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Wells Fargo Bank, Na Trustee Pooling and Servicing Agreement Dated As of October 1, 2004 Asset Backed v. Robert C. Huston Jr

June 14, 2011

WELLS FARGO BANK, NA TRUSTEE POOLING AND SERVICING AGREEMENT DATED AS OF OCTOBER 1, 2004 ASSET BACKED PASS-THROUGH CERTIFICATES SERIES 2004-MHQ1, PLAINTIFF,
v.
ROBERT C. HUSTON JR, AND CRYSTAL D. HUSTON, DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough United States District Judge

E-FILED

Tuesday, 14 June, 2011 01:03:03 PM

Clerk, U.S. District Court, ILCD

OPINION

The Court now considers Plaintiff's Motion for Judgment of Foreclosure and Sale (d/e 9). For the reasons stated below, the Motion is GRANTED.

I. FINDINGS

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. § 1322. Venue is appropriate in this judicial district because the property at issue is situated in Chatham, Illinois. See 28 U.S.C. § 1391.

Service of process has been properly made. The last owner of redemption was served on April 28, 2011. The statutory right to reinstate, pursuant to 735 ILCS 5/15-1602, shall expire July 28, 2011. The statutory right of redemption, pursuant to 735 ILCS 5/15-1603, shall expire November 28, 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. United States Magistrate Judge Byron G. Cudmore made an entry of default on May 23, 2011. See d/e 8. The Mortgage and Note which is the subject matter of these proceedings is extinguished and replaced by this Judgment. By virtue of the Mortgage and the evidence of 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 $93,196.84 Interest, and Other Amounts Due as Stated in Plaintiff's Affidavit Plaintiff's Attorney Fees and Costs $1,824.00 TOTAL JUDGMENT AMOUNT $95,020.84

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 ILCS 5/15-1603(d).

Under the provisions of the Mortgage, the costs of foreclosure and reasonable attorney fees are an additional indebtedness for which Plaintiff should be reimbursed; such expenses and reasonable attorney fees are hereby allowed to the Plaintiff.

The Court approves the portion of the lien attributable to attorney 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, this court reserves the right to review the amount of attorney 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. 2004R35284, and the subject property encumbered by said Mortgage and directed to be sold is legally described as follows:

PART OF THE SOUTHWEST QUARTER OF SECTION 7, TOWNSHIP 14 NORTH, RANGE

5 WEST OF THE THIRD PRINCIPAL MERIDIAN, SANGAMON COUNTY, ILLINOIS, DESCRIBED AS FOLLOWS:

COMMENCING AT AN IRON PIN AT THE SOUTHEAST CORNER OF BLOCK 19 IN THE VILLAGE OF CHATHAM; THENCE SOUTH

15.0 FEET ALONG THE EAST LINE OF SAID BLOCK 19 AS EXTENDED TO TRUE POINT OF BEGINNING; THENCE EAST 73 FEET TO AN IRON PIN; THENCE SOUTH 51 .0 FEET TO AN IRON PIN; THENCE EAST 57.4 FEET TO AN IRON PIN; THENCE SOUTH 282.50 FEET ALONG A LINE PARALLEL WITH THE EAST LINE OF STATE STREET TO AN IRON PIN; THENCE WEST 329.89 FEET TO AN IRON PIN; THENCE NORTH 282.50 FEET ALONG A LINE PARALLEL WITH THE EAST LINE OF STATE STREET TO AN IRON PIN; THENCE WEST 118.4 FEET TO AN IRON PIN; THENCE NORTH 26 FEET TO AN IRON PIN; THENCE EAST 320.00 FEET TO AN IRON PIN; THENCE NORTH 25.0 FEET TO THE TRUE POINT OF BEGINNING.

EXCEPTING THEREFROM THE FOLLOWING DESCRIBED REAL ESTATE, TO-WIT: COMMENCING AT AN IRON PIN AT THE SOUTHEAST CORNER OF BLOCK 19 IN THE VILLAGE OF CHATHAM; THENCE SOUTH

15.0 FEET ALONG THE EAST LINE OF SAID BLOCK 19 AS EXTENDED TO AN IRON PIN AND THE TRUE POINT OF BEGINNING; THENCE EAST 73.0 FEET TO AN IRON PIN; THENCE SOUTH 51.0 FEET TO AN IRON PIN; THENCE EAST 57.4 FEET TO AN IRON PIN; THENCE SOUTH 282.50 FEET ALONG A LINE

PARALLEL TO THE EAST LINE OF STATE STREET TO AN IRON PIN; THENCE WEST 186.82 FEET TO AN IRON PIN; THENCE NORTH 307.75 FEET ALONG A LINE PARALLEL WITH THE EAST LINE OF STATE STREET TO AN IRON PIN; THENCE EAST

44.9 FEET TO AN IRON PIN; THENCE NORTH 25.00 FEET TO THE TRUE POINT OF BEGINNING.

ALSO EXCEPTING THAT PORTION CONVEYED TO THE VILLAGE OF CHATHAM, A MUNICIPAL CORPORATION BY DEED RECORDED DECEMBER 20, 1988 AS DOCUMENT NO. E25553.

Commonly known as: 214 East Spruce Street, Chatham, IL 62629 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 and costs of procuring abstracts of title, foreclosure minutes and a title insurance policy, costs of sale, etc. Under the terms of the mortgage, all such advances, costs, attorney 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, attorney 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 attorney fees and court costs, including but not limited to publication costs and expenses of sale.

Said 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 ...


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