Bank of New York Mellon, The v. Smith et al

Filing 46

ORDER denying without prejudice 25 , 26 Motion for Summary Judgment; granting 28 Motion to Strike. Signed by Chief Judge David R. Herndon on 9/25/2013. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

THE BANK OF NEW YORK MELLON
f/k/a THE BANK OF NEW YORK as
Trustee for the Certificate Holders of
the CWABS, Inc. Asset-Backed
Certificates, Series 2004-14,

No. 3:12-cv-679-DRH-DGW

Plaintiff,
v.
RONALD SMITH a/k/a RONALD E.
SMITH, HOLISHOR ASSOCIATION,
INC., COUNTRYWIDE HOME LOANS,
INC. f/k/a AMERICA’S WHOLESALE
LENDER, CITIBANK, N.A. f/k/a
CITIBANK (SOUTH DAKOTA), N.A.,
UNITED STATES OF AMERICA,
STATE OF ILLINOIS, UNKNOWN
OWNERS-TENANTS, and NONRECORD CLAIMANTS
Defendants.

MEMORANDUM AND ORDER

HERNDON, Chief Judge:
Pending before the Court is plaintiff The Bank of New York Mellon’s (“BNY
Mellon”) motion for summary judgment pursuant to FED. R. CIV. PRO. 56 against
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defendant the United States of America (“USA”).

The USA is a party in this

foreclosure action due to its two recorded tax liens on the subject property. In
support, BNY Mellon offers an affidavit of Brenda Swinton (“Swinton”), Assistant
Vice President, Bank of America (“BANA”), and the servicer of the subject loan
(Doc. 26-2). The USA has filed a motion to strike Swinton’s affidavit, arguing that
BNY Mellon did not properly disclose Swinton as a supporting witness and that
therefore Swinton’s statements do not meet the requirements of Rule 56 (Doc.
28).
Summary judgment is proper where the movant shows “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(A); accord Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). However, under Fed. R. Civ. P. 56(d), if the nonmovant can show that
it cannot present facts essential to justify its opposition, the Court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order. Fed.
R. Civ. P. 26(a)(1)(A)(i) requires a party to provide to the other party any
individual likely to have discoverable information.

Here, BNY Mellon failed to

disclose Swinton as required by Fed. R. Civ. P. 26(a)(1)(A)(i) and then relies on
her affidavit in support of its summary judgment motion.
Accordingly, The Bank of New York Mellon’s motion for summary judgment
is DENIED without prejudice (Doc. 26). The United States of America’s motion
to strike affidavit of Brenda Swinton is GRANTED (Doc. 28). Discovery is hereby

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reopened in this case to allow the USA to depose Swinton. The parties will notify
the Court of its progress regarding Swinton’s deposition on or by November 25,
2013.
IT IS SO ORDERED.
Signed this 25th day of September, 2013.

Digitally signed by
David R. Herndon
Date: 2013.09.25
12:03:01 -05'00'
Chief Judge
United States District Court

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