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United States of America v. Michael Wheelock

July 27, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL WHEELOCK, JESSIE WHEELOCK, STATEWIDE INDEPENDENT LIVING COUNCIL OF ILLINOIS, HARRIS, N.A. AND CITY OF LINCOLN, DEFENDANTS.



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

E-FILED 3:12-cv-03055-SEM-BGC # 22 Page 1 of 23 Monday, 30 July, 2012 03:59:56 PM Clerk, U.S. District Court, ILCD

OPINION

The Court now considers Plaintiff United States of America's Motion to Enter Judgment (d/e 21)(hereinafter the "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 Michael Wheelock and Jessie Wheelock were both served with Summons and Complaint by the United States Marshal on April 9, 2012. Defendant Statewide Independent Living Council of Illinois returned Waiver of Service of Summons on February 22, 2012. Defendant Harris, N.A. was served with Summons and Complaint by the United States Marshal on June 8, 2012. Defendants were served pursuant to Federal Rule of Civil Procedure 4 and have acknowledged receipt of the Complaint as shown by the file in this case. Defendants, Michael Wheelock, Jessie Wheelock, Statewide Independent Living Council of Illinois and Harris, N.A., did not thereafter voluntarily appear in these proceedings.

2. Defendant City of Lincoln consents to entry of judgment against it, in favor of the United States.

II. EVIDENTIARY FINDINGS

1. Defendants, Michael Wheelock and Jessie Wheelock, executed a mortgage, attached as Exhibit A to the complaint, dated January 26, 2007, and on January 26, 2007, they executed a note (attached to the complaint as Exhibit B), in the amount of $33,200 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 January 29, 2007, as Instrument No. 200700046441, 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 enter a Default Judgment of Foreclosure in this cause and has filed with said Motion an Affidavit of Costs by Molly K. Hammond, Acting State Director, Rural Development.

That pleading and Affidavit stated that as of May 22, 2012, Plaintiff was owed (via a Note and Mortgage hereinafter described) the sum of $39,429.11, plus a daily per diem accrual of $5.5781 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: Statewide Independent Living Council of Illinois, Harris, N.A. and City of Lincoln

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:

Beginning at a point 522 feet West from the Southwest corner of Block 2 in West Lincoln, Logan County, Illinois, now a part of the City of Lincoln and on the North side of Fifth Street and running from said point North 153 feet to the alley; thence East parallel with Fifth Street 32 feet; thence South 153 feet to the North line of Fifth Street; thence West along the North Line of Fifth Street 32 feet to the place of beginning, being 32 feet front on Fifth Street by 153 feet in depth to the alley. (Lot 9 of Abstracter's Plat)

PIN No. 54-12-315-009-00

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 U.S. Marshals' Costs for Service of Summons . $315.40 Recording Notice of a Suit to Foreclose Mortgage$40.00 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . $705.40 b) Unpaid principal and interest: Unpaid principal balance . . . . . . . . . . . . . . . $33,638.00 Accrued interest at $5.5781 per day due and unpaid as of 5/22/12 . . . . . . . . . . . . $3,200.62 Late charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . $31.68 Interest on Fees . . . . . . . . . . . . . . . . . . . . . . . . . $82.31 Fees Assessed . . . . . . . . . . . . . . . . . . . . . . . . . $1,771.10

Total amount due plaintiff as of 5/22/12, exclusive of foreclosure costs . . . . . . . . $39,429.11

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 are: Michael Wheelock and Jessie Wheelock

9. Logan County, Illinois, has a valid lien on the above-described property for taxes for the years 2011 and 2012 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. Statewide Independent Living Council of Illinois, claims an interest in these proceedings by virtue of Recapture Agreements, both dated January 26, 2007 and recorded January 29, 2007 as Document Nos. 200700046442 and 200700046443. The interest of said Defendant is inferior to that of the Plaintiff. Harris N.A., claims an interest in these proceedings by virtue of a Mortgage dated January 26, 2007 and recorded January 29, 2007 as Document No. 200700046444, in the amount of $5,000.00. The interest of said Defendant is inferior to that of the Plaintiff. The City of Lincoln, claims an interest in these proceedings by virtue of a notice of lien in favor of the City of Lincoln, against Michael and Jessie Wheelock, recorded February 21, 2008, as Document No. 200800052014, in the amount of $324.58. The interest of said Defendant is inferior to that of the 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 ...


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