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FIREMAN'S FUND MORTG. CORP. v. ZOLLICOFFER

June 1, 1989

FIREMAN'S FUND MORTGAGE CORP., etc., Plaintiff,
v.
MONDELL ZOLLICOFFER, et al., Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES RONALD NORGLE, UNITED STATES DISTRICT JUDGE.

 This matter is before the court on the motion of Fireman's Fund Mortgage Corp. ("FFMC") for summary judgment on its Complaint to foreclose Mortgage and on defendants' counterclaims, pursuant to Fed. R. Civ. P. 56(b). For the following reasons, FFMC's motion is granted.

 DISCUSSION

 FFMC, formerly Manufacturers Hanover Mortgage Corporation, is the mortgagor of certain residential property (the "Premises") under the Mortgage and accompanying Promissory Note ("Note") executed by Mondell and Shirley Zollicoffer (the "Zollicoffers"). The Zollicoffers made two payments under the Note and Mortgage. The Zollicoffers failed to make the third payment due on July 1, 1986 and have not made any further payments under the Note and Mortgage. They are currently 33 payments, or approximately $ 94,768.28, in arrears under the Note and Mortgage. FFMC accelerated the Note and Mortgage and filed its Complaint to Foreclose Mortgage on February 13, 1987. The Zollicoffers have admitted that they have not made the payments required under the Note and Mortgage, but assert that their failure to make mortgage payments are "minor breaches" and that certain actions taken by FFMC to secure the premises, after the Zollicoffers had already defaulted on four payments, constituted a material breach of the Mortgage, thereby relieving the Zollicoffers of their obligations under the Note and Mortgage. FFMC's actions in securing the premises, in addition to providing an affirmative defense, are also the basis of counterclaims asserted by the Zollicoffers for Trespass to Land, Breach of Mortgage Contract, Violation of Statutory Remedies, Breach of Implied Covenant of Good Faith and Fair Dealing, Forcible Entry, Conversion and Punitive Damages (the "Counterclaims"). During the pendency of this action, Mondell Zollicoffer died. In addition to her individual status as a defendant and counter-plaintiff, Shirley Zollicoffer, as administrix of Mondell Zollicoffer's estate, has been substituted for him as defendant and counter-plaintiff on the surviving Counterclaims.

 SUMMARY JUDGMENT STANDARDS

 Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see also First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Accordingly, the nonmoving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id.

 In addition to the requirements of Rule 56(c), the parties must comply with Local General Rule 12. FFMC has complied with Local General Rule 12 by submitting a separate, appropriately captioned statement of material facts as to which they contend there is no genuine issue and upon which they allege entitlement to judgment. Specific references are made to the record to support their assertion as to each material fact. See Abrams v. City of Chicago, 635 F. Supp. 169, 171-72 (N.D. Ill. 1986). The Zollicoffers, as is required by Local General Rule 12, have responded to the facts as stated by FFMC, in substance admitting to the majority of them. As for the facts with which the Zollicoffers have disagreements, their assertions are either unsupported by the record or amount to legal conclusions. The Zollicoffers, also pursuant to Local General Rule 12, have submitted their own statement of undisputed facts. However, many of the facts they submit are unsupported by the record, equivalent to those submitted by FFMC or immaterial. Moreover, numerous proposed facts are contrary to Local General Rule 12 in that they do not contain references to the record. See Defendant's Proposed Statement of Uncontested Fact paras. 7, 9, 15, 18, 20, 22, 23, 27, 38. The facts submitted by FFMC are largely supported by the record and present an accurate picture of the facts of this case based upon that record.

 UNDISPUTED MATERIAL FACTS

 The court adopts the plaintiff's statement of material facts, with editing, as the undisputed material facts in this matter:

 1. On March 21, 1986, the Zollicoffers executed, in favor of FFMC, the Note and the Mortgage securing the Note in connection with the purchase of a single-family residence in Country Club Hills, Illinois. (Complaint para. 4(b), (c)(i); Answer para. 4). FFMC's loan to the Zollicoffers was insured by the United States Federal Housing Administration (the "FHA"). (Vitale aff. para. 9). The Note and Mortgage provide for monthly payments due on the first of each month, commencing on May 1, 1986, in the amount of $ 710, consisting of principal and interest on the Note and a provision for taxes and insurance. (Vitale Aff. Ex. A-C).

 2. The Note provides, in pertinent part, as follows:

 
Upon default in the payment of any such installment of principal and interest for a period of thirty (30) days after the due date thereof, the holder of this note may, at its option, and without notice, declare all the unpaid principal and accrued interest on said note immediately due and payable.

 3. The Mortgage further provides that the mortgagor covenants and agrees:

 
To keep said premises in good repair, and not to do, or permit to be done, upon said premises anything that may impair the value thereof, or of the security intended to be effected by virtue of this instrument;
 
In case of the refusal or neglect of the Mortgagor to make such payments, . . . or to keep said premises in good repair, the Mortgagee may pay such taxes, assessments, and insurance premiums, when due, and may make such repairs to the property herein mortgaged as in its discretion it may deem necessary for the proper preservation thereof, and any moneys so paid or expended shall become so much additional indebtedness, secured by this mortgage, to be paid out of proceeds of the sale of the mortgaged premises, if not otherwise paid by the Mortgagor.
 
In the event of default in making any monthly payment provided for herein and in the note secured hereby for a period of thirty (30) days after the due date thereof, or in a case of a breach of any other covenant or agreement herein stipulated, then the whole of said principal sum remaining unpaid together with accrued interest thereon, shall, at the election of the Mortgagee, without notice, become immediately due and payable.

 4. The regulations of the Department of Housing and Urban Development ("HUD"), applicable by virtue of the FHA loan guarantee, further provide ...


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