Name of Assigned Judge Harry Sitting Judge if Other or Magistrate Judge D. Leinenweber than Assigned Judge
For the following reasons, the Court grants summary judgment in favor of Plaintiff on the issue of foreclosure and sale of the property in question, as well as the appointment of the Judicial Sales Corporation as Special Commissioner to conduct a sale of the property. Additionally, the Court accepts the supplemental affidavit of Ms. Brennan filed with Plaintiff's reply. On the issue of amounts due from Defendants, the motion is continued for one week to allow Defendants the opportunity to file a sur-reply to Plaintiffs' supplemental affidavit and reply. Defendants have seven days from entry of this order to so file.
O[ For further details see text below.] Notices mailed by Judicial staff.
Before the Court is Plaintiff's motion for summary judgment in this mortgage foreclosure action. For the following reasons, the motion is granted in part and continued in part.
Daniel Sledz signed a promissory note for a $1,680,555.49 loan from National City Bank ("National City") on September 1, 2008. As security, he pledged his home in Aurora, Illinois. (The pledge was made by Defendant Chicago Title Land Trust Company ("Chicago Title"), which succeeded Cole Taylor Bank as trustee of the land trust holding the property. Sledz is the beneficiary of this trust.) By his own admission, Sledz has defaulted on this agreement. PNC Bank, N.A. ("PNC"), the successor to National City, seeks an order of judgment of foreclosure and sale and the appointment of a special commissioner to conduct the sale.
Defendants raised an affirmative defense contending PNC "lacks standing to foreclose the alleged Mortgage." Defs.' Answer, 9. In their response to summary judgment, the Defendants also take issue with Plaintiff's calculation of the amount remaining due under the agreement.
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The burden of showing the needlessness of a trial is on the movant, but the Court must consider the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Poulos v. Vill. Of Pleasant Prairie, 10-C-394, 2012 U.S. Dist. LEXIS 37412, at *3 (E.D. Wis. March 20, 2012) (citing Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986). However, where the non-movant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence that would support a reasonable jury verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Accordingly, where affirmative defenses are concerned, the burden is on a defendant to establish the absence of material disputes concerning that defense. Gruenberg v. Schneiter, No. 11-3323, 2012 U.S. App. LEXIS 6310, at *9 (7th Cir. March 28, 2012); see also Costello v. Grundon, 651 F.3d 614, 630 (7th Cir. 2011). On summary judgment, a party may object that a fact is not supported by admissible evidence (Fed. R. Civ. P. 56(c)(2)), such as when an affidavit does not demonstrate that it is based on personal knowledge. Fed. R. Civ. P. 56(c)(4); see also Meyer Intellectual Props. Ltd. v. Bodum, Inc., 597 F.Supp. 2d 790, 796-798 (N.D. Ill. 2009). The personal knowledge requirement is not met automatically by virtue of the affiant being a corporate officer. Meyer, 597 F.Supp. 2d at 796. Where a fact is not sufficiently supported in a summary judgment motion, the Court may give an opportunity to properly support or address the fact or issue "any other appropriate order". Fed. R. Civ. P. 56(e). However, in some instances, where a party raises an issue or fact for the first time in a reply, there can be a fundamental issue of fairness if the Court relies on that information in deciding summary judgment without giving the other party an opportunity to respond. Costello, 651 F.3d at 635-637 (noting there is no requirement "that a party file a sur-reply to address an argument believed to be improperly addressed").
III. RELEVANT FACTS AND ANALYSIS
Although Defendants raised an affirmative defense in their answer that PNC lacks standing to foreclose, they have not put forth any facts in their response to summary judgment supporting that defense and appear to have abandoned that argument. Certainly, Defendants have not put forth any material facts disputing that PNC is ...