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Bank of America, N.A v. Shelbourne Development Group

August 5, 2011

BANK OF AMERICA, N.A., PLAINTIFF,
v.
SHELBOURNE DEVELOPMENT GROUP, INC. AND GARRETT KELLEHER, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Based on the Court's diversity jurisdiction, Plaintiff Bank of America, N.A. ("Bank of America") filed the present Second Amended Complaint on August 27, 2010 to collect on a Loan Agreement and Credit Card Agreement entered into by Bank of America and Defendant Shelbourne Development Group, Inc. ("Shelbourne") that was guaranteed by Defendant Garrett Kelleher ("Kelleher"). See 28 U.S.C. § 1332(a). Before the Court is Bank of America's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). For the following reasons, the Court grants Bank of America's summary judgment motion and enters judgment in favor of Bank of America, as discussed in detail below. The Court directs Bank of America to file a separate petition for attorney's fees and costs on or before August 22, 2011.

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). "The Rule is designed, in part, to aid the district court, 'which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). 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 requires the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

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 Court may disregard statements and responses that do not properly cite to the record. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005). Moreover, 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. It is well-established that "district courts are entitled to expect strict compliance with Local Rule 56.1." Raymond v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006)

The vast majority of Defendants' denials to Bank of America's Rule 56.1(a)(3) Statement of Facts do not reference any affidavits, parts of the record, and other supporting materials as required by Local Rule 56.1(b)(3)(B), and thus Bank of America's Statements ¶¶ 1, 2, 7, 9-11, 15, 16, 19-21, 23, 25-29, 31-36, 37-41 are deemed admitted. See Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393 (7th Cir. 2009); Cracco, 559 F.3d at 632; Cichon, 401 F.3d at 809-10.

Also, all of Defendants' statements in their Local Rule 56.1(b)(3)(C) Statement of Additional Facts are supported by their answers and affirmative defenses to Bank of America's Second Amended Complaint. Mere allegations in a parties' pleadings do not constitute evidence and courts may only consider admissible evidence when determining summary judgment motions. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009); Tibbs v. City of Chicago, 469 F.3d 661, 663 n.2 (7th Cir. 2006); Nisenbaum v. Milwaukee County, 333 F.3d 804, 810 (7th Cir. 2003). As the Seventh Circuit instructs, "mere allegations in the pleadings, unsupported by record evidence, cannot create an issue of fact defeating summary judgment." Burrell v. City of Mattoon, 378 F.3d 642, 648 (7th Cir. 2004). Accordingly, the Court strikes Defendants' Rule 56.1(b)(3)(C) Statement of Additional Facts.

II. Relevant Facts

A. Parties

Bank of America is a national banking association with its principal place of business in Charlotte, North Carolina. (R. 123, Pl.'s Rule 56.1 Stmt. Facts ¶ 1.) Shelbourne is a corporation organized under the laws of the State of Illinois with its principal place of business in Chicago, Illinois. (Id. ¶ 3.) Kelleher, the President of Shelbourne, is a citizen of the Republic of Ireland, who maintains a home in the State of Illinois. (Id. ¶ 4.)

B. The Loan Agreement

On December 11, 2006, Bank of America and Shelbourne, by its president, Kelleher, entered into a Loan Agreement ("Loan Agreement"). (Id. ¶ 7.) Under the Loan Agreement, Bank of America made a $3 million revolving line of credit available to Shelbourne to assist Shelbourne in its development of the Chicago property commonly known as the "Spire Building." (Id.) The Loan Agreement's revolving line of credit was available to Shelbourne only between December 11, 2006 and June 30, 2007, at which point the loan converted into a term loan payable by "no later than December 1, 2011 or such earlier date as the availability may terminate as provided" in the Loan Agreement. (Id. ¶ 8.) Pursuant to the Loan Agreement, on December 11, 2006, Shelbourne executed a promissory note ("Note") in the amount of $3 million in favor of Bank of America. (Id. ¶ 9.) The Note states that "[n]o delay on the part of the Bank in exercising any right under this Note ... shall operate as a waiver of such right or any other right under this Note, nor shall omission in exercising any right on the part of the Bank under this Note operate as a waiver of any other rights." (Id.)

Pursuant to the Loan Agreement and the Note, Shelbourne was required to make monthly principal payments in the amount of $27,777.78, commencing on July 1, 2007. (Id. ¶ 10.) The Loan Agreement provides that upon a failure to make these required payments, Bank of America may "declare the Borrower in default, stop making any additional credit available to the Borrower, and require the Borrower to repay its entire debt immediately and without prior notice." (Id. ¶ 11.) The Loan Agreement also states that "[i]f the Bank waives a default, it may enforce a later default [and] [a]ny consent or waiver under this Agreement must be in writing." (Id.) In addition, the Loan Agreement provides that an event of default occurs when ...


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