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Thomas v. CitiMortgage

July 24, 2006

ROBERT C. THOMAS, PLAINTIFF,
v.
CITIMORTGAGE, INC., DEFENDANT.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Robert C. Thomas ("Thomas") filed a five-count complaint against defendant CitiMortgage, Inc. ("CitiMortgage"). The Court previously dismissed two of plaintiff's claims. Plaintiff's claims for negligent credit reporting, breach of contract and tortious interference are still pending. Defendant filed a motion for summary judgment. Plaintiff argues that he is entitled to summary judgment, but he has not filed a motion. For the reasons set forth below, the Court grants defendant's motion for summary judgment.

I. Background

The following facts are undisputed unless otherwise noted.*fn1

Plaintiff Thomas is a citizen of the state of Illinois. Defendant CitiMortgage is a Delaware corporation with its principal place of business in Missouri. In November 1979, Thomas assumed a previously existing mortgage, which CitiMortgage now holds.

Under the terms of the mortgage, Thomas was required to make a monthly payment on the first day of each month. It is undisputed that for during the year 1996, payments posted to Thomas's mortgage account on the following dates: January 25, 1996, February 29, 1996, March 21, 1996, April 22, 1996, June 24, 1996, July 29, 1996, August 22, 1996, September 23, 1996, October 31, 1996, November 22, 1996, December 19, 1996 and December 26, 1996. It is undisputed that Thomas wrote a check ("check # 2279") on or about May 22, 1996 and mailed the payment to CitiMortgage. It is undisputed that CitiMortgage never received the check. It is undisputed that check # 2279 never posted to Thomas's mortgage account with CitiMortgage.*fn2

Beginning in May 1996, CitiMortgage contacted Thomas by letter and phone to inform him that his account was in arrears. Thomas responded in December 1996. Specifically, on December 16, 1996, Thomas sent to Lee Hilliard ("Hilliard") of CitiMortgage a letter stating that he had sent a check numbered 2279 ("check #2279") to CitiMortgage on May 22, 1996 but that the check had apparently been lost. The parties agree that CitiMortgage never received or deposited check #2279, and that check #2279 never cleared Thomas's account. In fact, Thomas put a "stop payment" on check #2279 so that it could not be deposited.

In his December 16, 1996 letter to CitiMortgage, Thomas also wrote:

My primary concern is the effect on my credit rating and the fact that I have an application to refinace [sic] the mortgage which cannot be finalized, at great cost to me, unless this matter is resolved and my credit cleared up. I have enclosed a check in the amount of the monthly payment on condition that it be applied to tha [sic] May payment and that it will allow you to remove the negative material relative to my credit rating. I will put a stop payment on check # 2279, or if it has already been processed somehow, I can be given a credit at the closing of the new mortgage.

CitiMortgage cashed the check enclosed with the December 16, 1996 letter and credited it to Thomas's account.

II. Summary Judgment Standards

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When making such a determination, the Court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

III. Discussion

When considering a state law claim pursuant to the Court's diversity jurisdiction, the Court applies federal procedural rules and state substantive law. Anderson v. Griffin, 397 F.3d 515, 520 (7th Cir. 2005). The duty of a federal court applying state substantive law is "to predict what the state's highest court would do if presented with the identical issue." Taco Bell Corp. v. Continental Casualty Co., 388 F.3d 1069, ...


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