Avery-Lewis v. The Freddie Mac Foundation, Inc. et al

Filing 63

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 2/23/2016: Freddie Mac's motion for summary judgment, 30 , is granted. Judgment will be entered in favor of Freddie Mac and Homesteps, but entry of final judgment must await resolution of the claims against the remaining defendants. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHARLENE AVERY-LEWIS,
Plaintiff,

No. 14 CV 9476

v.
FEDERAL HOME LOAN MORTGAGE
CORPORATION et al.,

Judge Manish S. Shah

Defendants.
MEMORANDUM OPINION AND ORDER
In September 2013, Charlene Avery-Lewis, a postal carrier, was delivering
mail to a house in Chicago, Illinois, when she fell down the porch stairs. The home
was in foreclosure proceedings around that time, and she brought negligence claims
sounding in premises liability against a number of defendants, including Federal
Home Loan Mortgage Corporation (“Freddie Mac”). Avery-Lewis’s suit was
originally brought in the Circuit Court of Cook County, but Freddie Mac filed a
notice of removal to federal court. Freddie Mac now moves for summary judgment.1
Freddie Mac’s motion for summary judgment, [30], is granted.2

Freddie Mac asserts that defendant Homesteps is a division of Freddie Mac and requests
dismissal of Homesteps. [49] at 6, n.5–6. Homesteps was added as a defendant in plaintiff’s
second amended complaint, [38], which was filed after Freddie Mac’s opening summary
judgment brief. Homesteps has not yet appeared in the case. An employee of Homesteps,
however, apparently verified Freddie Mac’s interrogatories. [30-2] at 6, 11. Plaintiff has not
moved for entry of default against Homesteps or raised a dispute about Homesteps’s
separate legal existence. With this backdrop, Homesteps is considered the same party as
Freddie Mac.
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2

Bracketed numbers refer to entries on the district court docket.

I.

Legal Standards
Summary judgment is appropriate 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014); Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists if “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). The party seeking
summary judgment has the burden of establishing that there is no genuine dispute
as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As the
nonmoving party, Avery-Lewis is entitled to all reasonable inferences in her favor,
but “inferences that are supported by only speculation or conjecture will not defeat a
summary judgment motion.” Herzog v. Graphic Packaging Int’l, Inc., 742 F.3d 802,
806 (7th Cir. 2014) (quoting Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc.,
517 F.3d 470, 473 (7th Cir. 2008)).
II.

Background
On September 19, 2013, Charlene Avery-Lewis, a postal mail carrier, fell on a

loose step at 8006 South Union Avenue in Chicago, Illinois. [39-6] ¶ 1; [39-5] ¶ 4.3

The facts are taken from Avery-Lewis’s responses to Freddie Mac’s Local Rule 56.1(a)(3)
statement, [39-6], and Avery-Lewis’s 56.1(b)(3)(C) statement of additional facts, [39-5].
Freddie Mac did not reply to Avery-Lewis’s statement of additional facts, which are
therefore deemed uncontroverted under Local Rule 56.1. But to the extent Avery-Lewis
asserts legal conclusions in her statement of additional facts (e.g., that Rufus Coleman was
not the legal owner of the property), those statements are not deemed uncontroverted—they
are not appropriate for Local Rule 56.1 statements. Both parties’ briefs do not cite to their
LR 56.1 statements but instead directly to the record. Although not explicitly prohibited by
LR 56.1, this diminishes the utility of LR 56.1 statements and is not a generally accepted
practice in this district. See, e.g., Mervyn v. Nelson Westerberg, Inc., No. 11 C 6594, 2015
WL 6792104, at *1–2 (N.D. Ill. Oct. 30, 2015) (collecting cases). The affidavit of Nancy
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The property, at one point owned by Rufus and Barbara Coleman, was the subject of
foreclosure proceedings. [39-6] ¶ 3.4 The Chancery Court of Cook County entered an
order approving the judicial sale of the property on September 5, 2013. The order
awarded possession of the home to Freddie Mac5 as of 30 days after entry of the
order and authorized eviction of the Colemans once possession changed hands. [396] ¶ 5.6 The order stated that no occupants other than the Colemans could be
evicted without further order of the court. [39-6] ¶ 5. The order also stated that any
special right to redeem under 735 ILCS 5/15-1604, if applicable, would expire 30
days after entry of the order. [30-2] at 13. The judicial sale deed was executed on
September 20, 2013, and recorded on October 7, 2013. [39-6] ¶¶ 9–10.
A few days later, the eviction processor mailed a relocation assistance
agreement, also known as a “Cash for Keys” agreement, to the property. [49-1] at 1.
About a week later, she received a signed copy of the “Cash for Keys” agreement

Vallone is not considered as part of the record because the plaintiff never filed a signed
version on the docket. See [61]. Even if it had been considered, the affidavit did not add or
dispute any material facts.
Avery-Lewis denies this statement of fact, but fails to cite any controverting record
evidence, as required under LR 56.1(b)(3)(B).

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The September 5th order lists EverBank as the plaintiff in the foreclosure action but
identifies Homesteps as the contact for the holder of the certificate of sale or deed. [30-2] at
12–13. Avery-Lewis and Freddie Mac do not dispute that Freddie Mac had a right to the
deed as of September 5, 2013.
5

Avery-Lewis states that the judicial sale deed was conveyed to Freddie Mac on August 8,
2013. [39-5] ¶ 1. This statement conflicts with her admission that the judicial sale order
was not entered until September 5th, [39-6] ¶ 4, and is unsupported by her cited evidence (a
motion to dismiss from pro se defendant Rufus Coleman, styled as an unsigned affidavit).
Indeed, orders from the foreclosure action (and the unsigned Vallone affidavit) indicate that
the property was initially sold to EverBank. [23-2] at 2–3; [55-1] ¶ 5. The parties do not
explain how Freddie Mac obtained the property from EverBank but do not dispute that
Freddie Mac had a right to the deed, which was executed September 20, 2013. [39-6] ¶ 9.
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from Timothy Coleman and Lenora Teresi, along with what appeared to be a rental
agreement between the Colemans, as landlords, and Timothy Coleman and Teresi,
as tenants. [49-1] at 1.7 The Cash for Keys agreement states that, in exchange for
$5,000, Timothy Coleman and Teresi agreed to vacate the premises on or before
November 8, 2013. [39-6] at ¶ 11; [49-1] at 4.
Freddie Mac now moves for summary judgment on Avery-Lewis’s negligence
claim against it.
III.

Motion to Stay
Avery-Lewis argues that Freddie Mac’s motion fails as a matter of law but in

the alternative requests a stay of the motion for summary judgment pending
further discovery. [39] at 2, 6–7. Plaintiff requests a stay under Federal Rule of
Civil Procedure 56(d) to take unspecified depositions and to authenticate the Cash
for Keys agreement—which has since been authenticated—and utility bills from
Timothy Coleman and Teresi. [39-4] at 1–3. This request is denied. The purpose of
authenticating the Cash for Keys agreement and the utility bills was to identify
whether additional occupants lived in the property at that time, and authentication
of the Cash for Keys agreement serves that purpose. Discovery to establish the
results of inspections conducted at the direction of Freddie Mac, or to establish

Avery-Lewis acknowledges the existence of a Cash for Keys agreement and rental
agreement, but objects to them as unfounded hearsay. The eviction processor can
authenticate the Cash for Keys agreement and testify that she received the rental
agreement, but she does not have sufficient personal knowledge to authenticate the rental
agreement itself. The agreements, however, are statements that constitute verbal acts (e.g.,
words of contract) and are not hearsay under Federal Rule of Evidence 801(c). Schindler v.
Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007) (citing Fed. R. Evid. 801(c) Advisory Committee
Notes).
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Freddie Mac’s knowledge of the dangerous condition of the steps, would not raise a
material issue necessary for resolution of the current motion. Plaintiff has not
demonstrated how the number of inspections would shed light on Freddie Mac’s
control over the property. The inspections themselves do not suggest an ability to
exclude people from the property. Freddie Mac’s knowledge of the property’s
condition would not establish a duty to maintain the property or any indicia of
Avery-Lewis’s reliance on a duty or undertaking assumed by Freddie Mac. As
discussed below, the material facts about Freddie Mac’s control over the property
and any voluntary assumption of duty are not disputed.
IV.

Analysis
Freddie Mac asserts that on September 19, 2013, it had neither control nor

possession over the home where Avery-Lewis fell (and therefore owed no duty to
her) because: (1) it did not have legal title to the house until the deed had been
delivered following the foreclosure sale, (2) its interest in the home remained
subject to the Colemans’ right to the property during a redemption period following
confirmation of the foreclosure sale, and (3) its ability to control the property was
restricted until their tenants vacated the premises. Avery-Lewis argues that there
are factual disputes regarding Freddie Mac’s ownership of the property (in
particular, a dispute over whether the Colemans or Freddie Mac owned the home
given the state of foreclosure proceedings on the day of the fall) and that even if it
did not yet have legal title, Freddie Mac exerted control over the property and
voluntarily undertook a duty to third-party invitees by having its agents inspect the
property.
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A.

Possession and Control

For a duty to arise under premises liability, the defendant must “possess and
control” the real property on which the tort occurred. Godee v. Illinois Youth Soccer
Ass’n, 327 Ill.App.3d 695, 699 (2d Dist. 2002) (citing Esser v. McIntyre, 267
Ill.App.3d 611, 617 (1st Dist. 1994), aff’d, 169 Ill.2d 292 (1996)); see Buczak v. Cent.
Sav. & Loan Ass’n, 230 Ill.App.3d 490, 497 (1st Dist. 1992) (Premises liability
“hinges on possession and control, not mere ownership.”). Possession means
“occupation of the land with intent to control it.” O’Connell v. Turner Constr. Co.,
409 Ill.App.3d 819, 824 (1st Dist. 2011) (quoting Restatement (Second) of Torts
§ 343E(a) (1965)). “Control” includes the ability to exclude people from the property
or to direct how the property is used. O’Connell, 409 Ill.App.3d at 824–26; Williams
v. Sebert Landscape Co., 407 Ill.App.3d 753, 756 (1st Dist. 2011).
Freddie Mac did not have possession or control of the property on September
19, 2013, the date of Avery-Lewis’s accident. Premises liability depends on
possession and control, not ownership, so whether Freddie Mac had legal title to the
property at the time (through execution of the deed) is not dispositive. Instead, the
issue is whether Freddie Mac occupied the property with the intent to control it,
including whether it could exclude people from the property or direct how the
property was used. O’Connell, 409 Ill.App.3d at 824–26.
Pursuant to the terms of the September 5, 2013 order approving the judicial
sale, Freddie Mac was not awarded possession of the property until 30 days after
entry of the order. Freddie Mac could not exclude the Colemans or any other

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occupants from the property until early October 2013.8 Even after the 30 day period,
Freddie Mac could only evict the Colemans; eviction of other occupants would
require a separate court order. Freddie Mac, therefore, did not yet exert possession
or control over the property on the date of Avery-Lewis’s alleged accident. See, e.g.,
O’Connell, 409 Ill.App.3d at 825 (no possession or control where there were no facts
suggesting dominion over land); Marcon v. First Fed. Sav. & Loan Ass’n, 58
Ill.App.3d 811, 814 (1st Dist. 1978) (mortgagee did not have actual possession or
control of property because it did not possess, operate, maintain, use, repair, or
control the property or pay any bills for it). Plaintiff’s evidence at most indicates
that Freddie Mac sent an inspector to the property—an inspector who did not have
authority to enter the premises ([39-1] at 9, 12, 18; [39-2] at 3, 9, 12)—and
anticipated taking possession. But there is no evidence of Freddie Mac exercising
the kind of control that imposes a duty to exercise care for people who encountered
the premises.
B.

Voluntary Duty

Avery-Lewis contends that even if Freddie Mac did not possess or control the
property at the time, Freddie Mac voluntarily undertook a duty to maintain the

The Colemans’ right of redemption does not necessarily prove that Freddie Mac was not a
possessor. The order approving the judicial sale merely indicated that any redemption
period under 735 ILCS 5/15-1604, if applicable, would expire 30 days after entry of the
order. The applicability of any right of redemption (e.g., whether the sale price was less
than the amount specified in 735 ILCS 5/15-1603(d)), and whether that right prohibited
Freddie Mac from controlling the property has not been adequately briefed. But regardless
of whether the Colemans legally owned the property or still had a right to redeem the
property during these 30 days, the other terms of the September 5, 2013 order prove that
Freddie Mac did not have possession or control over the property on the day plaintiff was
injured.
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property by having its agents inspect it. Freddie Mac argues that plaintiff makes
unsupported, conclusory assertions that the inspections were performed by its
agents and that there is no basis to conclude that these alleged inspections reflected
Freddie Mac’s intent to undertake a duty to protect third-parties on the property.
Illinois law recognizes a theory of liability premised on voluntary assumption
of duty, but this theory is narrowly construed and limited to the extent of the
undertaking. Thornton v. M7 Aerospace LP, 796 F.3d 757, 768 (7th Cir. 2015) (citing
Ordman v. Dacon Mgmt. Corp., 261 Ill.App.3d 275, 279 (3d Dist. 1994); Bell v.
Hutsell, 2011 IL 110724, ¶ 12). Where, as here, a plaintiff seeks to hold the
defendant liable for failing to perform a necessary act as part of a voluntary
undertaking (i.e., failing to repair the porch stairs), Illinois law requires that the
harm suffered must be a result of the plaintiff’s reliance upon the undertaking.
Thornton, 796 F.3d at 768 (citing Bell, 2011 IL 110724, ¶ 23); Lewis v. Chica
Trucking, Inc., 409 Ill.App.3d 240, 256 (1st Dist. 2011) (“In cases of nonfeasance, a
plaintiff’s reliance on the defendant’s promise is ‘an independent, essential element’
for liability in a case of a voluntary undertaking.”) (quoting Bourgonje v. Machev,
362 Ill.App.3d 984, 997 (1st Dist. 2005)). A plaintiff’s reliance is reasonable where
“there is a deceptive appearance that performance had been made, or where a
representation of performance has been communicated to plaintiff by defendant, or
where plaintiff is otherwise prevented from obtaining knowledge or substitute
performance of the undertaking.” Lewis, 409 Ill.App.3d at 256 (quoting Chisolm v.
Stephens, 47 Ill.App.3d 999, 1007 (1st Dist. 1977)). “But, to justify reliance, plaintiff

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must be unaware of the actual circumstances and not equally capable of
determining such facts.” Id. (quoting Chisolm, 47 Ill.App.3d at 1007).
Here, Avery-Lewis argues that Freddie Mac undertook the responsibility to
inspect the property for danger and then failed to repair the steps. Freddie Mac’s
broker inspected the property on August 19, 2013. [39-5] ¶ 6. Servicelink inspected
the property on several dates between July 2012 and July 2013.9 [39-5] ¶ 6. Freddie
Mac possessed copies of the inspection reports prior to September 19, 2015. [39-5]
¶ 7. On the date that Avery-Lewis fell, there were no warning signs posted at the
property. [39-5] ¶ 5.
Taking all these facts to be true, and considering all reasonable inferences in
Avery-Lewis’s favor as the non-movant, Freddie Mac is entitled to judgment as a
matter of law on the voluntary duty theory. There is no basis to conclude that
Freddie Mac’s inspection of the property brought with it a duty to repair or even
warn others about the results of the inspection, especially when it did not yet have
possession or control over the property. Freddie Mac did not respond to AveryLewis’s statement that the inspection reports note hazards of exterior fixtures, [395] ¶8, but it is not clear what hazards Avery-Lewis is referring to in her statement
of facts. The reports say that the exterior condition of the property was “good,” and
there was “no damage.” [39-1] at 8, 11. There were concerns reported about the
presence of other people at the property or in the neighborhood at the time of the
inspection. [39-1] at 6, 9, 12, 15; [39-2] at 6. Nothing in the reports specifically
The parties do not explain whether Servicelink was Freddie Mac’s broker or an entirely
different entity.
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identifies the porch steps as a hazard, and nothing about the inspections suggests
that Freddie Mac was undertaking a duty (as of September 19, 2015) to address
problems identified in the reports.
However, even if Freddie Mac had voluntarily undertaken the task of
inspecting the property for hazards and even if the porch steps were identified as a
hazard, Avery-Lewis has marshaled no evidence that her reliance on that
undertaking caused her injury. There is no evidence that there was a deceptive
appearance that the property had been inspected for hazards, that Freddie Mac
represented that it had inspected or repaired the property, or that Avery-Lewis was
otherwise prevented from knowing that the property was inspected for hazards. See
Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) (To survive
summary judgment, the nonmoving party must go beyond the pleadings and
“identify with reasonable particularity the evidence upon which [she] relies.”);
Thornton, 796 F.3d at 768. Moreover, if visual inspections of the property revealed
potential hazards from exterior fixtures, there is no reason why Avery-Lewis was
“not equally capable of determining such facts,” precluding reasonable reliance on
Freddie Mac’s alleged voluntary undertaking. Lewis, 409 Ill.App.3d at 256 (quoting
Chisolm, 47 Ill.App.3d at 1007). Summary judgment for Freddie Mac is appropriate
in these circumstances. See, e.g., Thornton, 796 F.3d at 768.

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V.

Conclusion
Freddie Mac’s motion for summary judgment, [30], is granted. Judgment will

be entered in favor of Freddie Mac and Homesteps, but entry of final judgment
must await resolution of the claims against the remaining defendants.
ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: 2/23/16

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