IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FIRSTMERIT BANK, N.A., a national ) 

banking association, )

)

Plaintiff, )

)

v. )

)

TRINITY MANAGEMENT ASSOCIATES, ) No. 12-887

L.P., an Illinois limited )

partnership; )

CARSTEN H. FRANK II, an individual;)

S. THOMAS CLEMENTS, an individual; )

DANIEL A. KINNARE, an individual; ) 

and WILLIAM J. SIVERS, an )

individual, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

FirstMerit Bank, N.A. (“FirstMerit”) has sued Trinity

Management Associates, L.P. (“Trinity”), Carsten Frank II

(“Frank”), S. Thomas Clements (“Clements”), Daniel Kinnare

(“Kinnare”) and William Sivers (“Sivers”), alleging a breach of

contract on the part of each defendant. All of those contract

claims stem from the identical promissory note (“Note”) on which

Trinity was the maker and the individuals were guarantors under

separate commercial guaranty agreements (“Guaranties”). Because

each Guaranty contained a provision (as is customary in such

transactions) that permitted the obligee under the Note to sue

directly on the Guaranty without first having to pursue (let

alone exhaust) its remedy against principal obligor Trinity,

FirstMerit could properly sue all of the defendants in this
single lawsuit. 

FirstMerit has now filed a motion under Fed.R.Civ.P.

(“Rule”) 56 for summary judgment on its Complaint Count I against

Trinity and its Complaint Counts III through V against Clements,

Kinnare and Sivers respectively (collectively “Guarantors”).1

Neither Trinity nor the Guarantors dispute any of the relevant

substantive facts. Instead their only argument against the grant

of summary judgment is that FirstMerit’s requested amount of

attorneys’ fees and expenses is excessive. For the reasons

stated in this opinion, FirstMerit’s motion for summary judgment

is granted as to the damages sought in Counts I, III, IV and V,

with the amount of attorneys’ fees and expenses to be decided at

a later date.

Standard of Review

Every Rule 56 movant bears the burden of establishing the

absence of any genuine issue of material fact (Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986)). For that purpose courts

consider the entire evidentiary record and must view all of the

evidence and draw all inferences from that evidence in the light

Although Trinity initially included Count II against Frank 1

in its motion for summary judgment, Frank filed a response

asserting that he was not in fact a guarantor of the Note (Dkt.

64). Trinity then moved to withdraw its motion for summary

judgment on Count II, asserting that additional factual

investigation was needed as to that count (Dkt. 70), and this

Court granted that motion (Dkt. 74). Accordingly this opinion

will not address any issues as to Frank, and all references to

“Guarantors” should be understood to exclude Frank.

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most favorable to nonmovants (Egan Marine Corp. v. Great Am. Ins.

Co. of N.Y., 665 F.3d 800, 811 (7th Cir. 2011)). 

But a nonmovant must produce more than “a mere scintilla of

evidence” to support the position that a genuine issue of

material fact exists and “must come forward with specific facts

demonstrating that there is a genuine issue for trial”

(Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 460 (7th

Cir. 2010), quoting Wheeler v. Lawson, 539 F.3d 629, 634 (7th

Cir. 2008)). As Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir.

2003) has explained:

[T]he Federal Rules of Civil Procedure require the

nonmoving party to “set forth specific facts showing

that there is a genuine issue for trial.” Fed. R. Civ.

P. 56(e). Conclusory allegations, unsupported by

specific facts, will not suffice.2

Ultimately summary judgment is warranted only if a

 [Footnote by this Court] Lawyers (and regrettably judges) 2

often lump “self-serving affidavits” into the category of

submissions that are insufficient to overcome summary judgment. 

That blanket assertion is incorrect. Payne, 337 F.3d at 773 was

careful to distinguish conclusory affidavits from merely selfserving ones:

We hope this discussion lays to rest the misconception

that evidence presented in a “self-serving” affidavit

is never sufficient to thwart a summary judgment

motion. Provided that the evidence meets the usual

requirements for evidence presented on summary judgment

-- including the requirements that it be based on

personal knowledge and that it set forth specific facts

showing that there is a genuine issue for trial -- a

self-serving affidavit is an acceptable method for a

non-moving party to present evidence of disputed

material facts.

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reasonable jury could not return a verdict for the nonmovant

(Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 

What follows is a brief summary of the relevant facts.

Statement of Facts3

As confirmed by the uncontested allegations in Trinity’s

First Amended Complaint, federal jurisdiction is predicated on

diversity of citizenship. FirstMerit is a national banking

association with its main office in Ohio (FM. St. ¶1). Trinity

is a limited partnership all of whose members are corporations

whose dual corporate citizenship is entirely sited in Illinois

(id. ¶¶3-6 ), while all four individual defendants are also

Illinois citizens (id. ¶¶ 7-10).

On March 31, 2010 Trinity executed the Note in favor of

Midwest Bank and Trust Company (“Midwest”) in the principal

amount of $900,000 (FM. St. ¶ 13), with a maturity date of April

5, 1012 and containing an Illinois choice-of-law provision (id.). 

Although the security for the Note is no longer an issue, that

security was provided by a November 15, 2007 mortgage

(“Mortgage”) on real estate known as 633 North Ironwood Drive,

 LR 56.1 requires parties to submit evidentiary statements 3

and responses to such statements to highlight which facts are

disputed and which facts are agreed upon. This opinion cites to

FirstMerit’s LR 56.1 statement as “FM. St. ¶-–” and to Trinity’s

memorandum as “T. Mem. –.” Where a response does not provide a

version of the facts different from the original statement, this

opinion cites only that original statement. All of the facts

below are undisputed unless specifically noted otherwise. 

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Arlington Heights, Illinois, 60004 (“the Property”) (id. ¶14). 

Payment of all of Trinity’s indebtedness to Midwest,

including the Note, was guaranteed by each of the Guarantors4

under their Guaranties, which had been entered into on November

15, 2007 (FM. St. ¶¶16-18). Each of the Guaranties provided that

the Guarantors “absolutely and unconditionally guarantee[d] full

and punctual payment and satisfaction of the Indebtedness of

Borrower to Lender” (id. ¶23). 

On May 14, 2010 FirstMerit purchased the assets of Midwest,

including the Note, the Mortgage and the Guaranties, from the

Federal Deposit Insurance Corporation, which had taken over as a

receiver for Midwest (FM. St. ¶19). Just a few months later (on

September 5, 2010) FirstMerit and Trinity entered into an

amendment to the Note (“Amended Note”) (id. ¶20), which affirmed

Trinity’s obligation to FirstMerit, reflected the Note’s thencurrent balance of $890,000, amended Trinity’s monthly payments

and established a new maturity date of September 5, 2011 (id.). 

Both the Amended Note and the Guaranties contain provisions

making the respective parties -- Trinity and Guarantors --

responsible for all reasonable costs and expenses incurred in

connection with efforts at enforcement, including but not limited

 Trinity also alleges that Frank signed a guaranty (id. 4

¶15), but as already discussed there are factual disputes

surrounding Frank’s status as a guarantor. As those disputes are

not relevant to this opinion, they will not be discussed in this

Statement of Facts.

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to attorneys’ fees, expenses and court costs (id. ¶21).

Trinity failed to make its monthly interest-only payments to

FirstMerit beginning with the payment due on February 5, 2011

(FM. St. ¶22). Thereafter Trinity failed to pay the balance in

full by the September 5, 2011 maturity date (id.). On October

26, 2011 counsel for FirstMerit sent Trinity and the Guarantors a

letter requesting immediate payment in full of the indebtedness

due on the Note (id. ¶24). Neither Trinity nor any of the

Guarantors made any such payment (id. ¶25).

On September 20, 2012 Trinity and FirstMerit entered into a

Short Sale Payment Agreement (“Agreement”) under which FirstMerit

authorized Trinity to sell the Property in a short sale and pay

the proceeds of sale to FirstMerit in exchange for FirstMerit’s

release of the Mortgage (FM. St. ¶26). Under the Agreement

FirstMerit retained its right to collect the indebtedness on the

Amended Note and the Guaranties remaining after application of

the short sale payment (id. ¶27). On September 27, 2012 Trinity

closed the short sale and paid FirstMerit $521,112.30 (id. ¶28).

As of March 1, 2013 (the date FirstMerit’s Rule 56 motion

was filed) the unpaid balance due on the Amended Note exclusive

of fees and expenses was $541,467.45 (FM. St. ¶31) . Interest 5

 That amount comprised a principal balance of $369,697.70, 5

accrued interest of $152,530.18, advanced real estate taxes in

the amount of $18,439.57 and advanced appraisal expenses in the

amount of $810.00.

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continues to accrue at $110.39 per day (id.). FirstMerit is also

seeking an award of attorneys’ fees and expenses aggregating

$30,318.46, thus bringing the total figure (exclusive of the

post-March-1 interest accrual to $571,785.91 (id.).

Trinity’s and Guarantors’Liability

Trinity and Guarantors dispute none of the just-related

factual allegations, nor do they dispute their respective

liabilities (which are thus joint and several) for the full

amount due on the Amended Note. Instead, as indicated at the

outset, their sole argument is that summary judgment should be

denied because “Plaintiff’s attorneys’ fees at $28,201.50 are 6

excessive, not reasonable and not in line with the market rates

charges [sic] by other foreclosure law firms for similar

residential foreclosures” (T. Mem. 2). 

While that unresolved area of dispute does pose a genuine

issue of material fact, the controlling law torpedoes any effort

to stave off an immediate judgment by having the figurative small

tail of a fees-and-expenses dispute wag the far larger figurative

dog of substantive liability. It has been clear for a full

quarter century, under the definitive teaching of Budinich v.

Becton Dickinson & Co., 486 U.S. 196, 199-203 (1988),that an

 [Footnote by this Court]: FirstMerit’s Statement of Facts 6

says that it is actually seeking $30,318.46 in attorneys’ fees

(FM. St. ¶31). Nonetheless, as will be discussed below, the

differences can be sorted out at a later date.

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outstanding dispute over fees does not prevent a final resolution

of the merits of a dispute. 

Thus Budinich, id. at 199 held expressly that “[a] question

remaining to be decided after an order ending litigation on the

merits does not prevent finality if its resolution will not alter

the order or moot or revise decisions embodied in the order.” 

And Budinich, id. at 200 went on to hold that “we think it

indisputable that a claim for attorney's fees is not part of the

merits of the action to which the fees pertain.” Because the

recoverable amount of attorneys’ fees and expenses is the sole

factual dispute here, there is no reason that this Court should

not issue an order granting summary judgment on all counts

(excluding Count II) on the full amount due on the Amended Note

(excluding attorneys’ fees and expenses). 

As for the as-yet-unresolved Count II, another firmly

established legal principle prevents its pendency from blocking

the entry of a final and enforceable judgment against Trinity and

Guarantors. Although Rule 54(b) states the norm that any order

“that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties does not end the action

as to any of the claims or parties,” the well-established

principle exemplified by such decisions as Nat’l Metalcrafters v.

McNeil, 787 F.2d 817,821 (7th Cir. 1986) and cases cited there

(and, indeed, by numerous decisions in the post-1986 quarter

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century) removes this action from the operation of that norm.

Conclusion

Accordingly FirstMerit’s motion for summary judgment is

granted on Complaint Counts I, III, IV and V, while Count II

remains open. Judgment is ordered to be entered against Trinity

and each Guarantor jointly and severally in the amount of

$541,467.45 plus interest accrued at the rate of $110.39 per day

since March 1, 2013 (an aggregate accrual of $18,103.96), for a

total judgment of $559,571.41. As permitted by Rule 54(b), this

Court expressly determines that there is no just reason for delay

and directs that a final judgment in that amount be entered in

favor of FirstMerit and against each of those judgment debtors.

Finally, a status hearing is ordered to held at 8:30 a.m. on

August 14, 2013. At that time the parties should be prepared to

discuss (1) the issue of attorneys’ fees and expenses (including

any further proceedings needed to be taken on that subject) and

(2) the future of Complaint Count II.

____________________________________

Milton I. Shadur

Senior United States District Judge

Dated: August 12, 2013

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