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United States v. Jore

United States District Court, D. Montana, Missoula Division

January 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TONYA Y. JORE f/k/a TONYA Y. AZURE, and LAKE COUNTY, a political subdivision of the State of Montana, Defendants.

          JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE

          DONALD W. MOLLOY UNITED STATES DISTRICT COURT JUDGE.

         This matter having been brought before the Court by Plaintiff, United States of America, by and through its attorney, Keith A. Jones, Assistant United States Attorney for the District of Montana, and upon considering the pleadings filed herein, it appears there is no issue of material fact, and the Court now makes the following Findings of Fact and Conclusions of Law.

         FINDINGS OF FACT

         1. This court has jurisdiction of this action for the reason that the United States of America is the party Plaintiff under 28 U.S.C. § 1345. The real property that is subject to this foreclosure action is located in Lake County, and more particularly described as follows:

A portion of the S1/2NE1/4 of Section 22, Township 18 North, Range 20 West, P.M.M., Lake County, Montana. Further identified as being Tract 1 on Certificate of Survey No. 5351, on file and of record in the office of the Clerk and Recorder of Lake County.

         2. The United States loaned Tonya Y. Jore f/k/a Tonya Y. Azure the sum of $66, 280.00 in the form of a Section 502 Rural Housing loan. This loan is evidence by a promissory note for $66, 280.00, dated August 19, 1997. In addition, Tonya Y. Jore f/k/a Tonya Y. Azure, executed a second promissory note on October 24, 1997, in the amount of $7, 500.00. True and correct copies of the promissory notes are attached to the Complaint as Exhibit A and B.

         3. As security for the above-described loans Tonya Y. Jore f/k/a Tonya Y. Azure executed a real estate mortgage on October 24, 1997, providing the United States a security interest in the real property described above. The mortgage was filed for record with the Clerk and Recorder of Lake County on October 24, 1997, as document number 385619. Additionally, Rural Housing Service holds a prior mortgage, which is still of record (recorded August 19, 1997), which mortgage was executed by Tonya Y. Jore f/k/a Tonya Y. Azure. True and correct copies of the mortgages are attached to the Complaint as Exhibit C and Exhibit D.

         4. Defendant, Tonya Y. Jore f/k/a Tonya Y. Azure, is in default under the terms of the promissory notes described above due to failure to make timely payments of principal and interest as agreed. The account was accelerated on April 10, 2008.

         5. Defendant, Tonya Y. Jore f/k/a Tonya Y. Azure, is indebted to the Plaintiff for the loans outlined above in the principal amount of $42, 472.47, plus interest computed at the daily rate of $8, 861 per day for the accrued total amount of $4, 572.43, plus fees in the amount of $2, 281.46 ($71.75 late charges, fees currently assessed $2, 138.41 and required fees of $71.30), for a combined total of $49, 326.36 as of August 14, 2017. In addition, if the value of the real property exceeds the principal and accrued interest ($49, 326.36), the Rural Housing Service is entitled to repayment of the interest credit subsidy pursuant to the repayment agreement dated August 19, 1997, attached to the Complaint as Exhibit E. The interest subject to recapture will be $11, 555.02, making a total of $60, 881.38 due and owing. Interest continues to accrue from August 14, 2017, at the rate of $8, 861 per day until the date of entry of judgment. A true and correct copy of the Affidavit of Kimberly Maines of Rural Housing Service is attached to the Complaint as Exhibit F, which verifies the amount due. Plaintiff seeks post-judgment interest pursuant to 28 U.S.C. § 1961.

         6. Defendant, Lake County, has or may have an interest in the properly by virtue of real properly taxes that may be due and owing. The principal amount of such takes priority over the United States.

         7. Defendant Tonya Y. Jore f/k/a Tonya Y. Azure was personally served by the Lake County Sheriffs office with a copy of the Summons and Complaint. (Dkt. 7.) Defendant Tonya Y. Jore f/k/a Tonya Y. Azure, did not make an appearance. Her Default was entered on December 8, 2017. (Dkt. 10.)

         8. Steven N. Eschenbacher, Lake County Attorney, executed a Waiver of Service of Summons; it was filed with the Court on October 5, 2017. (Dkt. 4.) On October 5, 2017, Defendant Lake County, filed a stipulation with the United States consenting to entry of judgment, decree of foreclosure, and order of sale. It was further stipulated that any judgment shall recognize the priority of the principal amount of any real properly taxes owed or to be assessed against the property that is subject of the foreclosure to the date of sale. (Dkt. 5.)

         CONCLUSIONS OF LAW

         9. Lake County, Montana has priority for the principal amount of any ...


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