The opinion of the court was delivered by: Judge Sue E. Myerscough
Monday, 16 May, 2011 08:50:27 AM
Clerk, U.S. District Court, ILCD
The Court now considers Plaintiff's Motion for Judgment of Foreclosure and Sale (d/e 14). For the reasons stated below, the Motion is ALLOWED.
Because the amount in controversy exceeds $75,000 and the parties are completely diverse, the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. Venue is appropriate in this judicial district because the property at issue is situated in Springfield, Illinois. See 28 U.S.C. § 1391.
Service of process has been properly made. The last owner of redemption was served on January 27, 2011. The statutory right to reinstate, pursuant to 735 ILCS 5/15-1602, expired on April 27, 2011. The statutory right of redemption, pursuant to 735 ILCS 5/15-1603, will expire on August 27, 2011 (unless shortened by further order of the Court).
All the material allegations of the Complaint (d/e 1) filed pursuant to 735 ILCS 5/15-1504 (including those required by statute) have been proven true. Pursuant to Plaintiff's motion, U.S. Magistrate Judge Byron G. Cudmore made an Entry of Default on April 15, 2011. See d/e 13. The Mortgage and Note which was the subject matter of that proceeding is extinguished and replaced by this Judgment. By virtue of the Mortgage and the evidence of the indebtedness secured by it, there is due and owing to Plaintiff the following amount which shall continue to be a valid and subsisting lien upon the subject property described hereinafter:
Principal Balance, Accrued Interest and Other Amounts Due as Stated in Plaintiffs Affidavit.............$122,003.86 Plaintiff's Attorneys' Fees and Costs............................$1,570.00 TOTAL JUDGMENT AMOUNT.................................$123,573.86 Any advances made in order to protect the lien of the Judgment and preserve the real estate shall become so much additional indebtedness secured by the judgment lien. Such advances include but are not limited to payment for property inspections, real estate taxes or assessments, property maintenance, and insurance premiums incurred by Plaintiff and not included in this Judgment but paid prior to the Judicial sale. Any such advance shall bear interest from date of the advance at the Judgment rate of interest, except in the case of Redemption or Payoff, in which case the note rate of interest shall apply pursuant to 735 ILC 5/15-1603(d).
Under the provisions of the Mortgage, the costs of foreclosure and reasonable attorneys' fees are an additional indebtedness for which Plaintiff should be reimbursed; such expenses and reasonable attorneys' fees are hereby allowed to the Plaintiff.
The Court approves the portion of the lien attributable to attorneys' fees only for purposes of the foreclosure sale, and not for purposes of determining the amount of a deficiency judgment required to be paid personally by Defendant in the event of redemption or otherwise. In the event of redemption by Defendant or for purposes of any personal deficiency judgment, the Court reserves the right to review the amount of attorneys' fees to be included for either purpose. Plaintiff's counsel is required to notify Defendant of the provisions of this paragraph by mailing a copy of this Judgment to Defendant.
The Mortgage described in the Complaint and hereby foreclosed appears of record in the Office of the Sangamon County Recorder of Deeds as Document No. 2006R28435, and the "subject property" encumbered by said Mortgage and directed to be sold is legally described as follows:
Lot 241 Walnut Valley Addition Phase II. Except all coal, minerals and mining rights heretofore conveyed or reserved of record. Situated in Sangamon County, Illinois. Commonly known as: 225 Buckhorn Dr., Springfield, IL 62707 The rights and interests of all the other parties to this cause in the subject property are inferior and subordinate to the lien of the Plaintiff. Copies of the Note and the Mortgage or Affidavit of Documents as are attached to Plaintiff's Complaint have been offered in evidence. Plaintiff is hereby given leave to withdraw, if any, the Original Note and the Original Mortgage and substitute copies of those documents.
Plaintiff has been compelled to employ and retain attorneys to prepare and file the Complaint and to represent and advise the Plaintiff in the foreclosure of the mortgage. Defendant is liable for the usual, reasonable, and customary fees incurred by Plaintiff.
Plaintiff has been compelled, and may be compelled after entry of this Judgment, to advance various sums of money in payment of costs, fees, expenses, and disbursements incurred in connection with the foreclosure. These sums may include, without limiting the generality of the foregoing, filing fees, service of process fees, copying charges, stenographer's fees, witness fees, costs of publication, costs of procuring and preparing documentary evidence, costs of procuring abstracts of title, foreclosure minutes, and costs of title insurance policy, costs of sale, etc. Under the terms of the mortgage, all such advances, costs, attorneys' fees and other fees, expenses and disbursements are made a lien upon the mortgaged real estate. Plaintiff is entitled to recover all such advances, costs, attorneys' fees, expenses and disbursements, together with interest on all advances at the judgment rate of interest, from the date on which such advances are made, except in the case of Redemption or Payoff, in which case the note rate of interest shall apply pursuant to 735 ILCS 5/15-1603(d).
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. In order to protect and preserve the mortgaged real estate, it has or may also become necessary for Plaintiff to make other payments, including but not limited to fire and other hazard insurance premiums on the real estate or payments for such repairs to the real estate as may reasonably be deemed necessary for the proper preservation thereof. 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 judgment rate of interest except in the case of Redemption or Payoff, in which case the note rate of interest shall apply pursuant to 735 ILCS 5/15-1603(d).
The allegations of Plaintiff's Complaint are true substantially as set forth, and the equities favor Plaintiff. Plaintiff is entitled to the relief prayed for in the Complaint, including foreclosure of the Mortgage upon the real estate described therein for the total judgment amount as found above, together with interest at the statutory judgment rate after the entry of this Judgment, and additional advances, expenses, reasonable attorneys' fees and Court costs, including but not limited to publication costs and expenses of sale.
This real estate is free and clear of all liens and encumbrances that have been named herein, or of any claims that are subject to a recorded notice of foreclosure, subject to any rights of redemption available to a defendant pursuant to 735 ILCS 5/15-1603(a).
Plaintiff's Mortgage is prior and superior to all other mortgages, claims of interests and liens upon said real estate that have been named herein or any claims that are subject to a recorded notice of foreclosure.
The sum of attorneys' fees allowed herein as stated above is the fair reasonable and proper fee to be allowed to Plaintiff as attorneys' fees in this proceeding through the date of this Judgment, in accordance with the terms of the Note and Mortgage given by said Defendants. That sum should be added to and become a part of the indebtedness due to Plaintiff.
IT IS THEREFORE ORDERED AND DECREED AS FOLLOWS:
1. Judgment of Foreclosure and Sale:
Judgment is entered pursuant to 735 ILCS 5/15-1506 against the subject property and against all Defendants not previously dismissed.
a. In the event Defendants do not pay to Plaintiff the amounts required pursuant to the Illinois Mortgage Foreclosure Law before expiration of any redemption period (or, if no redemption period, within seven days after the date of this Judgment), together with attorneys' fees, costs, advances, and expenses of the proceedings (to the extent provided in the mortgage or by law), the mortgaged real estate shall be sold as directed by the Court. The proceeds of such sale will be used to satisfy the amount due to Plaintiff as set forth in this ...