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Sft I, Inc v. Frank Leo

August 23, 2011

SFT I, INC., PLAINTIFF,
v.
FRANK LEO, GERARD KENNY, AND PATRICK DANAN, DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff SFT I, Inc. ("SFT") filed a complaint against defendants Frank Leo ("Leo"), Gerard Kenny ("Kenny") and Patrick Danan ("Danan") to enforce a guaranty.*fn1 SFT now moves for summary judgment against defendants Leo and Kenny. For the reasons set forth below, the Court grants the motion for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. As the Court notes on its website (and has mentioned in multiple opinions), the Court enforces Local Rule 56.1 strictly. To be considered, facts must be included in a party's statement of undisputed facts. Facts argued in briefs but not included in a party's statement of undisputed facts are not considered by the Court, because to do so would rob the other party of his or its opportunity to show such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This does not, however, absolve the party who asserted a fact of its initial burden of putting forth admissible evidence to support its fact. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court.

In this case, defendant Kenny admitted most of the facts outlined in plaintiff's statement of material facts. Kenny denied some facts, but he failed to controvert those facts with citations to any evidence, let alone admissible evidence. Accordingly, with respect to Kenny, the Court deems admitted all of plaintiff's facts that were supported by admissible evidence. Defendant Leo, on the other hand, did not file a response to plaintiff's statement of facts.*fn2 Thus, as to Leo, SFT's facts are deemed admitted to the extent they are supported by admissible evidence. Accordingly, the following facts are undisputed (unless otherwise noted).

In or about September 2005, 215 Developer LLC ("Borrower") executed various loan documents (including a Loan and Security Agreement, a mortgage and an assignment of rents) to obtain a loan from plaintiff SFT in order to develop real estate in downtown Chicago. Defendants Leo, Kenny and Danan each had an ownership interest in Borrower. SFT, as a condition of making the loan to Borrower, required Leo, Kenny and Danan to execute a payment and performance guaranty of the loan. The loan documents and guaranty were amended from time to time.

The guaranty (as amended) states, among other things: WHEREAS, Lender has required, as a condition to making the Loan and entering into and executing the Loan Agreement and the other Loan Documents, that Guarantor enter into this Guaranty.

2. Continuing Guaranty

(a) This is an irrevocable, absolute, continuing guaranty of payment and performance and not of collection. This Guaranty may not be revoked by a Guarantor and shall continue to be effective with respect to the Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after any Guarantor's death (in which event this Guaranty shall be binding upon Guarantor's heirs, successors and assigns). It is the intent of each Guarantor that the obligations and liabilities of Guarantors hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully, finally and indefeasibly satisfied, such obligations and liabilities shall not be discharged or released in whole or in part, by any act or occurrence which might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of Guarantors. Each and every default in payment of any amounts due or performance of any obligation required under this Guaranty shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises . . . . . . The liability of Guarantors pursuant to this Guaranty is joint and several.

(b) The maximum liability of the Guarantors to pay the Guaranteed Obligations shall not exceed $22,787,500 in the aggregate, plus interest (but not Exit Interest) on the Loan to the extent such interest exceeds the amount of funds available from the Debt Service Reserve.

(b) Each Guarantor hereby waives any rights and defenses which such Guarantor might have as a result of any representation, warranty or statement made by Lender or its agents to such Guarantor in order to induce Guarantor to execute this Guaranty and further waives any other circumstance that might otherwise constitute a legal or equitable discharge or defense of the Guarantor.

3. Waivers

(e) Each Guarantor further waives any defense to the recovery by Lender against such Guarantor of any deficiency or otherwise to the enforcement of this Guaranty or any security for this Guaranty based upon Lender's election of any remedy against such Guarantor or Borrower, including the defense to enforcement of this Guaranty by virtue of any 'anti-deficiency' statutes and their application following a non-judicial foreclosure sale.

(f) Without limiting the foregoing or anything else contained in this Guaranty, each Guarantor waives all rights and defenses that Guarantor may have because Borrower's Loan is secured ...


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