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Firstmerit Bank, N.A v. Timothy T. Balin

September 11, 2012

FIRSTMERIT BANK, N.A., PLAINTIFF,
v.
TIMOTHY T. BALIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Plaintiff FirstMerit Bank, N.A.'s (FirstMerit) motion for summary judgment. For the reasons stated below, the motion for summary judgment is granted.

BACKGROUND

FirstMerit alleges that in December 2009, in accordance with a loan agreement (Loan Agreement), Midwest Bank and Trust Company (Midwest) agreed to loan Home Acquisitions, Inc. (HAI) $742,399.67 (Loan). In exchange for the Loan, HAI allegedly executed and delivered to Midwest a Promissory Note (Note). To secure the Note, Defendant Timothy T. Balin (T. Balin), Defendant Gilbert Balin (G. Balin), and Defendant Jonathan Smith (Smith) allegedly each executed a guaranty, agreeing "absolutely and unconditionally" to guarantee full payment on the Note (collectively referred to as "Guaranties"). (Compl. Par. 12). Defendants also allegedly consented to two subsequent amendments of the Note. In May 2010, pursuant to an agreement with the Federal Deposit Insurance Corporation (FDIC), as receiver of Midwest, FirstMerit became the successor to Midwest and the lawful owner and holder of the Note, Loan Agreement, and Guaranties. HAI allegedly failed to make the necessary payment due under the Loan in October 2011, and HAI has allegedly refused to make any further payment on the Loan. As of June 12, 2012, HAI allegedly still owes $425,016.33 on the Note. FirstMerit contends that Defendants have failed to pay the outstanding debt owed under the Note and that Defendants have failed to honor their obligations under the Guaranties. FirstMerit includes in its complaint a breach of guaranty claim brought against T. Balin (Count I), a breach of guaranty claim brought against G. Balin (Count II), and a breach of guaranty claim brought against Smith (Count III). FirstMerit now moves for summary judgment on all claims.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" of material fact in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

FirstMerit argues that there are no genuinely disputed material facts relating to the liability of Defendants or the amount of damages owed by Defendants.

I. Local Rule 56.1

FirstMerit filed a statement of material facts pursuant to Local Rule 56.1, and Smith has filed a statement of additional facts pursuant to Local Rule 56.1.

A. FirstMerit's Statement of Material Facts

None of Defendants have filed any response to FirstMerit's statement of material facts. Therefore, pursuant to Local Rule 56.1, all facts in FirstMerit's statement of material facts are deemed to be undisputed. LR 56.1; see also Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012)(stating that "[t]he obligation set forth in Local Rule 56.1 is not a mere formality," and that "[i]t follows from the obligation imposed by Fed.R.Civ.P. 56(e) on the party opposing summary judgment to identify specific facts that establish a genuine issue for trial")(internal quotations omitted)(quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994)); Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008)(stating that a "district court has broad discretion to require strict compliance with Local Rule 56.1"). Therefore, it is undisputed in this case that: (1) HAI executed the Note in which HAI promised to pay Midwest the principal amount of $742,399.67 (SF Par. 12), (2) that Defendants executed the Guaranties, promising absolutely and unconditionally to honor HAI's obligations on the Note and that Defendants consented to amendments of the Note (SF Par. 16-24), (3) that HAI has not honored its obligations under the Note and that as of June 12, 2012, HAI owed $425,016.33 (SF Par. 27, 37), and (4) that after a demand for payment from Defendants, Defendants have failed to pay the outstanding debt owed on the Note. (SF Par. 33-36). Defendants also do not dispute that they agreed to reimburse FirstMerit for all attorneys' fees and costs related to collecting monies owed by Defendants. (SF Par. 25).

B. Smith's Statement of Additional Facts

Smith filed a statement of additional facts, and although FirstMerit did not file a response, several of the paragraphs listed in Smith's statement of additional facts fail to comply with Local Rule 56.1 and are thus not deemed to be undisputed. For example, in paragraph 3 of Smith's statement of additional facts (Paragraph 3), Smith contends that "[t]he amount disputed totals $64,825.61." (S SAF Par. 3). However, Smith's conclusory statement as to the amount he believes is in dispute is not appropriately included in a statement of material facts. Pursuant to Local Rule 56.1, a statement of material facts must be supported by admissible evidence. LR 56.1. Smith merely cites in Paragraph 3 to paragraph 4 of his attached declaration (Smith Declaration). In the Smith Declaration, Smith offers nothing more than conclusory statements that certain fees were "not a correct charge nor charged by First Midwest Bank." (Smith Decl. Par. 4). Smith does not reference any supporting facts or other evidence in paragraph 4 of his declaration to support his conclusory statements. ...


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