United States District Court, C.D. Illinois, Rock Island Division
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of COUNTRY BANK, Plaintiff,
KENNETH E. HOFFMAN, JR., Defendant.
SARA DARROW, District Judge.
Plaintiff Federal Deposit Insurance Company, as receiver for Country Bank, ("the FDIC") alleges that Defendant Kenneth Hoffman, Jr. ("Hoffman") defaulted on a loan and breached the terms of a promissory note by failing to timely pay the principal and interest due under the note. Defendant moves for summary judgment on the ground that he negotiated a settlement agreement with the FDIC-Receiver on October 15, 2012 that released him from all liabilities to the FDIC-receiver, including the loan default at issue here. For the following reasons, Defendant Hoffman's Motion for Summary Judgment, ECF No. 15, is DENIED.
On June 22, 2009, Country Bank loaned Hoffman $1, 500, 000. Def.'s Statement of Undisputed Facts 1, ECF No. 14. The loan was secured by tax increment financing bonds issued by the Village of Sherrard, Illinois. Id . On April 25, 2011, Country Bank separately loaned Hoffman and his wife $157, 300. Def.'s Mot. Summ. J., Ex. A at 1, ECF No. 15-1. The note for this loan was secured by three pieces of real estate in Milan, Illinois. Id . at 1-2. The FDIC-Receiver later sought to foreclose the mortgages on these properties. Id . at 2. On October 15, 2012, Hoffman and his wife contracted with the FDIC-Receiver to tender the deeds for these three properties in lieu of foreclosure on them. Id . at 1, 2. This contract ("the Release") explained that this arrangement came "after extensive negotiations between FDIC-Receiver and [the Hoffmans] and their respective attorneys, and the exchange of information, and in the interests of avoiding litigation and its attendant costs." Id . at 2. In a paragraph entitled "Tender of Deeds in Lieu of Foreclosure, " the parties agreed:
In consideration for the FDIC-Receiver releasing all actual and potential claims [it] has against the Released Parties, the Released Parties agree to tender to FDIC-Receiver the aforementioned Deeds In Lieu of Foreclosure, pursuant to 735 ILCS 5/15-1401... which shall terminate the Released Parties' interests in the properties and relieve the Released Parties, and each of them, from any further liability whatsoever arising out of or otherwise related to the Loan Documents or the Properties.
Id . at 3. The next paragraph, entitled "Release of Released Parties, " reads in relevant part:
For itself... FDIC-RECEIVER hereby releases and discharges [the Hoffmans]... from any and all liabilities, obligations, claims, actions, causes of action, liens, fees and demands of whatsoever kind or nature, whether known or unknown, that FDIC-RECEIVER had, now has, or may have against such Released Parties, including, but not limited to, those arising out of, based on, or in any way connected with the Loan Documents, or any portion thereof, or the Properties or relating to claims raised against the released parties.
Id . The Release goes on to stipulate that it shall be construed under the laws of Illinois. Id . at 4. The Release makes no mention of the 2009 loan.
On October 18, 2012, Plaintiff, as the receiver for Country Bank, filed the instant suit to foreclose its liens on the bonds. Pl.'s Resp. to Mot. Summ. J. 2, ECF No. 18.
I. Standard on Summary Judgment
Summary judgment is the "put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnson v. Cambridge Indus., Inc. , 325 F.3d 892, 901 (7th Cir. 2003) (internal quotation marks omitted). A court should grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial-that is, whether there is sufficient evidence favoring the non-moving party for a jury to return a verdict in its favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986); Patel v. Allstate Ins. Co. , 105 F.3d 365, 370 (7th Cir. 1997). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. McCann v. Iroquois Mem'l Hosp. , 622 F.3d 745, 752 (7th Cir. 2010) (citing Anderson , 477 U.S. at 255). There can be no genuine issue as to any material fact, however, when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, ...