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United States v. VanLuchene

United States District Court, D. Montana, Billings Division

September 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERT VANLUCHENE, and YELLOWSTONE COUNTY, a political subdivision of the State of Montana,, Defendants.

          JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE

          SUSAN P. WATTERS, UNITED STATES DISTRICT COURT JUDGE

         This matter having been before this Court by Plaintiff, United States of America, by and through its attorney, Victoria L. Francis, 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 the subject of this foreclosure action is located in the County of Yellowstone, State of Montana, and is described as follows:

That part of the S1/2 SE1/4 of Section 30, Township 1 South, Range 25 East, of the Principal Montana Meridian, in Yellowstone County, Montana, described as Tract 34, of Certificate of Survey No. 1133 on file in the office of the County Clerk and Recorder of said County, under Document No. 845884.

         2. Albert VanLuchene received a Home Equity Conversion loan and mortgage/deed of trust, commonly referred to as a reverse mortgage from Intermountain Mortgage Co. Inc., on September 20, 2004. The Home Equity Conversion program was established by Congress under 12 U.S.C. § 1715 et seq. The loan and deed of trust was subsequently assigned to the U.S. Department of Housing and Urban Development (HUD). No payments on such loans are due, until all parties who signed the loan and mortgage are deceased, or have vacated the premises for one year. The loan is evidenced by a promissory note dated September 20, 2004. A true and correct copy of the promissory note is attached to the Complaint as Exhibit A.

         3. As security for the above-described loan Albert VanLuchene executed two Deeds of Trust as described below:

a.) A Deed of Trust with Intermountain Mortgage Co., Inc. as beneficiary on September 20, 2004. This Deed of Trust was filed for record with the Clerk and Recorder of Yellowstone County on September 24, 2005 as Document No. 3305881. The Home Equity Conversion deed of trust was insured by HUD under the National Housing Act as amended, 12 U.S.C. § 1701 et Seq. A true and correct copy of the Deed of Trust is attached to the Complaint as Exhibit B.
b.) A Deed of Trust with the Secretary of Housing and Urban Development as beneficiary on September 20, 2004. This Deed of Trust was filed for record with the Clerk and Recorder of Yellowstone County on September 24, 2004 as Document No. 3305883. A true and correct copy of the Deed of Trust is attached to the Complaint as Exhibit C.

         4. The Adjustable Rate Home Equity Conversion Deed of Trust originally held by Intermountain Mortgage as described in paragraph 3 above was subsequently assigned by Intermountain Mortgage to Financial Freedom Senior Funding Corporation, subsidiary of Lehman Brothers Bank, on September 24, 2004. The Assignment of Deed of Trust was filed with Yellowstone County Clerk and Recorder on September 24, 2004 under Document Number 3305882. Financial Freedom Senior Funding Corporation, subsidiary of Lehman Brothers assigned the Adjustable Rate Home Equity Conversion Deed of Trust to Financial Freedom Senior Funding Corporation, a subsidiary of Indymac Bank, on April 11, 2005. The assignment was recorded with the Yellowstone County Clerk and Recorder's Office on April 11, 2005, as Document Number 3328626. Financial Freedom Senior Funding Corporation, a subsidiary of Indymac Bank assigned the Adjustable Rate Home Equity Conversion Deed of Trust to the Secretary of Housing and Urban Development on April 17, 2009. The assignment was recorded with the Yellowstone County Clerk and Recorder on June 1, 2009, under Document Number 3 5 09763. True and correct copies of all of the Assignments of the Deed of Trust are attached to the Complaint as Exhibit D.

         5. The Deeds of Trust provide as security the real property located in Yellowstone County, Montana and described as follows:

That part of the S1/2 SE1/4 of Section 30, Township 1 South, Range 25 East, of the Principal Montana Meridian, in Yellowstone County, Montana, described as Tract 34, of Certificate of Survey No. 1133 on file in the office of the County Clerk and Recorder of said County, under Document No. 845884.

         6. Defendant, Albert VanLuchene, is in default under the terms of the promissory note and deeds of trust described above. The Deeds of Trust provide for immediate payment in full if the borrower dies or the property is not the principal residence of a least one surviving borrower. Albert VanLuchene is no longer living on the property. On June 1, 2016, Albert VanLuchene sent a letter notifying the lender that he no longer lived on the property. The account was accelerated on August 17, 2017.

         7. Defendant, Albert VanLuchene, is indebted to the Plaintiff for the loans outlined above in the principal amount of $116, 894.10, plus accrued interest in the amount of $59, 560.99 as of February 13, 2018, plus administrative charges for property tax, insurance and program fees in the amount of $18, 742.61 for a combined total of $195, 197.70 as of February 13, 2018. Interest continues to accrue from February 13, 2018, at the rate of $20.11 per day until the date of entry of judgment. Attached to the Complaint as Exhibit E ...


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