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Deutsche Bank National Trust Company, As Trustee For Ameriquest v. Anthony A. Ball

April 5, 2012

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2002-AR1, PLAINTIFF,
v.
ANTHONY A. BALL, JANECE F. BALL,
UNITED STATES OF AMERICA,
UNKNOWN OWNERS, AND
AND NON-RECORD CLAIMANTS, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities, Inc., asset-backed, pass-through certificates, series 2001-AR1, has brought suit pursuant to the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15-1101, to foreclose the mortgage securing a 2002 note executed by Defendants Anthony A. Ball and Janece F. Ball. (Docs. 19, 19-1, 19-2). Before the Court are several interrelated motions, including a motion for summary judgment filed by Plaintiff Deutsche Bank National Trust Company (Doc. 39), a subsequently filed Stipulation of Facts (Doc. 46), and a motion for default judgment (Doc. 52), which together permit the Court to resolve all issues against all parties, thereby making the bench trial set for April 23, 2012, unnecessary. Nevertheless, an updated calculation of the interest on the note and mortgage, and a breakdown of the total costs of foreclosure is still needed before an Order of Judgment and final judgment pursuant to Fed.R.Civ.P. 58 can be entered.

Synopsis of Facts and Procedural History

Plaintiff Deutsche Bank National Trust Company ("Deutsche Bank") initiated this foreclosure action in October 2010 in the Circuit Court for the First Judicial Circuit, Jackson County, Illinois (Case No. 10CH93). Pursuant to 28 U.S.C. §§ 1444 and 2410, the United States of America ("the Government") removed the case to this federal court, which has subject matter jurisdiction under 28 U.S.C. § 1331.

Deutsche Bank and the Government, the only parties appearing in this case, have stipulated to all relevant facts (Doc. 46), and supporting documentation is contained in the record establishing the note, mortgage, indebtedness and liens. Consequently, the Government now moves to withdraw multiple motions and its principal objection to Deutsche Bank's motion for summary judgment (Doc. 50). The Court hereby ADOPTS, in its entirety, the Stipulation of Facts filed by Deutsche Bank and the Government (Doc. 46). Therefore, the Government's motion to withdraw (Doc. 50) is GRANTED; Docs. 40 and 41 are deemed WITHDRAWN, and Doc. 43 is DENIED AS MOOT (see Doc. 44). As a result, Deutsche Bank's motion for summary judgment and motion for entry of default judgment remain for consideration.

The principal amount of the note is $144,500. The mortgage is secured by real property located at 90 Alex Lane in Murphysboro, Illinois 62966. The mortgage was recorded on June 10, 2002, with the Recorder of Deeds of Jackson County, Illinois, document number 309461, B2002P23508. The legal description of the property is as follows:

LOT 2 IN MIRANDA HEIGHTS, BEING A SUBDIVISION OF A PART OF THE SOUTHEAST QUARTER OF SECTION 19 IN TOWNSHIP 8 SOUTH, RANGE 2 WEST, 3RD P.M., JACKSON COUNTY, ILLINOIS, AS PER PLAT THEREOF RECORDED OCTOBER 7, 1998, IN PLAT CABINET 2, SLOT 85A, RECORDER'S OFFICE, JACKSON COUNTY, ILLINOIS. LESS AND EXCEPTING THAT PART CONVEYED TO WILLIAM EUGENE BALL AND JOSIE MARIE BALL IN WARRANTY DEED ON JUNE 6, 2000 IN BOOK 1056 PAGE 188.

Plaintiff Deutsche Bank is the current owner of the note and mortgage, and is in possession of the original note. American Home Mortgage Servicing, Inc. ("AHMSI") services the note and mortgage and has the power of attorney for Deutsche Bank; AHMSI also has authority to prosecute this action.

Anthony A. Ball and Janece F. Ball ("the Balls") defaulted on the payments on the note in February 2010, and the loan default has never been cured. The note specifies that, if the Balls default, they are liable for the note holder's costs and expenses incurred in enforcing the note, including reasonable attorney's fees. Similarly, the terms of the mortgage make the Balls liable for all of the lender's expenses in pursuing its remedies, including attorney's fees. The mortgage also generally makes the borrowers, the Balls, responsible for any lien that is superior to the mortgage.

The Balls were served with summons and the complaint in this action (see Docs. 27 and 28), but they have never appeared, answered or filed any responsive pleading, despite being warned that failure to do so would result in entry of default judgment and an order for the relief sought in the complaint. The Clerk of Court has entered default as to the Balls, and Deutsche Bank now moves for entry of default judgment (Doc. 52).

Multiple federal tax liens have been recorded. Deutsche Bank and the Government have resolved any dispute as to the priority of the tax liens vis-a-vis the mortgage, as reflected in the Stipulation of Facts (Doc. 46 ¶ 10). A single tax lien has priority*fn1 over the mortgage:

* Tax lien recorded with the Jackson County Recorder of Deeds on November 21, 2001, in the amount of $4,964.66, document 302930.

The following tax liens are subordinate to the mortgage lien:

* Tax lien recorded with the Jackson County Recorder of Deeds on July 11, 2006, in the amount of ...


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