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United States of America v. Moecherville Water District

May 8, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MOECHERVILLE WATER DISTRICT, N.F.P., DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT OF FORECLOSURE AND ORDER OF SALE

Under Federal Rule of Civil Procedure 55(b), Plaintiff United States of America moves for entry of a default judgment of foreclosure and order of sale on its Complaint against Defendants Moecherville Water District, N.F.P ("Moecherville") and Unknown Owners and Non-record Claimants. In support of this Motion, United States of America states as follows:

1. On October 7, 2010, the United States filed this case to foreclose whatever right, title and interest Moecherville and the other defendants had in certain real and personal property located at 527 South Kendall, 539 South Farnsworth, 1228 Ziegler Avenue, 1206 Ziegler Avenue, all in Aurora, Illinois. (ECF No. 1).

2. On October 7, 2010, the United States filed an ex parte application and supporting memorandum for the appointment of a receiver to operate the water system during the pendency of the foreclosure proceedings. (ECF Nos. 4 and 5).

3. On October 8, 2010, the Court granted the United States' ex parte application for the appointment of Illinois Rural Water Association ("IRWA") as the receiver for the water system. (ECF No. 6).

4. Simultaneous to the filing of the instant motion, Plaintiff also moves for the entry of an order of default, pursuant to Federal Rule of Civil Procedure 55(a), against Moecherville and Unknown Owners and Non-record Claimants. (Doc. No. 56).

5. An order of default "necessarily has the effect of admitting all well-pleaded facts in the complaint relating to liability." In re Uranium Antitrust Lit., 473 F.Supp. 382, 391 (N.D.

Ill. 1979). 6. Therefore, Moecherville's and the Unknown Owners' and Non-record Claimants' failure to defend and deny the allegations of Plaintiff's Complaint results in those allegations being admitted.

REAL PROPERTY 7. "Foreclosure proceedings in Illinois are governed by the Illinois Mortgage Foreclosure Law." Ocwen Federal Bank v. Harris, 2000 WL 1644377 (N.D. Ill. 2000).

8. Pursuant to 735 ILCS 5/15-1506(a)(1), the allegations of fact in the Complaint have been proved and attested to by the Declaration of Michael A. Wallace, Illinois Community Programs Director for the United States Department of Agriculture, Rural Development ("USDA"). A copy of the Declaration of Michael Wallace is attached as Exhibit 1.

9. Pursuant to 735 ILCS 5/15-1506(a)(2), the attached Declaration of Michael Wallace sets forth the amount that is due the Plaintiff under the terms of its mortgage ("Mortgage").Exhibit 1.

10. As proved and attested to by the Declaration of Michael A. Wallace, Moecherville is in default under the terms of the promissory notes and other loan documents.

11. Based upon the damages, as set forth in the attached Declaration of Michael Wallace, Moecherville owes Plaintiff $3,418,706.39 through February 21, 2012. Under the two promissory notes, per diem interest of $313.95 accrues each day after February 21, 2012.

12. The special right of redemption under 735 ILCS 5/15-1604 is waived under paragraph 19 of the Mortgage. A true and correct copy of the Mortgage was attached to the Complaint as Exhibit B. The ...


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