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AFFILIATED CAPITAL CORP. v. BUCK

April 27, 1995

AFFILIATED CAPITAL CORPORATION, Plaintiff,
v.
FREDERICK A. BUCK and MEDICAL AND SURGICAL HEALTH, INC., a Missouri corporation, Defendants.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 Undisputed Facts1

 Affiliated is an Illinois corporation, and MSHI was a Missouri corporation before being dissolved in April 1992. Mr. Buck was president of MSHI. In April 1993, Affiliated and MSHI entered into an agreement under which Affiliated would lease equipment to MSHI in return for payment. Mr. Buck signed the lease and a personal guarantee of the lease.

 Affiliated accepted the lease in Northbrook, Illinois, and all payments due under the lease were to be made in Illinois. The lease states:

 
Lessee agrees that all litigations, actions or proceedings . . . shall only be filed in courts of record in the State of Illinois or in a Federal Court for the Northern District of Illinois, and Lessee consents to the jurisdiction and venue of any such court . . . .

 Defendants signed the "Delivery Acceptance & Installation Certificate" which provides that all equipment was delivered, installed and accepted to their complete satisfaction; they will look solely to the seller or manufacturer for the performance of all covenants and warranties; they indemnify and hold Affiliated harmless from any nonperformance of the equipment; Affiliated is neither the manufacturer, distributor nor seller of the leased equipment; and the equipment is not being accepted on a trial basis.

 Defendants have defaulted in making payments under the lease. The balance due Affiliated is $ 67,268.05. Affiliated has incurred $ 7,104.12 *fn2" in attorneys' fees, which it claims defendants also owe. Affiliated has made reasonable efforts to mitigate its damages.

 Discussion

 Summary judgment must be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The party opposing summary judgment

 
may not rest upon the mere allegations or denials of [its] pleading, but [its] response . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 FED. R. CIV. P. 56(e); Lisek v. Norfolk and Western Railway Company, 30 F.3d 823, 832 (7th Cir. 1994); see also Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) ("If the nonmovant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." (emphasis supplied) (citations omitted)). In this case, neither MSHI nor Mr. Buck have responded to Affiliated's motion for summary judgment. Consequently, summary judgment for Affiliated, if appropriate, must be entered.

 Under the agreement executed by Affiliated and MSHI, Affiliated agreed to lease equipment to MSHI in return for rent payments from MSHI. MSHI subsequently executed a "Delivery Acceptance & Installation Certificate" accepting the equipment from Affiliated. MSHI then defaulted on the lease, and Affiliated is presently due $ 67,268.05.


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