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Pnc Bank, National Association, In Its Individual and As v. David J. Dubin and Stuart Kantoff

January 5, 2012

PNC BANK, NATIONAL ASSOCIATION, IN ITS INDIVIDUAL AND AS ADMINISTRATIVE AGENT AGENT FOR ITSELF AND THE LENDERS, PLAINTIFF,
v.
DAVID J. DUBIN AND STUART KANTOFF, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

This matter comes before the Court on Plaintiff PNC Bank, National Association's ("PNC") unopposed motion for summary judgment against Defendants David Dubin ("Dubin") and Stuart Kantoff (collectively, "Defendants"). For the reasons set forth below, PNC's motion is granted.

BACKGROUND*fn1

On January 25, 2007, National City Bank ("National City") and Midwest Bank and Trust Co. ("Midwest Bank") (collectively, the "Lenders") entered into a Loan Agreement with 35th & Morgan Development Co. (the "Borrower"). Pursuant to the terms of the Loan Agreement, the Borrower executed two promissory notes in favor of the Lenders, the first payable to National City (the "National City Note") and the second payable to Midwest Bank (the "Midwest Bank Note") (collectively, the "Notes"). On the same day, Defendants executed a Limited Guaranty of Payment and Performance (the "Guaranty") under which they guaranteed Borrower's repayment obligations under the Loan Agreement and the Notes (collectively, the "Loan Documents"). National City was the collection and enforcement agent for the Lenders for all promissory notes executed under the Loan Agreement.

The Loan Documents were amended on two separate occasions, and Defendants reaffirmed their obligations under the Guaranty with each amendment. The amendments modified the amounts due under the Loan Documents and extended the maturity date of the loan to November 1, 2010 (the "Maturity Date").

In November 2009, National City merged with PNC and PNC became the successor to all of National City's rights, titles, and interests. In May 2010, FirstMerit Bank, National Association ("First Merit") purchased essentially all of Midwest Bank's assets and became the successor to all of Midwest Bank's rights, titles, and interests, including the Midwest Bank Note.

The Maturity Date passed without full repayment of the amounts due under the Loan Agreement. Shortly thereafter, PNC demanded repayment from Defendants.

Despite these demands, Defendants failed to pay the amounts due under the Loan Agreement.

PNC filed suit on October 31, 2011, to enforce the Guaranty and recover the outstanding amounts owed under the Loan Documents. PNC now seeks summary judgment as to the liability of the Defendants under the Guaranty but does not seek a judgment as to the amount owed at this time.

LEGAL STANDARD

Summary judgment is appropriate when the pleadings, discovery, disclosures, and affidavits establish that there is no genuine issue of material fact, such that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Winsley v. Cook Cnty., 563 F.3d 598, 602-03 (7th Cir. 2009). A genuine issue of material fact exists when, based on the evidence, a reasonable jury could find in favor of the non-moving party. Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir. 2010). A non-movant's failure to respond to a motion for summary judgment does not automatically result in a judgment for the movant. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). Rather, the ultimate burden of persuasion remains with the movant to show that it is entitled to judgment as a matter of law. Id. In considering a motion for summary judgment, a court construes all facts and draws all reasonable inferences in favor of the non-moving party. Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2010).

DISCUSSION

I. Applicable Law

A federal court sitting in diversity will apply the forum state's choice-of-law rules to determine the applicable substantive law. Thomas v. Guardsmark, Inc., 381 F.3d 701, 704-05 (7th Cir. 2004) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). In disputes arising under contract law, "Illinois respects the contract's choice-of-law clause as long as the contract is valid and the law chosen is not contrary to Illinois' fundamental public policy." Id. (internal citation omitted). The Guaranty contained a choice-of-law provision establishing that Illinois law would govern any disputes arising ...


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