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The Bank of New York Mellon F/K/A the Bank of v. Carla J. Mcsmith

March 4, 2013

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2006-7, PLAINTIFF,
v.
CARLA J. MCSMITH, ROBERT D. MCSMITH, US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-DL1, STATE OF ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, UNITED STATES OF AMERICA, BENEFICIAL ILLINOIS, INC., D/B/A BENEFICIAL MORTGAGE COMPANY OF ILLINOIS, CITIBANK (SOUTH DAKOTA), N.A., UNKNOWN TENANTS, UNKNOWN OWNERS AND NON-RECORD CLAIMANTS, DEFENDANT(S).



The opinion of the court was delivered by: Hon. J. Phil Gilbert United States District Court Judge

JUDGMENT OF FORECLOSURE AND ORDER OF SALE

THIS matter is before the Court on a Complaint to Foreclose Mortgage filed by the Plaintiff, THE BANK OF NEW YORK MELLON f/k/a The Bank Of New York, As Trustee For The Certificate Holders Of Cwabs, Inc., Asset-Backed Certificates, Series 2006-7 ("BONY"), against Defendants CARLA J. MCSMITH, ROBERT D. MCSMITH, US BANK NATIONAL ASSOCIATION, As Trustee For The C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-DL1, STATE OF ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, UNITED STATES OF AMERICA, By Virtue Of Federal Tax Liens Recorded As Document Numbers 228468, 2007R00305, 2008R01923, 2008R04951, 2011R02158, BENEFICIAL ILLINOIS, INC., d/b/a Beneficial Mortgage Company Of Illinois, and CITIBANK (SOUTH DAKOTA), N.A. (Doc. 3-2) and pursuant to Order setting a bench trial for February 25, 2013 (Doc. 40). The property at issue is located in Randolph County, Illinois, and is legally described as follows:

LOT 22 IN BLOCK 7 IN CRESCENT LAKE SUBDIVISION IN THE VILLAGE OF STEELEVILLE, RANDOLPH COUNTY, ILLINOIS AS SHOWN BY PLAT FILED FOR RECORD ON DECEMBER 9, 1964 AND RECORDED IN VOLUME "I" OF PLATS OF PAGE 4 IN THE RECORDER'S OFFICE, RANDOLPH COUNTY, ILLINOIS.

SUBJECT TO BUILDING LINES AND UTILITY EASEMENTS AS SHOWN ON THE PLAT OF SAID SUBDIVISION.

SUBJECT TO COVENANTS AND RESTRICTIONS DATED OCTOBER 31, 1964 AND RECORDED IN DECEMBER 9, 1964 IN BOOK 212 AT PAGE 1140, RECORDER'S OFFICE, RANDOLPH COUNTY, ILLINOIS.

SAID CONVEYANCE IS FURTHER SUBJECT TO ALL RESTRICTIONS, EASEMENTS AND COVENANTS OF RECORD OR DISCLOSED BY INSPECTIONS AND THE LIEN OF THE 2004 AND SUBSEQUENT REAL ESTATE TAXES.

THE PREPARER OF THIS DEED HAS MADE NO INVESTIGATION CONCERNING ANY POSSIBLE VIOLATIONS OF ANY ENVIRONMENTAL LAWS OR REGULATIONS INCLUDING, BUT NOT LIMITED TO, THE ILLINOIS RESPONSIBLE TRANSFER ACT AND ACCEPTS NO LIABILITY FOR ANY VIOLATIONS.

The common address of the property is 610 HILLANDALE DRIVE, STEELEVILLE, IL 62288, and the Permanent Tax Number is 17-069-014-00.

Plaintiff BONY has voluntarily dismissed the defendants designated as Unknown Tenants, Unknown Owners and Non-Record Claimants (Doc. 32). Plaintiff previously filed for entry of default against Defendants Carla J. McSmith, Robert D. McSmith, US Bank National Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-DL1, State of Illinois Department of Employment Security, Beneficial Illinois, Inc., d/b/a Beneficial Mortgage Company of Illinois, and CitiBank (South Dakota), N.A. (Doc. 33). The Clerk of the Court previously entered default as to Defendants Carla J. McSmith, Robert D. McSmith, US Bank National Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-DL1, State of Illinois Department of Employment Security, Beneficial Illinois, Inc., d/b/a Beneficial Mortgage Company of Illinois, and CitiBank (South Dakota), N.A. (Doc. 34). Plaintiff also filed motions for entry of Judgment of Foreclosure and Order of Sale (Docs. 30 & 43) and to appoint a Special Commissioner (Doc. 31). Concurrently with the entry of a default judgment, Plaintiff seeks a judgment of foreclosure and sale, including an award of its attorneys' fees, costs and expenses, a determination of the priority of the parties' liens on the property, and an order fixing the mortgagors' final date to redeem the mortgage.

1. DEFAULT JUDGMENT

Defendants Carla J. McSmith, Robert D. McSmith, US Bank National Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-DL1, State of Illinois Department of Employment Security, Beneficial Illinois, Inc., d/b/a Beneficial Mortgage Company of Illinois, and CitiBank (South Dakota), N.A. failed to respond to the Complaint within the time required by law. Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk of Court entered default against those defendants (Doc. 34). Plaintiff BONY now moves for entry of default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2).

Granting or denying default judgment is within the Court's sound discretion. Swaim v. Moltan Co., 73 F.3d 711, 716 (7th Cir. 1996). Entering a judgment by default against a party establishes that defendant's liability to the plaintiff for each claim alleged in the complaint as a matter of law. Dundee Cement Co. v. Howard Pipe & Concrete Products, 722 F.3d 1319, 1323 (7th Cir. 1983). "Upon default, the well-pleaded allegations of a complaint relating to liability are taken as true." Id. at 1323. While the pleadings in a complaint are taken to be true upon the entering of a default judgment, allegations regarding damages are not automatically taken as true. In re Catt, 368 F.3d 789, 793 (7th Cir. 2004). The court must conduct an inquiry in order to ascertain the amount of damages with reasonable certainty. Dundee Cement at 1323.

Under Illinois law, when a party does not submit a verified answer denying the facts in the complaint, then a "sworn verification of the complaint or a separate affidavit setting forth such fact is sufficient evidence thereof against such party and no further evidence of such fact shall be required." 735 ILCS 5/15-1506(a)(1). The Court may enter a judgment of foreclosure "upon motion supported by an affidavit stating the amount which is due the mortgagee. where all the allegations of fact in the complaint have been proved by verification of the complaint or affidavit." 735 ILCS 5/15-1506(a)(2).

In this case, Defendants Carla J. McSmith, Robert D. McSmith, US Bank National Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-DL1, State of Illinois Department of Employment Security, Beneficial Illinois, Inc., d/b/a Beneficial Mortgage Company of Illinois, and CitiBank (South Dakota), N.A. have all failed to participate in or defend against the foreclosure and pursuant to the terms of the note and mortgage, foreclosure and an award of all costs associated with BONY's foreclosure efforts is warranted. Furthermore, the amount of damages is readily ascertainable from the terms of the note and mortgage, and the documentary evidence and affidavits on the record (Doc. 3-2, Doc. 30-1, 30-2, 30-3). Therefore, BONY's motion for entry of Judgment of Foreclosure and Order of Sale against Defendants Carla J. McSmith, Robert D. McSmith, US Bank National Association, as Trustee for the C-BASS Mortgage Loan ...


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