In re Baldin

• Decision Date: 20 November 1991
• Docket Number: Adv. No. 91-6102.,Bankruptcy No. 90-60359
• Citation: 135 BR 586
• Parties: In re Anthony Francis BALDIN, Debtor. Anthony Francis BALDIN, Plaintiff, v. CALUMET NATIONAL BANK, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Indiana

135 B.R. 586 (1991)

In re Anthony Francis BALDIN, Debtor.

Anthony Francis BALDIN, Plaintiff, v. CALUMET NATIONAL BANK, Defendant.

Bankruptcy No. 90-60359, Adv. No. 91-6102.

United States Bankruptcy Court, N.D. Indiana, Hammond Division At Gary/Lafayette.

November 20, 1991.

COPYRIGHT MATERIAL OMITTED

Michael Sears, Munster, Ind., for Calumet.

Larry Kalina, Merrillville, Ind., for debtor.

MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

KENT LINDQUIST, Chief Judge.

I Statement of Proceedings

The Adversary Proceeding came before the Court on a Motion for Summary Judgment filed by Calumet National Bank (hereinafter: "Defendant") on October 3, 1991, along with a Brief/Memorandum in Support of Motion for Summary Judgment.

By Order of this Court dated October 10, 1991, Anthony Francis Baldin and Luise Ann Baldin, (hereinafter: "Plaintiffs") were given 15 days to file a response or answer to said motion, and upon doing so the Defendant was granted 7 days to file a reply thereto. Plaintiffs filed a Memorandum in Opposition to the Motion for Summary Judgment of Defendant, Statement of Genuine Issues of Material Fact, and Affidavits of Anthony Baldin and Luise Baldin on October 25, 1991.

On October 4, 1991, Plaintiffs filed a Motion for Summary Judgment, Brief/Memorandum in Support of Motion for Summary Judgment, and Statement of Material Facts, Conclusions of Law, and Order of Summary Judgment.

By Order of this Court dated October 10, 1991, Defendant was given 15 days to file a written answer brief, Plaintiffs were given 7 days to file reply, and the parties were given 20 days to request hearing. On October 28, 1991, Defendant filed its Response to Plaintiffs' Motion for Summary Judgment and Statement of Material Facts, Conclusions of Law, and Order of Summary Judgment.

Plaintiffs filed Reply Memorandum in Support of Plaintiffs' Motion for Summary Judgment on November 4, 1991. Defendant filed its Final Response to Plaintiffs' Motion for Summary Judgment along with the Affidavit of Rhonda Sills on November 6, 1991.

The complaint of the Plaintiffs filed on June 26, 1991, provides in pertinent part as follows:

4. Calumet National Bank claims a second mortgage against real estate owned by the Debtors and commonly known as the Piazza Trenta Building 13 Lincoln Highway, Schererville, Indiana 46375. Said real estate is legally described as:

Lot 1, Piazza Trenta, as shown on Plat Book 49, page 5, in Lake County, Indiana.

A copy of said mortgage claimed by the Calumet National Bank is attached hereto and made a part hereof and labeled Exhibit A.

5. The Debtors in possession have the status of bona fide purchasers of real estate pursuant to 11 U.S.C. Section 544(a)(3) so as to avoid mortgages that have not been properly recorded.

6. The mortgage claim by the Calumet National Bank, Exhibit A, attached hereto, should be avoided by this Court pursuant to 11 U.S.C. Section 544(a)(3) since said mortgage has not been properly recorded based on said mortgage failing to be acknowledged as required for proper recording and for a mortgagee to take over the claims of a bona fide purchaser of real estate. Accordingly, the Debtors in possession as bona fide purchasers of real estate under Section 544(a)(3) should be declared to take said real estate free of the said alleged mortgage claim by the Calumet National Bank.

WHEREFORE, said Debtors in possession pray that the alleged second mortgage lien of the Calumet National Bank against said real estate be avoided and released and for all other just and proper relief in the premises.

Exhibit "A" to the Plaintiff's complaint reveals that on September 19, 1986, the Plaintiffs, as mortgagors, executed a real estate mortgage to the Defendant as mortgagee in the sum of $148,614.57 as to the following described real property: Lot 1, Piazza Trenta, as shown in Plat Book 49, page 5, in Lake County, Indiana. The mortgage indicates thereon that it was recorded with the Recorder of Lake County, Indiana on September 23, 1986.

The Defendant's Answer was filed on July 26, 1991, generally denying Paragraph 1 through 5 of the complaint, and further claiming in the affirmative:

6. Calumet National Bank denies the allegations contained in paragraph 6 of the plaintiff\'s Complaint and affirmatively states that the mortgage held by the Calumet National Bank, Exhibit "A", attached hereto, must be enforced by this Court under 11 U.S.C. Section 544(a)(3) as the mortgage has been acknowledged as required for proper recording. The proper acknowledgment is indicated on page 4 of Exhibit "A" by the signatures of Anthony S. and Luise A. Baldin, and acknowledged by the signature and presence of Rhonda Sills, a Notary Public in Lake County, Indiana. The mortgage was acknowledged and notarized on September 22, 1986, as indicated by the official seal of the Notary Public of Indiana, on page 3 of Exhibit "A" to plaintiff\'s Answer.

WHEREFORE, CALUMET NATIONAL BANK prays that the allegations contained in the Complaint filed by the debtors on June 26, 1991, be dismissed and that the second mortgage lien of the Calumet National Bank against said real estate be upheld as it was (sic) been properly recorded and complies with the law of the State of Indiana.

II

Conclusions of Law and Discussion

A General Principles Relating to Summary Judgment

No objections were made by the parties to the jurisdiction of this Court and the Court finds this is a core proceeding pursuant to 28 U.S.C. § 157.

The granting of a motion for summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

The moving party, in making a motion for summary judgment, "has the burden of establishing the lack of a genuine issue of material fact." Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984).

When ruling on a motion for summary judgment, inferences to be drawn from underlying facts contained in such materials as attached exhibits, and depositions must be viewed in a light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); See also, Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215 (7th Cir.1984).

By entering a summary judgment for a party, the court is concluding that based on the evidence upon which the non-moving party intends to rely at trial, no reasonable jury could return a verdict for the non-moving party. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985); Weit v. Continental Illinois National Bank & Trust Co., 641 F.2d 457, 461 (7th Cir.1981), cert. den., 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982).

Federal Rule of Civil Procedure 56(e) provides in part as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party\'s pleading, but the adverse party\'s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Once a moving party has met its initial burden, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and that the disputed fact is material. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. den., 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Thus, if the movant carries his initial burden, the opposing party may not defeat the motion by merely relying on the contentions of its pleadings, but must produce significant probative evidence to support its position. First National Bank v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); United States v. Pent-R-Books, Inc., 538 F.2d 519 (2nd Cir.1976), cert. den. 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977).

B

Materials to be Considered on Motion for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides as follows:

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (Emphasis added).

Thus, pursuant to Fed.R.Civ.P. 56(c) the Court may consider all papers of record as specified therein. Federacion de Empleadas Del Tribunal General de Justicia v. Torres, 747 F.2d 35 (1st Cir.1984); Allen v. Carlotti, 400 F.Supp. 1037 (S.D.Fla.1975), aff'd., 552 F.2d 1086 (5th Cir.1977).

The Court is obligated to consider not only materials specifically offered in support of the motion, but also all "pleadings, depositions, answers to interrogatories and admissions" properly on file and thus properly before the Court. Smith v. Hudson, 600 F.2d 60 (6th Cir.1979), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415. Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention; the Court must consider both before granting a summary judgment. Keiser v. Coliseum Properties, Inc., 614 F.2d 406 (5th Cir.1980).

The materials considered by the Court must be of the type that would be admissible in evidence. Federal Rule of Civil Procedure 56(e) provides in part as follows:

(e) Form of Affidavits; Further Testimony; Defense

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