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United States v. Estate of Shaub

United States District Court, Seventh Circuit

July 2, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ESTATE OF RAYMOND L. SHAUB, GEORGE L. SHAUB, ROSANNA P. BUELTER, ROGER D. SHAUB, GLORIA A. KRUEGER, RANDY E. SHAUB, GAIL J. VOGES, GINA R. SHAUB, UNKNOWN HEIRS AND LEGATEES OF RAYMOND L. SHAUB, DECEASED, AND NON-RECORD CLAIMANTS, Defendants.

OPINION

SUE E. MYERSCOUGH, District Judge.

The Court now considers Plaintiff United States of America's Motion to Enter Judgment (d/e 25) (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 this decision, the Court has considered all of the pleadings and evidence submitted to date. Based thereon, the court makes these FINDINGS:

I. JURISDICTION

The Court has jurisdiction over the subject matter and parties pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. Defendant George L. Shaub returned Waiver of Service of Summons on November 26, 2012; Defendant Roger D. Shaub returned Waiver of Service of Summons on February 4, 2013; Defendant Randy E. Shaub returned Waiver of Service of Summons on February 4, 2013; all pursuant to Federal Rule of Civil Procedure 4 and have acknowledged receipt of the Complaint as shown by the file in this case. Defendant Gina R. Shaub was personally served with Summons and Complaint by the United States Marshal on January 17, 2013; Defendant Gloria A. Krueger was personally served with Summons and Complaint by the United States Marshal on January 18, 2013; Defendant Rosanna P. Buelter was personally served with Summons and Complaint by the United States Marshal on January 23, 2013; and Defendant Gail J. Voges was personally served with Summons and Complaint by the United States Marshal on January 25, 2013; On March 25, 2013 through April 8, 2013, Defendants Estate of Raymond L. Shaub, Unknown Owners, including Unknown Heirs and Legatees of Raymond L. Shaub, Deceased, and Non-Record Claimants, were served by proper publication in The Courier newspaper, Lincoln, Illinois; and all did not thereafter voluntarily appear in these proceedings.

II. EVIDENTIARY FINDINGS

1. Raymond L. Shaub, deceased, executed a mortgage, attached as Exhibit A to the Complaint, dated December 30, 1997, and a corrected mortgage, attached as Exhibit B to the Complaint, dated January 13, 1998. On December 30, 1997, Raymond L. Shaub, deceased, executed a note (attached to the complaint as Exhibit C), in the amount of $64, 000 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 Raymond L. Shaub as mortgagors. Said mortgage pertaining to the property described herein was recorded on December 30, 1997, commencing at Page 326 of Volume 469, as Document No. 401607, and corrected on January 13, 1998, commencing at Page 283 of Volume 471, as Document No. 401818, 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 to enter a Default Judgment of Foreclosure in this cause and has filed with said Motion an Affidavit of Costs by Julie K. Wilson, Acting State Director, Rural Development. That pleading and Affidavit stated that as of May 9, 2013, Plaintiff was owed (via a Note and Mortgage hereinafter described) the sum of $95, 813.81, plus a daily per diem accrual of $12.4045 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: Estate of Raymond L. Shaub, George L. Shaub, Rosanna P. Buelter, Roger D. Shaub, Gloria A. Krueger, Randy E. Shaub, Gail J. Voges, Gina R. Shaub, Unknown Owners, including Unknown Heirs and Legatees of Raymond L. Shaub, Deceased, and Non-Record Claimants.

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:

Commencing at a point 15 feet North and 70 feet East from the Southwest corner of Lot 18 in Bates' Second Addition to West Lincoln, now a part of the City of Lincoln, Logan County, Illinois; thence East 90 feet; thence North 122-1/2 feet; thence West 80 feet; thence South 122-1/2 feet to the place of beginning, and being a part of Lots 17 and 18 in Bates' Second Addition to the City of Lincoln, Logan County, Illinois PIN No. 54 12 343 018 60

7. That by virtue of the mortgage and the indebtedness thereby secured, as alleged in the Complaint, there is due to 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 $870.48 Recording Notice of Suit to Foreclose Mortgage $40.00 Recording Amended Notice $40.00 Cost of Notice of Publication $851.40 Late Charges $238.42 Fees Assessed $8, 286.72 Interest on Fees $648.02 Unpaid Interest $11, 253.38 Total $22, 578.42 b) Unpaid principal and interest: Unpaid principal balance $54, 163.64

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 the 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 George L. Shaub, Rosanna P. Buelter, Roger D. Shaub, Gloria A. Krueger, Randy E. Shaub, Gail J. Voges, Gina R. Shaub, and Unknown Heirs and Legatees of Raymond L. Shaub, deceased.

9. The above-described property is abandoned, and Plaintiff is entitled to a shortened redemption period pursuant to 735 ILCS 5/15-1603.

10. 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.

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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