Subdivision of Lot Thirty-six (36) of the Assessor's Plat of the Southeast Quarter of Section 25, in Township 2 North of the Base Line, Range 2 West of the Fourth Principal Meridian, reference being had to a Plat recorded June 28, 1913, situated in the County of Schuyler and State of Illinois, AND ALSO 1/2 of the vacated unopened East/West alley being a part of Block 3 of West Lawn Addition to the City of Rushville, more specifically described as follows: Beginning at the Northwest corner of Lot 26 of said Block 3, running thence North 10 feet, thence East 120 feet, thence South 5 feet, thence West 120 feet, thence North 5 feet to the place of beginning, situated in Schuyler County, Illinois.

PIN NO. 05-117-012-50

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 . . . . . . . . . . . . . . . . . . . . $350.00 U.S. Marshal's Costs for Service of Summons . . . . . $129.16 Recording Notice of a Suit to Foreclose Mortgage . . . $31.00 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $510.16 b) Unpaid principal and interest: Unpaid principal balance . . . . . . . . . . . . . . . . . . . $49,622.00 Accrued interest at $10.3896 per day due and unpaid as of 08/31/06 . . . . . . . . . . . . . . . . $4,612.15 Escrow shortage . . . . . . . . . . . . . . . . . . . . . . . . . . . . $559.15 Late charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $42.45 Interest on fees assessed . . . . . . . . . . . . . . . . . . . . . . . $23.82 Fees assessed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,796.56

Total amount due Plaintiff as of August 31, 2006, exclusive of foreclosure costs . . . . . . . . . . . . $57,166.29

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 owner of the above-described real estate is: Christopher Lee Abernathy

7. That Schuyler 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 Schuyler County, resulting from taxes, general or special, which are a valid lien against the above-described property.

8. That the City of Rushville claims an interest in these proceedings by virtue of a Notice of Lien, dated January 18, 2006, and filed on February 14, 2006, in the Recorder's Office of Schuyler County, Illinois, as Document No. 273088 in the amount of $198.39. The interest of said Defendant is inferior to that of the Plaintiff.

9. That 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.

10. 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.

11. 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.

12. 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.

13. 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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