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Jackson v. The Bank of N.Y.

United States District Court, N.D. Illinois, Eastern Division

August 6, 2014

THE BANK OF NEW YORK, as successor to JP Morgan Chase Bank, NA, et al., Defendants

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[Copyrighted Material Omitted]

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For Gregory Jackson, Plaintiff: Andrew J Garcia, PRO HAC VICE, Phillips & Garcia Pc, Dartmouth, MA; Arthur S. Gold, Gold & Associates, Ltd., Chicago, IL.

For The Bank of New York, as successor to JP Morgan Chase Bank, NA, Litton Loan Servicing LP, a foreign limited partnership, Janice Mcclure, Partner, Dee A. Lerma, Partner, Elizabeth Folk, Partner, Shane Ross, Partner, Larry Litton, SR, General Partner, Defendants: Keith H. Werwas, LEAD ATTORNEY, Potestivo & Associates P.C., Chicago, IL.

For Safeguard Properties, Inc., a foreign corporation, Defendant: Adrian Mendoza, Jr., Lillig & Thorsness, LTD., Oak Brook, IL.

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Robert M. Dow, Jr., United States District Judge.

Plaintiff Gregory Jackson (" Plaintiff" ) alleges that Defendants' agents unlawfully

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entered his property without his permission, removed many of his personal possessions, and changed the locks. Plaintiff asserts state law claims of trespass, conversion, and invasion of privacy against Defendants Safeguard Properties, LLC (" Safeguard" ), Litton Loan Servicing, LP (" Litton" ), and The Bank of New York (" BONY" ). Plaintiff also has asserted claims of negligence and " willful and wanton conduct" against Safeguard, and claims of promissory estoppel against Litton and BONY.

Before the Court are the summary judgment motions of Safeguard [65] and Litton and BONY [69]. For the reasons stated below, Litton's and BONY's motion [69] is granted in full. Safeguard's motion [65] is granted in part as to Plaintiff's claims of conversion, invasion of privacy, and " willful and wanton conduct" and denied in part as to Plaintiff's claims of trespass and negligence. Plaintiff's claims of trespass and negligence against Safeguard remain pending. This matter is set for status on 8/21/2014 at 9:00 a.m.

I. Background

A. Local Rule 56.1

Local Rule 56.1(a) requires a party moving for summary judgment to serve and file " (1) any affidavits and other materials referred to in Fed.R.Civ.P. 56(e); (2) a supporting memorandum of law; and (3) 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, and that also includes: (A) a description of the parties, and (B) all facts supporting venue and jurisdiction in this court." Local Rule 56.1 further requires that the statement of material facts " consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." " 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 Petty v. City of Chi., 754 F.3d 416, 2014 WL 2568264, at *3 (7th Cir. 2014); 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). The Seventh Circuit likewise has held that " a district court is entitled 'to decide the motion based on the factual record outlined in the [Local Rule 56.1] statements.'" Koszola v. Bd. of Educ. of the City of Chi., 385 F.3d 1104, 1109 (7th Cir. 2004) (quoting Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999)); see also Fed.R.Civ.P. 56(c)(3) (" The court need only consider the cited materials, but it may consider other materials in the record." ).

Neither Safeguard's nor BONY's and Litton's statement of facts strictly complies with all of the requirements of Local Rule 56.1(a). Safeguard's submission comes close to the mark: although it omits requisite venue and jurisdictional facts, it consists of short numbered paragraphs and includes reasonably specific citations to the materials on which it relies. BONY's and Litton's statement is woefully inadequate. Several of the statements of fact are irrelevant recapitulations of the procedural history of this case, see, e.g., [71] ¶ 1 (" Plaintiff brought this action for damages on September 14, 2011." ), and some of the more pertinent facts are not supported by any citations to the record. See, e.g., [71] ¶ 11 (" On or about April 2, 2001, Karen Jackson borrowed $380,000.00 from EquiFirst Corporation (the 'Note')." ).

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Other statements are supported only by reference to the allegations made in Plaintiff's second amended complaint, see, e.g., [71] ¶ 14 (" Karen Jackson defaulted under the terms of her Note and Mortgage and in December 2008, BONY obtained a foreclosure judgment against Karen Jackson. (Plaintiff's Second Amended Complaint, para. 17)." ), but because Plaintiff does not dispute these assertions the Court treats them as though they are admissions for purposes of Fed.R.Civ.P. 56(c)(1)(A). The Court is most troubled at this juncture by the fact that BONY's and Litton's substantive legal analysis and argument do not engage or rest on the facts contained in their Local Rule 56.1 statement. Instead, they are predicated upon other evidence in the record, evidence submitted in connection with BONY's and Litton's substantive brief rather than via their Local Rule 56.1 statement. See, e.g., [70] at 6-8.

Yet just as the Court has the discretion to require strict compliance with the local rules, so too is it vested with the discretion to overlook transgressions of the local rules so long as it enforces or relaxes the rules equally as between the parties. Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013). The Court enforces the rules as follows here: the Court will rely only upon properly supported statements made in the parties' Local Rule 56.1 submissions. Material facts cited for the first time in BONY's and Litton's brief in support of summary judgment will be disregarded. The Court recognizes that taking this course of action may result in a bit of a free ride for BONY and Litton, as Safeguard properly included in its statement of material facts at least some of the facts that BONY and Litton relied upon in the argument section of their brief. Nonetheless, the Court in its discretion concludes that the interest in efficiently resolving the pending motions outweighs any incidental detriment to Safeguard in this regard. More importantly, no prejudice will inure to Plaintiff, who could and did respond to the factual allegations contained in both Safeguard's and BONY's and Litton's statements and submitted facts of his own. See [73] Pl's Facts; [75] Pl.'s Facts. Defendants replied to Plaintiff's additional facts.[1] See [77]; [80].

B. Facts

As outlined above, the Court draws the following facts from the parties' Local Rule 56.1 Statements of Fact. See [67], [71], [73], [75], [77], [80]. The Court construes all properly supported facts and draws all reasonable inferences in the light most favorable to Plaintiff, the non-moving party. E.g., Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).

This matter concerns real property located at 22980 Kristine Lane in Richton Park, Illinois. [71] ¶ 9; [75] ¶ 9. Plaintiff, who currently resides in Phoenix, Arizona, previously lived at the Kristine Lane residence with his now-ex-wife, Karen Shepard, who was at times relevant to this case known as Karen Jackson. [67] ¶ ¶ 2, 4; [71] ¶ 10; [73] ¶ ¶ 2, 4; [75] ¶ 10. On or about April 2, 2001, Karen Jackson borrowed $380,000 from EquiFirst Corporation to purchase the Kristine Lane residence. [71] ¶ 11; [75] ¶ 11. As security for the loan, Karen Jackson executed a mortgage in favor of EquiFirst Corporation. [71] ¶ 12; [75] ¶ 12. The mortgage document

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also contains Plaintiff's signature. See [73] ¶ 7. However, every time it appears, it is above the wording, " Gregory Jackson, spouse of Karen Jackson, is signing this mortgage solely to waive any and all homestead rights." See id. ; see also [67] Ex. E at 14, 18, 20, 21. Plaintiff concedes that he " was not on the legal title to the property," [75] ¶ 16, but maintains that he simply signed the documents that he was required to sign to buy the home with his then-wife. [73] ¶ 7. Plaintiff also testified that he made monetary contributions to live in the home, id., and that he was actively involved in attempting to secure a loan modification. [73] ¶ 11. The mortgage was recorded with the Cook County recorder on April 13, 2001. [71] ¶ 12; [75] ¶ 12. The mortgage eventually was assigned to Defendant BONY, a mortgage lender. [67] ¶ 4; [71] ¶ 13; [73] ¶ 4; [75] ¶ 13. BONY recorded the mortgage on December 1, 2008. [71] ¶ 13; [75] ¶ 13. Defendant Litton acted as the mortgage servicing company. [67] ¶ 5; [73] ¶ 5. BONY and Litton concede in their brief that Litton was " the servicer and attorney-in-fact for BONY." [70] at 5.

In 2005 or 2006, Karen Jackson vacated the Kristine Lane residence and moved to Texas. [67] ¶ 8; [73] ¶ 8; [75] Pl.'s ¶ 1. Plaintiff continued to reside in the Kristine Lane residence during the couple's separation and ensuing divorce. [67] ¶ 8; [73] ¶ 8. Plaintiff did not have a lease to the home. Id. He testified, however, that he was awarded the Kristine Lane residence pursuant to a court order issued in his divorce proceedings. [73] ¶ 8; [67] Ex. D at 24:17-25:7. Plaintiff similarly states in his responses to Defendants' statements of facts that he " received the rights to the Residence as part of the divorce settlement." [73] ¶ 8; [75] Pl.'s ¶ 1. After the divorce was finalized, at some point in early-to-mid 2009, Plaintiff leased a condominium in Arizona and began splitting his time between Arizona and the Kristine Lane residence as part of a " long-term move" pursuant to which he would " go a week, come back two weeks, whatever." [73] ¶ 8; [75] Pl.'s ¶ 1; [80] ¶ 1. Until that time, however, Plaintiff lived exclusively in the Kristine Lane home.

It is undisputed that Karen Jackson defaulted under the terms of her Note and Mortgage. [71] ¶ 14; [75] ¶ 14. On July 11, 2008, BONY and/or Litton [2] filed a foreclosure action in the Circuit Court of Cook County. [67] ¶ 10. Plaintiff and Karen Jackson were both named as defendants. See [67] Ex. I. In December 2008, BONY obtained a foreclosure judgment against Karen Jackson. [71] ¶ 14; [75] ¶ 14. The Kristine Lane residence was sold at a foreclosure sale in August 2009. [67] ¶ 11; [71] ¶ 15; [73] ¶ 11; [75] ¶ 15. Prior to the sale, Plaintiff communicated with Litton to try to obtain a loan modification. [73] ¶ 11.

Plaintiff went to Arizona in June 2009. [73] ¶ 47. Plaintiff claims that the Kristine Lane residence was " secure" when he left and that " all of his personal possessions were in the home." See id. The deposition testimony that he cites in support of these contentions merely states that the house was " okay" and " in perfect

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condition" when he left, and that his personal items were still there. [67] Ex. B. at 32-33. The Court cannot reasonably infer from this testimony that the house was locked or " secure" when Plaintiff left it in June. Plaintiff did not return to the home at any point between June and late September 2009. Plaintiff testified that he " never allowed anybody else in the property while [he was] gone." [67] Ex. B. at 100:20-22; [73] ¶ 39.

In August 2009, Defendant Litton retained Realty Executives Target to prepare the Kristine Lane property for listing. [75] Pl.'s ¶ 2; [80] ¶ 2. Realty Executives would submit bids for various tasks, which Litton would approve. [75] Pl.'s ¶ 2; [80] ¶ 2; [73-6] at 10-11. Realty Executives Target dispatched Patrick Sawaska, owner of Amazing Grass, to Kristine Lane to ...

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