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United States of America v. Tina Chaney et al

October 17, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TINA CHANEY ET AL., DEFENDANT.



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

E-FILED

Thursday, 18 October, 2012 09:35:59 AM Clerk, U.S. District Court, ILCD

OPINION

The Court now considers Plaintiff United States of America's Motion to Enter Judgment (d/e 17)(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 ALLOWED. In connection with its decision, the Court has considered all of the pleadings and evidence submitted to date.

I. JURISDICTION

The Court has jurisdiction over the subject matter and parties pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. Defendant, Tina Chaney, returned Waiver of Service of Summons on March 16, 2012, pursuant to Federal Rule of Civil Procedure 4 and has acknowledged receipt of the complaint as shown by the file in this case. Defendant has acknowledged receipt of the Complaint pursuant to Federal Rule of Civil Procedure 4. Defendant has not voluntarily appeared in these proceedings.

II. EVIDENTIARY FINDINGS

1. Defendant, Tina Chaney, executed a mortgage, attached as Exhibit A to the Complaint, dated May 23, 2008, and on May 23, 2008, she executed a note (attached to the complaint as Exhibit B), in the amount of $95,500.00 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 Defendant as mortgagor. Said mortgage pertaining to the property described herein was recorded on May 27, 2008 as Document No. 200800053355, in the Office of the Logan County, Illinois, Recorder.

2. The material factual allegations stated in the Complaint 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 that the court enter a Default Judgment of Foreclosure in this cause and has filed with this Motion an Affidavit of Costs by Julie K. Wilson, Acting State Director, Rural Development. The Motion and Affidavit stated that as of October 1, 2012, Plaintiff was owed (via a Note and Mortgage hereinafter described) the sum of $105,719.14, plus a daily per diem accrual of $14.7599 thereafter to the date of judgment. No objection was made to the Motion or Affidavit. Therefore, the Court allows the Motion and admits the Affidavit into evidence in this cause.

5. There are no persons with potential claims to an interest in the above-described property, but who are now foreclosed from asserting their claim, if any, because of their default in this action.

6. All of the material allegations contained in the Complaint are true and 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:

Common Address: 419 South Kickapoo, Lincoln, Illinois Legal Description: Lot 11 and the Southwest Half of Lot 12 in Block 26 in the original town, now City of Lincoln, Logan County, Illinois, except the underlying coal and the right to mine and remove the same PIN No. 54-08-210-268-00

7. 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 ............ $270.60 Recording Notice of a Suit to Foreclose Mortgage ......... $40.00 Total .................................. $660.60

b) Unpaid principal and interest:

Unpaid principal balance .................... $83,974.28 Accrued interest at $14.7599 per day due and unpaid as of 10/1/12 .................. $8,627.45 Subsidy Assistance .......................... $6,400.32 Late Charges .................................. $53.07 Interest on Fees ............................... $190.04 Fees Assessed .............................. $5,813.38

Total amount due Plaintiff as of 10/1/12, exclusive of foreclosure costs .......... $105,719.14

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 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: Tina Chaney

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. Plaintiff is entitled to a shortened redemption period for the following reasons: (i) the value of the mortgaged real estate as of this date is less than ninety percent (90%) of the amount specified pursuant to the Code of Civil Procedure, 735 ILCS 5/15-1603(d); and (ii) the mortgagee waives any and all rights to a personal judgment for a deficiency against the mortgagor and against all other persons liable for the indebtedness or other obligations secured by the mortgage.

11. 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 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.

12. 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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