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Harlem Algonquin LLC v. Canadian Funding Corp.

October 1, 2010


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


This case comes before the Court on a motion for a preliminary injunction filed by Plaintiff Harlem Algonquin LLC ("Plaintiff") against Defendant Canadian Funding Corporation ("Defendant"). Plaintiff requests a preliminary injunction ordering Defendant to fund a loan financing Plaintiff's purchase of real property. For the reasons stated below, Plaintiff's motion is denied.


This suit involves a loan that was to fund Plaintiff's purchase of a single-tenant commercial property in Algonquin, Illinois. In or around March 2010, Jared Margolis ("Margolis") formed plans to purchase the property with a newly-formed limited liability company. He acted through two existing limited liability companies in which he is a member and manager, MK Asset Management LLC and MK Asset Investment LLC (collectively, "MK Asset"). Through a broker, Margolis negotiated a loan commitment with Defendant. On June 3, Defendant sent the loan commitment to Margolis, and on July 15 it sent an amended loan commitment ("Amended Commitment"). The Amended Commitment names as the borrower a "Single Purpose Entity LLC Managed by MK Asset," and it names Margolis as a personal guarantor. According to the document, Defendant was to lend $3,168,800 to Plaintiff, secured by a first mortgage in the property, to be paid back at 7.99% interest over a five-year term.

Margolis executed the Amended Commitment on July 21 and then proceeded to formally organize Plaintiff Harlem Algonquin under Illinois law as a multiple-member, single-purpose limited liability company. Plaintiff ratified the acts of Margolis and MK Asset. In the meantime, Plaintiff also committed to purchase the commercial property in Algonquin. That deal was scheduled to close on September 25, 2010.

Problems arose when Defendant notified Plaintiff that it wanted personal guarantees and credit information from other of Plaintiff's members in addition to Margolis, as well as additional administrative fees to underwrite these "additional borrowers." Because Plaintiff does not believe that the additional requirements were part of the Amended Commitment, Plaintiff filed a two-count complaint in the Circuit Court of Cook County, Illinois. Count I requests specific performance of the loan contemplated in the Amended Commitment, while Count II alleges an anticipatory breach of the contract and requests damages.

Defendant removed the suit on diversity grounds and the case was referred to this Court for the purpose of resolving Plaintiff's preliminary injunction motion, entitled "Plaintiff's Emergency Motion for Injunctive Relief." The parties have executed a limited consent to magistrate judge jurisdiction over this motion, pursuant to 28 U.S.C. § 636(c)(1). On September 23, the Court held oral argument and denied Plaintiff's motion from the bench, stating that this written opinion would follow.


A preliminary injunction is an "extraordinary remedy," and "may only be awarded upon a clear showing that the party seeking it is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., --- U.S. ---, 129 S.Ct. 365, 375 (2008). The party moving for a preliminary injunction "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 374. The Seventh Circuit also considers whether an adequate remedy at law exists. Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). If the moving party meets its threshold burden, the court then weighs the factors in a sliding-scale analysis. Id.

Mandatory preliminary injunctions, which require the defendant to take some affirmative action, represent an even more extraordinary remedy. They are "cautiously viewed and sparingly issued," such that only "the clearest equitable grounds" will justify the remedy. Graham v. Medical Mut. of Ohio, 30 F.3d 293, 295 (7th Cir. 1997) (citations omitted); see also O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1012--18 (10th Cir. 2004) (McConnell, J., concurring), aff'd, 546 U.S. 418 (2006) (explaining the disfavored status of preliminary relief that disrupts the status quo).


The issue presented in this case is whether preliminary injunctive relief is available to force the funding of a mortgage loan like the one contemplated in the Amended Commitment. The Court concludes that it is not. As discussed below, Plaintiff can establish neither a likelihood of success on the merits nor that the equities tip in its favor.

A. Because Illinois Law Does Not Permit Specific Performance, Plaintiff Cannot Establish a Likelihood of Success on the Merits

For a preliminary injunction to issue, Plaintiff must first establish a likelihood of success on the merits. Winter, 129 S.Ct. at 375. Here, that means establishing a likelihood that under Illinois law*fn2 Plaintiff could obtain specific performance of the Amended Commitment. To state a cause of action for specific performance in Illinois, the plaintiff must show 1) the existence of a valid, binding, and enforceable contract; 2) compliance by the plaintiff with the terms of the contract, or proof that the plaintiff is ready, willing, and able to perform the contract; and 3) ...

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