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Pnc Bank, Na, Successor To National City Bank, Successor In Interest To Midamerica Bank, Fsb v. Ohcmc-Oswego

January 11, 2012

PNC BANK, NA, SUCCESSOR TO NATIONAL CITY BANK, SUCCESSOR IN INTEREST TO MIDAMERICA BANK, FSB, PLAINTIFF,
v.
OHCMC-OSWEGO, LLC, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

PNC Bank (PNC) has sued OHCMC-Oswego (OHCMC) on a promissory note. PNC also sued Camille Hoffman, an OHCMC officer, on her guaranty of the note, but the Court granted Hoffman's motion to dismiss the claim against her for improper venue. PNC Bank v. OHCMC-Oswego, LLC, No. 11 C 301, slip op. (N.D. Ill. June 20, 2011). PNC has moved for summary judgment against OHCMC for the unpaid balance, interest, late fees, and attorney's fees. For the reasons stated below, the Court grants the motion in part and denies it in part.

Background

On September 30, 2005, PNC loaned $12,350,000 to OHCMC, an Illinois limited liability company. On the same day, OHCMC executed a promissory note reflecting the loan amount and a mortgage securing OHCMC's obligations against a parcel of real estate in Oswego, Illinois. The promissory note included the following statement:

Upon the occurrence of an Event of Default as defined in Section 19 of the Mortgage, the interest shall be calculated on the balance of the principal due herein at a rate equal to six (6%) percent in excess of the Interest Rate. Further, [PNC] Bank reserves the right to assess a late charge equal to five percent (5%) of any payment that is received by the Bank on or after the fifteenth day of the month in which it is due, which five percent (5%) shall be due and payable with the next payment.

Pl. Ex. 1 at 3.

PNC and OHCMC later entered into five modifications extending OHCMC's promissory note, the latest of which established a maturity date of November 1, 2010. OHCMC admits that it has failed to pay all amounts due under the note.

In its motion for summary judgment, PNC asked the Court to find that OHCMC owes the following amounts: $10,689,446.12 in unpaid principal, $268,083.62 in unpaid interest, $563,135.30 in late fees, and $16,131.50 in attorney's fees and costs. Along with its motion, PNC submitted computer printouts that it calls the "Loan History," which appear to reflect credits and debits on an account. It also submitted an affidavit from David Ruisch, a PNC vice president, containing statements such as:

The Loan History is generated by a computer system that is used by PNC to . . . track, maintain, and calculate all amounts due and owing on any PNC account. . . . The computer program has always been found to be both accurate and reliable. . . . It is the loan history and the records set forth therein upon which I relied in making this Affidavit on behalf of Plaintiff.

Ruisch Aff. ¶¶ 15, 19, 23. The affidavit then recites the amounts due for the loan principal, interest, late fees, and "litigation expenses." Id. ¶ 24. It breaks the latter amount down into "attorney's fees," "clerk," and "certified mail," but it does not provide any further description of how the figure for attorney's fees was reached. Id.

Before responding to PNC's motion, OHCMC filed a motion asking the Court to allow limited discovery on the issue of how PNC had calculated late fees and attorney's fees. The Court allowed OHCMC to depose Ruisch on these issues. His deposition included the following exchanges:

Q: The late fees that are listed in paragraph 24 of your affidavit, how was it determined that that was the correct amount of late fees?

A: It's calculated all on a system, and then the pay-off department puts it together.

Q: Do you know what was included in that late fee amount?

A: It's whatever the loan documents say we can charge ...


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