Deutsche Bank National Trust Company v. Gonzalez et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 9/19/2013:Mailed notice(rth, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Plaintiff,
v.
CRESCENCIO GONZALEZ,
IRMA GONZALEZ, and FIRST NATIONWIDE
MORTGAGE CORPORATION
Defendants.
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Case No. 12-cv-7775
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Deutsche Bank National Trust Company’s
(“Deutsche Bank”) motion for summary judgment. The defendants’ responses were due
February 6, 2013 and none have been filed. For the following reasons, Deutsche Bank’s motion
is granted.
Background
On October 25, 2006, EquiFirst Corporation (“EquiFirst”) lent Crescencio and Irma
Gonzalez approximately $165,875.00. The Gonzalezes executed a note in favor of EquiFirst
Corporation in exchange for this money, and agreed to pay a 7.250% yearly interest rate. The
Gonzalezes also agreed to pay taxes, insurance, and any other escrow items that may apply. The
Gonzalezes agreed to make monthly payments of $1,145.21 on the first day of every month
beginning December 1, 2006. Mortgage Electronic Registration System (“MERS”), as nominee
for EquiFirst, secured its interests in the Note by filing a Mortgage with the Kane County
Recorder on November 2, 2006, covering the property described as: LOT 34 IN UNIT NO. 1
PARK MEADOWS, AURORA, IN THE CITY OF AURORA, KANE COUNTY, ILLINOIS.
The property is more commonly known as: 874 Northfield Drive, Aurora, Illinois 60505.
On September 4, 2012, MERS, as Nominee for EquiFirst, assigned its Mortgage to the
plaintiff Deutsche Bank. Deutsche Bank then received all of EquiFirst’s interests in the Property
pursuant to the Mortgage and Note.
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From May 2012 through the present, the Gonzalezes have failed to make monthly payments.
There remains an outstanding balance of $163,961.22 as of October 10, 2012, with interest
accruing on the unpaid principal balance at $23.44 per day, plus attorney’s fees, foreclosure
costs, late charges, advances, and expenses incurred by the Plaintiff as a result of the default.
Deutsche Bank filed this action for foreclosure on September 28, 2012. Deutsche Bank filed a
motion for summary judgment on December 27, 2012. The Gonzalezes, have failed to file a
response to the motion for summary judgment.
Legal Standard
Summary judgment should be granted where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Typically,
all inferences drawn from the facts must be construed in favor of the non-movant, but the court is
not required to draw every conceivable inference from the record. Smith v. Hope School, 560
F.3d 694, 699 (7th Cir. 2009). Where the non-moving party has failed to respond to the motion
for summary judgment, the Court departs from its usual posture of construing all facts in favor of
the non-moving party; rather, the Court accepts as true all material facts contained in the moving
party's statement of undisputed material facts. Johnson v. Gudmundsson, 35 F.3d 1104, 1108
(7th Cir. 1994) (internal citations omitted). However, “even if the opposing party completely
fails to respond to a summary judgment motion, . . . the court still must ascertain that judgment is
proper ‘as a matter of governing law.’” Id. at 1112.
Discussion
This suit is based on a contract, the interpretation of which is an issue of law to which
summary judgment is well-suited if the terms are clear and unambiguous. Lewitton v. ITA
Software, Inc., 585 F.3d 377, 379-80 (7th Cir. 2009). Here, the Mortgage provides that the
plaintiff is entitled to the repayment of the debt evidenced by the Note with interest, payment of
“all other sums, with interest,” and the defendants’ performance of their covenants and
agreements under the Mortgage and Note. The Note shows that the defendants promised to
repay EquiFirst for the loan of $167,875.00 under the terms described above.
The defendants are in default on their Note and Mortgage, and as of October 10, 2012 the
defendants owe a total of $165,936.82 with unpaid interests accruing at a rate of $23.44/day
thereafter. In addition to establishing Deutsche Bank’s entitlement to repayment of the debt, the
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Mortgage also provides that, if the defendants breach the agreement, Deutsche Bank “may
require immediate payment in full of all sums secured by this Security Instrument without further
demand and may foreclose this Security Instrument by judicial proceeding.” The Mortgage also
states that Plaintiff may recover its “expenses incurred in pursuing the remedies . . . including,
but not limited to, reasonable attorney's fees and costs of title evidence.”
The Court finds that the defendants have breached their agreement under the Note and
Mortgage, and are in default. Deutsche Bank has exercised its right to require payment of the
debt, as well as to recover its expenses and attorneys’ fees. There is no dispute as to the
evidence or the legal conclusions to be drawn therefrom. Accordingly, the Court finds that
Deutsche Bank is entitled to summary judgment and an order of foreclosure.
Conclusion
Deutsche Bank’s motion for summary judgment and order of foreclosure is granted.
Deutsche Bank’s motion to appoint a special commissioner is granted also.
IT IS SO ORDERED.
______________________
Date: September 19, 2013
____________________________
Sharon Johnson Coleman
United States District Judge
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