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Ge Business Financial Services v. Alan T. Schiffman and

January 26, 2011

GE BUSINESS FINANCIAL SERVICES INC., FORMERLY KNOWN AS MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., PLAINTIFF,
v.
ALAN T. SCHIFFMAN AND, WILLIAM PETER RIDGEWAY CROSS, DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on GE Business Financial Services Inc.'s (GE) motion for summary judgment. For the reasons stated below, we grant the motion for summary judgment.

BACKGROUND

GE alleges that it loaned IBS Cobblestone Operating, LLC (Cobblestone) $21,100,000.00 (Loan) to purchase a 248 unit apartment complex and approximately 7.5 acres of adjacent land (Property). According to GE, Defendant William Peter Ridgeway Cross (Cross) and Defendant Alan T. Schiffman (Schiffman) each guaranteed the Loan pursuant to a guaranty dated August 8, 2007 (Guaranty). The Guaranty allegedly provided that, in the event of default, Defendants would pay GE the amount of any deficiency from a foreclosure sale (Deficiency Amount), "'up to, but not exceeding,' the Indebtedness, which is $3,210,000.00 plus Enforcement Costs." (Compl. Par. 16).

Cobblestone allegedly defaulted on the Loan, and GE conducted a non-judicial foreclosure sale (Sale) of the Property in Georgia on January 6, 2009. GE alleges that it bid $16,800,000.00 on the Property, which was $100,000.00 more than the appraised value of the Property. GE also alleges that, based on the Sale, the Deficiency Amount is $5,682,638.62. According to GE, since the Deficiency Amount exceeds the Indebtedness, Defendants jointly and severally owe GE $3,210,000.00, plus enforcement costs. GE allegedly demanded payment of this amount from Defendants, and Defendants allegedly have not made any payment. GE includes in its complaint breach of contract claims brought against Defendants. GE now moves for summary judgment on its claims.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

I. Schiffman's Failure to Respond to the Motion

Schiffman did not file any response to GE's motion for summary judgment despite being given an opportunity. Federal Rule of Civil Procedure 56 provides that, if the party opposing summary judgment does not "set out specific facts showing a genuine issue for trial, . . . summary judgment should, if appropriate, be entered against the party." Fed. R. Civ. P. 56(e)(emphasis added). Thus, "a non-movant's failure to respond to a summary judgment motion, or failure to comply with Local Rule 56.1, does not . . . automatically result in judgment for the movant." Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006)(citations omitted). Instead, "[t]he ultimate burden of persuasion remains with [the movant] to show that it is entitled to judgment as a matter of law." Id.(citation omitted). Therefore, Schiffman's failure to respond to GE's motion for summary judgment is not determinative in and of itself.

II. Compliance with Local Rule 56.1

As noted above, Schiffman did not file any response to GE's motion for summary judgment. Nor did Schiffman file any response to GE's statement of material facts. Cross filed a response to GE's motion for summary judgment, in which Cross either admits or denies the numbered paragraphs contained in GE's motion for summary judgment. However, Cross did not file a response to GE's statement of material facts. Local Rule 56.1 requires a party opposing a motion for summary judgment to file "a concise response to the movant's statement" of material facts. LR 56.1(b). When a party opposing a motion for summary judgment fails to file a response to the movant's statement of material facts, the court accepts the movant's statement of material facts as true. Parra v. Neal,614 F.3d 635, 636 (7th Cir. 2010). Based on Schiffman's and Cross' failure to respond to GE's statement of material facts, all the facts contained in GE's statement of material facts are deemed to be undisputed pursuant to Local Rule 56.1.

III. Liability on Breach of Contract

GE contends that there is sufficient evidence to find in its favor as a matter of law as to liability on the breach of contract claims. Under Illinois law, for a breach of contract cause of action, a plaintiff must establish: "(1) an offer and acceptance; (2) consideration; (3) definite and certain terms; (4) performance by the plaintiff of all required conditions; (5) breach; and (6) damages ...


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