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Dr. Ramesh C. Dhingra and v. Pnc Bank

January 24, 2013

DR. RAMESH C. DHINGRA AND RAMESH C. DHINGRA MD SC, PLAINTIFFS
v.
PNC BANK, NATIONAL ASSOCIATION, SUCCESSOR TO NATIONAL CITY BANK, SUCCESSOR TO MIDAMERICA BANK, DEFENDANTS.
PNC BANK, NATIONAL ASSOCIATION, SUCCESSOR TO NATIONAL CITY BANK, SUCCESSOR TO MIDAMERICA BANK, THIRD PARTY PLAINTIFF, SHIVAUN STRAUB, THIRD PARTY DEFENDANT .



The opinion of the court was delivered by: Judge John Z. Lee

Magistrate Judge Sidney I. Schenkler

PNC'S MOTION FOR ORDER OF JUDGMENT AGAINST SHIVAUN STRAUB NOW COMES, Third Party Plaintiff, PNC Bank, National Association, successor to National City Bank, successor to MidAmerica Bank ("PNC"), by and through its attorneys, Crowley & Lamb, P.C., and for its motion for order of judgment against Third Party Defendant Shivaun Straub ("Straub"), states as follows:

1. On October 28, 2010, Plaintiffs filed a complaint (the "Complaint") against PNC in the Circuit Court for Cook County, Illinois, alleging that from August 8, 2005 to February 1, 2010, Shivaun Straub began to undertake a scheme whereby she intercepted checks made payable to Plaintiffs, fraudulently endorsed the checks and presented them to PNC for payment.

Plaintiffs alleged the proceeds of the checks, in excess of $539,299.12, were deposited into Shivaun Straub's account at PNC.*fn1

2. PNC removed the Complaint to the Northern District of Illinois on November 23, 2010. Dkt. No. 1.

3. On May 3, 2011, PNC filed a Third Party Complaint against Shivaun Straub ("Straub") in connection with Plaintiffs' allegations in the Complaint. A true and correct copy of PNC's Third Party Complaint against Straub is attached hereto as Exhibit A. PNC has asserted claims in its Third Party Complaint for fraud, breach of transfer warranty and unjust enrichment that entitle it to recover prejudgment interest, attorneys' fees and punitive damages from Straub.

4. Straub was served with Summons and the Third Party Complaint on May 13, 2011. A true and correct copy of the return of service for Summons and Third Party Complaint is attached hereto as Exhibit B.

5. Straub never filed an appearance, answer or other pleading in response to the Third Party Complaint and on June 20, 2011, the Honorable Virginia M. Kendall granted PNC's oral motion to enter an order of default against Straub. Dkt. No. 43, see Exhibit C, hereto.

6. Subsequently, on June 29, 2012, the Honorable John Z. Lee entered a partial judgment against Straub pursuant to Federal Rule 54(b). Dkt. No. 67, see Exhibit D, hereto.

7. PNC has been damaged in the following amounts as a result of Straub's actions: $157,000.00 with respect to the checks, $1,656.27 in prejudgment interest*fn2 , attorneys' fees in the amount of $50,946.00, and other litigation expenses in the amount of $3,291.14.

8. Attached hereto as Exhibit E is a true and correct copy of the affidavit of Nina Ready-Boerst, a Loss Prevention Manager at PNC familiar with the captioned litigation and allegations of Plaintiffs' Complaint and PNC's Third Party Complaint, setting forth in detail the amount of PNC's damages in connection with the captioned litigation.

9. In addition, attached hereto as Exhibit F is a true and correct copy of the Fee Petition of Crowley & Lamb, P.C., setting forth in detail the hours worked, rates charged and expenses incurred in connection with the captioned litigation.

10. Section 3-416(b) of the Uniform Commercial Code provides that "a person to whom the warranties under subsection (a) are made and who took the instrument in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach, but not more than the amount of the instrument plus expenses and loss of interest incurred as a result of the breach." 810 ILCS 5/3-416(b)(West 2012).

11. The Comments to Section 3-416 indicate that under this Code Section, "[t]here is no express provision for attorney's fees, but attorney's fees are not meant to be necessarily excluded. They could be granted because they fit within the phrase 'expenses ***incurred as a result of the breach.'" 810 ILCS 5/3-416, Cmt. 6. Several courts have awarded attorneys' fees in cases involving breaches of transfer warranties. See e.g. First Virginia Bank-Colonial v. Provident State Bank, 582 F.Supp. 850, 852 (D.Md. 1984); Guaranty Bank & Trust Co. v. Fed. Reserve Bank of Kansas City, 454 F.Supp. 488, 492-93 (W.D.Okla. 1977); See also Southern Provisions, Inc. v. Harris Trust and Sav. ...


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