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Dunhill Asset Services Iii, LLC, Successor To v. andrew Tinberg

July 23, 2012

DUNHILL ASSET SERVICES III, LLC, SUCCESSOR TO BANK OF AMERICA, N.A., SUCCESSOR TO LASALLE BANK NATIONAL ASSOCIATION,
PLAINTIFF,
v.
ANDREW TINBERG, CYNTHIA E. GRAZIAN, THOMAS W. DEROBERTIS, ROBERT R. ROMERO, DANIEL O. WALSH, AND JAMES T. ASHACK, DEFENDANTS.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiff Dunhill Asset Services III, LLC, alleges in this lawsuit that Defendants Andrew Tinberg, Cynthia E. Grazian, Thomas W. DeRobertis, Robert R. Romero, Daniel O. Walsh, and James T. Ashack have failed to repay loans made under debt instruments that Dunhill's predecessor, Bank of America, N.A., purchased from its predecessor, LaSalle Bank National Association. The court's prior substantive rulings are as follows. The counterclaims of Ashack, DeRobertis, Tinberg, and Walsh have been dismissed with prejudice. Docs. 64, 65. Final judgment has been granted against Romero. Docs. 60, 63, 99, 100. Although the claims against Grazian were stayed due to her bankruptcy, Docs. 44, 63, Dunhill recently informed the court that it "has no ability or intention of pursuing claims against . Grazian in the instant case." Doc. 143 at 2. The court denied Dunhill's motion for judgment on the pleadings against Ashack, DeRobertis, Tinberg, and Walsh. Doc. 106. Now before the court is Dunhill's motion for summary judgment on liability as to those four defendants. The motion is granted.

Background

The following facts are stated as favorably to Ashack, DeRobertis, Tinberg, and Walsh (collectively, "Defendants") as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). That said, Defendants' Local Rule 56.1(b)(3)(B) response admits many of Dunhill's facts, and although it denies Dunhill's other facts, it does not support the denials with citations to any affidavit or record material. Under Local Rule 56.1(b)(3)(B), a movant's asserted fact is deemed admitted despite a non-movant's denial if evidence cited by the movant's Local Rule 56.1(a)(3) statement supports the fact and the non-movant's Local Rule 56.1(b)(3)(B) response cites no evidence to support its denial. See N.D. Ill. L.R. 56.1(b)(3)(B) (requiring the non-movant to file "(3) a concise response to the movant's statement that shall contain: . (B) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon") (emphasis added); Leibforth v. Belvidere Nat'l Bank, 337 F.3d 931, 934 n.1 (7th Cir. 2003); Smith v. Lamz, 321 F.3d 680, 682-83 (7th Cir. 2003); Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 & n.4 (7th Cir. 2000). Accordingly, the facts set forth in Dunhill's Local Rule 56.1(a)(3) statement are deemed admitted.

On July 15, 2006, Defendants took out a substantial loans from LaSalle, and each signed a promissory note with LaSalle (collectively, "2006 Notes"). Docs. 114-2, 114-10, 114-18, 114-26; Doc. 122 at ¶¶ 14, 31, 47, 63. The loan proceeds were disbursed to an account owned by ISB Financial Corporation. Doc. 122 at ¶¶ 14, 31, 47, 63. In exchange, each Defendant received ISB stock, which he pledged to LaSalle in a Commercial Pledge Agreement (collectively, "2006 Pledge Agreements"). Docs. 114-3, 114-11, 114-19, 114-27; Doc. 122 at ¶¶ 16, 33, 49, 65. The 2006 Pledge Agreements provide that they "shall be binding upon and inure to the benefit of the parties, their successors and assigns." Doc. 114-3 at 4. (Here and for the remainder of this opinion, only Tinberg's instruments are quoted; the instruments signed by the other three defendants are identical to Tinberg's, with the immaterial exception of the borrower's identity and the borrowed amount.)

On July 31, 2007, Defendants and LaSalle signed a promissory notes (collectively, "2007 Notes") that replaced the 2006 Notes and extended the loans' maturity date to July 31, 2008. Docs. 114-6, 114-14, 114-22, 114-30; Doc. 122 at ¶¶ 17-18, 34-35, 50-51, 66-67. The 2007 Notes provide, in relevant part:

REPLACEMENT NOTE. This Note is a restatement, replacement and substitute for, but not a repayment of, that certain . Promissory Note dated July 15, 2006 executed by Borrower and payable to the order of Lender (the "Prior Note"). The indebtedness evidenced by the Prior Note is continuing indebtedness evidenced by this Promissory Note, and nothing contained herein shall be deemed to constitute a repayment, settlement or novation of the Prior Note.

SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.

Doc. 114-6 at 2.

Around July 31, 2008, Defendants and Bank of America executed instruments entitled Amendment to Promissory Note and Reaffirmation of Pledge Agreement (collectively, "Amendments"). Docs. 114-8, 114-16, 114-24, 114-32; Doc. 122 at ¶¶ 19-20, 36-37, 52-53, 68-69. The first paragraph of the Amendments reads: "The Amendment to Promissory Note and Reaffirmation of Pledge Amendment (this 'Amendment') is made as of the 31st day of July, 2008, by and between Andrew E. Tinberg (the 'Borrower') and Bank of America, N.A., as successor to LaSalle Bank National Association, a national banking association ('Bank')." Doc. 114-8 at 1. The Amendments extended the loans' maturity date to January 15, 2009. Ibid. The Amendments also state, in relevant part:

5. Representations and Warranties. To induce Bank to enter into this Amendment, the Borrower represents and warrants to Bank that this Amendment has been duly executed and delivered by the Borrower, and that the Promissory Note (as amended by this Amendment) or Pledge Agreement and each other agreement (collectively, the "Loan Documents") constitutes the legal, valid, and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in law or equity). Without in any manner limiting the generality of the release set forth in Section 7 hereof, the Borrower hereby represents, warrants, covenants and agrees that there exists no offsets, counterclaims or defenses to payment or performance of the obligations set forth in its Loan Documents and, in consideration hereof, expressly waives any and all such offsets, counterclaims and defenses arising out of any alleged acts, transactions or omissions on the part of Bank arising (or otherwise relating to the period) on or prior to the Amendment Effective Date..

Id. at 2.

On September 21, 2010, Dunhill entered into a Loan Sale Agreement to purchase the debt instruments from Bank of America. Doc. 114-1; Doc. 122 at ¶ 1. Defendants have not paid the amounts due. Doc. 122 at ¶¶ 22-26, 38-42, 54-58, 70-74.

Before proceeding, it bears mention that Defendants' summary judgment brief cites to the raw record, or to nothing at all, in making several factual assertions. Doc. 123 at 2-3 (arguing that Bank of America did not acquire LaSalle), 3 (arguing that LaSalle breached its obligations by making advances without Defendants' authorization), 7-8 (same), 12-13 (arguing that new evidence supports Defendants' position that Defendants engaged in an unlawful tying arrangement). None of these assertions find support in Defendants' Local Rule 56.1(b)(3)(B) response, and Defendants did not file a Local Rule 56.1(b)(3)(C) statement of additional facts. "Under settled law, facts asserted in a brief but not presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment motion." Perez v. Town of Cicero, 2011 WL 4626034, at *2 (N.D. Ill. Sept. 30, 2011); see also Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (holding that the predecessor to Local Rule 56.1(b)(3) "provides the only acceptable means of . presenting additional facts to the district court"); Garner v. Lakeside Cmty. Comm., 2011 WL 2415754, at *1 n.1 (N.D. Ill. June 13, 2011) ("the Court disregards any additional statements of fact contained in a party's response brief but not in its L.R. 56.1(b)(3) statement of additional facts"); Curtis v. Wilks, 704 F. Supp. 2d 771, 789 (N.D. Ill. 2010) ("Any facts plaintiffs assert in their response brief that were not ...


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