FirstMerit Bank, N.A. v. Balin
| Decision Date | 11 September 2012 |
| Docket Number | No. 11 C 8809,11 C 8809 |
| Parties | FIRSTMERIT BANK, N.A., Plaintiff, v. TIMOTHY T. BALIN, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
This matter is before the court on Plaintiff FirstMerit Bank, N.A.'s (FirstMerit) motion for summary judgment. For the reasons stated below, the motion for summary judgment is granted.
FirstMerit alleges that in December 2009, in accordance with a loan agreement (Loan Agreement), Midwest Bank and Trust Company (Midwest) agreed to loan Home Acquisitions, Inc. (HAI) $742,399.67 (Loan). In exchange for the Loan, HAI allegedly executed and delivered to Midwest a Promissory Note (Note). To securethe Note, Defendant Timothy T. Balin (T. Balin), Defendant Gilbert Balin (G. Balin), and Defendant Jonathan Smith (Smith) allegedly each executed a guaranty, agreeing "absolutely and unconditionally" to guarantee full payment on the Note (collectively referred to as "Guaranties"). (Compl. Par. 12). Defendants also allegedly consented to two subsequent amendments of the Note. In May 2010, pursuant to an agreement with the Federal Deposit Insurance Corporation (FDIC), as receiver of Midwest, FirstMerit became the successor to Midwest and the lawful owner and holder of the Note, Loan Agreement, and Guaranties. HAI allegedly failed to make the necessary payment due under the Loan in October 2011, and HAI has allegedly refused to make any further payment on the Loan. As of June 12, 2012, HAI allegedly still owes $425,016.33 on the Note. FirstMerit contends that Defendants have failed to pay the outstanding debt owed under the Note and that Defendants have failed to honor their obligations under the Guaranties. FirstMerit includes in its complaint a breach of guaranty claim brought against T. Balin (Count I), a breach of guaranty claim brought against G. Balin (Count II), and a breach of guaranty claim brought against Smith (Count III). FirstMerit now moves for summary judgment on all claims.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" of material fact in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
FirstMerit argues that there are no genuinely disputed material facts relating to the liability of Defendants or the amount of damages owed by Defendants.
FirstMerit filed a statement of material facts pursuant to Local Rule 56.1, and Smith has filed a statement of additional facts pursuant to Local Rule 56.1.
None of Defendants have filed any response to FirstMerit's statement of material facts. Therefore, pursuant to Local Rule 56.1, all facts in FirstMerit's statement of material facts are deemed to be undisputed. LR 56.1; see also Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012)( that "[t]he obligation set forth in Local Rule 56.1 is not a mere formality," and that "[i]t follows from the obligation imposed by Fed.R.Civ.P. 56(e) on the party opposing summary judgment to identify specific facts that establish a genuine issue for trial")(internal quotations omitted)(quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994)); Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008)( that a "district court has broad discretion to require strict compliance with Local Rule 56.1"). Therefore, it is undisputed in this case that: (1) HAI executed the Note in which HAI promised to pay Midwest the principal amount of $742,399.67 (SF Par. 12), (2) that Defendants executed the Guaranties, promising absolutely and unconditionally to honor HAI's obligations onthe Note and that Defendants consented to amendments of the Note (SF Par. 16-24), (3) that HAI has not honored its obligations under the Note and that as of June 12, 2012, HAI owed $425,016.33 (SF Par. 27, 37), and (4) that after a demand for payment from Defendants, Defendants have failed to pay the outstanding debt owed on the Note. (SF Par. 33-36). Defendants also do not dispute that they agreed to reimburse FirstMerit for all attorneys' fees and costs related to collecting monies owed by Defendants. (SF Par. 25).
Smith filed a statement of additional facts, and although FirstMerit did not file a response, several of the paragraphs listed in Smith's statement of additional facts fail to comply with Local Rule 56.1 and are thus not deemed to be undisputed. For example, in paragraph 3 of Smith's statement of additional facts (Paragraph 3), Smith contends that "[t]he amount disputed totals $64,825.61." (S SAF Par. 3). However, Smith's conclusory statement as to the amount he believes is in dispute is not appropriately included in a statement of material facts. Pursuant to Local Rule 56.1, a statement of material facts must be supported by admissible evidence. LR 56.1. Smith merely cites in Paragraph 3 to paragraph 4 of his attached declaration (Smith Declaration). In the Smith Declaration, Smith offers nothing more than conclusorystatements that certain fees were "not a correct charge nor charged by First Midwest Bank." (Smith Decl. Par. 4). Smith does not reference any supporting facts or other evidence in paragraph 4 of his declaration to support his conclusory statements. FirstMerit has pointed to ample evidence to justify its damages calculations, and a reasonable jury could not discount such evidence based solely on Smith's unsubstantiated personal opinion as to the proper amount of damages. Paragraph 3 thus fails to comply with Local Rule 56.1.
Smith argues in paragraph 4 of his statement of additional facts (Paragraph 4), that the declaration by Thomas Maxwell (Maxwell Declaration) is not sufficient to authenticate certain business records presented by FirstMerit and that such evidence is inadmissible. A statement of material facts filed pursuant to Local Rule 56.1 provides a litigant with an opportunity to present the court with the facts in a case. Smith, however, presents the court with a legal argument as to the admissibility of evidence in Paragraph 4, which is improper under Local Rule 56.1. See Judson, 529 F.3d at 382 n.2 (). Thus, Paragraph 4 fails to comply with Local Rule 56.1.
Defendants argue that the Maxwell Declaration is not sufficient to authenticatecertain business records and documents of Midwest. As indicated above, Defendants had the opportunity, pursuant to Local Rule 56.1, to dispute the amounts set forth in FirstMerit's statement of material facts and to cite to admissible evidence that Defendants could present at trial to support their position. As indicated above, however, Defendants failed to properly dispute the amounts set forth by FirstMerit in its statement of material facts. Thus, Defendants have admitted, pursuant to Local Rule 56.1, that the amounts set forth by FirstMerit are accurate.
The court notes that even if Defendants had not made such an admission, the Maxwell Declaration is sufficient to authenticate the business records and documents in question. Defendants argue that the business records and documents belonged to Midwest and that Thomas Maxwell, who works for FirstMerit, cannot authenticate the records of Midwest, a third party. Federal Rule of Evidence 803(6) (Rule 803(6)) provides the following:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by--or from information transmitted by--someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6); see also United States v. Reese, 666 F.3d 1007, 1017 (7th Cir. 2012)( that "[a] qualified witness need not be the author of the document but must have personal knowledge of the procedure used to create and maintain the document"). The record reflects that although Maxwell did not work for Midwest and was not a custodian of Midwest's records, Maxwell would constitute a qualified witness since the records of Midwest became FirstMerit's records as the successor bank. See United States v. Jakobetz, 955 F.2d 786, 801 (2nd Cir. 1992)( that "[e]ven if...
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