the Bank bringing this instant action to collect on the exact same Note.
Menaldi's Motion at pp. 4-5. However, Menaldi, either wilfully or ignorantly, fails to distinguish between judicial recognition in a foreclosure action that a party has a valid lien on a property and entry of a personal deficiency judgment. The former permits a party to receive proceeds from the public sale of a property, while the latter authorizes a party to seek payment from the debtors himself. See Ill. Rev. Stat. ch. 110 P 15-1504(e)-(f); Ill. Rev. Stat. ch. 110 P 15-1506(i). In both Branigar and Marina Bank, just as in Lakeview and Banks, defendants fail to offer any evidence that BOC received a personal deficiency judgment against the defendants. Absent such evidence, we will not grant summary judgment against BOC.
B. Default and Sanctions
BOC asks this Court to enter a default judgment against defendants and impose other sanctions because (1) defendants failed to participate in the preparation of the pretrial order as directed by this Court, (2) defendants' counsel misrepresented to the Court that they had just discovered "new" evidence which would bar BOC's claim as res judicata and excuse their failure to participate in the preparation of the pretrial order, and (3) defendants disregarded the Court's October 20, 1992 direction to file summary judgment motions based on the "new" evidence. BOC's Reply at pp. 1-2.
At bottom, all of these complaints revolve around the troubling allegation that defendants misrepresented themselves when they asserted that they had recently discovered new evidence that indicated that BOC had already received a judgment on the Note which would bar BOC's claim as res judicata.6 In its hearing on October 20, 1992, we granted defendants leave to file a motion for summary judgment on the strength of Wiczer's assertion that newly-received evidence revealed that BOC had already obtained judgment on the Note.
The allegedly new evidence
involves a Decree for Foreclosure ("Decree") entered in the Branigar case.
However, the Decree clearly did not grant BOC a personal deficiency judgment in Branigar.10
Although BOC charges that Wiczer has misrepresented the source of the Branigar evidence, we are decidedly more concerned by the fact that the evidence itself, even if it was newly-received, clearly does not bar the present action, as it in no way reflects a personal judgment on the Note. In fact, as BOC points out, Diogenes himself, having asserted the dispositive nature of the evidence, fails to rely upon, or even make more than passing mention of, Branigar in his motion for summary judgment. In the Supplemental Statement of Facts attached to his Reply, Diogenes even concedes that "the Bank of Chicago did not obtain a deficiency judgment upon the Note" in Branigar. See Supp. Stmt. of Facts at P 11.
Menaldi, too, fails to rely on Branigar. Like Diogenes, Menaldi mentions Branigar, and then relies almost exclusively on Lakeview for his claim that BOC's present action is barred by res judicata. Defendants have never alleged, however, that information in Lakeview was "new" evidence at the time of the October 20 hearing.
At the October 20 hearing, BOC informed the Court that it had reviewed Diogenes' motion, and that the order entered in Branigar did not dispose of the issue of a deficiency judgment between BOC and Diogenes. At the time, we stated that we would delay filing the pretrial order, but that we would enter appropriate sanctions and cover BOC's costs if defendants' motions were not meritorious. Given defendants' failed motions and their specious new evidence, we now impose sanctions on both Diogenes and Menaldi and award attorneys' fees and costs incurred by BOC due to defendants' respective motions and the delayed filing of the pretrial order.
For the foregoing reasons, we deny both defendants' motions for summary judgment and award plaintiff attorneys fees and costs incurred as a result of defendants' respective motions and the delay in filing the pretrial order. It is so ordered.
MARVIN E. ASPEN
United States District Judge