UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CITIBANK, N.A., AS TRUSTEE FOR )

GSAA HOME EQUITY TRUST 2007-8, )

ASSET-BACKED CERTIFICATES, )

SERIES 2007-8, )

)

Plaintiff, )

)

v. ) No. 12 C 755

)

MICHAEL ANTHONY WILBERN; ) Judge Rebecca R. Pallmeyer

SANDRA D. WILBERN; PNC BANK, )

N.A., SUCCESSOR IN INTEREST TO )

NATIONAL CITY BANK; ILLINOIS )

DEPARTMENT OF REVENUE, )

)

Defendants. )

MEMORANDUM OPINION

Plaintiff, Citibank, N.A. ("Citibank") has sued Defendants Michael Anthony G. Wilbern 

and Sandra D. Wilbern for default on a promissory note, and seeks to foreclose on a home in 

Wadsworth, Illinois. Defendants stopped making monthly payments in October 2010, and in 

February 2012, Plaintiff filed this foreclosure action. Defendants' substantial indebtedness is 

undisputed, but they have challenged Plaintiff's right to foreclose on a number of procedural 

grounds. For the reasons explained here, all but one of Defendants' objections are overruled. 

Because Plaintiff has not established that it mailed the statutorily-required notice of default, 

however, the court is unable to enter a judgment of foreclosure. Defendants' motion to strike 

various exhibits supporting Plaintiff's summary judgment motion [50] is granted in part and 

denied in part. Plaintiff's motions for summary judgment [45] and to appoint a special

commissioner [49] are denied without prejudice.
BACKGROUND

Most of the facts are undisputed. On April 18, 2007, American Mortgage Network, Inc. 

("American Mortgage") made a loan to Defendant Michael Wilbern in the amount of $645,000.

(Interest-Only Period Fixed Rate Note, Ex. 1 to Pl.'s 56.1 Statement [46], hereinafter "Note," at 

1; Defs.' Resp. to Pl.'s 56.1 Statement [76] ¶ 1.) In exchange, Mr. Wilbern executed a 

promissory note in favor of American Mortgage, agreeing to pay the principal plus interest on 

the unpaid principal at an annual rate of 7.5% as well as taxes, insurance, and other escrow 

items. (Defs.' Resp. to Pl.'s 56.1 ¶¶ 1, 3, 4, 10.) A single page located after the Note and before 

a document titled "Planned Unit Development Rider" appears to be the indorsement, and states: 

PAY TO THE ORDER OF

Without Recourse

American Mortgage Network, Inc.

DBA AmNet Mortgage

The document bears the signature of Deborah Picchiotti, who is identified as "Post Closing 

Supervisor." Also on April 28, 2007, both Defendants executed a security instrument, that is, a 

mortgage for a residence located at 16816 Cherrywood Lane, Wadsworth, Illinois 60083.

1

(Mortg., Ex. 2 to Pl.'s 56.1; Defs.' Resp. to Pl.'s 56.1 ¶¶ 6–7.) The mortgage identifies American 

Mortgage as the "Lender," and MERS, Inc. ("Mortgage Electronic Registration Systems, Inc.") 

both as "nominee" for American Mortgage and its "successors and assigns," and as the 

"mortgagee." (Mortg. at 1, 3.) The mortgage document further provides that it "secures to 

Lender: (i) the repayment of the Loan . . . ; and (ii) the performance of Borrower's covenants 

and agreements under this Security Instrument and the Note." (Id. at 3.) On May 29, 2007, 

1 Defendant Michael Wilbern alone signed the Note (see Note at 3), but both 

Defendants Michael and Sandra Wilbern signed the Mortgage. (See Mortgage at 14.) 

2

 
MERS, Inc., acting as nominee for American Mortgage, recorded its interest in the mortgage 

with the Lake County Recorder of Deeds.2 (Pl.'s 56.1 ¶ 5.) 

Defendants stopped making monthly payments in October 2010, and have not made a 

payment since then, at least through February 14, 2014. (Defs.' Resp. to Pl.'s 56.1 ¶¶ 11, 15.) 

The Mortgage, provides that if, after receiving notice of their default, Defendants failed to cure it 

in the specified time, then "Lender at its option may require immediate payment in full of all 

sums secured by [the] Security Instrument without further demand and may foreclose [the] 

Security Instrument by judicial proceeding." (Mortg. ¶ 22.) Plaintiff asserts that it mailed 

Defendants "[a] notice of default and acceleration, including a counseling notice" on August 9, 

2011 (Pl.'s 56.1 ¶ 16), but Defendants claim that they did not receive the notice. (Defs.' Resp. to 

Pl.'s 56.1 ¶ 16) (citing Michael Wilbern Aff., Ex. C to Defs.' 56.1 [77], ¶¶ 3–5.) On February 2, 

2012, Plaintiff filed this action to foreclose its mortgage and recover an outstanding balance of 

$769,943.33, with interest accruing on unpaid principal at a rate of $134.12 per day, as well as

"attorney's fees, foreclosure costs, late charges, advances, and expenses incurred." (Compl. [1]; 

Pl.'s 56.1 ¶ 17.) Defendants submitted a Making Home Affordable Program ("HAMP") Request 

for Mortgage Assistance with Ocwen Loan Servicing, Inc. ("Ocwen")3 (as servicer) on July 22, 

2013, though the parties dispute whether the application was complete. (Pl.'s Resp. to Defs.' 

56.1 [80] ¶ 15; Defs.' 56.1 ¶ 15.) Plaintiff claims that "it informed Defendants['] counsel of the 

missing documents on February 11, 2014 via email," and, as of February 28, 2014, it has not 

received any additional documents. (Pl.'s Resp. to Defs.' 56.1 ¶ 15.) 

2 Defendants contend that MERS, Inc. recorded American Mortgage's interest in 

the mortgage and not its own. The difference is inconsequential, as Defendants admit (and the 

record shows) that MERS, Inc. was acting as nominee for American Mortgage. A nominee is 

"[a] person designated to act in place of another," or "[a] party who holds bare legal title for the 

benefit of others . . . ." BLACK'S LAW DICTIONARY (9th ed. 2009). 

3 MERS, Inc., as nominee for American Mortgage, assigned Ocwen the Mortgage 

in November 2011, Plaintiff claims, and Ocwen then assigned the Mortgage to Plaintiff in 

December 2011. (Pl.'s 56.1 ¶¶ 12–13.) Presently, Plaintiff asserts, Ocwen is the "loan servicer 

and agent of [Plaintiff]." (Pl.'s Resp. to Defs.' 56.1 ¶ 1; see also Pl.'s Reply at 5.) 

3

 
As noted, Defendants contend they did not receive the required notice of default. They 

argue, in addition, that Plaintiff did not own and possess the Note when this suit was filed, and 

urge that the Mortgage was not properly assigned from American Mortgage to Plaintiff. Plaintiff 

asserts that it "owned the Note and had possession of the Note" when the suit was filed (Pl.'s 

56.1 ¶ 14) (citing Compl. & Lisa Negron Aff., Mar. 1, 2012, Ex. 5 to Pl.'s 56.1), but Defendants 

flatly deny that Plaintiff had possession, noting that Negron's affidavit "says nothing about 

possession." (Defs.' Resp. to Pl.'s 56.1 ¶ 14.) With respect to the mortgage assignment, 

Plaintiff claims that on November 30, 2011, MERS, Inc., acting as nominee for American 

Mortgage, assigned the mortgage to Ocwen. (Pl.'s 56.1 ¶ 12.) Ocwen then assigned the 

mortgage to Plaintiff on December 27, 2011. (Id. ¶ 13.) But Defendants assert that because 

American Mortgage dissolved on June 2, 2009, before the first alleged assignment, it could not 

have assigned its interest in the mortgage, and therefore, both assignments are "invalid." (Defs.' 

Resp. to Pl.'s 56.1 ¶¶ 12–13.) Additionally, Defendants claim that the signatures of the 

corporate representatives and the notaries who executed and signed the assignments "bear[] 

no resemblance" to their signatures on their notary applications. (Defs.' 56.1 ¶¶ 8–13.) 

Jurisdiction is proper under 28 U.S.C. § 1332. The parties are diverse in citizenship: 

both Defendants are Illinois citizens, and Plaintiff Citibank is chartered in New York, where its 

headquarters and principal place of business are located. The amount in controversy, at least 

$769,943.33, well exceeds the jurisdictional minimum. (Compl. ¶ 2; Pl.'s 56.1 ¶ 17; Defs.' Resp. 

to Pl.'s 56.1 ¶ 1.) Plaintiff has moved for summary judgment, and to appoint a special 

commissioner, and Defendants have filed a motion to strike exhibits 1, 2, 5 and 6 filed in support 

of Plaintiff's motion for summary judgment. The motions are fully briefed. 

DISCUSSION

I. Standard of Review

The court will grant summary judgment where the moving party demonstrates that "there 

is no genuine dispute as to any material fact," and that the moving party "is entitled to judgment 

4
as a matter of law." FED. R. CIV. P. 56(a). The court will "construe the facts and draw all 

reasonable inferences in favor of the non-moving party." Ferraro v. Hewlett-Packard Co., 721

F.3d 842, 847 (7th Cir. 2013). "Once the moving party puts forth evidence showing the absence 

of a genuine dispute of material fact, the burden shifts to the non-moving party to provide 

evidence of specific facts creating a genuine dispute." Carroll v. Lynch, 698 F.3d 561, 564 (7th 

Cir. 2012). Inferences "supported by only speculation or conjecture," or "[m]ere metaphysical 

doubt as to the material facts" do not create a genuine dispute. Carroll, 698 F.3d at 564–65 

(quoting, respectively, Koclanakis v. Merrimack Mut. Fire Ins. Co., 899 F.2d 673, 675 (7th Cir. 

1990), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). 

In order to show the absence of any issue of material fact, the moving party may rely on 

"materials in the record, including . . . affidavits or declarations, . . . or other materials," so long 

as the evidence relied upon is admissible in evidence. FED. R. CIV. P. 56(c)(1)(A), (2). Rule 56 

requires that affidavits "be made on personal knowledge, set out facts that would be admissible 

in evidence, and show that the affiant . . . is competent to testify on the matters stated." FED. R.

CIV. P. 56(c)(4). The non-moving party may move to strike supporting evidence that would be 

inadmissible at trial. 

II. Defendants' Motion to Strike

Defendants move to strike Lisa Negron's affidavit, the Note, the Mortgage, and the 

Notice of Default letter (Ex. 6 to Pl.'s 56.1) as well as "the corresponding sections of Plaintiff's 

56.1"—essentially, all evidence offered in support of Plaintiff's summary judgment motion. 

Defendants argue that Negron lacks personal knowledge to testify, and that all of the exhibits 

are unauthenticated. (Defs.' Mot. to Strike at 1.)4 The court will address each document in turn. 

4 Notably, most of the "corresponding" paragraphs in Plaintiff's 56.1 that 

Defendants challenge here are paragraphs that Defendants have admitted in their response. 

(Compare Defs.' Mot. to Strike at 3–5 (asking to strike Pl.'s 56.1 ¶¶ 1–11, 14, 15, 17), with Defs.' 

Resp. to Pl.'s 56.1 (admitting ¶¶ 1–11, 15).) 

5

 
A. Negron's Affidavit

Lisa Negron, identified as an Ocwen "Senior Contract Manager," states in her affidavit 

that she is familiar with the records Ocwen uses to service its loans, and, after reviewing 

Ocwen's servicing records, she concludes that Plaintiff Citibank "owns Defendant[s'] Note and 

Mortgage." (Negron Aff. ¶¶ 1–2, 4.) Based on her review of the servicing records, Negron 

identifies the sums of money that Defendants owe in principal, escrow, late charges, unpaid 

interest, and other expenses as of February 14, 2012, and explains that Defendants' total 

indebtedness is $769,943.33. (Id. ¶¶ 5–6.) Defendants argue that Negron's affidavit does not 

comply with Federal Rule of Civil Procedure 56(c)(4)5 because she lacks personal knowledge to 

testify about Defendants' Note and Mortgage. (Defs.' Mot. to Strike at 2.) Specifically, 

Defendants contend, Negron had no personal knowledge of "what went on with any particular 

individual's loan or even knowledge as to how mortgage records are kept," and therefore, they 

urge, she is not qualified to testify or to authenticate the accompanying business records. (Id. at 

2–3.) Plaintiff responds that Negron regularly performs job duties involving business records, 

has training and knowledge of the processes to create these records, and has sufficient 

personal knowledge to testify about the content of the records. (Pl.'s Reply [79] at 2–4.) 

A party may offer an affidavit as evidence in support of a summary judgment motion so 

long as the affidavit is "made on personal knowledge, set[s] out facts that would be admissible 

in evidence, and shows that the affiant . . . is competent to testify." FED. R. CIV. P. 56(c)(4). 

"[S]tatements outside the affiant's personal knowledge or statements that are the result of 

speculation or conjecture or merely conclusory do not meet this requirement." Stagman v. Ryan, 

176 F.3d 986, 995 (7th Cir. 1999). Hearsay is an out-of-court statement offered to prove the 

truth of the matter asserted, and is inadmissible absent an exception. FED. R. EVID. 801(c), 802. 

5 Defendants cite Federal Rule of Civil Procedure 56(e), which was amended in 

2010 and now corresponds to Rule 56(c)(4). 

6

 
Rule 803(6) recognizes an exception for business records rendering those records admissible 

so long as "the custodian or another qualified witness" can establish that

(A) the record was made at or near the time by—or from information transmitted 

by—someone with knowledge; (B) the record was kept in the course of a 

regularly conducted activity of a business, organization, occupation, or calling, 

whether or not for profit; (C) making the record was a regular practice of that 

activity[,]

and that "neither the source of information nor the method or circumstances of preparation 

indicate a lack of trustworthiness." FED. R. EVID. 803(6); Thanongsinh v. Bd. of Educ., 462 F.3d 

762, 775–77 (7th Cir. 2006). 

The court is satisfied that Negron has sufficient personal knowledge to testify about the 

note and mortgage records and is a "qualified witness" for the purposes of Federal Rule of 

Evidence 803(6). Negron's affidavit states that she is a senior contract manager with Ocwen,

that she is "familiar" with Ocwen's records through her job duties, and that she has "training and 

general knowledge" of the processes to create and maintain these records. (Negron Aff. ¶¶ 1–

3.) Negron further testifies that her personal knowledge is "based on [her] review" of records 

pertaining to Defendants' loan. (Id. ¶ 1.) Defendants complain that the affidavit fails to

demonstrate that Negron has "knowledge of record keeping," in part, because it does not

describe the specifics of Negron's job duties or employment history (Defs.' Mot. to Strike at 3),

but the absence of this information does not defeat her status as a knowledgeable custodian. 

Defendants also argue that Negron is not qualified to testify about Ocwen's records because 

she is not a "corporate officer," but Rule 803(6) does not so limit who may authenticate business 

records. FED. R. EVID. 803(6) (business records admissible through "the testimony of the 

custodian or another qualified witness"). 

With objections to Ms. Negron's affidavit dispatched, the court concludes that the note 

and mortgage records themselves are admissible under the business records exception. 

Negron explained that Ocwen's records "typically include electronic data compilations and 

imaged documents pertaining to the loans it services." (Negron Aff. ¶ 2.) Based on her training 

7
and knowledge of the record processes, Negron confirmed that the records "were made at or 

near the time by, or from information provided by, persons with knowledge of the activity and 

transactions reflected in such records;" and "are kept in the ordinary course of the business 

activity regularly conducted by Ocwen;" and that it is Ocwen's "regular practice . . . to make and 

update" these records. (Id. ¶ 3.) Nor have Defendants shown that either Negron's testimony or 

the business records "indicate a lack of trustworthiness." FED. R. EVID. 803(6)(E). Defendants 

describe Negron's affidavit as a "fill-in-the blank Affidavit," in part because Negron's name and 

title are "rubber-stamped onto the affidavit." (Defs.' Mot. to Strike at 2.) Whatever the merits of 

Negron's affidavit practices may be, there is no indication that the Affidavit is inaccurate or 

untrustworthy. 

Finally, Defendants argue that the records included with Negron's affidavit are 

inadmissible summaries of the "actual business record." (Defs.' Mot. to Strike at 3) (citing FED.

R. EVID. 1006.) It is not clear that the "Affidavit of Debt" attached to Negron's affidavit is a 

summary of other records; it appears instead that it is itself a business record regularly 

maintained by Ocwen. (See Negron Aff. ¶¶ 2, 5) (stating that the "[s]ervicing [r]ecords typically 

include electronic data compilations and imaged documents," and that the affidavit of debt is "a 

true and correct print-out generated from Ocwen['s] regularly maintained" records.) Even if the 

Affidavit of Debt is a summary created for this litigation, it is admissible if the underlying note 

and mortgage records are business records. See Deutsche Bank Nat'l Trust Co v. Tapla, No. 

11-C-4338, 2013 WL 4804855 at *3 (N.D. Ill. Sept. 9, 2013) (concluding that an affiant's 

testimony about contents of business records was admissible under Federal Rules of Evidence 

803(6) and 1006); cf. Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 

371, 382 (7th Cir. 2008) (upholding district court's decision to strike summary, a list of financial 

transfers prepared by plaintiff, because plaintiff "did not establish the admissibility of the records 

on which the summaries were allegedly based or authenticate the summaries in any way").

8
The court denies Defendants' motion to strike Negron's affidavit and the "corresponding" 

paragraphs in Plaintiff's 56.1. Negron's affidavit and the accompanying "Affidavit of Debt" are 

admissible under the business records exception. 

B. The Note, Mortgage, and Notice of Default Letter 

Defendants also move to strike the Note, Mortgage, and Notice of Default letter as 

unauthenticated. Under Illinois foreclosure law, a party seeking to foreclose a mortgage must, 

as part of its complaint, attach a copy of the mortgage and the note. Such exhibits are 

presumed to be "true and correct copies . . . and are incorporated and made a part of the 

complaint by express reference." 735 ILCS 5/15-1504(a)(2). Defendants argue that the Negron 

affidavit and Plaintiff's complaint "do not authenticate" either exhibit. (Defs.' Mot. to Strike at 5.) 

Defendants also urge that Negron is not qualified to testify about Ocwen's ownership of the 

Note or Mortgage. (Id. at 4–5.) As discussed above, the court has concluded that Negron is 

qualified to testify about Ocwen's business records under the business records exception, which 

likely include both the Note and the Mortgage. Regardless, Defendants present no evidence 

that casts doubt on the statutory presumption. Without such evidence, the court presumes that 

the Note and Mortgage provided by Plaintiff here are "true and correct copies," and denies 

Defendants' motion to strike. 

Illinois foreclosure law does not recognize such a presumption for a notice of default 

letter, however. As Defendants assert, Plaintiff has failed to authenticate that exhibit. The 

moving party, on summary judgment, may offer "any material that would be admissible or 

usable at trial, including properly authenticated and admissible documents or exhibits." 

Woods v. City of Chicago, 234 F.3d 979, 987–88 (7th Cir. 2000) (quotations and citations 

omitted); see Bloodworth v. Vill. of Greendale, 475 F. App'x 92, 94 (7th Cir. 2012). But the 

"documents must be authenticated by and attached to an affidavit that meets the requirements 

of Rule 56(e)." Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006). 

Negron's affidavit makes no mention of the Notice of Default letter, and Plaintiff provides no 

9
other affidavit to authenticate it. No witness provides a basis for the conclusion that it was 

mailed in the regular course of the lender or loan servicer's business. As a result, the court 

grants Defendants' motion to strike the Plaintiff's Exhibit 6, the Notice of Default letter. 

III. Summary Judgment 

The Illinois Mortgage Foreclosure Law, 735 ILCS 5/15-1504, outlines the pleading 

requirements for a foreclosure action. The complaint in this case met those requirements, and 

most of Plaintiff's allegations are undisputed: on April 18, 2007, Defendants executed a 

mortgage with American Mortgage on their residence in Wadsworth, Illinois, which secured a 

note for $645,000, and on May 29, 2007, MERS, Inc., as nominee for American Mortgage, 

recorded the Mortgage in Lake County. (Defs.' Resp. to Pl.'s 56.1 ¶¶ 1, 5–7.) Defendants 

stopped making monthly payments on the Mortgage in October 2010 (id. ¶ 11, 15), and now 

owe $769,943.33, an amount rising each day by $134.12 in interest and other expenses. (Pl.'s 

56.1 ¶ 17.) 

As described briefly earlier, the only disputed issues are whether Plaintiff has the 

"capacity" to bring the foreclosure action as holder of the note, and owner of the mortgage, see 

735 ILCS 5/15-1504(a)(3)(N), and whether Plaintiff mailed Defendants a notice of default. 735 

ILCS 5/15-1502.5(b)–(c). 

A. Plaintiff is the Holder of the Note

Plaintiff alleges that it is the holder of the Note because it is in possession of the Note, 

which is indorsed in blank. (Pl.'s Br. in Supp. of Mot. for Summ. J. [47], hereinafter "Pl.'s Mot.," 

at 2.) In challenging this assertion, Defendants cite the deposition testimony of Ocwen 

employee Frederick Denson, who testified that "[t]he original note is stored in [Ocwen's] 

vaults . . . in West Palm Beach, Florida," and that Ocwen has "possession of the note" and "is 

10
the holder of the note."6 (Frederick Denson Dep., Nov. 26, 2013, Ex. A-1 to Defs.' 56.1, 

hereinafter "Denson Dep. 1," at 24:15–18, 29:8–9; Frederick Denson Dep., Dec. 20, 2013, Ex. 

A-2 to Defs.' 56.1, hereinafter "Denson Dep. 2," at 47:24–48:2.) As Defendants understand this 

testimony, Ocwen (not Plaintiff) has possession of the Note, and the Note was not transferred 

through either purported mortgage assignment. (Defs.' Resp. to Pl.'s Mot. for Summ. J. [72], 

hereinafter "Defs.' Resp.," at 7–8; Defs.' 56.1 ¶¶ 1–2, 4.) 

Under the Illinois Uniform Commercial Code ("IL-UCC"), a "holder" has the right to 

enforce an instrument. 810 ILCS 5/3-301. The IL-UCC defines a holder as "the person in 

possession of a negotiable instrument that is payable either to bearer or to an identified person 

that is the person in possession." 810 ILCS 5/1-201(21). A negotiable instrument may be 

transferred to another party by delivery to another "for the purpose of giving . . . the right to 

enforce the instrument." 810 ILCS 5/3-203(a). An instrument may contain a special 

indorsement that "identifies the person to whom" it is payable; alternatively, it may contain a 

"blank indorsement," which renders it "payable to bearer" and negotiable "by transfer of 

possession alone." 810 ILCS 5/3-205(a)–(b). In an Illinois foreclosure action, "the mere 

attachment of a note to a complaint is prima facie evidence that plaintiff owns the note." 

Rosestone Invs., LLC v. Garner, 377 Ill. Dec. 616, 2 N.E.3d 532, 540 (1st Dist. 2013).

In this case, Plaintiff attached a copy of the Note to the complaint. (Compl. Ex. B.) The 

copy is presumed to be "true and correct," and thus constitutes prima facie evidence of 

Plaintiff's possession and ownership. Rosestone Invs., 2 N.E.3d at 540. As the Note does not 

identify a person to whom it is payable, it is payable to bearer, in this case, Plaintiff. (See Note

at 4.) In short, Plaintiff has presented prima facie evidence that it is "holder" of the Note.

6 Defendants chose not to cite to Denson's testimony that Ocwen is "not the holder 

of the note. We have possession of the note," or that "[t]he owner of the note would be 

[Citibank]." See Denson Dep. 1 at 29:14–16; Denson Dep. 2 at 48:3–4.

11

 
Defendants have not rebutted this evidence. Instead, they have merely denied "in [their]

unverified answer" that Plaintiff is the holder, and suggested that the denial shifts the burden of 

proof to Plaintiff. (Defs.' Resp. at 10.) Without supporting evidence, however, Defendants' 

denial does not create an issue of fact, in light of the presumptions discussed above, see 735 

ILCS 5/15-1504(a)(2); Rosestone Invs., 2 N.E.3d at 540, and Negron's affidavit to the contrary. 

(Negron Aff. ¶ 4); see also Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir. 1997) ("Valance 

cannot succeed in creating a factual dispute, however, solely by pointing to allegations in his 

pleading; he must instead produce evidence showing that there is a disputed issue for trial."). 

Nor does the deposition testimony of Frederick Denson, cited by Defendants as 

evidence that Plaintiff does not have possession of the Note, create any genuine issue of 

material fact. Denson, an Ocwen loan analyst, testified that Ocwen has possession of the Note, 

which is stored in its vault in West Palm Beach, Florida. (Denson Dep. 1 at 5:22–6:1; 24:15–20; 

28:16–23.) Defendants conclude this testimony establishes that Ocwen, and not Plaintiff, is the 

holder. (Defs.' Resp. at 7–8.) As Plaintiff notes, however, Ocwen is Plaintiff's agent, and 

possesses the Note on its behalf. (Pl.'s Resp. to Defs.' 56.1 ¶ 1; Pl.'s Reply at 5.) Defendants 

provide no evidence to the contrary, and Plaintiff's assertion is consistent with the 

circumstances here: Both Lisa Negron, the affiant testifying about Ocwen's business records of 

the Note and Mortgage, and Frederick Denson, are Ocwen employees. Yet Denson was 

identified by Citibank as its corporate representative for deposition. (See Defs.' Continued 

Notice of F.R.C.P. 30(b)(6) Corp. Dep. of Pl. Citibank, N.A. [65].) Additionally, the second 

assignment of the Mortgage identifies the assignor as Ocwen and the assignee as Citibank, but 

lists Citibank's address as "c/o Ocwen Loan Servicing, LLC. 1661 Worthington Road, Suite 100, 

West Palm Beach, FL 33409." (Assignment of Mortgage (Ocwen to Citibank), Ex. 4 to Pl.'s 56.1, 

hereinafter "Assignment 2," at 2.) 

In fact, when Defendants' attorney explicitly asked Denson, in his first deposition, 

whether Ocwen was the "holder" he replied, repeatedly, that Ocwen has "possession of the 

12
note" but "we're not the holder of the note." (Denson Dep. 1 at 28:24–29:16.) Then, in a second 

deposition, in response to the question "Is Ocwen then the holder of the note or the owner of the 

note?" Denson responded that "[Ocwen is] the holder of the note" and "the trustee" (Citibank) is 

the owner. (Denson Dep. 2 at 47:24–48:4; 56:20–23.) As Plaintiff observes, Denson does not 

have the ability to identify who is the "holder" as the term is used here; what Denson's 

deposition testimony makes clear is that he, an Ocwen employee, makes a distinction between 

ownership and possession of the Note, and believes that Ocwen is not the Note's owner. 

Denson's deposition testimony, if anything, bolsters Plaintiff's contention that it is holder of the 

Note. 

Defendants argue that this case is like Kemp v. Countrywide Home Loans, Inc., 440 B.R. 

624, 626–27 (Bankr. D.J.J. 2010) (applying N.J. UCC), where the debtor challenged a proof of 

claim filed by the mortgage loan servicer, Countrywide, on behalf of the Bank of New York. 

(See Defs.' Resp. at 8.) The record showed that mortgage was transferred to Bank of New York 

as trustee, but that the Bank of New York had never received the note. 440, B.R. at 629, 630 

n.10. Citing Dolin v. Darnall, 115 N.J.L. 508, 181 A. 201 (N.J. E & A 1935), the bankruptcy court 

concluded that "[b]ecause the Bank of New York never had possession of the note, it can not 

qualify as a 'holder'." 440 B.R. at 630; see also Marks v. Braunstein, 439 B.R. 248, 250–51 (D. 

Mass. 2010) (party who never had possession of note could not sue to enforce it). In the case 

before this court, however, Plaintiff bank does have possession of the note. Notably, in Dolin, 

the plaintiff had sued to enforce two promissory notes signed by the defendants, but the court 

concluded that because plaintiff "was not in possession of the notes either personally or by his 

agent" at the time he filed the complaint, he "was not entitled to maintain the action." 115 N.J.L. 

at 510, 181 A. at 202 (emphasis added). This language confirms that a holder may possess a 

note through its agent, as Plaintiff does in this case. 

Defendants insist this is not good enough. Citing Locks v. North Towne National Bank of 

Rockford, 115 Ill. App. 3d 729, 451 N.E.2d 19 (2d Dist. 1983), they urge that Plaintiff must have 

13
physical possession of the note in order to enforce it. (Defs.' Resp. at 8.) Locks itself observed 

that "some jurisdictions have recognized" that a person may be a holder "through his agent's 

physical possession" of the instrument; it did not decide the issue. 115 Ill. App. at 732, 451 

N.E.2d at 21. More recent Illinois cases demonstrate that in the foreclosure context, Illinois

recognizes possession through an agent. See FDIC v. Linn, 671 F. Supp. 547, 553 (N.D. Ill. 

1987) (discussing Locks, and holding that a party may establish that it is the "holder" through 

possession of the note by its agent); see also Deutsche Bank Nat'l Trust Co. v. Christian, No. 

12-C-03613, 2013 WL 6283584 at *3 (N.D. Ill. Dec. 4, 2013) (observing that a foreclosure action 

in Illinois may be brought by "the legal holder of the indebtedness, a pledgee, an agent, the 

trustee under a trust deed or otherwise") (quoting 735 ILCS 5/15-1504(a)(3)(N)); Mortgage Elec.

Registration Sys., Inc. v. Barnes, 406 Ill. App. 3d 1, 6, 940 N.E.2d 118, 124 (1st Dist. 2010) 

("Illinois does not require that a foreclosure be filed by the owner of the note and mortgage," and 

"[a] plaintiff can maintain a lawsuit although the beneficial ownership of the note is in another 

person.").

Finally, citing three New York appellate court cases,

7 Defendants appear to argue that 

Negron's affidavit is insufficient evidence to establish that Plaintiff has possession of the Note. 

(Defs.' Resp. at 8–10.) This court has already concluded, as discussed earlier, that Negron's 

affidavit is admissible under the business records exception, FED. R. EVID. 803(6). That affidavit 

states that "[b]ased on [Negron's] review of Ocwen Loan Servicing, LLC's Servicing Records, 

7 In Bank of America N.A. v. Bassman FTB, L.L.C., 366 Ill. Dec. 936, 981 N.E.2d 1 

(2d Dist. 2012), the court stated that "we will apply New York law to determine whether the 

mortgages were validly transferred to the trust." Defendants interpret that language to mean 

that New York law also applies to establish whether Plaintiff is a holder of the Note. (Defs.' 

Resp. at 8–9) (citing Bassman, 366 Ill. Dec. at 941, 981 N.E.2d at 6.) Defendants raised this 

very issue in their motion to dismiss, however, and this court concluded that "New York law 

governs the creation of the Trust that held the Note, and Illinois law governs the foreclosure of 

the Mortgage." Citibank, N.A. v. Wilbern, No. 12-C-755, 2013 WL 1283802 at *3 (N.D. Ill. Mar. 

26, 2013). As in their unsuccessful motion to dismiss, Defendants have not explained how the 

issue whether Plaintiff is a "holder" would be decided differently under New York law. The court 

reaffirms its March 2013 holding here, and will apply Illinois law to the foreclosure issues. 

14

 
Plaintiff owns Defendant[s'] Note and Mortgage . . . ." (Negron Aff. ¶ 4.) In contrast, in the cases

cited by Defendants, the New York courts concluded that the plaintiff did not have standing to 

bring a foreclosure action because the plaintiff had failed to prove, through affidavits or other 

evidence, that it had physical possession of the note when it filed suit. See Homecomings Fin., 

LLC v. Guldi, 969 N.Y.S.2d 470, 474, 108 A.D.3d 506, 508–09 (N.Y. App. Div. 2013) (affiant 

delivered the note to plaintiff during the action, and did not explain how it physically delivered 

the note); Deutsche Bank Nat'l Trust Co. v. Haller, 954 N.Y.S.2d 551, 100 A.D.3d 680, 682–83

(N.Y. App. Div. 2012) (denying summary judgment where plaintiff could not establish it had 

physical possession of the note); Deutsche Bank Nat'l Trust Co. v. Barnett, 931 N.Y.S.2d 630, 

88 A.D.3d 636, 637–38 (N.Y. App. Div. 2011) (same). Defendants here are plowing familiar 

grounds: they challenged Plaintiff's standing in their motion to dismiss, but this court concluded

that Citibank was the holder, and therefore, had standing. Citibank, N.A., No. 12-C-755, 2013 

WL 1283802 at *4. Negron's affidavit, in addition to the presumption that Plaintiff owns the Note 

by attaching it to the complaint, satisfies the court that Plaintiff is the holder, and Defendants 

have offered no evidence that would make this an issue of disputed fact.

B. Plaintiff is the Owner of the Mortgage 

Next, Defendants argue that Plaintiff does not own the Mortgage—another argument 

made, and rejected, earlier. (Defs.' Resp. at 11–13.) Plaintiff contends that it acquired equitable

ownership of the Mortgage once it possessed the Note, and furthermore, that Ocwen assigned 

the Mortgage to Plaintiff in December 2011.

8 (Pl.'s 56.1 ¶¶ 12–13; Pl.'s Mot. at 5.) Defendants 

have no standing to challenge the assignment to the trust, Plaintiff contends, and have provided 

no evidence that the assignment was untimely or voidable. (Pl.'s Reply at 7–9.)

8 The second assignment document provides some indication that Ocwen may 

have become Plaintiff's agent at the time of the transfer; it identifies the assignor as Ocwen and 

the assignee as Citibank, and states that Citibank's address is "c/o Ocwen Loan Servicing, LLC. 

1661 Worthington Road, Suite 100, West Palm Beach, FL 33409." (See Assignment 2 at 2.) 

15

 
Under Illinois law, "[t]he assignment of a mortgage note carries with it an equitable 

assignment of the mortgage by which it was secured." Fed. Nat'l Mortg. Ass'n v. Kuipers, 314 Ill.

App. 3d 631, 635, 732 N.E.2d 723, 727 (2d. Dist. 2000); see also Moore v. Lewis, 51 Ill. App. 3d 

388, 392, 366 N.E.2d 594, 599 (1st Dist. 1977) ("Indeed a mortgage, which in this state is only 

regarded as a mere incident to the debt, is not assignable at law. It is the debt which is 

assigned, and the transfer of the debt carried with it the mortgage security.") (citations omitted). 

Here, Plaintiff is the holder of the Note, and consequently, under Illinois law, is also the

equitable owner of the Mortgage. 

Defendants fail in their effort to suggest that this is a disputed issue. As they did earlier,

Defendants urge that Plaintiff does not own the Mortgage because it was assigned to the trust 

after it closed, in violation of New York law governing Real Estate Mortgage Investment 

Conduits ("REMIC"), and "in violation of the procedures intended to achieve bankruptcy 

remoteness."9 (Defs.' Resp. at 11.) Defendants offer no reason for the court to reach a different 

conclusion than the one it reached earlier: that Defendants "cannot object to Plaintiff's standing 

based on any such impropriety," and that it appears from Citibank's Prospectus, filed with the 

SEC, that the mortgage was indeed part of the trust when it was created. Citibank, N.A., No. 12-

C-755, 2013 WL 1283802 at *6.

Defendants do cite recent case law recognizing a mortgagor's standing to challenge the 

validity of a mortgage assignment under Rhode Island or Massachusetts law. See Cosajay v. 

Mortgage Elec. Registration Sys., Inc., C.A. No. 10-442-M, 2013 WL 5912569 (D. R.I. Nov. 5, 

2013) (applying R.I. law) (citing Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 289–91 

(1st Cir. 2013) (applying Mass. law); Woods v. Wells Fargo Bank, N.A., 733 F.3d 349 (1st Cir. 

2013) (same)). This court is not inclined to revisit its determination on this issue. If Defendant 

could establish that the assignment violated Citibank's MSTA or New York law governing 

9 Defendants do not elaborate on the "procedures . . . to achieve bankruptcy 

remoteness" and the court, therefore, will not speculate as to its basis. 

16

 
REMIC, such a violation would merely render the assignment voidable, and not void. See, e.g.,

Deutsche Bank Nat'l Trust Co. v. Adolfo, No. 12-C-759, 2013 WL 4552407 at *3 (N.D. Ill. Aug. 

28, 2013) (collecting cases, and holding that "a transfer that does not comply with a PSA is 

voidable, not void); Bassman, 366 Ill. Dec. at 944–45, 981 N.E.2d at 9–10 (applying New York 

law and concluding that a transfer in violation of the PSA is voidable, and that defendants 

lacked standing to challenge the transfer). And, as the court noted earlier, it appears from the 

SEC Prospectus that the mortgage indeed was assigned to the trust before it closed.10 Citibank, 

N.A., No. 12-C-755, 2013 WL 1283802 at *6 n.3.

Defendants also challenge the validity of the mortgage assignment from the original 

lender, American Mortgage, to subsequent assignees, Ocwen, and then to Plaintiff. These 

assignments are invalid, Defendants assert, because American Mortgage was dissolved in 

2009, and therefore, MERS could not have been acting as nominee for American Mortgage

when it assigned the Mortgage to Ocwen in 2011. (Defs.' Resp. at 12.) And, furthermore, 

Defendants urge, there are "discrepancies" between the assignors' and notaries' signatures on 

the assignment paperwork, and their signatures in their notary applications. (Id.) In response,

Plaintiff argues that as nominee for American Mortgage, MERS did have the authority to assign 

the Mortgage, and that Defendants provide no evidence that the assignment did not take place 

before American Mortgage's dissolution. (Pl.'s Reply at 9.) 

The parties' arguments about when the assignment purportedly took place are irrelevant 

here. Under Illinois law, once Plaintiff became the holder of the Note, it also acquired an 

10 See Filing under Securities Act Rules 163/433 of free writing prospectuses 

available http://www.sec.gov/Archives/edgar/data/1407556/000090514807005275/0000905148-

07-005275.txt (filed as of 7/30/2007). As the court understands it, Defendants also appear to 

protest this court's reliance on Citibank's Free Writing Prospectus because the Prospectus 

stated that the asset pools "are subject to modification and revision" and that "[t]he information 

contained in this material may not pertain to any securities that will actually be sold"—indicating 

that Citibank may have eliminated Defendants' mortgage loan from the trust before the trust 

closed. (Defs.' Resp. at 11.) But, other than speculation that the trust did not include 

Defendants' mortgage loan, Defendants have provided no evidence contradicting Plaintiff's 

claim that it owns the Mortgage. 

17

 
equitable ownership of the Mortgage, and consequently, a right of enforcement. The relevant 

date for the purpose of seeking foreclosure is the date on which the action was filed. So long as

Plaintiff was a holder of the Note at that time (February 2, 2012), when precisely before that 

date the Mortgage was assigned makes no difference to Plaintiff's right to proceed with 

foreclosure here. See Earl v. MidFirst Bank, No. 12-C-1026, 2012 WL 2503970 at *2 (N.D. Ill. 

June 28, 2012) (applying Illinois law and concluding that "the Mortgage itself did not need to be 

formally assigned in order for [the Note holder] to file the Foreclosure Action"); Rosestone Invs.,

2 N.E.3d at 540 (rejecting defendant's argument that because the mortgage assignment 

document was dated four days after plaintiff filed the foreclosure complaint, the plaintiff lacked 

standing as "[defendant] failed to show that the mortgage assignment . . . was not a mere 

memorialization of a previous transfer"). 

Nor is the court moved by Defendants' concerns that "discrepancies" in the signatures 

on the assignment documents raise an issue of material fact "as to whether [the assignments] 

were executed and notarized by the individuals who purported to sign and notarize them." (See 

Assignment of Mortgage (MERS, Inc. to Ocwen), Ex. 3 to Pl.'s 56.1, hereinafter "Assignment 1;" 

Assignment 2.) A written assignment is not necessary to transfer a mortgage, and "[e]ven when 

a written assignment exists, it may be a mere memorialization of an earlier transfer of interest." 

Rosestone Invs., 2 N.E.3d at 540. The claimed "discrepancies" only challenge the written 

assignments; like the defendant in Rosestone Invs., Defendants have failed to show that they 

were not "a mere memorialization of a previous transfer." 2 N.E.3d at 540. 

Even assuming that these assignments did effectuate the transfer of the Mortgage, 

Defendants' speculation that there are discrepancies in the signatures is insufficient to create a 

genuine issue of fact for trial. The notaries public are commissioned by the State of Florida11

11 Plaintiff argues for the application of Illinois law on the issue. (Pl.'s Mot. at 5; Pl.'s 

Reply at 9–10.) Defendants do not appear to challenge this. Their only discussion of any law 

relevant to notarization is a bewildering reference to "Statu[t]e 117.107" — bewildering because 

the language Defendants quote ("Once commissioned, the notary must sign precisely as 

18

 
(Messer Comm'n Detail, Ex. E to Defs.' 56.1; Assignment 2 (Martinez)), but under Illinois law 

"[a] notary's function is simply to certify the validity of the signature; the notary does not attest to 

the validity of the statements made in the document itself." Butler v. Encyclopedia Brittanica, 

Inc., 41 F.3d 285, 293 (7th Cir. 1994). In Illinois, "[a] notary public's certificate of 

acknowledgement, regular on its face, carries a strong presumption of validity," and a party 

must provide "clear and convincing evidence" from a disinterested witness to overcome this 

presumption. Butler, 41 F.3d at 294–94 (citing Witt v. Panek, 408 Ill. 328, 333, 97 N.E.2d 283, 

285 (1951)). 

Defendants appear only to challenge the validity of the signatures in the assignment 

documents, and their suspicions about "discrepancies" are not "clear and convincing evidence" 

that the notary signatures, which certify the validity of the assignor signatures, are invalid. Both 

assignments were signed by a corporate representative, and a notary public, and include the 

notary public's signature, stamped name, and seal. (See Assignment 1; Assignment 2.) 

Finally, Defendants claim that Plaintiff has failed to produce a "Mortgage Loan Schedule" 

reflecting Plaintiff's ownership of the Mortgage. (Defs.' Resp. at 12.) While such evidence would 

be persuasive, it is not necessary. Plaintiff has provided other satisfactory evidence: Plaintiff is 

holder of the Note, and therefore, is equitable owner of the Mortgage, and has produced two 

written assignments that appear to give it ownership of the Note.

C. Defendants raise a genuine issue of material fact concerning the 

required notice

 

Finally, Defendants argue that Plaintiff has failed to provide any evidence that it mailed 

the required default notice. In support, they offer the affidavit of Mr. Wilbern, who testifies that

he never received the notice. (Defs. Resp. at 13; Michael Wilbern Aff. ¶¶ 3–5.) Plaintiff

commissioned by the state of Florida, in the exact name appearing on the notarial commission 

certificate") (Defs.' Resp. at 12) appears nowhere in the cited statute. See FLA. STAT. § 117.107. 

Nor has the court been able to locate quotation's source — a Google search uncovered several 

blogs and news articles that contain the quotation with a citation only to "Florida law." In any 

event, the notary's own signature is not at issue here.

19

 
responds that it need not prove that Defendants received the notice, but only that the notice was 

mailed. (Pl.'s Mot. at 4–5.)

Before proceeding with a foreclosure of a residential mortgage in Illinois, but after the 

mortgagor has been delinquent for more than thirty days, the mortgagee must mail a notice to 

the mortgagor, which states12: that the mortgage loan is over thirty days past due, the 

mortgagor may seek "approved housing counseling," and the mortgagor has a thirty day grace 

period to cure the default. 735 ILCS 5/15-1502.5(b)–(c). "[S]ending the notice," under § 5/15-

1502.5(c), means "depositing or causing to be deposited into the United States mail an 

envelope with first-class postage prepaid that contains the document to be delivered. The 

envelope shall be addressed to the mortgagor at the common address of the residential real 

estate securing the mortgage." 735 ILCS 5/15-1502.5(c). 

Plaintiff correctly asserts that the Homeowner Protection Act, 735 ILCS 5/15-1502.5, 

requires only proof that Plaintiff mailed the notice, not that Defendants received it. (Pl.'s Reply at 

10, citing U.S. Bank, N.A. v. Ramos, No. 11-C-2899, 2013 WL 1498996 at *6 (N.D. Ill. Apr. 11, 

2013); Bank of N.Y. Mellon Trust Co. v. Weatherspoon, No. 11-C-3495, 2012 WL 1430361 at *3 

(N.D. Ill. Apr. 25, 2012).) In Ramos, a foreclosure action, plaintiff attached a copy of the notice 

of default letter to its Rule 56.1 statement, as evidence that it mailed the required letter to 

defendants, and defendants argued that this alone was not evidence that the letter was actually 

mailed or received. No. 11-C-2899, 2013 WL 1498996 at *5. Plaintiff then provided a U.S. 

Postal Service confirmation showing that the letter had been mailed, that it was left at the 

delivery address, and that it had not been claimed. Id. On this record, satisfied that the notice of 

default letter had been mailed, the court entered summary judgment. Id. The court also noted 

that as the mortgage terms, like 735 ILCS 5/15-1502.5(c), required only that plaintiff mail the 

letter, "even if Defendants did not receive the Notice of Default, that would not prevent a 

12 Illinois' Homeowner Protection Act contains express, mandatory language that 

the notice must include. See 735 ILCS 5/15-1502.5(c). 

20

 
foreclosure judgment." Id. at *6. Similarly, the plaintiff in Weatherspoon "provided evidence" 

that it sent a notice of default letter to the defendant by certified mail. No. 11-C-3495, 2012 WL 

1430361 at *2. The defendant claimed that he did not receive the letter, but failed to provide any 

evidence contradicting plaintiff's proof that the letter was mailed. Again, the court granted 

plaintiff summary judgment. Id. at **2–3. 

In this case, however, Plaintiff has presented a copy of the purported Notice of Default 

letter, but has offered no admissible evidence that it was mailed. Ms. Negron's affidavit makes 

no specific mention of the letter, and does not even comment on any regular business practice 

on the part of Plaintiff or its agents to mail such notices or to preserve copies. Defendants have 

denied receiving the notice, and though that denial would not defeat a showing of mailing, it 

certainly put Plaintiff on notice that this matter is contested. Without more than the unsupported 

allegation, there remains a genuine issue of material fact concerning whether Plaintiff, in fact, 

mailed the letter.

The court recognizes that there may be no prejudice to Defendants from the absence of 

the notice. Cf. Aurora Loan Servs., LLC v. Pajor, 362 Ill. Dec. 337, 343–44, 973 N.E.2d 437, 

443–44 (2d Dist. 2012) ("Where, as here, the mortgagor has alleged only a technical defect in 

the notice and has not alleged any resulting prejudice, a dismissal of the foreclosure complaint 

to permit new notice of the grace period would be futile; we would not read the section to require 

such a result unless its plain language compelled it."). In the case before this court, Defendants'

application for HAMP mortgage assistance demonstrates that they understood that their title 

was in jeopardy. Moreover, if the notice actually was mailed, it is hardly surprising that 

Defendants did not receive it, in light of the difficulties Plaintiff had in serving them with process 

at their own residence address. (See Mot. for Serv. by Publ'n [11].) The plain language of the 

Illinois' Homeowner Protection Act requires, however, that Plaintiff take the necessary steps to 

provide Defendants with a notice of their default, and an opportunity to cure that default, which 

includes actually "sending . . . the notice." 735 ILCS 5/15-1502.5(c). 

21
Plaintiff's only response to this concern is to cite Intercon Solutions, Inc. v. Basel Action 

Network, No. 12-C-6814, 2013 WL 4552782 at *6 (N.D. Ill. Aug. 28, 2013) for the proposition 

that "[t]he mailing of the Notice was raised as an affirmative defense" on which Defendants bear 

the burden of proof. (Pl.'s Reply at 11.) But Intercon Solutions, a defamation action, does not 

address notice requirements under the Homeowner Protection Act, and the court cannot find 

any cases that suggest noncompliance with those requirements is an affirmative defense. 

Rather, the Homeowner Protection Act provides that "[n]o foreclosure action . . . shall be 

instituted on a mortgage secured by residential real estate before mailing the notice" required 

under Section 1502.5(c). 735 ILCS 5/15-1504, 1502.5(b); see also Ramos, No. 11-C-2899, 

2013 WL 1498996 at *5 (identifying the notice requirement as a "condition precedent to 

foreclosure"); Weatherspoon, No. 11-C-3495, 2012 WL 1430361 at *2 (same). Because Plaintiff 

has not satisfied the court that it mailed a notice of default letter to Defendants, the court denies 

Plaintiff's motion for summary judgment. 

Defendants also appear to challenge the substance of the letter, but as the court has 

stricken Plaintiff's Exhibit 6, the Notice of Default letter, and concluded that Plaintiff has failed to 

provide any evidence that it mailed the letter, it need not address Defendants' challenge here. 

CONCLUSION

For the reasons discussed above, Defendants' motion to strike [50] is granted with 

respect to the Notice of Default letter, and otherwise denied. Plaintiff's motions for summary 

judgment [45] and for the appointment of a special commissioner [49] are denied without 

prejudice. 

ENTER:

Dated: March 28, 2014 _________________________________________

REBECCA R. PALLMEYER

United States District Judge

22