exists under Illinois law. Accordingly, defendant Sheridan's
motion to dismiss must be denied.
Plaintiff has moved for summary judgment in each of these
cases pursuant to Rule 56 of the Federal Rules of Civil
Procedure on the deficiency counts asserted against defendant
Sheridan as guarantor. It is undisputed in each case that the
underlying trusts have defaulted under the terms of the notes
and that proceeds from the sale of the property ordered by this
Court were insufficient to satisfy the debt. Accordingly, this
Court has previously entered deficiency judgments against
LaSalle Trust No. 47441 in the amount of $67,502.19. LaSalle
Trust Nos. 100456 and 100474 in the amount of $560,011.24 and
LaSalle Trust No. 44669 in the amount of $272,823.62. It is
also undisputed that these debts remain unsatisfied.
In addition to asserting the same theory of pleading advanced
in his motions to dismiss and previously rejected by this
Court, supra, defendant Sheridan has responded to plaintiff's
motions for summary judgment on the deficiency counts by
raising a number of factual issues and affirmative defenses not
raised and, in some instances, contradicted by his answers
filed before this Court. For purposes of this motion, defendant
has not filed any affidavits in support of his factual
allegations or affirmative defenses. After careful review of
those allegations, this Court is unable to find a material
issue of fact and, accordingly, will grant plaintiff's motions
for summary judgment.
In support of a motion for summary judgment, the moving party
has the burden of showing that there is no dispute as to any
genuine issue of fact material to a judgment in his favor as a
matter of law. Cedillo v. International Association of Bridge &
Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th
Cir. 1979); Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.
1976). The non-moving party is entitled to all reasonable
inferences that can be made in its favor from the evidence in
the record. United States v. Diebold, Inc., 369 U.S. 654, 655,
82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Moutoux v. Gulling
Auto Electric, 295 F.2d 573, 576 (7th Cir. 1961). While the
non-moving party is entitled to all reasonable inferences in
its favor, it must affirmatively set forth specific facts in
affidavits or otherwise demonstrate that there are issues that
must be decided at trial in response to the moving party's
assertions that no genuine material issues of fact exist. First
National Bank of Arizona v. Cities Service Co., 391 U.S. 253,
289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968); Kirk v.
Home Indemnity Co., 431 F.2d 554, 560 (7th Cir. 1970). The
non-moving party cannot create an issue of material fact
through conjecture or speculation as to what evidence might be
adduced at trial or what might be turned up by further
discovery. Abiodun v. Martin Oil Service, Inc., 475 F.2d 142,
144 (7th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 57, 38
L.Ed.2d 86 (1973); Kirk v. Home Indemnity Co., supra; O'Brien
v. McDonald's Corp., 48 F.R.D. 370, 373-74 (N.D.Ill. 1970); 6
Moore's Federal Practice ¶ 56.17 (2d ed. 1966).
In all three cases presently before this Court, defendant
Sheridan has alleged for the first time in his response brief
that a summary judgment would deny him the opportunity to
demonstrate at a full evidentiary hearing that the guaranties
at issue in this case were obtained by duress. Even in these
briefs, however, the defendant has not alleged that the
guaranties were in fact obtained by duress. Moreover, the
defendant has failed to plead or otherwise allege any facts
whatsoever in support of this potential allegation. The
defendant's oblique reference to duress falls far short of the
showing necessary to withstand a motion for summary judgment.
The failure to
plead such an affirmative defense results in the waiver of that
defense. Cf. Roe v. Sears, Roebuck & Co., 132 F.2d 829, 832
(7th Cir. 1943); Federal Savings & Loan Insurance Corp. v.
Szarabajka, 330 F. Supp. 1202, 1203 (N.D.Ill. 1971); First
National Bank of Lincolnwood v. Keller, 318 F. Supp. 339, 345
In 80 C 5510, defendant Sheridan also argues for the first
time in his response brief that "no exhibits are attached to
the Complaint demonstrating that Defendant agreed to or
executed an additional guaranty to the first extension [of the
note and mortgage]." Def. Response at p. 2. The defendant fails
to affirmatively allege, however, that he never agreed to or
executed such an additional guaranty. The defendant also fails
to allege or otherwise show any facts supporting this potential
defense. Indeed, as evidenced by exhibits submitted by
plaintiff in support of its motion for summary judgment, the
defendant did, in fact, execute an additional guaranty to the
first extension. Moreover, the "Second Consent of Guarantor,"
executed by the defendant on March 21, 1980, and attached as
Exhibit 12 to the original complaint, expressly acknowledges
the first extension. In this light, the defendant's indirect
suggestion that the complaint is insufficient or that he may
never have agreed to or executed an additional guaranty to the
first extension falls well short of the showing necessary to
survive a motion for summary judgment.
In 80 C 5836, defendant argues that because the copy of the
guaranty attached to the plaintiff's complaint is not signed by
the defendant, the guaranty cannot be enforced against him.
This argument is disingenuous. Again the defendant does not
deny that he signed the guaranty. Indeed, his answer to
plaintiff's original complaint admits that he signed the
guaranty. In this context, under state as well as federal
principles of pleading, the fact that plaintiff attached an
unexecuted copy of the guaranty in the original complaint does
not establish a genuine issue of material fact for purposes of
Defendant finally argues that "there is no extension of
guaranty attached to this Complaint that would conform with the
amendment and modification to Junior Mortgage or Modification
to Principal Note." Defendant's Resp. at p. 2. In addition to
failing to allege a material fact in issue, this statement
flatly contradicts the admissions in defendant's answer.
Accordingly, this Court finds no genuine issue of fact
sufficient to deny summary judgment.
For the reasons stated above, the Court denies defendant
Sheridan's motions to dismiss Count III in 80 C 5509 and 80 C
5510 and Count II in 80 C 5836. The Court grants plaintiff's
motions for summary judgment against defendant Arthur Sheridan
in Count III of 80 C 5509 for the amount of $67,509.19 and
costs, in Count III of 80 C 5510 for the amount of $560,011.24
and costs, and in Count II of 80 C 5836 for the amount of
$272,823.62 and costs. It is so ordered.