United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. ROWLAND United States Magistrate Judge
case involves a claim for losses, damages, and costs,
including attorneys' fees and post-petition interest,
that Plaintiff claims it is due under indemnity and guaranty
agreements that were given by Defendants as collateral
support for debts owed by two LLCs that were ultimately owned
by Defendants. The parties have consented to the jurisdiction
of the United States Magistrate Judge, pursuant to 28 U.S.C.
§ 636(c), and have filed cross-motions for summary
judgment. For the reasons set forth below, summary judgment
is granted in Sand Capital's favor.
UNDISPUTED MATERIAL FACTS
2004, Dika-Homewood LLC and Dika-Matteson LLC (collectively,
the Borrowers) entered into loans with Wachovia. (Pl's
¶¶ 7-8). The Borrowers are owners of shopping
centers located in Homewood and Matteson (the Properties),
which are each managed by Dika-Management. (Def's
¶¶ 7, 8, 12, 13). Defendants are members of and
managers of Dika-Management. (Id. ¶ 8). The
loans were evidenced by notes and secured by mortgages
encumbering the Properties. (Pl's ¶¶ 9, 12).
The notes were further secured by Indemnity and Guarantee
Agreements (the Agreements),  which were executed by
Defendants. (Id. ¶¶ 10, 11, 13, 14).
Thereafter, the loans, including the notes, mortgages and
Agreements, were assigned from time to time, and in 2015, the
loans were assigned to Plaintiff, which became the holder of
the notes, mortgages, and Agreements. (Id.
¶¶ 15-18). Each of the Agreements provide that
Defendants would be fully liable for the payment of: (a) any
debt, obligation, or liability that the Borrowers were
relieved of in the course of a bankruptcy case; (b)
reasonable costs and expenses, including attorneys' fees,
incurred by Plaintiff as a result of the Properties becoming
assets in the Borrowers' voluntary bankruptcies; and (c)
all costs and expenses, including attorneys' fees,
incurred by Plaintiff in order to enforce the Agreements.
(Id. ¶¶ 19-21).
February 2015, each Borrower filed a voluntary Chapter 11
bankruptcy petition. (Pl's ¶¶ 22, 24). The
Properties each became an asset in the respective
Borrower's bankruptcy estate. (Id. ¶¶
23, 25). In July 2016, the Bankruptcy Court entered orders
confirming the Borrowers' plans. (Id. ¶
32). In September 2016, Plaintiff received $2, 711, 979.81
from Dika-Matteson and $4, 916, 290.81 from Dika-Homewood.
(Id. ¶¶ 34, 35). These amounts, when added
to payments made during the bankruptcy by the Borrowers,
equaled Plaintiff's proofs of claim filed in the
applicable bankruptcy case but did not include either
post-petition interest due on the notes or the attorney fees
and expenses incurred by Plaintiff in either the bankruptcy
court or this court. (Id. ¶¶ 36-37).
Summary Judgment Standards
judgment is proper only if the “materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
“shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
Court views the evidence in the light most favorable to the
nonmoving party and draws all reasonable inferences in its
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Popovits v. Circuit City Stores,
Inc., 185 F.3d 726, 731 (7th Cir. 1999). To avoid
summary judgment, the party who bears the burden of proof
cannot rely on the pleadings alone, but must “set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 250 (citation
omitted); see Celotex, 477 U.S. at 324 (Rule 56
“requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.”) (citation omitted).
Seventh Circuit “has recognized that summary judgment
is particularly appropriate in cases involving the
interpretation of contractual documents.” Ryan v.
Chromalloy Am. Corp., 877 F.2d 598, 602 (7th Cir. 1989).
“Where the contract is unambiguous, a court must
determine the meaning of the contract as a matter of
law.” Murphy v. Keystone Steel & Wire Co., a
Div. of Keystone Consol. Indus., 61 F.3d 560, 565 (7th
Cir. 1995). A contract is unambiguous “if it is
susceptible to only one reasonable interpretation.”
Id. The contract should be read as a whole so that
all its parts will be given effect, Preze v. Bd. of
Trustees, Pipefitters Welfare Fund Local 597, 5 F.3d
272, 274 (7th Cir. 1993), and related documents must be read
together, Lippo v. Mobil Oil Corp., 776 F.2d 706,
713 n. 13 (7th Cir. 1985).
The Agreements Entitle Plaintiff to Unpaid Interest and
parties agree that their dispute is governed by the
Agreements. There is also no dispute that each Defendant
executed his respective Agreement, that the Agreements were
assigned to Plaintiff, and that Plaintiff fully performed its
obligations under the Agreements. (Pl's ¶¶ 10,
11, 13, 14; Lau Aff. ¶¶ 20-23, 39; Def's
¶¶ 16, 21). The parties dispute, however, whether
the Agreements entitle Plaintiff to post-petition interest
and attorneys' fees.
One of the Agreements requires each Defendant, as personal
indemnifiers, to pay certain costs if specified events take
place. Regarding voluntary bankruptcies, the Agreements
require Defendants to:
pay, protect, defend and save [Plaintiff] harmless from and
against . . . any and all liabilities, obligations, losses,
damages, reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees),
causes of action, suits, claims, demands and judgments of any
nature . . . (collectively, “Costs”)
which may at any time be imposed upon, incurred by or awarded
against [Plaintiff] as a result of . . . the Property or any
part thereof becoming an asset in [ ] a voluntary bankruptcy
or insolvency proceeding.
(Pl.'s ¶ 19) (quoting Agreements § 1(j))
(Section 1(j)) (emphasis added). Section One contains a Final