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JP Morgan Chase Bank, N.A. v. Jenkins

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

August 18, 2016



          ROBERT W. GETTLEMAN United States District Judge.

         Plaintiff JP Morgan Chase Bank brought this foreclosure action against defendant Lindsay Jenkins, the mortgagor of certain residential property. Plaintiff filed the instant motion (doc. 90) for summary judgment pursuant to Fed.R.Civ.P. 56, contending that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Plaintiff also filed a motion (doc. 100) to appoint a special commissioner in the event that its motion for summary judgment is granted. In addition, plaintiff filed a motion (doc. 101) for default judgment and a motion (doc. 102) for entry of a judgment of foreclosure and sale as to defendants 30 East Huron Condominium Association, Unknown and Non-Record Claimants, and Unknown Occupants. Defendant subsequently filed a motion (doc. 111) to strike plaintiff’s motion for summary judgment, a Fed.R.Civ.P. 56(d) affidavit (doc. 109), and a second motion (doc. 116) to dismiss.

         For the reasons discussed below, the court grants plaintiff’s motions for summary judgment and to appoint a special commissioner and denies defendant’s motion to strike and dismiss. In light of the fact that the remaining defendants have not answered the complaint, the court also grants plaintiff’s motion for default judgment.

         I. Local Rule 56.1 Statements

         Ordinarily, the court relies on the parties’ Local Rule 56.1 statements and responses to summarize the undisputed facts before the court. However, neither defendant’s responses to plaintiff’s 56.1 statements nor her “counterstatement” comply with the court’s local rule. As an initial matter, defendant’s responses do not contain “a concise summary of the paragraph to which it is directed, ” as required by L.R. 56.1(b)(3)(a).

         More importantly, defendant’s denials are not supported by “specific references” to admissible evidence. L.R. 56.1(b)(3)(b); see also McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998) (“An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission.”). For example, defendant denies, without any citation to supporting evidence, that she has defaulted on her monthly mortgage payments. Defendant’s sporadic references to her “counterstatement” and the “attached exhibit” do not qualify as specific references to supporting materials. See Richards v. Combined Ins. Co. of America, 55 F.3d 247, 251 (7th Cir. 1995) (“It is not our task, or that of the district court, to scour the record in search of a genuine issue of triable fact. We rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.”).[1] As such, the court deems each of plaintiff’s material facts undisputed.

         Defendant’s counterstatement, traditionally known as a statement of additional facts, does not fare any better. As plaintiff points out, most of defendant’s additional statements of fact are not facts at all, but arguments and legal conclusions. See Warner Bros. Entm’t, Inc. v. Synergex Corp., No. 12-C-8483, 2014 WL 518085, at *1 (N.D. Ill. Feb. 10, 2014) (“[T]he purpose of Local Rule 56.1 statements and responses is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments.”). The court, therefore, will not consider these additional statements.

         The only material defendant cites in support of her denials of plaintiff’s 56.1 statement of facts and counterstatement is a report entitled “Property Securitization Analysis Report” that is authored by Michael Carrigan, who identifies himself as a “Certified Mortgage Securitization Auditor.” The report, however, is undated, unsigned, and unsworn, and thus is not admissible to oppose summary judgment. See Wittmer v. Peters, 87 F.3d 916, 917 (7th Cir. 1996) (stating that unsworn statements are not admissible to support or oppose summary judgment); see also Estate of Williams v. Indiana State Police, 26 F.Supp.3d 824, 837 (S.D. Ind. 2014) (“It is well settled that unsworn statements, including expert reports, are inadmissible to support or oppose summary judgment.”).[2] Even if the report was admissible (it is not), as discussed in more detail below, it does not advance defendant’s position.

         II. Background

         On August 19, 2005, defendant entered into a mortgage and note with Washington Mutual Bank, FA (“WaMu”), secured by property located at 30 E. Huron Street #4406, Chicago, Illinois 60611. The note required defendant to make monthly payments beginning on October 1, 2005. Defendant also agreed, as a part of the note, to pay taxes, insurance and any other escrow items that applied. The note was endorsed in blank by WaMu.

         Defendant defaulted on her monthly mortgage payments under the terms of the note and mortgage by failing to pay the monthly mortgage payments as they became due beginning in January 2008. Pursuant to a Purchase and Assumption Agreement between the Federal Deposit Insurance Corporation (“FDIC”) and plaintiff, plaintiff became the owner of all the loans and loan commitments of WaMu, including defendant’s mortgage loan, on September 25, 2008. As of January 6, 2016, the outstanding amount due on the loan, excluding attorney fees and costs associated with the foreclosure and litigation in this case, was $294, 484.44.

         III. Defendant’s Motions

         As discussed above, since plaintiff moved for summary judgment, defendant has filed a motion to strike plaintiff’s motion for summary judgment, a Rule 56(d) affidavit, and a second motion to dismiss. The court denies both motions and, in its discretion, declines to exercise its powers pursuant to Rule 56(d)(1) or (2).

         Defendant argues that the court should strike plaintiff’s motion for summary judgment for failure to comply with Local Rule 56.2. Defendant, however, does not articulate how plaintiff has failed to comply with the rule. Local Rule 56.2 requires a party moving for summary judgment against a pro se litigant to “serve and file as a separate document, together with the papers in support of the motion, a ‘notice to pro se litigant opposing motion for summary judgment’ in the form indicated” by the rule. A review of plaintiff’s motion makes clear that plaintiff did in fact comply with Local Rule 56.2. As required by the rule, plaintiff ...

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