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Wells Fargo Financial, Inc. v. Daum

September 10, 2007


The opinion of the court was delivered by: John F. Grady, United States District Judge


This is a mortgage foreclosure action brought by Wells Fargo Financial, Inc. ("Wells Fargo"). The principal defense of pro se defendants David Daum and Carol Daum is that they entered into an oral settlement agreement with Wells Fargo that released them from the mortgage. Earlier this year, after requesting briefs on the issue, we ruled that because under Illinois law an agreement to release a mortgage does not have to be in writing in order to be enforceable, defendants are permitted as a matter of law to raise the oral agreement as an affirmative defense.

Wells Fargo has now filed a motion for summary judgment.*fn1 Pursuant to the briefing schedule set by the court, the Daums' response to the motion was due on July 6, 2007. On July 9, 2007, David Daum sent a letter to the court stating that he would be filing his materials five days late, on July 11, 2007. Mr. Daum indicated that he intended to file his letter on the court docket, as well as a motion for an extension of time to file a response, a response, a statement of material facts, a cross-motion for summary judgment, a motion to strike, and a motion for entry of an "order regarding mortgage lien amount and for limited appointment of settlement assistance counsel." It is now two months later, and since the July 9 letter, the court has received no further communication from the Daums, and they have failed to file anything with the court. Therefore, we will proceed to decide Wells Fargo's motion without a response from the Daums.


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). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). Summary judgment should be denied if the dispute is 'genuine': 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court will enter summary judgment against a party who does not "come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question." McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).

Once the moving party has supported its motion for summary judgment, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Any fact asserted in the movant's affidavit will be accepted by the court as true unless the adverse party submits its own affidavits or other evidence contradicting the assertion. Curtis v. Bembenek, 48 F.3d 281, 287 (7th Cir. 1995). If the adverse party does not respond with evidence complying with Rule 56, "summary judgment, if appropriate, shall be entered against the adverse party." Fed. R. Civ. P. 56(e).

A pro se plaintiff is entitled to have his pleadings construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). Such plaintiffs are also entitled to a certain amount of latitude with respect to the technical rigors of summary judgment. Kincaid v. Vail, 969 F.2d 594, 598 (7th Cir. 1992). However, where a pro se plaintiff has not pointed to anything beyond conclusory statements in the pleadings which would indicate the existence of a triable issue of fact, he has failed to meet his burden under Rule 56. See Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992) (holding that all pro se litigants are entitled to notice of the requirements of Rule 56 because failure to point to evidence beyond the complaint will result in summary judgment being entered against them).

Under the Local Rules of the Northern District of Illinois, a party filing a motion for summary judgment under Rule 56 must serve and file "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." N.D. Ill. Local R. 56.1(a)(3). Further, Local Rule 56.1(b)(3)(B) requires that the non-moving party file a reply containing "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." The reply must also include "any additional facts that require the denial of summary judgment," with appropriate references to the record. N.D. Ill. Local R. 56.1(b)(3)(C). "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Id. See generally Koszola v. Board of Educ., 385 F.3d 1104, 1108 (7th Cir. 2004).

In considering a motion for summary judgment, a court need not assume the truth of a nonmovant's conclusory allegations on faith or scour the record to unearth material factual disputes. Carter v. Am. Oil Co., 139 F.3d 1158, 1163 (7th Cir. 1998). "Ultimately, the court must decide 'whether the state of the evidence is such that, if the case were tried tomorrow, the plaintiff would have a fair chance of obtaining a verdict.'" Ostergren v. Village of Oak Lawn, 125 F. Supp. 2d 312, 319 (N.D. Ill. 2000) (quoting Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1573 (7th Cir. 1989)).

A. Wells Fargo's Complaint

The relevant facts, which we deem admitted because they are not controverted by the Daums, are as follows. The Daums own the property commonly known as 41 Pierce Road in Highland Park, Illinois (the "Pierce Road Property"). In 1999, the Daums were experiencing financial problems and sought to consolidate existing debt by taking out a new mortgage loan. The Daums had an existing mortgage loan with Norwest Financial Illinois, Inc. ("Norwest"), and they were contacted by a Norwest representative to arrange for a debt consolidation loan.

On December 29, 1999, the Daums executed and delivered to Norwest a Note in the amount of $436,372.58 as well as a Mortgage on the Pierce Road Property in order to secure the Note. The proceeds of the mortgage loan with Norwest were used to pay off several of the Daums' preexisting debts. The Mortgage was recorded by the Lake County, Illinois Recorder of Deeds on January 6, 2000.

The Note discloses the finance charges associated with the transaction and other disclosures required by the Truth in Lending Act and provides that the Daums grant Norwest a security interest in their property. The Note and the Mortgage require the Daums to make monthly payments on the debt to Norwest until paid in full. Wells Fargo became the successor in interest to Norwest.

In July 2001, the Daums stopped making their monthly mortgage payments and real estate tax payments, and they have not made any such payments since then. Due to the Daums' default, Wells Fargo accelerated the mortgage loan and filed a foreclosure action in state court. The Daums raised various affirmative ...

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