United States District Court, N.D. Illinois, Eastern Division
THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2007-7, Plaintiff,
MILTON HOLMES, JANE DOE, CURRENT SPOUSE OR CIVIL UNION PARTNER, IF ANY, OF MILTON HOLMES, UNKNOWN OWNERS, GENERALLY, and NON-RECORD CLAIMANTS, Defendants.
R Wood United States District Judge
Bank of New York Mellon, formerly known as Bank of New York,
as Trustee for the Certificate Holders of CWABS Inc.,
Asset-Backed Certificates, Series 2007-7
(“BONYM”) claims that it is the owner of a
mortgage loan note entered into with Defendant Milton Holmes
in 2007. In April 2012, a third party attempted to discharge
Holmes's debt with a personal check in the amount of $97,
756.53. Before the check cleared, the loan servicer unwisely
credited the payment to Holmes's loan account and issued
a release. The loan servicer subsequently discovered that the
check had bounced and attempted to stop the recording of the
release but was unable to stop the recording in time. The
release was ultimately rescinded and the rescission was
recorded. BONYM now asserts that Holmes is in default and
that BONYM is entitled to foreclose on the mortgage. In
response, Holmes, proceeding pro se, claims that he
has paid off the mortgage. He has filed a counterclaim
seeking to quiet title on the mortgaged property. Presently
before this Court are BONYM's motion for summary judgment
on its foreclosure claim (Dkt. No. 92) and BONYM's motion
for summary judgment on the remaining portion of Holmes's
counterclaim (Dkt. No. 93). Holmes has opposed the motions.
For the reasons explained below, both summary judgment
motions are granted.
14, 2014, BONYM brought a complaint for foreclosure and other
relief against Holmes in Illinois state court. (Dkt. No. 1 at
5-9). Holmes removed the action to federal court. (Dkt. No. 1
at 1-3). Subsequently, on October 15, 2014, Holmes filed a
pro se answer to the complaint with affirmative
defenses and a counterclaim. (Dkt. No. 9). On November 25,
2014, the prior judge in this action remanded the action to
state court based on a lack of jurisdiction. (Dkt. No. 15).
On December 24, 2014, Holmes moved to vacate the remand
order. (Dkt. No. 20). On January 27, 2015, the instant action
was reassigned to the undersigned judge. (Dkt. No. 28). On
September 30, 2015, this Court granted Holmes's motion to
vacate the remand order and reinstated the instant action.
(Dkt. No. 35). BONYM moved to dismiss the counterclaim for
failure to state a claim. (Dkt. No. 42). The Court in
reviewing the counterclaim construed it to include both fraud
claims and a claim seeking to quiet title. (Dkt. No. 61). On
August 29, 2016, the Court granted the motion to dismiss the
fraud claims, and denied the motion to dismiss the
quiet-title claim. (Dkt. No. 61). With respect to the latter,
Court concluded that because Holmes had a written release
indicating that he owed no more money, whether Holmes still
owed the amounts claimed by BONYM was an evidentiary issue
beyond the scope of the pleadings. After discovery, BONYM
filed the instant summary judgment motions. Unless otherwise
noted, the following facts are either undisputed or deemed to
be undisputed for the purposes of those motions pursuant to
Local Rule 56.1.
March 30, 2007, America's Wholesale Lender
(“AWL”) loaned Holmes $103, 500.00
(“Loan”). (Pl.'s Statement of Material Facts
in Support of Motion for Summary Judgment on the Foreclosure
Claim (“F. SOF.”) ¶ 4, Dkt. No. 92-2). The
Loan was secured by a property (“Property”)
located at 8825 S. Morgan Street, Chicago, Illinois 60620.
(F. SOF. ¶ 4). In exchange for the Loan, Holmes executed
a promissory note (“Note”) in favor of AWL and
its successor Note holders. (F. SOF. ¶ 5); (Pl.'s
Statement of Material Facts in Support of Motion for Summary
Judgment on the Counterclaim (“CC. SOF”) ¶
2, Dkt. No. 95); (Milton Holmes Deposition (“Homes
Dep.”) at 4). To provide security for the Note, Holmes
granted a mortgage lien against the Property
(“Mortgage”) to Mortgage Electronic Registration
Systems, Inc. (“MERS”) as nominee for AWL and its
successors and assigns. (F. SOF. ¶ 6); (CC. SOF. ¶
3); (Holmes Dep. at 5).
America, N.A. (“BANA”) and/or its predecessors
serviced the Loan from its origination until April 15, 2015.
(Tiffany Barnfield Affidavit (“Barn. Aff.”)
¶ 9, Dkt. No. 95-2). On March 29, 2012, Holmes sent BANA
correspondence, indicating that a third party named Shawn L.
Dorsey was given permission to discharge Holmes's debt in
the amount of $97, 756.53. (Id. ¶ 10); (Dkt.
No. 95-2 at 10). On April 3, 2012, BANA received a personal
check (“Check”) with check number 0807 that was
executed by Dorsey in the amount of $97, 756.53 and dated
March 29, 2012. (Barn. Aff. ¶ 11); (CC. SOF. ¶ 7);
(Dkt. No. 95-2 at 13). In accordance with its practices at
that time, BANA promptly processed the payment and posted it
to Holmes' Loan account on April 4, 2012. (Barn. Aff.
¶ 12); (CC. SOF. ¶ 8). Holmes was also provided
with a release (“Release”). (Dkt. No. 101 at 3).
In light of the processed payment, BANA submitted a request
to its e-recording agent to record the Release. (Barn. Aff.
¶ 13); (CC. SOF. ¶ 9). But then, on April 9, 2012,
the Check was returned by the remitter's bank because it
was associated with a closed account. (Barn. Aff. ¶ 14);
(CC. SOF. ¶ 10). On April 13, 2012, BANA reversed the
payoff and the Loan was reinstated as active. (Barn. Aff.
¶ 20); (CC. SOF. ¶ 17). BANA attempted to halt the
recording of the Release, but it had already been recorded on
April 11, 2012. (Barn. Aff. ¶ 21); (CC. SOF. ¶
18-19); (Dkt. No. 101 at 3). On June 1, 2012, Holmes did not
make a scheduled payment on the Loan and did not make any
scheduled payment thereafter. (CC. SOF. ¶ 27); (Holmes
Dep. at 27). Holmes contends that he made no further payments
because he believed that the Loan had been paid off. (Holmes
Dep. at 27). BONYM contends that the Release was rescinded
and that the rescission was recorded on July 5, 2012. (Barn.
Aff. ¶ 24); (CC. SOF. ¶ 22). On October 29, 2012,
MERS assigned the Mortgage to BONYM. (F. SOF. ¶ 7).
asserts that Holmes is in default and therefore it is
entitled to foreclose on the Mortgage. (F. SOF. ¶ 8).
According to BONYM, the amount due and owing as of March 7,
2017 is $158, 051.83. (Tracy A. Sirmans Affidavit
(“Sirmans Aff.”) Dkt. No. 92-2 Exhibit A). BONYM
has filed a motion for summary judgment on its foreclosure
claim and a motion for summary judgment on the remaining
counterclaim. Holmes has filed only one opposition brief.
(Dkt. No. 100). It is not clear whether he intended the
opposition brief to respond to one or both of the summary
judgment motions. Since he is proceeding pro se, the
Court will liberally construe the arguments in his opposition
brief and apply them equally to both motions.
Federal Rule of Civil Procedure 56, “a party may move
for summary judgment, identifying each claim or defense-or
part of each claim or defense-on which summary judgment is
sought.” Fed.R.Civ.P. 56(a). “The court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Id.
While inferences drawn from the underlying facts “must
be viewed in the light most favorable to the party opposing
the motion, ” those inferences must be supported by
more than just “speculation or conjecture.”
Matsushita Elec. Indus. Co., Ltd. v. Zenish Radio
Corp, 475 U.S. 574, 587 (1986); see also Herzog v.
Graphic Packaging Intern., Inc., 742 F.3d 802, 806 (7th
Cir. 2014) (citing Tubergen v. St. Vincent Hosp. &
Health Care Ctr., Inc., 517 F.3d 470, 473 (7th Cir.
2008)). The party opposing summary judgment “must do
more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita, 475
U.S. at 587.
Local Rule 56.1
initial matter, neither of the parties has fully complied
with Local Rule 56.1. When a motion for summary judgment is
filed, the parties are required to comply with Local Rule
56.1. See Boss v. Castro, 816 F.3d 910, 914 (7th
Cir. 2016) (stating that ”[t]he district court's
discretion to require strict compliance with Local Rule 56.1
has been upheld time and again”); Raymond v.
Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006)
(indicating that “district courts are entitled to
expect strict compliance with Local Rule 56.1”);
Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809,
817 (7th Cir. 2004) (stating that the court has
“repeatedly held that a district court is entitled to
expect strict compliance with Rule 56.1”). Although
Holmes is proceeding pro se, he is still required to
comply with Local Rule 56.1. See Pearle Vision, Inc. v.
Romm, 541 F.3d 751, 758 (7th Cir. 2008) (stating that
although “courts are required to give liberal
construction to pro se pleadings[, ] . . it is also
well established that pro se litigants are not excused from
compliance with procedural rules”); Stanton v.
Dart, 2018 WL 1240479, at *1 (N.D. Ill. 2018) (stating
that “the requirements of LR 56.1 apply equally to
pro se plaintiffs”); Green v. Ibarra,
2018 WL 894567, at *1 (N.D. Ill. 2018) (stating that
“[a]lthough courts construe pro se pleadings
liberally, . . . a plaintiff's pro se status
does not excuse him from complying with federal and local
procedural rules” such as Local Rule 56.1). The record
also reflects that, in accordance with Local Rule 56.2,
Holmes was sent a “Notice to Pro Se Litigant Opposing
Motion for Summary Judgment, ” which explained to him
Local Rule 56.1 and the need to comply with the rule. (Dkt.
Incorporation of Facts
the parties' violations of Local Rule 56.1, they have
improperly incorporated into their Local Rule 56.1 filings
facts from other documents and responses. In Paragraph 11 of
BONYM's statement of facts in support of its motion for
summary judgment on the foreclosure claim, BONYM states the
following: “Those factual statements set forth in
Plaintiff's Complaint, pursuant to 735 ILCS 5/15-1504(c)
as well as the factual background recited in Plaintiff's
Motion for Summary Judgment are incorporated herein by
reference.” (F. SOF . ¶ 11). Local Rule
56.1 does not authorize parties to cross reference facts in
other documents or responses. To allow such a process would
effectively nullify the requirement in Local Rule 56.1 that
paragraphs must consist of “short numbered paragraphs,
” and render ineffectual the provision stating that
there cannot be “more than 80 separately-numbered
statements of undisputed material fact.” LR 56.1. In
addition, to allow BONYM to generally incorporate all the
facts from entire documents would defeat the purpose of Local
Rule 56.1, which is to provide clarity at the summary
judgment stage regarding what facts are genuinely disputed.
The judicial economy promoted by Local Rule 56.1 would be
lost if a court and opponents were required to sift through
additional documents or responses beyond the statement of
facts and attempt to discern the relevant facts. See
Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011)
(explaining that “[b]ecause of the high volume of
summary judgment motions and the benefits of clear
presentation of relevant evidence and law, [the court has]
repeatedly held that district judges are entitled to insist
on strict compliance with local rules designed to promote the
clarity of summary judgment filings”). To allow BONYM
to incorporate allegations from a pleading would also defeat
the requirement that a movant pursuing a motion for summary
judgment must point to evidence to support the motion.
Therefore, Paragraph 11 of BONYM's statement of facts in
support of its motion for summary judgment on the foreclosure
claim is stricken.
also improperly attempts to incorporate into his statement of
additional facts information from other documents and his
responses to BONYM's statement of facts. Instead of
providing a statement of additional facts as required in
Local Rule 56.1, Holmes states that he “reincorporates
[his] objections to Plaintiffs' Statement of Facts”
and states that his “disputed facts are attached in [a]
separate affidavit.” (Dkt. No. 102 at 3). The Court has
considered Holmes' affidavit as evidence in this matter
presented in opposition to the motions for summary judgment,
but the affidavit is not a Local Rule 56.1 filing. ...