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The Bank of New York Mellon v. Ontiveros

United States District Court, Seventh Circuit

January 13, 2014



ROBERT M. DOW, Jr., District Judge.

Plaintiff The Bank of New York Mellon ("Bank of New York" or "Plaintiff") filed a mortgage foreclosure complaint against Defendants Marlene and Fernando Ontiveros. Plaintiff alleges that Defendant Marlene Ontiveros signed a note and both Defendants signed a mortgage when they borrowed $174, 800.00 in July 2003 and that they have now defaulted on those obligations. Plaintiff seeks damages, interest, and attorney's fees and costs. This matter is now before the Court on Plaintiff's motions for summary judgment [15] and to appoint special commissioner [18]. For the reasons stated below, the Court grants Plaintiff's motions [15 and 18].

I. Background

A. Fact Statements

Local Rule of Civil Procedure 56.1 requires a party moving for summary judgment to file "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." N.D.Ill. R. 56.1(a)(3). The statement "shall consist of short numbered paragraphs" that refer to "materials relied upon to support the facts set forth." N.D.Ill. R. 56.1(a). The party opposing summary judgment is then required to file "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." N.D.Ill. R. 56.1(b)(3)(B).

"The obligation set forth in Local Rule 56.1 is not a mere formality. Rather, [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." Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012) (quotation marks and citations omitted). "Because of the important function local rules like Rule 56.1 serve in organizing the evidence and identifying disputed facts, " the Seventh Circuit has "consistently upheld the district court's discretion to require strict compliance with those rules." F.T.C. v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005); see also Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (collecting cases). Indeed, as another court in this district previously observed, "the penalty for failing to properly respond to a movant's 56.1(a) statement is usually summary judgment for the movant (at least if the movant has done his or her job correctly) because the movant's factual allegations are deemed admitted. Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000); see also Bank of New York Mellon Trust Co. v. James, 2013 WL 6009260, at *1 (N.D. Ill. Nov. 13, 2013).

Here, the relevant facts are taken from Plaintiff's Local Rule 56.1 Statement of Material Facts ("SOF") [16]. Despite having the opportunity, Defendants-who are represented by counsel-failed to submit a response to Plaintiff's SOF or a statement of additional facts. Local Rule 56.1(b)(3)(C) provides that "[a]ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." The Court therefore deems admitted all of the facts set forth in Plaintiff's SOF.

B. Factual Background

On or about July 24, 2003, America's Wholesale Lender ("AWL") lent Defendant Marlene Ontiveros the sum of $174, 800.00. Defendant executed a note in favor of AWL in exchange for the $174, 800.00. Countrywide Home Loans, successor to AWL, executed an Assignment of Mortgage to Plaintiff on July 30, 2003. Plaintiff has possession of the note and owns the note, which bears an indorsement. Pursuant to the note, Defendant agreed to pay interest at a yearly rate of 5.875%. Defendant also agreed to make monthly payments on the first day of every month.

AWL secured its interests in the note by recording a mortgage with the Cook County Recorder of Deeds on August 16, 2003. The property is commonly known as: 2213 South 59th Avenue, Chicago, IL 60804.

The mortgage provides that the note is fully secured, stating that:

This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender and Lender's successors and assigns, the following described property * * *.

The language of the Mortgage further provides

If [after notice] the default is not cured on or before the date specified in the notice, Lender 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. Lender shall be entitled to collect expenses incurred in pursuing the remedies provided in this ...

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