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Ashland Avenue Investments, LLC v. Marquette National Bank

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

August 29, 2016

Ashland Avenue Investments, LLC, Plaintiffs,
v.
Marquette National Bank, As Trustee Under a Trust Agreement dated December 2, 1998 and known as Trust Number 14662, May Toy, Gee Toy, Sau Kuen Lu Toy Defendants,

          MOTION FOR RELIEF FROM FINAL JUDGMENT

          John Tharp, Jr. Judge.

         The Defendant, May Toy, moves this court for relief from final judgment pursuant to both Rule 59(b) and several sub-sections of Rule 60(b) detailed below. The reconsideration and relief from final judgment based on new evidence as well as misrepresentations from Plaintiffs attorneys that the judgment was based on. This evidence was not available at the time of summary judgment because it was on computer equipment that was damaged by burst water pipes.

         I. GUARANTEE

         Defendant have state in her previous declaration and have stated in a sworn affidavit attached as (Exhibit A) that the signature on the guarantee is not hers and is a forgery.

         A) Defendant was Out of Town on the Date of the Guarantee

         It would have been impossible for Defendant May Toy to have signed the guarantee in Cook County, IL as she was out of town on business on December 15, 1998. In support of this, the defendant produces her credit card statement showing purchases in the metro Des Moines, IA area from December 14, 1998 to December 16, 1998. (Exhibit B) The notary stamp on the guarantee is from the State of IL not the State of Iowa.

         B) Signature on Guarantee Does Not Match Defendant's Signatures

         Comparisons of the Defendant's signatures against the signature on the Guarantee using signature verification software show that it is not likely to be signed by the same person. The defendant closed on the purchase of 315 S. Ashland Chicago IL 60607 on Dec 18, 1998 and an unaltered copy of closing document with her signature is attached as (Exhibit C). The copy of the Guarantee submitted by the plaintiff is attached as (Exhibit D). Another reference signature for the defendant is from her passport and is attached as (Exhibit E).

         Signature verification is a type of software that compares signatures and checks for authenticity. This saves time and energy and helps to prevent human error during the signature process and lowers chances of fraud in the process of authentication. The software generates a confidence score against the signature to be verified. Too low of a confidence score means the signature is most likely a forgery.

As defined by Techopedia, Signature verification is defined to be a technique used by banks, intelligence agencies and high-profile institutions to validate the identity of an individual. Signature verification is often used to compare signatures in bank offices and other branch capture. An image of a signature or a direct signature is fed into the signature verification software and compared to the signature image on file known to be valid. (Exhibit F)

         Comparisons of the signature on the Guarantee against Defendant's signatures from the settlement/closing and passport using signature verification software show that there is a low probability or confidence (46% and 48%) that they are signatures from the same person, and a high likelihood that the signature is a forgery. (Exhibit G). When the closing signature was compared to the passport signature, the probability of the signatures being from the same person was 91%.

         This comparison is based on mathematical and scientific calculations that objectively determine the similarity of the two signatures. Similarly, image comparison software also indicate that the signatures are different. (See Exhibits H)

         C) Evidence Was Not Available Before Due to Damage to Computer Equipment

         Consideration is warranted pursuant to Rule 59(b) and Rule 60(b)(2) because this evidence was not available previously because it was on computer equipment that was damaged by burst water pipes. The water pipes burst in the unit above because the receiver appointed in the state foreclosure case failed to pay for the gas and the water pipes froze. The equipment had to be sent out for repair and the evidence information was not accessible by the defendant. The defendant has sworn to this in her attached affidavit. This is a rare occurrence that was beyond the defendant's control.

         Therefore, the defendant's contention that she did not sign the guarantee is supported by facts and objective data. It is a well known fact that there has been false notaries signatures and false loan documents in mortgage foreclosure documented by lawsuits by attorney generals of numerous states. Both Citibank and Wells Fargo, two of the holders of note in this case have been shown to have committed foreclosure fraud with false notarized documents. (See Exhibit I)

         II) NOT TRUE THAT THE DEFENDANT DID NOTHING

         The plaintiff alleged that the defendant did nothing when the call option letter was sent and the court agreed with the plaintiff. The Defendant had been trying for years to get the lender to correct her loan so that there would be an accurate accounting and status of her loan. If the defendant had done nothing, she would not have won the state foreclosure case.

         The defendant had been disputing the amounts due throughout the entire state foreclosure case including the timeframe of the call option period. The plaintiff knew that the defendant had been disputing the loan amounts and the burden is on the plaintiff to state the correct amount due when the call option was exercised. It is undisputed that the plaintiff was already on notice and clearly aware that the defendant was disputing the figures of the amount due calculated by the plaintiff. The amounts disputed included the principal amount due to alleged missing payments. (See Section B below and Exhibit L and Exhibit M)

         A) Marissa McGaughey testified to the Amounts Due as demanded by the Plaintiff

         The defendant did not have to call the plaintiff to inquire what amount that the Plaintiff was demanding to pay off the loan because Plaintiffs counsel had called Marissa McGaughey to testified to the payoff amount during the trial in the state case trial. The Plaintiff knew that the Defendant had disputed this amount as well as Marissa McGaughey's testimony throughout the trial and state case. At trial, Defendant asked for and received a copy of Ms. McGaughey's calculations. (Exhibit J)

THE COURT: To create what number?
MR. WEININGER:The number that which she (Ms. McGaughey) had testified to the calculation that she came up with that she can't remember the exact number. If ...

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