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Wells Fargo Bank, N.A., As Trustee For the Pooling and Servicing v. Lael L. Cryder and City of Joliet

June 28, 2012

WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT DATES AS OF MAY 1, 2005 ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2005-WHQ3, PLAINTIFF,
v.
LAEL L. CRYDER AND CITY OF JOLIET, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Wells Fargo Bank, N.A., as Trustee for the Pooling and Servicing Agreement dates as of May 1, 2005 Asset-Backed Pass-Through Certificate Series 2005-WHQ3 ("Wells Fargo"), filed this mortgage foreclosure action against Defendant Lael L. Cryder pursuant to 735 ILCS 5/15/-1501, seeking a judgment of foreclosure and sale in favor of Wells Fargo and an award of $152,600.34 plus interest and attorneys' fees. This matter is before the Court on Wells Fargo's motion for summary judgment [20]. For the following reasons, the Court grants Wells Fargo's motion for summary judgment [20] and enters judgment in favor of Wells Fargo and against Defendant Lael L. Cryder.

I. Background

A. Factual History*fn1

On March 9, 2005, Argent Mortgage Company, LLC (AMC) lent Defendant Lael L. Cryder (Debtor), approximately $135,200.00. Cryder, an Illinois citizen and resident, executed an adjustable rate note in favor of AMC in exchange for receiving this money. Cryder agreed to pay 7.700 percent interest at a yearly rate as well as taxes, insurance, and any other escrow items that may apply. Cryder also agreed to make monthly payments on the first day of every month in the amount of $963.93. This amount was subject to change. AMC secured its interest in the note by filing a mortgage with the Will County Recorder on March 31, 2005. The mortgage covered the property described as: "Lot 590 in Longleat Unit No. 5E, Being a Subdivision of the North 1/2 of Section 2, Township 35 North, Range 9, East of the Third Principal Meridian, According to the Plat thereof recorded February 6, 1979 as document No.R79-4348, in Will County, Illinois." The property is more commonly known as 1243 Steven Smith Avenue, Joliet, IL 60431.

On March 25, 2011, AMC assigned its mortgage to Plaintiff, who received all of AMC's interest in the property pursuant to the mortgage and note. On March 1, 2010, Cryder failed to pay the monthly installment. On October 16, 2010, Plaintiff, by its servicer, issued a notice of default advising Cryder that it intended to accelerate the note. Cryder has failed to make payments from March 1, 2010 through the filing of Plaintiff's motion for summary judgment. Plaintiff sent a Grace Period Notice as prescribed by 735 ILCS 5/15/-1502.5 to Cryder on December 3, 2010.

There remains an outstanding balance of $152,600.34 as of August 29, 2011, with interest accruing on the unpaid principal balance at of $17.94 per day, plus attorney's fees and costs incurred by the Plaintiff as a result of the default. The City of Joliet holds an outstanding lien against Lael L. Cryder in the amount of $270.45, which was recorded on January 17, 2007, as document number R2007009737. Defendant Joliet has not filed an answer or otherwise responded to the complaint.

II. Summary Judgment Standard

Summary judgment is proper 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). On cross-motions for summary judgment, the Court construes all facts and inferences "in favor of the party against whom the motion under consideration is made." In re. United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006) (quoting Kort v. Diversified Collection Servs., Inc., 394 F.3d 530, 536 (7th Cir. 2005)); see also Gross v. PPG Industries, Inc., 636 F.3d 884, 888 (7th Cir. 2011); Foley v. City of Lafayette, Ind.,359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the opposing] position will be insufficient; there must be evidence on which the jury could reasonably find for the [opposing party]." Anderson, 477 U.S. at 252.

III. Analysis

This action presents a matter of contract interpretation. The basic rules of contract interpretation are well settled. In construing a contract, the primary objective is to give effect to the intentof the parties. Gallagher v. Lenart, 874 N.E.2d 43, 58 (2007). A court first looks to the language of the contract itself to determine the parties' intent. Id. If the words in the contract are clear and unambiguous, they must be given their plain, ordinary, and popular meaning. Central Illinois Light Co. v. Home Insurance Co., 821 N.E.2d 206, 209 (2004). When a contract is unambiguous, interpretation of a contract is a matter of law that is particularly suited to disposition by summary judgment. United States v. 4500 Audeck Model No. 5601 AM/FM Clock Radios, 220 F.3d 539, 542-43 (7th Cir. 2000).

Here, the mortgage states: "This security agreement secures to [Plaintiff]: (i) the repayment of the loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of [Debtor's] covenants and agreements under this Security Instrument and the Note." The language of the mortgage provides that the Note is fully secured. It also provides that:

[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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