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United States of America v. Robert E. Swearingen

March 19, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROBERT E. SWEARINGEN, JR., SUSAN M. SWEARINGEN, STATE BANK OF LINCOLN F/K/A THE JOHN WARNER BANK
AND CITY OF CLINTON, DEFENDANTS.



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

E-FILED

3:12-cv-03177-SEM-BGC # 24 Page 1 of 24 Wednesday, 20 March, 2013 05:00:40 PM Clerk, U.S. District Court, ILCD

OPINION

The Court now considers Plaintiff United States of America's Motion to Enter Judgment (d/e 23)(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. 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. That Defendant, City of Clinton, returned Waiver of Service of Summons on November 14, 2012, pursuant to Federal Rule of Civil Procedure 4 and has acknowledged receipt of the Complaint as shown by the file in this case. Defendants Susan M. Swearingen and Robert E. Swearingen, Jr. were personally served with Summons and Complaint on September 19, 2012 and September 20, 2012, respectively, by the United States Marshal. Defendants Susan M. Swearingen and Robert E. Swearingen, Jr. and City of Clinton did not thereafter voluntarily appear in these proceedings.

2. Defendant State Bank of Lincoln f/k/a The John Warner Bank consents to entry of judgment against it, in favor of the United States.

II. EVIDENTIARY FINDINGS

1. Defendants, Robert E. Swearingen, Jr. and Susan M. Swearingen, executed a mortgage, attached as Exhibit A to the Complaint, dated August 10, 1992, and on August 10, 1992, they executed a note, attached to the Complaint as Exhibit B, in the amount of $39,900.00 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 said Defendants as Mortgagors. Said mortgage pertaining to the property described herein was recorded as Document No. 160500, in the Office of the Dewitt County, Illinois, Recorder.

2. No responsive pleading has been filed that denies the material factual allegations stated in the Complaint.

3. Plaintiff is the owner of the note and mortgage described in said Complaint.

4. Plaintiff has moved the Court to 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 January 28, 2013, Plaintiff was owed, via a Note and Mortgage hereinafter described, the sum of $43,832.88 plus a daily per diem accrual of $7.7480 thereafter to date of judgment and no objection being made to said Motion or Affidavit, said Motion is allowed and the Affidavit is admitted into evidence in this cause.

5. 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: Robert and Susan Swearingen and the City of Clinton. The State Bank of Lincoln f/k/a the John Warner Bank voluntarily consents to entry of judgment against it and in favor of the United Stats of America in this cause and admits that its interest in the subject property is inferior to that of the United States (d/e 19).

6. That all of the material allegations contained in the Complaint are true and that by virtue of the mortgage and indebtedness thereby secured, Plaintiff, UNITED STATES OF AMERICA, has a valid and subsisting lien arising out of a real estate mortgage on the property described as follows:

Lot 10 in Evans and Scogin West Lawn Subdivision as shown by Plat recorded August 5, 1969, in Plat Book "F", page 43 in the Recorder's Office of DeWitt County, Illinois, situated in the County of DeWitt, in the State of Illinois PIN No. 07-28-428-011

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 . . . . . $322.00 Recording Notice of a Suit to Foreclose Mortgage . . . $74.00

Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . $746.00

b) Unpaid principal and interest: Unpaid principal balance . . . . . . . . . . . . . . . . . . . $30,673.13 Accrued interest at $7.7480 per day due and unpaid as of 1/28/13 . . . . . . . . . . . . . . . . . $5,192.77 Subsidy recapture . . . . . . . . . . . . . . . . . . . . . . . . . . $3,330.00 Late Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $74.22

Interest on Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $211.30 Fees Assessed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,605.46

Total amount due plaintiff as of 1/28/13, exclusive of foreclosure costs . . . . . . . . $43,832.88

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 owners of the above-described real estate are: Robert E. Swearingen, Jr. and Susan Swearingen

9. DeWitt County, Illinois has a valid lien on the above-described property for taxes for the years 2012 and 2013, and the property will be sold subject to the interest of DeWitt County, resulting from taxes, general or special, which are a valid lien against the above-described property.

10. State Bank of Lincoln f/k/a The John Warner Bank, claims an interest in these proceedings by virtue of a Mortgage dated December 15, 2004 and recorded December 28, 2004 in Book 517 on pages 197-208 as Document No. 210671 made by Robert E. Swearingen, Jr. and Susan M. Swearingen to the John Warner Bank to secure an indebtedness in the principal amount of $20,000 with interest as therein specified and subject to covenants, agreements, and conditions therein contained.

The mortgage was modified by Agreement dated November 24, 2009 and recorded November 25, 2009 in Book 663 on pages 357-360 as Document No. 228100. The City of Clinton, Illinois claims an interest in these proceedings by virtue of two notices of liens in favor of the City of Clinton, Illinois, both recorded June 25, 2012 in book 379, on pages 66-67, as Document Number 236090 in the amount of $127.00 and in Book 379, on pages 74-75 as Document Number 236094 in the amount of $177.00, respectively. The interest of said Defendants is inferior to that of Plaintiff.

11. The above-described property is abandoned, and Plaintiff is entitled to a shortened redemption period ...


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