The opinion of the court was delivered by: Bua, District Judge.
Before the Court is plaintiff Federal Deposit Insurance
Corporation's ("FDIC") motion for summary judgment in its favor
and against defendants Scott Simon, Sheldon Shapiro, American
National Bank & Trust Company, as Trustee U/T/A No. 41568, L &
S Management, and 3338 North Lincoln Building Service
(collectively referred to herein as the "Principal Defendants")
on Counts I through V of the FDIC's Complaint.
Since the Principal Defendants have failed to respond to
plaintiff's motion, the following facts are assumed to be true
for purposes of this motion pursuant to Rule 12(f) of the Local
Rules for the United States District Court for the Northern
District of Illinois.
1. Washington National Bank of Chicago (the "Bank") was a
banking association organized and existing under the laws of
the United States prior to May 18, 1984. Affidavit of Paul
Michaels ("Affidavit") at ¶ 2.
2. On or about May 18, 1984, the office of the Comptroller of
the Currency (the "Comptroller") determined that the Bank was
insolvent. Affidavit at ¶ 3.
3. Pursuant to 12 U.S.C. § 191 and 12 U.S.C. § 1821(c), the
Comptroller ordered the Bank closed and took possession of its
assets and affairs and tendered to the FDIC the appointment as
Receiver of the Bank. Affidavit at ¶ 4. 4. Pursuant to
12 U.S.C. § 1821(c), the FDIC accepted appointment as Receiver of
the Bank as tendered by the Comptroller (Affidavit, ¶ 5).
5. The FDIC, in its corporate capacity, and as authorized by
12 U.S.C. § 1823(c)(2)(A), purchased from the Receiver certain
assets of the Bank. Among the assets acquired from the Receiver
by the FDIC, in its corporate capacity, were the notes,
mortgages, assignments and other instruments, claims and
interests alleged in the Complaint of the FDIC in this case and
attached thereto as Exhibits A through E. Affidavit at ¶ 6.
6. On February 11, 1983, the Bank loaned Defendants Simon,
Shapiro, and American National Bank & Trust Company, as
Trustee, the sum of $100,000 (the "Loan"). Agreed Statement of
Counsel ("Agreed Statement") at ¶ 2.
7. The Loan was evidenced by the promissory notes attached to
the FDIC's Complaint as Exhibits B-1 and B-2. Agreed Statement
at ¶ 3.
8. The Loan was secured by a mortgage (the "Mortgage"). A true
and exact copy of the Mortgage is attached to the Agreed
Statement of Counsel as Exhibit 1. The property to which the
Mortgage attached is described on the Mortgage and in the
FDIC's Complaint. Agreed Statement at ¶ 4. The Mortgage created
a valid and duly perfected lien on the foregoing real estate in
favor of the Bank. Complaint and Answer at ¶ 11.
9. Legal title to the real estate is held by American National
Bank & Trust Company, as Trustee U/T/A No. 41568. Complaint and
Answer at ¶¶ 9 and 11. Defendants Scott Simon and Sheldon
Shapiro are the sole beneficiaries of that land trust.
Complaint and Answer at ¶¶ 9 and 13. Simon and Shapiro executed
and delivered an Assignment Under Land Trust in favor of the
Bank to further secure the indebtedness evidenced by the Note.
Agreed Statement at ¶ 5. A true and exact copy of the
Assignment Under Land Trust is attached to the FDIC's Complaint
as Exhibit C. Id.
10. As further collateral for the indebtedness evidenced by the
Note, American National Bank & Trust Company, as Trustee,
executed and delivered an Assignment of Rents. Agreed Statement
at ¶ 5. A true and exact copy of the Assignment of Rents is
attached to the FDIC's Complaint as Exhibit D. Id.
11. The Note recites that the maturity date on the indebtedness
evidenced thereby is no later than February 11, 1984. ...