Opinion
No. 01 C 3511.
January 8, 2002
MEMORANDUM OPINION AND ORDER
Presently before the Court is plaintiff's, Bankers Trust Company of California's, Motion for Summary Judgment of Foreclosure against defendants Georgiana Schmitz (Georgiana) and Lawrence Schmitz (collectively defendants).
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). All the evidence and the reasonable inferences that may be drawn from the evidence are viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). However, the nonmovant must still come forward with evidence establishing the elements of its claim on which it bears the burden of proof at trial. As such, it must establish specific facts that show there is a genuine issue for trial. Miller, 203 F.3d at 1003.
Defendants' response to plaintiffs Motion for Summary Judgment of Foreclosure does not specifically admit or deny any of the plaintiffs proposed undisputed facts. Instead, defendants admit liability but dispute the amount claimed by plaintiff, arguing that they did not have the necessary materials to deny the amount owed when they answered plaintiff's Complaint for Foreclosure. Defendants do not indicate what the newly discovered evidence is that supports their denial. Defendants did not attach any documents or affidavits supporting their denial and affirmative defense. The Court will not consider unsupported statements of fact or general "denials" that do not contain references to the factual record as required by L.R. 56.1(3). See Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (strict compliance with the local rules governing summary judgment is upheld given the importance of local rules that structure the summary judgment process).
On March 17, 1997, Georgiana executed a mortgage on the property commonly known as 2220 Strafford, Westchester, Illinois, 60154, to Fidelity Mortgage Decisions Corporation to secure a note in the amount of $228,800. The mortgage was recorded in the office of the Recorder of Deeds of Cook County on March 26, 1997. Subsequently, the mortgage was assigned to plaintiff. (Plaint.'s 56.1(a)(3) Statement ¶ 8).
Georgiana defaulted under the terms of the note and mortgage by failing to make mortgage payments when due. The last mortgage payment made by Georgiana was applied to the March 1999 payment, making Georgiana due for the April 1999 mortgage payment. (Plaint.'s 56.1(a)(3) Statement ¶ 9). As a result of the default, and pursuant to the terms of the note and mortgage, plaintiff accelerated the balance due on said note. The outstanding balance due on the note is $226,682.96 through April 1999. (Id., at ¶ 10).
As stated above, defendants do not contest liability. Defendants do contest the amount due through a general denial, and they attempt to assert an affirmative defense of denial of the amount due. Defendants offer nothing to support their denial and affirmative defense. Defendants have failed to come forward with any evidence to rebut the amount due as established by the plaintiff through affidavit and have failed to establish specific facts demonstrating that there is a genuine issue for trial. See Miller, 203 F.3d at 1003. Accordingly, plaintiffs Motion for Summary Judgment of Foreclosure is granted.