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FEDERAL DEPOSIT INS. CORP. v. SIMON

April 29, 1985

FEDERAL DEPOSIT INSURANCE CORPORATION, A CORPORATION ORGANIZED UNDER THE LAWS OF THE UNITED STATES OF AMERICA, IN ITS CORPORATE CAPACITY, PLAINTIFF,
v.
SCOTT SIMON, SHELDON SHAPIRO, AMERICAN NATIONAL BANK & TRUST COMPANY, AS TRUSTEE U/T/A NO.41568, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

MEMORANDUM ORDER

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.

I. FACTS

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. ...


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