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United States of America v. Estate of Fay H. Hunt

September 23, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ESTATE OF FAY H. HUNT, ASHLEY ALONZO, JUANITA BURDEN, STATE OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES, UNKNOWN OWNERS, INCLUDING UNKNOWN HEIRS LEGATEES OF FAY H. HUNT, DECEASED, AND NON-RECORD CLAIMANTS, DEFENDANTS.



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

E-FILED Friday, 23 September, 2011 11:24:59 AM Clerk, U.S. District Court, ILCD

OPINION

This Court now considers Plaintiff United States of America's Motion to Enter Judgment. See d/e 17 ("Motion"). Pursuant to Federal Rule of Civil Procedure 55, 28 U.S.C. § 2001, and for the reasons stated below, the Motion is GRANTED. This Court has considered all of the pleadings and evidence submitted to date and makes these FINDINGS:

I. JURISDICTION

1. This Court has jurisdiction over the subject matter and parties pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. That the defendant, Department of Healthcare and Family Services returned its Waiver of Service of Summons on March 21, 2011 pursuant to Federal Rule of Civil Procedure 4 and have acknowledged receipt of the complaint as shown by the file in this case. On April 27, 2011 through June 1, 2011, Defendants, Estate of Fay H. Hunt, Ashley Alonzo, Juanita Burden, Unknown Owners, including unknown heirs and legatees of Fay H. Hunt, Deceased and non-record claimants, were served by proper publication in the Pike County Express newspaper, Pittsfield, Illinois, and did not thereafter voluntarily appear in these proceedings.

II. EVIDENTIARY FINDINGS

1. Defendant, Fay H. Hunt (now deceased), executed a mortgage, attached as Exhibit A to the Amended Complaint, dated April 7, 1999 and on April 7, 1999, she executed a note (attached to the Complaint as Exhibit B), in the amount of $50,375 secured by the mortgage. The United States of America, acting through the Rural Development, U.S. Department of Agriculture, was the mortgagee on the mortgage executed by Defendant as mortgagor. The mortgage pertaining to the property described herein was recorded on April 7, 1999, commencing at Page 89 of Book 332, in the Office of the Pike County, Illinois, Recorder.

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

3. Plaintiff owns the note and mortgage described in the Amended Complaint.

4. Plaintiff moved this Court enter a Default Judgment of Foreclosure in this cause and has filed with the Motion an Affidavit of Costs by Colleen Callahan, State Director, Rural Development. That pleading and Affidavit stated that as of June 20, 2011, Plaintiff was owed (via a Note and Mortgage hereinafter described) the sum of $74,028.08, plus a daily per diem accrual of $8.1658 thereafter to date of judgment and no objection being made to the Motion or Affidavit of the Motion, the Motion is allowed and the 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: Estate of Fay H. Hunt, Ashley Alonzo, Juanita Burden, State of Illinois Department of Healthcare and Family Services, Unknown Owners, Including Unknown Heirs and Legatees of Fay H. Hunt, Deceased, and Non-Record Claimants.

6. That all of the material allegations contained in the Amended Complaint are true and that by virtue of the mortgage and indebtedness thereby secured, Plaintiff has a valid and subsisting lien arising out of a real estate mortgage on the property described as follows:

The West Sixty (60) feet of Lot 15 and Lot B, except Five (5) feet off of the West side, all in S.R. Gray's Subdivision of Lot Twenty-one (21) of Peter's Addition to the Outlots of the town, now City of Pittsfield, Pike County, Illinois, commonly known as 506 West Fayette Street, Pittsfield, Illinois.

7. That by virtue of the mortgage and the indebtedness thereby secured, as alleged in the Amended Complaint, there is due 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 Title Cost. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35.00 Cost of Notice of Publication. . . . . . . . . . . . . . $975.00

Total. . . . . . . . . . . . . . . . . . . . . . . . . . . $1,360.00

b) Unpaid principal and interest: Unpaid principal balance. . . . . . . . . . . . . . . $43,765.57 Accrued interest at $8.1658 per day due and unpaid as of 6/20/11. . . . . . . . . . . . . $4,451.19 Escrow Shortage. . . . . . . . . . . . . . . . . . . . . . . . $907.52 Subsidy recapture. . . . . . . . . . . . . . . . . . . . . $19,765.01 Late Charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . $43.29 Interest on Fees. . . . . . . . . . . . . . . . . . . $177.56 Fees Assessed. . . . . . . . . . . . . . . . . . . . . . . . . $3,557.94 Total amount due Plaintiff as of 6/20/11, exclusive of foreclosure costs. . . . . . . . $74,028.08

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, preparing documentary evidence and 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 owner of the above-described real estate is: Estate of Fay H. Hunt.

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

10. State of Illinois Department of Healthcare and Family Services, by virtue of a Notice of Claim Upon Real Estate recorded May 20, 2010, in Book 797 at Page 278, as Document No. 2010-1359, in the Office of the Pike County Recorder, in the aggregate amount of $22,733.53. The interest of Defendants is inferior to that of Plaintiff.

11. The above-described property is abandoned, and Plaintiff is entitled to a shortened redemption period pursuant to 735 ILCS 5/15-1603.

12. The premises which are the subject of this proceeding are valuable, and, unless the purchaser, as plaintiff's assignee, is placed in immediate possession during the 30-day period following the confirmation of the Report of Sale of Real Estate, the premises would be subject to vandalism, waste, loss, and possible destruction.

13. 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.

14. 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.

15. 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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