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United States of America v. Estate of Norman Earl Swain

October 13, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ESTATE OF NORMAN EARL SWAIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Murphy, District Judge:

JUDGMENT DECREE AND ORDER DIRECTING SALE

On February 11, 2011, Plaintiff United States of America commenced this mortgage foreclosure suit against Estate of Norman Earl Swain, Estate of Ruth Ann Swain, Gary Swain, Sheryl Burbage, Illinois Department of Revenue, Unknown Heirs and Legatees of Norman Earl Swain, Unknown Heirs and Legatees of Ruth Ann Swain, Unknown Owners, and Non-Record Claimants. Defendant Illinois Department of Revenue timely filed its answer on April 11, 2011. Defendants Estate of Norman Earl Swain, Estate of Ruth Ann Swain, Gary Swain, Sheryl Burbage, Unknown Heirs and Legatees of Norman Earl Swain, Unknown Heirs and Legatees of Ruth Ann Swain, Unknown Owners, and Non-Record Claimants (Defaulted Defendants) were defaulted by the Clerk of Court on June 22, 2011 (see Doc. 19). Plaintiff now moves for entry of a default judgment against Defaulted Defendants under Federal Rule of Civil Procedure 55(b) (Doc. 26), and Defendant Illinois Department of Revenue seeks summary judgment regarding the superiority of its property tax lien (Doc. 20). Both motions are GRANTED, and IT IS ORDERED AND ADJUDGED:

1. This Court has jurisdiction over the parties and subject matter of this suit. Defaulted Defendants were properly served and failed to answer or otherwise enter any appearance.

2. The United States of America, acting through the United States Department of Agriculture, Rural Development (formerly Farmers Home Administration), made a loan to Norman Earl Swain and Ruth Ann Swain, secured by a mortgagedated September 21, 1993, in the total principal amount of $61,280.00. The mortgage was recorded on September 21, 1993, in Book 2936, Page 1573, Document No. A01187875. The loan isevidenced by a promissory notedated September 21, 1993. Defendants Norman Earl Swain and Ruth Ann Swain defaulted on the note. On November 10, 2010, the United States of America, acting through the United States Department of Agriculture, Rural Development, issued a notice-of acceleration.

3. Defendants Estate of Norman Earl Swain, Estate of Ruth Ann Swain, Gary Swain, Sheryl Burbage, Unknown Heirs and Legatees of Norman Earl Swain, Unknown Heirs and Legatees of Ruth Ann Swain, Unknown Owners, and Non-Record Claimants may have claimed an interest in the above described property, but are foreclosed from asserting their claim, if any, because of their default in this action.

4. By virtue of the mortgage and indebtedness thereby secured, the United States of America has a valid and subsisting lien as follows:

Common address: 136 Lucia Lane, Shiloh, Illinois 62269 Lot 29 of "2nd ADDITION TO LAKE SUZANNE ESTATES, being a subdivision of part of Lot 16 of the 1st Addition to Lake Suzanne Estates and part of Lot 73 of the N.E. 1/4 of Section 5, Township 1 North, Range 7 West of the 3rd P.M., Village of Shiloh, St. Clair County, Illinois"; reference being had to the plat thereof recorded in the Recorder's Office of St. Clair County, Illinois, in Book of Plats "91", on page 65.

Except coal, gas, and other mineral rights excepted or reserved in prior conveyances.

Situated in St. Clair County, Illinois. Parcel No. 09-05.0-201-041

5. By virtue of the mortgage and the indebtedness thereby secured, as alleged in the complaint, the following amounts are due to Plaintiff United States of America:

(a) For its own use and benefit for the costs of this suit and for: U.S. Attorney's docket and recording fees .... $370.00 Fee to publish notice of pendency of action . . . $948.00 Title expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . $525.00 TOTAL $1,843.00

(b) For the use and benefit of Plaintiff, holder of the note secured by the mortgage aforesaid, but subject and subordinate to the lien for payment of the items mentioned in subparagraph (a) of this paragraph: Unpaid principal balance .................. $57,836.97 Accrued interest at $11.2848 per day due and unpaid as of July 12, 2011 ................. $5,750.60 Total amount due Plaintiff as of July 12, 2011, exclusive of foreclosure costs .............. $63,587.57

(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, and a title insurance policy.

(d) Under the terms of the mortgage, all such advances, costs and other fees, expenses and disbursements are made a lien upon the mortgaged property and 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 is provided ...


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