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United States v. Rowe

United States District Court, D. Montana, Missoula Division

June 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEEANN ROWE, COLLECTION BUREAU SERVICES, INC., and LINCOLN COUNTY, a political subdivision of the State of Montana, Defendants.

          ORDER, 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, the United States, by and through its attorney, Victoria L. Francis, Assistant United States Attorney for the District of Montana, and after considering the pleadings and filings, it appearing there is no issue of material fact, the Court now makes the following Findings of Fact and Conclusions of Law.

         FINDINGS OF FACT

         This court has jurisdiction under 28 U.S.C. § 1345 because this action was commenced by the United States. The real property that is subject to this foreclosure action is located in Lincoln County, and more particularly described as follows:

Lot 15, Chapman's Homesites, according to the plat thereof on file in the office of the Clerk and Recorder of Lincoln County, Montana.

         2. The United States loaned DeeAnn Rowe the total principal sum of $68, 382.19 in the form of a Section 502 Rural Housing loan and assumption agreement. These loans are evidenced by an assumption agreement wherein DeeAnn Rowe assumed the debt of Robert E. Huff and Caroline C. Huff in the amount of $43, 332.19. DeeAnn Rowe also executed a promissory note in the original principal amount of $25, 050.00, both dated March 8, 2002. A true and correct copy of the assumption agreement and promissory note are attached to the Complaint as Exhibit A, (Doc. 1-1), and Exhibit B, (Doc. 1-2).

         3. As security for the above-described loans, DeeAnn Rowe executed a real estate mortgage on March 8, 2002, providing the United States a security interest in the real property described above to secure the amount owed under the terms of the assumption agreement and note. The mortgage was filed for record with the Clerk and Recorder of Lincoln County on March 8, 2002, in Book 272 at Page 706. A true and correct copy of the mortgage is attached to the Complaint as Exhibit C, (Doc. 1-3). In addition, the assumption agreement executed by DeeAnn Rowe assumes the real estate mortgage dated April 12, 1990, executed by Robert E. Huff and Caroline C. Huff, filed with the Clerk and Recorder of Lincoln County on April 12, 1990, in Book 155 at Page 693. A true and correct copy of the mortgage is attached to the Complaint as Exhibit D, (Doc. 1-4).

         4. Defendant DeeAnn Rowe is in default under the terms of the assumption agreement and promissory note described above due to failure to make timely payments of principal and interest as agreed. The account was accelerated on May 2, 2018. (Doc. 1 at ¶ 5.)

         5. Defendant DeeAnn Rowe is indebted to Plaintiff for the loans outlined above in the principal amount of $50, 003.19, plus interest computed at the daily rate of $8.60 per day for the accrued total amount of $2, 466.95, plus fees in the amount of $1, 837.62 ($24.33 late charges, fees for negative escrow of taxes and insurance of $1, 278.29, and $535.00 for litigation guarantee), for a combined total of $54, 307.76 as of November 16, 2018. In addition, if the value of the real property exceeds the principal and accrued interest ($54, 307.76), the Rural Housing Service is entitled to repayment of the interest credit subsidy pursuant to the repayment agreement dated March 8, 2002, attached to the Complaint as Exhibit E, (Doc. 1-5). The interest subject to recapture will be $36, 893.66, making a total of $91, 201.42 due and owing. Interest continues to accrue from November 16, 2018, at the rate of $8.60 per day until the date of entry of judgment. A true and correct copy of the Affidavit of Kimberly Maines of the Rural Housing Service is attached to the Complaint as Exhibit F, (Doc. 1-6), which verifies the amount due. Plaintiff seeks post-judgment interest pursuant to 28 U.S.C. § 1961. (Doc. 1 at ¶ 6.)

         6. Defendant Collection Bureau Services, Inc., a Montana corporation, has or may have an interest in the real property subordinate to the real estate mortgage of the United States by virtue of judgments against Dee Ann Rowe, filed in the Montana Nineteenth Judicial District Court, Lincoln County: February 25, 2008, under Cause No. DV-08-55; March 2, 2009, under Cause No. DV-09-30; June 1, 2009, under Cause No. DV-09-87; November 28, 2011, under Cause No. DV-11-299; and November 12, 2013, under Cause No. DV-13-241. (Doc. 1 at ¶ 7.)

         7. Defendant Lincoln County has or may have an interest in the property by virtue of real property taxes that may be due and owing. The principal amount of real property taxes takes priority over the mortgage held by the United States. (Doc. 1 at ¶8;Doc. 8at¶3.)

         8. Defendant Dee Ann Rowe was personally served by the Lincoln County Sheriffs Office with a copy of the Summons and Complaint. (Doc. 10.) Defendant DeeAnn Rowe did not make an appearance. Her Default was entered on May 29, 2019. (Doc. 13.)

         9. Defendant Collection Bureau Services, Inc. executed a Waiver of Service of Summons that was filed with the Court on February 22, 2019. (Doc. 5.) Defendant Collection Bureau Services, Inc. did not make an appearance. Its Default was entered on May 29, 2019. (Doc. 13.)

         10. Marcia Boris, Lincoln County Attorney, executed a Waiver of Service of Summons that was filed with the Court on March 6, 2019. (Doc. 7.) On March 7, 2019, Defendant Lincoln County filed a stipulation with the United States consenting to entry of judgment, decree of foreclosure, and order of sale. (Doc. 8.) It was further stipulated that any judgment shall recognize the priority of the principal amount of any real property taxes ...


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