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U.S. Bank National Association v. Cook

January 6, 2009

U.S. BANK NATIONAL ASSOCIATION, PLAINTIFF,
v.
WENDY S. COOK A/K/A WENDY C. COOK, DEFENDANT AND COUNTERPLAINTFF,
v.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, COUNTERDEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the court on cross motions for summary judgment. Plaintiff U.S. Bank National Association ("U.S. Bank") moves for summary judgment in its favor. Defendant Wendy S. Cook a/k/a Wendy C. Cook ("Cook") also moves for summary judgment. For the following reasons, U.S. Bank's motion is granted and Cook's motion is denied.

BACKGROUND

This is an action regarding a mortgage foreclosure. The court has jurisdiction on the basis of diversity of citizenship; U.S. Bank is citizen of Ohio, and Cook is a citizen of Illinois. See 28 U.S.C. § 1332(a). Furthermore, the amount in controversy exceeds $75,000.00.

U.S. Bank filed suit against Cook to foreclose on a defaulted mortgage agreement.*fn1 In doing so, U.S. Bank asserts that it was assigned Cook's mortgage and claims all rights arising under the terms of the note and mortgage. Cook answered the complaint and filed a counterclaim alleging that her signature on the mortgage was forged and disclaiming knowledge of the series of transactions giving U.S. Bank an interest in the property. In response to Cook's counterclaim, U.S. Bank asserted ratification, equitable subrogation, conventional subrogation, and unjust enrichment as affirmative defenses.

The property in question is in Lake Forest, Illinois and was originally encumbered by a $550,000.00 mortgage lien held by Chase Home Finance, LLC ("Chase") as security for the loan. This original mortgage was executed by Peter Cook, Defendant Wendy Cook's husband, and Defendant Cook.

On November 22, 2005, Peter Cook refinanced the note and mortgage; he executed and delivered a note promising to pay New Century Mortgage Corporation ("New Century") the principal sum of $712,000.00. Peter Cook is deceased.

New Century subsequently received a mortgage interest in the property at issue. Chicago Title and Trust Company was retained to perform the closing of the loan. On November 28, 2005, a disbursement-only settlement was held and the proceeds of the loan were distributed. Pursuant to the settlement statement, $554,651.93 of the proceeds were used to satisfy the Chase mortgage. Chase's lien on the property was subsequently paid off and released. The remaining proceeds of the settlement were disbursed to satisfy various consumer debts; in addition, cash proceeds were disbursed to a joint account held by Peter Cook and Defendant Cook.*fn2

Mortgage Electronic Registration Systems, Inc. ("MERS") was an assignee of the mortgage securing the note and acted as a nominee for the holder and owner of the note. As evidence of the assignment from MERS to U.S. Bank, U.S. Bank identifies a Pooling and Service agreement*fn3 adducing proof of the assignment and its present interest in the property. U.S. Bank propounded William Haughton as a witness drawing upon his review of system files and notes to testify as to U.S. Bank's knowledge of the mortgage loan. Judy Faber, the Director of Records Management for Residential Funding Company, LLC, acknowledged the existence of the MERS--U.S. Bank assignment. Faber concluded that U.S. Bank is the current owner of the note and mortgage.

According to the terms of the note, the first payment was due on January 1, 2006. Payments were rendered through June 2006. Following Peter Cook's death on April 13, 2006, Defendant Cook made two additional mortgage payments. At present, U.S. Bank contends that it paid real estate taxes on the property at issue totaling $21,182.23; it calculates the unpaid principal and interest on the note at $845,211.39. U.S. Bank requests a total award of $866,393.62, plus interest accruing at $154.88 per day from September 22, 2008, and attorney's fees and costs. To the extent that the proceeds of the property are insufficient to satisfy the amount due, U.S. Bank seeks a deficiency judgment against Cook.

LEGAL STANDARD

Summary judgment is appropriate only when "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. Proc. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could find for the non-movant. Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). The movant in a motion for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record; if the party succeeds in doing so, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. Proc. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986). In considering motions for summary judgment, a court construes all facts and draws all inferences from the record in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986).

When parties file cross motions for summary judgment, each motion must be assessed independently, and denial of one does not necessitate the grant of the other.

M. Snower & Co. v. United States, 140 F.2d 367, 369 (7th Cir. 1944). Rather, each motion evidences only that the movant believes it is entitled to judgment as a matter of law on the issues within its motion and that trial is the appropriate course of action if the court disagrees with that ...


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