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Harris N.A., F/K/A Harris Trust & Savings Bank v. United States of America Edward A. Scott

March 4, 2011

HARRIS N.A., F/K/A HARRIS TRUST & SAVINGS BANK, PLAINTIFF,
v.
UNITED STATES OF AMERICA EDWARD A. SCOTT, III, AND LAURI E. SCOTT, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Harris N.A. seeks to foreclose on a Barrington, Illinois home mortgaged by Edward and Lauri Scott, who it alleges have been in default since October 2009, and asks the court to order a judicial sale. The United States, which has a tax lien against the property, argues that a judge in a related proceeding within this district has prior exclusive jurisdiction, and that the property should be sold through a receiver. The court grants summary judgment to Harris N.A. and will enter a judgment of foreclosure to Harris N.A.

BACKGROUND

Harris N.A. ("Plaintiff") brought this lawsuit pursuant to the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15-1101 et seq, in the Circuit Court of Cook County, on March 3, 2010, seeking to foreclose on property at 116 Coolidge Avenue in Barrington, Illinois. (Compl. at 2.) Edward A. Scott III and Lauri E. Scott ("Defendants"), the owners, mortgaged the property in January 1994 for $140,850. (Id.) They defaulted on the mortgage on October 1, 2009, and still owe Harris $99,428.48 in principal and $1,871.55 in interest, as well as approximately $400 in miscellaneous charges. (Id.) At the time Harris filed the foreclosure action, the United States held three tax liens against the Scotts in the aggregate amount of $304,893.01. (Id. at 3.) In addition to the Scotts, Harris named the United States as a defendant, as well as "unknown owners and non-record claimants."*fn1

(Compl. to Foreclose Mortgage [1] at 1.) On April 16, 2010, the United States removed the case to this court pursuant to 28 U.S.C. §§ 1444, 2410, allowing for removal of a foreclosure action in which the United States is named as a party. (Notice of Removal [1].) On July 16, 2010, Harris N.A. moved for summary judgment and a judgment of foreclosure. (Mot. for Summ. J. [25].)

Defendants also face a separate action brought by the United States in the Northern District of Illinois on June 3, 2009, to recover back taxes. A status report in that case suggests that the United States now asserts that the outstanding taxes owed are $117,270.00, but that amount remains disputed. (No. 09-CV-3370, J. Status Report [58] at 2.) No further court date is set until May 3, 2011.

I. Motion for Summary Judgment and Judgment of Foreclosure against Edward and Lauri Scott Summary judgment should be granted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).

"On a motion for summary judgment, the district court must construe all facts and draw all reasonable inferences in favor of the non-movant." Srail v. Village of Lisle, 588 F.3d 940, 948 (7th Cir.2009).

Plaintiff entered into an adjustable rate note and mortgage agreement with Defendants on January 13, 1994. (Pl.'s 56.1 ¶ 12.) Under the terms of these agreements, Defendants borrowed $140,850 and agreed to pay Plaintiff that amount, plus interest, in monthly installments. (Id. ¶¶ 15, 17.) Because they have failed to make payments since October 1, 2009, Plaintiff alleges they are in default and Plaintiff is entitled to foreclose. (Id. ¶¶ 18, 21, 22, 24.) Citing an affidavit of Adham Alaily, an attorney for Harris, Plaintiff asserts that the Scotts now owe $99,428.48 in principal and $1,871.55 in interest. (Compl. at 2; Pl.'s 56.1, Ex. B at 1, 4.) Defendants have asserted that they "lack sufficient knowledge to form a belief about the truth or accuracy of the amounts due as alleged," (Answer at 4), and have declined to respond at all to Plaintiff's motion for summary judgment.

The Illinois mortgage foreclosure law explains that when a party does not submit a verified answer denying the facts in the complaint, or if the party has stated that "it has no knowledge of such allegation sufficient to form a belief," then "a sworn verification of the complaint or a separate affidavit setting forth such fact is sufficient evidence thereof against such party and no further evidence of such fact shall be required." 735 ILCS 5/15-1506(a)(1). In these circumstances, the court may enter a judgment of foreclosure "upon motion supported by an affidavit stating the amount which is due the mortgagee . . . where all the allegations of fact in the complaint have been proved by verification of the complaint or affidavit." 735 ILCS 5/15-1506(a)(2).

The Scotts' only affirmative defense to the complaint lacks merit: The Scotts asserted that Plaintiff lacks standing because the party named in the complaint is Harris N.A., while the mortgage they signed was with Harris Bank Barrington N.A., and was later assigned to Harris Trust and Savings Bank. (Answer at 5.) Harris has since updated its filings to show that it was formerly known as Harris Trust and Savings. (Pl.'s Br. at 7; Minute Order [24].) Plaintiff has set forth its allegations in a sworn and verified complaint. Defendants have not denied the amount owed, nor supported their claimed lack of sufficient knowledge to respond with an affidavit or other evidence. The court concludes that Plaintiff has met the standard for summary judgment against Defendants and will enter a judgment of foreclosure.

II. Motion for Summary Judgment Against the United States

The United States opposes Plaintiff's motion for summary judgment. Although the government never moved to dismiss the foreclosure action in this court, it contends, in response to summary judgment, that the judge presiding over the government's tax action has prior exclusive jurisdiction over the property. The United States opposes a judicial sale of the property on the ground that such a sale would result in a reduced recovery for the government's ...


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