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U.S. Bank, N.A. As Trustee For the Registered Holders of Structured v. Melte Willis

August 22, 2011

U.S. BANK, N.A. AS TRUSTEE FOR THE REGISTERED HOLDERS OF STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-TC1,
PLAINTIFF,
v.
MELTE WILLIS, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

This is a complaint to foreclose a Mortgage (the "Mortgage"). Plaintiff alleges that the Mortgage at the center of this dispute is in default, and that Defendant, the mortgagor, has failed to pay the monthly installments of principal, interest, taxes, and insurance from February 1, 2010 through the present. Defendant also filed a counterclaim alleging violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, unjust enrichment, and breach of contract. This counterclaim was dismissed without prejudice with leave to reinstate. A principal balance remains with interest accruing on the unpaid principal balance. Plaintiff now moves for summary judgment. For the following reasons, Plaintiff's motion is granted.

I. STATEMENT OF RELEVANT FACTS

On November 24, 1999, Ameriquest Mortgage Company ("Ameriquest") lent Defendant approximately $76,000.00. Defendant executed an Adjustable Rate Note ("Note") in favor of Ameriquest in exchange for receiving this money. Defendant also agreed to pay 10.75% in interest at a yearly rate, taxes, insurance and any other escrow items that might apply. Monthly payments were to be made on the first day of every month in the amount of $709.45. This amount was subject to change. Ameriquest secured its interests in the Note by filing the Mortgage with the Cook County Recorder on November 30, 1999.

On April 10, 2000, Ameriquest assigned its Mortgage to Plaintiff. Plaintiff received all of Ameriquest's interests in the Property pursuant to the Mortgage and Note.

On February 1, 2010, the Defendant failed to pay the monthly installments of principal, interest, taxes, insurance, and any other escrow items applied. No payment has been made since that date, and there remains an outstanding principal balance as of November 19, 2010, with interest accruing on the unpaid principal balance at $11.75 per day.

II. STANDARD OF REVIEW

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The facts presented are to be construed in a light most favorable to the nonmoving party. Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986).

III. DISCUSSION

This is a matter of contract interpretation. In construing a contract, the primary objective is to give effect to the intention of the parties. Gallagher v. Lenart, 874 N.E.2d 43, 50 (Ill. 2007). In construing a contract, a court must first look to its language, as the plain language of the contract is the best indication of the parties' intent. Id. When the words of a contract are clear and unambiguous, they must be given their plain and ordinary meaning. Central Ill. Light Co. v. Home Ins. Co., 821 N.E.2d 206, 209 (Ill. 2004).

The Mortgage states:

This Security Instrument secures to [Plaintiff]: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, . . . and (c) the performance of [Debtor's] covenants and agreements under this Security Instrument and the Note.

By its clear language, the Mortgage secures the amount owed under th Note. The language of the Mortgage shows that the Note is fully secured:

[i]f the default is not cured . . . [Plaintiff], at its option, may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. [Plaintiff] shall be entitled to collect expenses incurred in pursuing the remedies provided in this paragraph. ...


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