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Firstmerit Bank, N.A. v. Grear

United States District Court, Seventh Circuit

October 28, 2013

FIRSTMERIT BANK, N.A., a national banking association, as successor in interest to the FDIC, as receiver for Midwest Bank and Trust Company, Plaintiff,
v.
MICHAEL GREAR, Defendant.

MEMORANDUM OPINION AND ORDER

GEORGE M. MAROVICH, District Judge.

Plaintiff FirstMerit Bank, N.A. ("FirstMerit"), a national banking association, as successor in interest to the FDIC, as receiver for Midwest Bank and Trust Company, filed a complaint against defendant Michael Grear ("Grear") to enforce two guaranties.[1] FirstMerit now moves for summary judgment against defendant Grear. For the reasons set forth below, the Court grants the motion for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. As the Court notes on its website (and has mentioned in multiple opinions), the Court enforces Local Rule 56.1 strictly. To be considered, facts must be included in a party's statement of undisputed facts. Facts argued in briefs but not included in a party's statement of undisputed facts are not considered by the Court, because to do so would rob the other party of his or its opportunity to show such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This does not, however, absolve the party who asserted a fact of its initial burden of putting forth admissible evidence to support its fact. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court.

In this case, defendant Grear did not respond to plaintiff's statement of undisputed facts. Accordingly, those facts are deemed admitted to the extent they are supported by admissible evidence. Thus, the following facts are undisputed.

In 2010, two entities-New Golf Corporation ("New Golf") and Fahey Medical Center, S.C. ("Fahey Medical")-borrowed money from Midwest Bank and Trust Company. Specifically, on February 18, 2010, New Golf executed a promissory note for the original principal amount of $741, 280.86 (the "New Golf note"). On April 9, 2010, Fahey Medical executed a promissory note for the original principal amount of $850, 000.00 (the "Fahey Medical note").

Defendant Grear had an ownership interest in both New Golf and Fahey Medical and, thus, personally guaranteed both loans. Specifically, on February 18, 2010, Grear executed a guaranty with respect to the New Golf loan (the "New Golf Guaranty"). On April 10, 2008, Grear executed a personal guaranty as to Fahey Medical's indebtedness (the "Fahey Guaranty").

The Fahey Guaranty states, in relevant part:

CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender...
INDEBTEDNESS. The word "Indebtedness" as used in this Guaranty means all of the principal amount outstanding from time to time and at any one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys' fees, arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower individually or collectively or interchangeably with others, owes or will owe Lender....
CONTINUING GUARANTY. THIS IS A CONTINUING GUARANTY' UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS....
* * *
MISCELLANEOUS ...

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