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U.S. Bank National Association v. Cook

February 27, 2009

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE PLAINTIFF,
v.
WENDY S. COOK DEFENDANT AND COUNTER-PLAINTIFF
v.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE COUNTER-DEFENDANT



The opinion of the court was delivered by: Judge Charles P. Kocoras

Magistrate Judge Maria G. Valdez

MOTION FOR ENTRY OF JUDGMENT OF FORECLOSURE AND SALE AND ORDER APPOINTING SPECIAL COMMISSIONER

NOW COMES the Plaintiff and Counter-defendant, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, by its attorneys, KROPIK, PAPUGA & SHAW and DYKEMA GOSSETT PPLC, and moves this court for the entry of a Judgment of Foreclosure and Sale and for the entry of an Order appointing a Special Commissioner to conduct the foreclosure sale pursuant to the Judgment of foreclosure and Sale.

As grounds for this motion, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE submits the record herein and further states as follows:

1. On March 20, 2007, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE filed its Complaint to Foreclose Mortgage herein. Defendant and Counter-plaintiff, WENDY COOK, is the only defendant named in the foreclosure.

2. Defendant and Counter-plaintiff filed her answer and counterclaim denying that U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE was entitled to the entry of a Judgment of foreclosure and further seeking a declaration or adjudication that WENDY COOK owned the subject real estate free and clear of the mortgage that was sought to be foreclosed.

3. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE and WENDY COOK filed cross motions for summary judgment with respect to the Complaint to Foreclose Mortgage and with respect to the Counterclaim filed by WENDY COOK.

4. On January 6, 2009 this court entered an order and Memorandum Opinion granting the motion of U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE for Summary Judgment and denying the motion of WENDY COOK for Summary Judgment.

5. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE submits herewith a draft of a proposed Judgment of Foreclosure and Sale. The amounts that are due to U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE that are contained in paragraph 5 of the draft judgment, other than the fees and costs of this proceeding, are supported by the affidavits filed in support of U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE's motion for summary judgment.

6. The fees and costs that are itemized in paragraph 5 of the proposed judgment are supported by the affidavit of counsel for U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE previously filed herein.

7. In addition to the fees and costs itemized in the proposed judgment, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE has incurred substantial additional fees and costs with respect to this litigation which U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE is entitled to recover in the event of a redemption or in the event that the foreclosure sale held pursuant to the Judgment results in a surplus of funds over and above the amounts found due in the Judgment of foreclosure and Sale. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE requests that the issue of the amounts of said fees and costs be reserved until such time as there is an effort to redeem or until such time as the results of the foreclosure sale are known.

8. Defendant, WENDY COOK, has filed a Motion to Reconsider and a Motion for Settlement Conference both of which are currently pending before this court.

9. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE has filed its response objecting to the Motion to Reconsider.

10. The entry of the Judgment of Foreclosure is necessary to calculate the expiration of the redemption period. Due the age of this proceeding, the redemption period in this matter is calculated from the date of the entry of the Judgment of Foreclosure and ...


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