Order 3 22-CV-886 JD Doty
April 10, 2023 at 1:35 p.m.
By -
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA, Plaintiff,
v.
KENT DOTY, et al., Defendants.
Case No. 3:22-CV-886 JD
Now before the Court is a motion from Plaintiff the United States of America for an order pursuant to 28 U.S.C. § 1655 directing Defendant Heirs and Devisees of Kathryn E. Doty, Deceased, to appear and answer or plead. (DE 11). This is an action to enforce a lien upon real property located in Kosciusko County, Indiana, within this district, and particularly described as follows:
Lots Numbered One (1), Two (2), Fifteen (15), and Sixteen (16) in Little Turkey Creek Addition to the Town of Milford, according to the plat thereof recorded in the Recorder's Office of Kosciusko County, Indiana. Commonly Known As: 109 Turkey Creek Drive, Milford, Indiana 46542.
(DE 1 3.) Plaintiff indicates that the existence and whereabouts of Defendant Heirs and Devisees of Kathryn E. Doty, Deceased, is unknown and personal service on said Defendant therefore is not practicable, and they have not voluntarily appeared in this action. (DE 11.)
Accordingly, the Court GRANTS Plaintiffs motion. (DE 11.) IT IS ORDERED that Defendant Heirs and Devisees of Kathryn E. Doty, Deceased, is hereby directed to appear, plead, answer or otherwise move with respect to the Complaint herein, on or before 28 days from the last date of publication, or be in default thereof, and this Court will thereafter proceed in adjudication of this suit. It is further ORDERED that this Order be published in a newspaper of general circulation in Kosciusko County, Indiana, once a week for six (6) consecutive weeks, beginning no later than 28 days from the date of this Order. Lastly, the Court finds that the motion for default judgment is MOOT, given that the Heirs and Devisees of Kathryn E. Doty have not yet been served. (DE 9.) Plaintiff may refile said motion once said service takes place.
SO ORDERED.
ENTERED: March 30, 2023
/s/ JON E. DEGUILIO, Chief Judge
United States District Court
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
Case No.
UNITED STATES OF AMERICA, Plaintiff,
v.
THE UNKNOWN HEIRS AND DEVISEES OF KATHRYN E. DOTY, DECEASED,
KENT DOTY, PEG LEIGHTY, JANICE DOTY,
TOWN OF MILFORD, Defendants.
COMPLAINT
Comes now Plaintiff United States of America, by counsel, for and on behalf of its agency, Secretary of Housing and Urban Development (HUD), and for its cause of action alleges the following:
JURISDICTION
1. This is an action to foreclose a mortgage to recover indebtedness due the Plaintiff. This Court has jurisdiction pursuant to 28 U.S.C. Section 1345 and venue is proper.
COUNT ONE
(Default on Promissory Note)
2. On or about May 28, 2010, Kathryn E. Doty executed and delivered to Plaintiff a promissory note ("Note") in the amount of $195,000.00. A copy of said note is attached hereto as "Exhibit 1."
3. To secure payment of said promissory note, Kathryn E. Doty executed and delivered to Plaintiff a purchase money security agreement in the form of a real estate mortgage n the following described real estate in Kosciusko County, to wit:
Tax ID Number(s) 02070400183, 43-07-17-100-082.000-025
Land Situated in the County of Kosciusko in the State of IN
Lots Numbered One (1), Two (2), Fifteen (15) and Sixteen (16) in Little Turkey Creek Addition to the Town of Milford, according to the plat thereof recorded in the Recorder's Office of Kosciusko County, Indiana.
Commonly Known As: 109 Turkey Creek Drive, Milford, Indiana 46542, (the "Subject Property").
4. Plaintiff is the holder of the promissory note.
5. Kathryn E. Doty is deceased.
6. Kathryn E. Doty is in default in repayment of the obligation due to Plaintiff under the terms of the promissory note.
7. The Plaintiff accelerated the indebtedness and made demand for payment in full, and no payment has been received. All conditions precedent to the assertion of this cause of action against Kathryn E. Doty have been satisfied and/or have occurred.
8. Kathryn E. Doty owes Plaintiff, pursuant to the note and mortgage, as of March 22, 2022, owes the unpaid balance of $190,283.72, which includes principal, interest accrued to date and other pending fees and charges to the account as provided by the loan instruments and applicable law. Interest continues to accrue at the rate of $31.59 per day as provided by the loan instruments. In addition, the government may incur additional attorney's fees and costs and expenses associated with the preservation and sale of the real property, which may become due and owing under the terms of the note and mortgage.
COUNT TWO
(Foreclosure)
9. Plaintiff restates and incorporates by reference allegations 1 through 8 as though fully stated herein.
10. The Heirs and Devisees of Kathryn E. Doty are made Defendants to answer as to their interest in the real estate.
11. Kent Doty is made a Defendant to answer as to their interest in the real estate.
12. Peg Leighty is made a Defendant to answer as to their interest in the real estate.
13. Janice Doty is made a Defendant to answer as to their interest in the real estate.
14. Defendant Town of Milford is made a Defendant to answer as to their interest in real estate by virtue of a judgment in the amount of $618.39, plus costs, entered on October 6, 2021, as document number 2021100319.
15. The mortgage of Plaintiff is prior and paramount to the interest of all other parties to this action.
WHEREFORE, Plaintiff respectfully prays that the Court:
A. Enter judgment in rem against the mortgaged real estate in the amount of $190,283.72, together with interest accruing after March 22, 2022, to date of judgment at the rate of $31.59 per day, plus any such further costs and expenses as may be incurred to the date of the sale of the property, attorney's fees and all other costs herein;
B. Enter an order declaring Plaintiffs mortgage to be prior and paramount to the interests of all other parties and determining the amount and priorities of interest of all parties to the real estate: and an order foreclosing the equity of redemption of Defendants in the real estate;
C. Enter an order directing the sale of the property by the U.S. Marshal and Application of the proceeds first to the costs of sale, second to payment of the judgment of Plaintiff, with any then remaining proceeds paid to the Clerk of the Court to be disposed of as the Court shall direct.
D. Issue a Writ of Assistance upon proper Praecipe if the purchaser of the real Estate be denied possession; and
E. Award such other and further relief as is just and proper.
Respectfully submitted, Schuerger Law Group
By: Is/ James E.P. Sisto
James E.P. Sisto
Attorney for the Plaintiff
1001 Kingsmill Parkway
Columbus, OH 43229
Tel: (614)674-6901
Fax:(614)674-6906
Email Address: [email protected]
Copies to: [email protected]
4-12,19,26, 5-3,10,17
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA, Plaintiff,
v.
KENT DOTY, et al., Defendants.
Case No. 3:22-CV-886 JD
Now before the Court is a motion from Plaintiff the United States of America for an order pursuant to 28 U.S.C. § 1655 directing Defendant Heirs and Devisees of Kathryn E. Doty, Deceased, to appear and answer or plead. (DE 11). This is an action to enforce a lien upon real property located in Kosciusko County, Indiana, within this district, and particularly described as follows:
Lots Numbered One (1), Two (2), Fifteen (15), and Sixteen (16) in Little Turkey Creek Addition to the Town of Milford, according to the plat thereof recorded in the Recorder's Office of Kosciusko County, Indiana. Commonly Known As: 109 Turkey Creek Drive, Milford, Indiana 46542.
(DE 1 3.) Plaintiff indicates that the existence and whereabouts of Defendant Heirs and Devisees of Kathryn E. Doty, Deceased, is unknown and personal service on said Defendant therefore is not practicable, and they have not voluntarily appeared in this action. (DE 11.)
Accordingly, the Court GRANTS Plaintiffs motion. (DE 11.) IT IS ORDERED that Defendant Heirs and Devisees of Kathryn E. Doty, Deceased, is hereby directed to appear, plead, answer or otherwise move with respect to the Complaint herein, on or before 28 days from the last date of publication, or be in default thereof, and this Court will thereafter proceed in adjudication of this suit. It is further ORDERED that this Order be published in a newspaper of general circulation in Kosciusko County, Indiana, once a week for six (6) consecutive weeks, beginning no later than 28 days from the date of this Order. Lastly, the Court finds that the motion for default judgment is MOOT, given that the Heirs and Devisees of Kathryn E. Doty have not yet been served. (DE 9.) Plaintiff may refile said motion once said service takes place.
SO ORDERED.
ENTERED: March 30, 2023
/s/ JON E. DEGUILIO, Chief Judge
United States District Court
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
Case No.
UNITED STATES OF AMERICA, Plaintiff,
v.
THE UNKNOWN HEIRS AND DEVISEES OF KATHRYN E. DOTY, DECEASED,
KENT DOTY, PEG LEIGHTY, JANICE DOTY,
TOWN OF MILFORD, Defendants.
COMPLAINT
Comes now Plaintiff United States of America, by counsel, for and on behalf of its agency, Secretary of Housing and Urban Development (HUD), and for its cause of action alleges the following:
JURISDICTION
1. This is an action to foreclose a mortgage to recover indebtedness due the Plaintiff. This Court has jurisdiction pursuant to 28 U.S.C. Section 1345 and venue is proper.
COUNT ONE
(Default on Promissory Note)
2. On or about May 28, 2010, Kathryn E. Doty executed and delivered to Plaintiff a promissory note ("Note") in the amount of $195,000.00. A copy of said note is attached hereto as "Exhibit 1."
3. To secure payment of said promissory note, Kathryn E. Doty executed and delivered to Plaintiff a purchase money security agreement in the form of a real estate mortgage n the following described real estate in Kosciusko County, to wit:
Tax ID Number(s) 02070400183, 43-07-17-100-082.000-025
Land Situated in the County of Kosciusko in the State of IN
Lots Numbered One (1), Two (2), Fifteen (15) and Sixteen (16) in Little Turkey Creek Addition to the Town of Milford, according to the plat thereof recorded in the Recorder's Office of Kosciusko County, Indiana.
Commonly Known As: 109 Turkey Creek Drive, Milford, Indiana 46542, (the "Subject Property").
4. Plaintiff is the holder of the promissory note.
5. Kathryn E. Doty is deceased.
6. Kathryn E. Doty is in default in repayment of the obligation due to Plaintiff under the terms of the promissory note.
7. The Plaintiff accelerated the indebtedness and made demand for payment in full, and no payment has been received. All conditions precedent to the assertion of this cause of action against Kathryn E. Doty have been satisfied and/or have occurred.
8. Kathryn E. Doty owes Plaintiff, pursuant to the note and mortgage, as of March 22, 2022, owes the unpaid balance of $190,283.72, which includes principal, interest accrued to date and other pending fees and charges to the account as provided by the loan instruments and applicable law. Interest continues to accrue at the rate of $31.59 per day as provided by the loan instruments. In addition, the government may incur additional attorney's fees and costs and expenses associated with the preservation and sale of the real property, which may become due and owing under the terms of the note and mortgage.
COUNT TWO
(Foreclosure)
9. Plaintiff restates and incorporates by reference allegations 1 through 8 as though fully stated herein.
10. The Heirs and Devisees of Kathryn E. Doty are made Defendants to answer as to their interest in the real estate.
11. Kent Doty is made a Defendant to answer as to their interest in the real estate.
12. Peg Leighty is made a Defendant to answer as to their interest in the real estate.
13. Janice Doty is made a Defendant to answer as to their interest in the real estate.
14. Defendant Town of Milford is made a Defendant to answer as to their interest in real estate by virtue of a judgment in the amount of $618.39, plus costs, entered on October 6, 2021, as document number 2021100319.
15. The mortgage of Plaintiff is prior and paramount to the interest of all other parties to this action.
WHEREFORE, Plaintiff respectfully prays that the Court:
A. Enter judgment in rem against the mortgaged real estate in the amount of $190,283.72, together with interest accruing after March 22, 2022, to date of judgment at the rate of $31.59 per day, plus any such further costs and expenses as may be incurred to the date of the sale of the property, attorney's fees and all other costs herein;
B. Enter an order declaring Plaintiffs mortgage to be prior and paramount to the interests of all other parties and determining the amount and priorities of interest of all parties to the real estate: and an order foreclosing the equity of redemption of Defendants in the real estate;
C. Enter an order directing the sale of the property by the U.S. Marshal and Application of the proceeds first to the costs of sale, second to payment of the judgment of Plaintiff, with any then remaining proceeds paid to the Clerk of the Court to be disposed of as the Court shall direct.
D. Issue a Writ of Assistance upon proper Praecipe if the purchaser of the real Estate be denied possession; and
E. Award such other and further relief as is just and proper.
Respectfully submitted, Schuerger Law Group
By: Is/ James E.P. Sisto
James E.P. Sisto
Attorney for the Plaintiff
1001 Kingsmill Parkway
Columbus, OH 43229
Tel: (614)674-6901
Fax:(614)674-6906
Email Address: [email protected]
Copies to: [email protected]
4-12,19,26, 5-3,10,17
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