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United States v. Bernard

United States District Court, C.D. Illinois, Springfield Division

June 19, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES JUSTIN BERNARD, Defendant.

OPINION

SUE E. MYERSCOUGH, District Judge.

The Court now considers Plaintiff United States of America's Motion to Enter Judgment (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

The Court has jurisdiction over the subject matter and parties pursuant to 28 U.S.C. §§ 1345 and 1391, respectively. Defendant, James Justin Bernard, has returned Waiver of Service of Summons on December 11, 2014, 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 not voluntarily appeared in these proceedings.

II. EVIDENTIARY FINDINGS

1. Defendant, James Justin Bernard, executed a mortgage, attached as Exhibit A to the complaint, dated July 9, 2008, and on the same day he executed a note (attached to the complaint as Exhibit B), in the amount of $26, 460.00 secured by said mortgage. The United States of America, acting through Rural Development, United States Department of Agriculture, was the Mortgagee on the mortgage executed by Defendant as Mortgagor. The mortgage pertaining to the property described herein was recorded on July 11, 2008, commencing at Page 283 of Book 775, as Document No. 2008-2477, in the Office of the Pike 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 the complaint.

4. Plaintiff moved the Court to enter a Default Judgment of Foreclosure in this cause and has filed with the Motion an Affidavit of Costs by Molly K. Hammond, Acting State Director, Rural Development. That Motion and Affidavit stated that as of January 13, 2015, Plaintiff was owed (via a Note and Mortgage hereinafter described) the sum of $35, 737.64, plus a daily per diem accrual of $4.5593 thereafter to date of judgment. No objection being made to the Motion or Affidavit of the Motion, the Motion is allowed and the Affidavit is admitted into evidence in this cause.

5. The following person may have claimed an interest in the above-described property, but who is foreclosed from asserting their claim, if any, because of his default in this action: James Justin Bernard.

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

DESCRIPTION
Lot Four (4) in Block Four (4) in the Original Town of
New Canton, Pike County, Illinois
PIN No. 56-050-03
Common address or location of mortgaged premises:
190 E. Farmer Street, New Canton, IL 62356

7. By virtue of the mortgage and the indebtedness thereby secured, as alleged in the complaint, there is due Plaintiff, UNITED STATES OF AMERICA, as follows:

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

James Justin Bernard.

9. Pike County, Illinois, has a valid lien on the above-described property for taxes for the years 2014 and 2015 and the property will be sold subject to the interest of Pike 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 ...


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