In re Marino
| Decision Date | 08 October 1996 |
| Docket Number | Bankruptcy No. 95 B 22465,Adversary No. 96 A 00272. |
| Citation | 201 BR 234 |
| Parties | In re Herman Joseph MARINO, Debtor. Herman Joseph MARINO, Plaintiff, v. CHRYSLER CREDIT CORP., Defendant. |
| Court | U.S. Bankruptcy Court — Northern District of Illinois |
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Gregory K. Stern, Chicago, IL, for Plaintiff-Debtor.
Maurice J. McCarthy, Jessica Tovrov, Querry & Harrow, Chicago, IL, for Defendant Chrysler Credit Corp.
This Adversary proceeding relates to bankruptcy case No. 95 B 22465 filed by Herman Joseph Marino ("Marino" or "Debtor") under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. Debtor filed this three-count Adversary Complaint against Chrysler Credit Corporation ("CCC") to determine the extent of CCC's Lien or Interest in certain property of Debtor. CCC is a judgment creditor of Marino pursuant to a corrected judgment and order of the District Court for the Northern District of Illinois in Chrysler Credit Corp. v. Herman J. Marino, Case No. 94 C 309, 1994 WL 478606. After entry of that judgment, CCC started citation proceedings and obtained a turnover order pertaining to certain property. It asserts a security interest in that property based on the citation proceedings.
In Count I, Marino pleads that claim number 00001 and claim number 00013 are duplicative in that each reflect CCC's secured claim asserted to be based upon the citation lien and turnover order. It prays that claim number 00013 be stricken. In Count II, Marino alleges that the Citation to Discover Assets was never properly served or, in the alternative, that any lien created by proper service was automatically terminated by operation of Illinois law. Marino seeks judgment determining the validity, priority, and extent of CCC's lien and disallowing CCC's secured claim number 00001. In Count III, Marino claims that a turnover order entered in the District Court proceeding affected an avoidable transfer of an interest in property pursuant to 11 U.S.C. § 547, and prays for judgment avoiding the transfer and disallowing CCC's claim number 00001.
Marino moved for summary judgment as to all counts of his Adversary Complaint. CCC filed its Cross-Motion for Summary Judgment as to all counts of the Complaint.
For reasons stated herein and by separate order, partial summary judgment will be granted in favor of Marino only as to Count I and his motion will be denied as to Counts II and III. Partial summary judgment will be granted in favor of CCC as to Count II, and its motion denied as to Counts I and III.
Summary judgment motions are governed by Fed.R.Civ.P. 56(c) which has been made applicable to bankruptcy proceedings by Fed. R.Bankr.P. 7056:
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.
Fed.R.Civ.P. 56(c). Summary judgment is granted to avoid unnecessary trials when there is no genuine issue of material fact in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986).
The moving party in a motion for summary judgment has the initial burden of demonstrating that there are no genuine issues of material fact and that judgment in its favor should be granted as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. The court should draw all inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14; Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355-56. Still, a dispute of a material fact will only prevent summary judgment if the disputed fact is outcome determinative under applicable law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Moreover, partial summary judgment is available where it disposes of at least one count of a complaint. Commonwealth Ins. Co. of New York v. O. Henry Tent & Awning Co., 266 F.2d 200, 201 (7th Cir.1959); Quintana v. Byrd, 669 F.Supp. 849, 850 (N.D.Ill.1987).
Although both parties argue for summary judgment, that does not by itself indicate that there are no genuine issues of material fact. The court must rule on each motion separately in determining whether each judgment may be entered in accordance with applicable principles. ITT Indus. Credit Co. v. D.S. America, Inc., 674 F.Supp. 1330, 1331 (N.D.Ill.1987). See 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2720 (2d ed. 1983 & Supp.1987). Indeed, both motions should be denied if both parties fail to meet their burden. Id.
Pursuant to Local Bankruptcy Rule 402.M1 in this District, a party moving for summary judgment must file a statement of material facts as to which the moving party contends there is no genuine issue ("402.M Statement"). Local Bankr.R. 402.M. The Local Rules dictate the form and format of the statement; these rules are to be complied with strictly. See, e.g., In re Bryson, 187 B.R. 939 (Bankr.N.D.Ill.1995) (Schmetterer, J.) and collected cases cited, including Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir.1994).
Once the moving party has filed the 402.M Statement, the opposing party must file a response in a similar format by virtue of Local Rule 402.N ("402.N Statement"). Not only must the opposing party file a response, but the opposing party must set forth any additional facts which would require denial of summary judgment. Local Bankr.R. 402.N. If a party fails to comply with the rules, the material facts from the 402.M Statement will be deemed admitted. Id.
Marino filed his Motion for Summary Judgment, his Statement of Material Facts as to Which There Is No Genuine Dispute, an affidavit, and a Memorandum of Law in Support of Debtor's Motion for Summary Judgment. CCC filed a Response (Amended) to Debtor's Statement of Material Facts, a Statement of Additional Facts, an affidavit, and a Memorandum of Law. Marino filed a Memorandum of Law in reply to CCC's response to Marino's summary judgment motion. However, Marino did not file a response to CCC's Statement of Additional Facts as required by Local Rule. Thus, pursuant to Local Rule 402.M, the material facts set forth in CCC's Statement of Additional Facts may constitute admitted and undisputed facts for purposes of passing on the instant cross-motions.
Also, CCC filed its Motion for Summary Judgment, its Statement of Uncontested Facts, an affidavit and a Brief in Support of its Motion. Marino filed a Response and Memorandum of Law in Opposition to CCC's summary judgment motion; however, Marino failed to file a 402.N Statement as required by the Local Rules. Thus, the factual assertions contained within CCC's Statement of Material Facts may constitute admitted and undisputed facts for purposes of deciding the present motions.
As noted earlier, each cross-motion for summary judgment must be considered on its own merits.
Pursuant to Fed.R.Civ.P. 56(d), made applicable to these proceedings under Fed. R.Bankr.P. 7056, where sufficient disputed material facts remain such that an award of summary judgment would be inappropriate, following a hearing the Court may designate undisputed facts as established for trial. The following facts as to which no substantial controversy exists were gleaned from Marino's 402.M Statement, CCC's 402.N Statement, and CCC's Statement of Additional Facts and will be considered following such a hearing under Rule 56(d) as to whether they shall be deemed established for trial:
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