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United States of America v. Steven R. Kindred and Joanne M. Kindred

June 15, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
STEVEN R. KINDRED AND JOANNE M. KINDRED, DEFENDANTS.



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

E-FILED

Thursday, 16 June, 2011 12:02:34 PM Clerk, U.S. District Court, ILCD

OPINION SUE E. MYERSCOUGH, U.S. District Judge:

The Court now considers Plaintiff United States of America's Motion to Enter Judgment (d/e 10) (Motion). Pursuant to Federal Rule of Civil Procedure 55, 28 U.S.C. § 2001, and for the reasons stated below, the Motion is GRANTED. In connection with its decision, the Court has considered all of the pleadings and evidence submitted to date. Based thereon, the Court makes these FINDINGS:

I. JURISDICTION

1. The Court has jurisdiction over the subject matter and parties pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. Defendants Steven R. Kindred and Joanne M. Kindred each returned their Waiver of Service of Summons on March 14, 2011. Each Defendant has acknowledged receipt of the Complaint pursuant to Federal Rule of Civil Procedure 4. No Defendant has voluntarily appeared in these proceedings.

II. EVIDENTIARY FINDINGS

1. Defendant, Steven R. Kindred and Joanne M. Kindred, executed a mortgage, attached as Exhibit A to the complaint, dated September 29, 2004, and on September 29, 2004, they executed a note (attached to the complaint as Exhibit B), in the amount of $57,179 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 defendants as mortgagors. Said mortgage pertaining to the property described herein was recorded on September 30, 2004, as Document No. 0033223, in the Office of the Logan County, Illinois, Recorder.

2. The material factual allegations stated in the Complaint filed herein have not been denied in any responsive pleading.

3. Plaintiff is the owner of the note and mortgage described in said complaint.

4. Plaintiff moved the Court to enter a Default Judgment of Foreclosure and filed with said Motion an Affidavit of Costs by Barry L. Ramsey, Acting State Director, Rural Development. That pleading and Affidavit stated that as of May 3, 2011, Plaintiff was owed (via a Note and Mortgage hereinafter described) the sum of $54,037.28, plus a daily per diem accrual of $9.2643 thereafter to date of judgment, and no objection being made to said Motion or Affidavit of said Motion, said Motion is allowed and Affidavit admitted into evidence in this cause.

5. 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:

Steven R. Kindred and Joanne M. Kindred

6. 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:

That part of the Northeast Quarter of Section 30 in Township 20 North, Range 2 West of the 3rd P.M., particularly described as follows, to-wit: Commencing at the intersection of the Northwest line of Ottawa Street with the Northeast line of Omaha Avenue in the City of Lincoln, Logan County, Illinois, running thence Northeast upon and along said Northwest line of Ottawa Street a distance of 80 feet, thence Northwest and perpendicular to said Northwest line of Ottawa Street for a distance of 150 feet; thence Southwest and parallel with said Northwest line of Ottawa Street 80 feet to the Northeast line of Omaha Avenue; and thence Southeast upon and along said Northeast line of Omaha Avenue 150 feet to the point of beginning.

PIN NO. 54 08 030 015 00 Commonly known as: 1301 N. Ottawa Street, Lincoln, Illinois 62656

7. 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 Recording Notice of a Suit to Foreclose Mortgage $38.00 Total $388.00

b. Unpaid principal and interest: Unpaid principal balance $52,852.72 Accrued interest at $9.2643 per day due and unpaid as of 5/3/11 $590.79 Late charge $13.84 Interest on Fees $1.93 Fees Assessed $190.00

Total amount due Plaintiff as of 5/3/11 exclusive of foreclosure costs $54,037.28

c. In addition, 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 of 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, Plaintiff may necessarily have 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, Plaintiff may have 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.

8. The present owners of the above-described real estate is/ are: Steven R. Kindred and Joanne M. Kindred

9. Logan County, Illinois, has a valid lien on the above-described property for taxes for the years 2010 and 2011, and the property will be sold subject to the interest of Logan County, resulting from taxes, general or special, which are a valid lien against the above-described property.

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 ...


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