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General Electric Business Financial Services Inc., D/B/A Merrill Lynch v. Thomas E. Hedenberg and Ray H. Tresch

April 7, 2011

GENERAL ELECTRIC BUSINESS FINANCIAL SERVICES INC., D/B/A MERRILL LYNCH BUSINESS FINANCIAL SERVICES, INC., PLAINTIFF,
v.
THOMAS E. HEDENBERG AND RAY H. TRESCH, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff General Electric Business Financial Services Inc.'s (hereinafter, the "Plaintiff") Motion for Summary Judgment on its one-count Complaint. For the reasons stated below, the Motion is granted.

I. INTRODUCTION

In the fall of 2007, Plaintiff entered into a Loan Agreement with Grove Street Urban Renewal, L.L.C. (hereinafter, "Grove Street"). Under the Agreement, Plaintiff agreed to loan Grove Street more than $32 million to fund the Rivercove multi-unit residential apartment complex in West Deptford, N.J. Grove Street executed and delivered a Tranche A Promissory Note in favor of Plaintiff for the original principal amount of $26,367,255, and a Tranche B Promissory Note in favor of Plaintiff for the original principal amount of $5,961,428. Grove Street's managing members Thomas Hedenberg and Ray Tresch (hereinafter, the "Defendants") executed a Limited Joinder that attached to the Loan Agreement, under which they guarantied the principal, interest, penalties, fees, and other charges due on the Grove Street loan.

On April 30, 2010, the 30-month loan matured, with Grove Street having failed to pay fully the amounts due. On July 1, 2010, Grove Street filed a Chapter 11 bankruptcy petition in the District of New Jersey Bankruptcy Court. Plaintiff proceeded to demand that Defendants pay the amounts due on the Grove Street loan, pursuant to the Limited Joinder. This breach of guaranty action results from Defendants' refusal to pay Plaintiff the amounts due under the Loan Agreement, a liability that Plaintiff alleges emerges from the Limited Joinder.

II. LEGAL STANDARD

Summary judgment is proper if "the movant shows that 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). A fact is material if it could affect the outcome of the suit, and a dispute is genuine where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling on summary judgment, the Court does not weigh the evidence or determine the truth of the matter, but determines whether a genuine issue of material fact exists that warrants trial. See id. at 249. In making this determination, the Court must view all the evidence and draw any reasonable inferences therefrom in the light most favorable to the nonmoving party. See Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). A court need not consider nonmaterial facts. See Manning v. Potter, 250 Fed.Appx. 743, 745 (7th Cir. 2007).

The moving party bears the burden of establishing the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party may not rest on mere allegations, but must present specific facts showing that a genuine issue exists for trial. See Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984).

III. ANALYSIS

Defendants present three arguments why summary judgment is improper. The Court addresses each in turn.

A. Plaintiff Is the Real Party in Interest

Defendants argue that Merrill Lynch Business Financial Services Inc. (hereinafter, "Merrill Lynch") is the lender with which Grove Street entered into the Loan Agreement and with which they executed the Limited Joinder, making General Electric Business Financial Services Inc. (hereinafter, "GEBFS") an improper plaintiff. Under the Federal Rules of Civil Procedure, "[a]n action must be prosecuted in the name of the real party interest." FED. R. CIV. P. 17(a). The parties agree that Illinois substantive law applies to this case. In Illinois, the party seeking relief must possess an enforceable right under the applicable substantive law. See Byrd-Tolson v. Supervalu, Inc., 500 F.Supp.2d 962, 969 (N.D. Ill. 2007). A corporation that changes its name prior to a lawsuit should be identified by its new name in the lawsuit. See, e.g., Ernest Freeman & Co. v. Robert G. Regan Co., 76 N.E.2d 514, 519 (Ill. App. 1947) (finding that when a defendant corporation changes its name prior to the commencement of a lawsuit, plaintiff should sue the corporation under its new name because "[a] corporation retains its corporate identity when it changes its name"). Accordingly, a corporation that simply changes its name retains the rights and liabilities it possessed prior to the identity switch. See id.

As Plaintiff demonstrates, this case does not present a situation in which the Loan Agreement, Notes, and Limited Joinder were sold or transferred between parties. Rather, Plaintiff has submitted two pieces of evidence establishing that one corporation has retained custody of the agreements from origination through the present date. First, it tendered an affidavit from In-grid Carlino, a senior asset manager assigned to the Grove Street loan, that Merrill Lynch changed its name to GEBFS on March 26, 2008. Pl.'s Statement Material Facts Ex. 2. Second, it submitted a certificate from the Delaware Secretary of State that Merrill Lynch changed its name to GEBFS on March 26, 2008. Pl.'s Resp. Defs.' Statement Material Facts Ex. 4. Defendants have not submitted any evidence that contradicts that ...


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