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Christopher Bilek and Mary Bilek v. Bank of America

March 3, 2011

CHRISTOPHER BILEK AND MARY BILEK, PLAINTIFFS,
v.
BANK OF AMERICA, N.A., FOR ITSELF AND AS SUCCESSOR TO COUNTRYWIDE BANK FSP AND COUNTRYWIDE HOME LOANS SERVICING, L.P., REAL TIME RESOLUTIONS, INC., AND AMERICAN HOME MORTGAGE SERVICING, INC., DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

On February 25, 2010, Plaintiffs Christopher and Mary Bilek (the "Bileks") filed the present eight-count Second Amended Complaint against various Defendants, including American Home Mortgage Servicing, Inc. ("AHMSI"), for violating the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq. (Count IV). See 28 U.S.C. § 1331. Based on the Court's supplemental jurisdiction, the Bileks also allege state law claims of breach of contract (Count V) and negligence/gross negligence (Count VI) against AHMSI. See 28 U.S.C. § 1367(a).

Before the Court is AHMSI's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the Court grants AHMSI's summary judgment motion as to the Bileks' RESPA claim as alleged in Count IV and dismisses the RESPA claim with prejudice. In addition, the Court declines to exercise its supplemental jurisdiction over the Bileks' state law claims as alleged in Counts V and VI of the Second Amended Complaint because the Court is dismissing with prejudice the Bileks' claim over which the Court has original jurisdiction. See 28 U.S.C. § 1367(c)(3).

BACKGROUND

I. Northern District of Illinois Local Rule 56.1

Northern District of Illinois Local Rule 56.1 assists the Court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). "The opposing party is required to file '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." Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Also, Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that require the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

Accordingly, pursuant to the Local Rules, the Court will not consider any additional facts that the Bileks proposed in their Local Rule 56.1(b)(3)(B) Response, but instead must rely on their Local Rule 56.1(b)(3)(C) Statement of Additional Facts when making factual determinations. See id. at 643; see also Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005) ("Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate 'statement ... of any additional facts that require the denial of summary judgment.'") (emphasis in original). Likewise, the Court will not consider any additional facts AHMSI sets forth in its responses to the Bileks' Local Rule 56.1(b)(3)(C) Statement of Additional Facts, especially because the Bileks have had no opportunity to respond. See Ciomber, 527 F.3d at 643 ("court does not abuse its discretion when it opts to disregard facts presented in a manner that does follow the Rule's instructions").

The purpose of Rule 56.1 statements is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) ("statement of material facts did [] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture"). The requirements for responses under Local Rule 56.1 are "not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted." Bordelon, 233 F.3d at 528. Also, the Court may disregard statements and responses that do not properly cite to the record. See Cichon, 401 F.3d at 809-10; see also Raymond v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006) ("district courts are entitled to expect strict compliance with Local Rule 56.1"). With these standards in mind, the Court turns to the relevant facts of this case.

II. Relevant Facts

A. Parties

Christopher and Mary Bilek are a married couple, who reside in Bridgeview, Illinois. (R. 152, Def.'s Rule 56.1 Stmt. Facts ¶ 1.) AHMSI is a Delaware corporation that services mortgage loans and was originally incorporated as AH Mortgage Acquisition Co., Inc., a Delaware corporation ("Acquisition Co."). (Id. ¶ 2.) In September 2007, Acquisition Co. entered into an agreement with American Home Mortgage Investment Corp. and several of its affiliates (collectively "American Home") to purchase substantially all of the servicing assets from American Home, including from American Home Mortgage Servicing, Inc., a Maryland Corporation ("AHM"). (Id.) Acquisition Co. closed the transaction on April 11, 2008 and as part of the acquisition, Acquisition Co. officially changed its name to American Home Mortgage Servicing, Inc. ("AHMSI") and AHM changed its name to AHM SV, Inc. (Id.) AHMSI is not affiliated with or owned by AHM or American Home. (Id.)*fn1

B. The Bridgeview Note and Mortgage

On December 21, 2005, the Bileks re-financed the mortgage for their residence at 8417 South 78th Avenue, Bridgeview, Illinois ("Bridgeview Property") by Christopher Bilek signing an adjustable rate note with AHM for $262,000.00 under loan number ***5388 ("Bridgeview Loan"). After AHMSI completed its purchase of the servicing rights in April 2008, it changed the Bridgeview Loan number to ***0339. (Id. ¶ 5.) Under the Bridgeview Note, Christopher Bilek agreed to make monthly payments on the first day of each month consisting of principal, interest, other charges including taxes, insurance, and late charges -- with the payments applied to interest first. (Id. ¶ 6.) Also, under the Bridgeview Note, Christopher Bilek agreed to pay late charges of 5% of the amount of the overdue payment of principal and interest if the note holder had not received the full monthly payment 15 days after the due date. (Id. ¶ 7.) Further, Christopher Bilek agreed that: "If I do not pay the full amount of each monthly payment on the date it is due, I will be in default." (Id. ¶ 8.) Christopher Bilek and Mary Bilek signed the mortgage for the Bridgeview Property ...


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