Opinion
No. 04 C 0873.
May 7, 2004
Kenneth H. Fisher, Barry M. Fisher, Elizabeth Kaplan Meyers, Renee Meltzer Kalman, Michael S. Fisher, Marc D. Engel, Cynthia A. Sutherin, James R. Riegel, Randal S. Berg, F. Allan Storning, Joseph M. Herbas, FISHER AND FISHER, Attorneys at Law, P.C. Chicago, IL.
DEFAULT ORDER
THIS CAUSE COMING ON TO BE HEARD ON motion of plaintiff for entry of an Order finding certain Defendants in default;
IT IS HEREBY ORDERED that the following defendants are in default: Francis Ackerson and Riverbrook Estates Association.
ORDER APPOINTING SPECIAL COMMISSIONER
IT IS ORDERED THAT GERALD NORDGREN is hereby appointed Special Commissioner of the Court for the purpose of the sale at public venue of the property that is the subject matter of this action.JUDGMENT OF FORECLOSURE
This cause coming on to be heard on Plaintiff's Motion for Judgment, the Court FINDS:1. That it has jurisdiction of the parties hereto and the subject matter hereof and that service of process in each instance was properly made.
2. That the date when the last of the owners of the equity of redemption were served with summons or by publication was February 6, 2004.
3. That the redemption period in this case shall expire on September 7, 2004, unless shortened by further order of this Court.
4. That by virtue of the Mortgage and the Note secured thereby, there is due from the Mortgagors to the Plaintiff, and the Plaintiff has a valid and subsisting lien for said amount upon the hereinafter described property as follows:
Unpaid Principal: $ 211,579.00 Accrued interest on unpaid Principal to May 7, 2004; $ 11,461.82 Advances by Plaintiff: $ 3,330.79 Late Charges: $ 189.03 Plaintiff's Attorneys' fees: $ 1,100.00 Costs of Suit: $ 608.00 ____________ TOTAL JUDGMENT INDEBTEDNESS $ 228,268.64
5. The Mortgage described in the Complaint and hereby foreclosed appears of record in the Office of the Recorder of Deeds of WILL County, Illinois as Document No. R2003147917, and the subject property is legally described as follows:
LOT 24 IN RIVERBROOK ESTATES SECTION I-D, BEING A SUBDIVISION OF PART OF THE NORTHEAST 1/4 OF SECTION 4, TOWNSHIP 35 NORTH, RANGE 9 EAST OF THE THIRD PRINCIPAL MERIDIAN ACCORDING TO THE PLAT THEREOF RECORDED NOVEMBER 9, 1998 AS DOCUMENT NUMBER R-98-133698, IN WILL COUNTY, ILLINOIS.
C/K/A 5312 MEADOWBROOK STREET, PLAINFIELD, IL 60544 TAX ID # 06-04-103-028.
6. The names of Defendants personally liable for the deficiency, if any, with the exception of any Defendant who received a discharge in bankruptcy are:
Francis Ackerson
7. The rights and interests of all the other parties to this cause in the subject property are inferior and subordinate to the lien of the Plaintiff and are described as follows:
— Riverbrook Estates Association by reason of possible unpaid assessment liens
The amount set forth for each of these lien holders is not to be considered a Judgment by virtue of this Order, but which is subject to further order of this Court.
8. The Plaintiff has been compelled to retain legal counsel and to advance money in payment of costs, fees, expenses and disbursements for taxes, assessments and insurance in connection with this foreclosure, which under the terms of the Mortgage are made a lien upon the mortgaged real estate and which the plaintiff is entitled to recover together with interest on all advances at the rate of interest provided in the Mortgage, from the date on which such advances are made.
9. The allegations in Plaintiff's Complaint are true, and the equities in the cause are with Plaintiff, and Plaintiff is entitled to the relief prayed for in the Complaint including foreclosure of said Mortgage upon the real estate described therein in the amount of the Total Judgment indebtedness as found above, together with interest thereon at the statutory rate after the entry of this Judgment and with additional advances, expenses, and court costs as may be paid out by Plaintiff thereafter.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED:
1. REDEMPTION: The Defendant(s) homeowner(s) are ordered to pay to the Plaintiff the Total Judgment Indebtedness found due above before the expiration of the redemption period together with additional attorneys' fees, costs, advances, and expenses incurred thereafter with interest. In default of such payment, upon expiration of the redemption period, the mortgaged real estate may, at Plaintiff's discretion, be sold to satisfy the amount due to the Plaintiff together with interest, advances, and expenses incurred after Judgment at the statutory judgment rate from the date of the Judgment. This Court has approved the portion of the lien attributable to attorneys' fees in Finding 4 only for purposes of the foreclosure sale, and not for purposes of determining the amount required to be paid personally by Defendant in the event of redemption by defendants. In the event of redemption by Defendant or for purposes of any personal deficiency judgment, this court reserves the right to review the amount of attorneys' fees to be included for either such purpose. Plaintiff's counsel is required to notify defendants of the provisions of this paragraph.
2. THE SALE shall be by public auction with open verbal bid conducted by a Special Commissioner to be appointed by this Court. Federal law requires a public sale "at the outhouse of the county, parish or city in which the greater part of the property is located, or upon the premises or some parcel thereof located therein, as the court directs." 28 U.S.C. § 2001 (a). Exceptions to which title shall be subject at the sale shall include unpaid general real estate taxes, special assessments upon the real estate, easements and restrictions of record, as well as liens of records prior in right and interest to the lien herein foreclosed as well as any subordinate liens not included in this action and not foreclosed hereby.
3. PUBLICATION FOR SALE A Notice Of Sale specifying the time, date and location of the sale and identifying and describing the real estate to be sold shall be published at least four (4) consecutive calendar weeks, once in each week. The first such notice is to be published no more than 45 days prior to the sale; the last such notice is to be published not less than 7 days prior to the sale, pursuant to law. If the sale is to be continued to a later date less than 60 days after the last scheduled sale, notice of any adjourned sale shall be given verbally at the originally scheduled sale time and place.
4. REPORT OF SALE The person conducting the sale shall prepare a Report Of Sale specifying the amount of proceeds of sale realized and the disposition thereof. Said Report shall be delivered to Plaintiff's Attorney for presentation to the Court for its approval. Out of the proceeds of the sale, the person conducting the sale shall retain his fees and costs. Out of the remainder of such proceeds, the person conducting the sale shall pay to the Plaintiff the amount of this Judgment found to be due with interest on said sum, computed pursuant to 28 U.S.C. § 1961 (a), from the date of this Judgment to the date of sale plus advances by Plaintiff for the publication for Sale, taxes, maintenance, late charges, and other necessary items, plus interest thereon from the date of said expenditure to the date of sale.
In the event any party to this foreclosure is the successful bidder at the sale, such party may offset against the purchase price to be paid for such real estate the amounts due such party under this Judgment of Foreclosure, once said party's lien position has been adjudicated the court, plus amounts advanced for costs and expenses with interest thereon. In the event of a 3rd party bidder, the successful bidder shall pay to the person conducting the sale, no less than 10% down in certified funds, and the balance within 24 hours of the date of the sale. If the remainder of the proceeds shall not be sufficient to pay the above-described amounts, the person conducting the sale shall then specify the amount of the deficiency in his Report of Sale. If such remainder shall be more than sufficient to pay such amounts, the person conducting the sale shall hold the surplus subject to the further order of this Court.
5. CERTIFICATE OF SALE After the sale, the person conducting the sale shall give a Certificate of Sale to the purchaser. The certificate shall be freely assignable by endorsement thereon. Upon confirmation of the sale by Order of this Court, the person who conducted the sale shall execute a deed to the holder of the Certificate of Sale sufficient to convey title. Such conveyance shall be an entire bar of all claims of parties to the foreclosure and all claims of non record claimants given notice of the foreclosure as provided by statute.
6. POSSESSION The mortgagor shall have possession of said real estate until the sale is confirmed unless an order of Court to the contrary is entered. Upon confirmation of the sale by Order of this Court, the purchaser or his assigns, shall have a right to possession of the premises conveyed, and any of the parties in this cause who are in possession of said premises, and any persons who, since the commencement of this suit, have come into possession shall surrender possession thereof to such purchaser or be subject to eviction, 30 days after the Order confirming the Sale is entered by this Court.
7. The Court hereby retains jurisdiction of the subject matter of this cause and of all the parties hereto for the purpose of enforcing this Judgment, and for appointing a Receiver during the redemption period if necessary.
8. TERMINATION OF LEASES All leases now existing with respect to the subject property shall be terminated thirty (30) days after the confirmation of the sale of the subject property.