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United States v. Novak

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


March 3, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DAVID B. NOVAK, DEFENDANT.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM

In response to the United States' Motion for Entry of Partial Final Order of Forfeiture, Wells Fargo Bank, N.A. ("Wells Fargo") has filed what it labels as "Interested Party's Response to Motion of the United States for Entry of Partial Final Order of Forfeiture." Although this Court had granted the United States' motion after hearing from the parties on February 20, 2009, it contemporaneously granted leave to Wells Fargo's counsel to file a response for purposes of the record. This memorandum is issued---again for the record--to confirm that nothing in Wells Fargo's response calls for any action other than that already taken by this Court.

As Wells Fargo's response reflects, it impermissibly treats the motion as if it were a pleading, asserting at several points that it lacks sufficient knowledge or information to form a belief (see, as permitted in the context of an answer to a complaint, the provisions of Fed.R.Civ.P. 8(b)(5)). But such disclaimers play no role in motion practice, and here the United States has provided all the necessary support for entry of the forfeiture order.

This is not to say, of course, that the entry of the forfeiture order impairs whatever priority rights Wells Fargo may have. Thus to the extent that defendant David Novak's wife Denise may have a claim to 50% of the value of the real estate involved and that the United States has forfeited David Novak's asserted 50% interest in the same property, each of those interests has value only to the extent that an equity may exist in the property. If and to the extent that Wells Fargo's claimed interest stands ahead of the Novaks', its position in line has not changed.

20090303

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