IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED CENTRAL BANK, a Texas

Banking Association, Organized

and Existing as a Texas

Corporation,

Plaintiff,

v.

JERRY L. FINDLEY and SHANDRA M.

FINDLEY,

Defendants.

Case No. 12 C 1405

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff’s Motion for Summary Judgment

[ECF No. 17]. For the reasons stated herein, the Court grants

Plaintiff’s Motion.

I. BACKGROUND

On May 3, 2007, Defendants Jerry L. Findley (“Mr. Findley) and

Shandra M. Findley (“Mrs. Findley”) took out a mortgage loan from

Mutual Bank, for a property known commonly as 1711 and 1713 Grey

Avenue, Evanston, Illinois (the “Property”). The Mortgage Agreement,

signed by Mr. and Mrs. Findley (hereinafter, collectively, “the

Findleys”), established the terms of the Note that Mr. Findley

executed. The original principal amount of the Note was $671,650.00. 

Beginning on June 3, 2007, the Findleys were required to make monthly

mortgage payments on the third of every consecutive month until the

total loan plus interest was paid off. 

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On July 31, 2009, Mutual Bank was closed by the Illinois

Department of Financial Professional Regulation-Division of Banking,

which appointed the Federal Deposit Insurance Corporation (the

“FDIC”) as Receiver for Mutual Bank. That same day, the FDIC sold

and assigned substantially all of Mutual Bank’s assets, including the

Findleys’ promissory notes, loan agreements and personal guarantees,

to Plaintiff United Central Bank (hereinafter, “UCB” or “Plaintiff”). 

UCB is a Texas banking association organized and existing as a Texas

corporation.

On February 3, 2011, the Findleys failed to make the required

monthly mortgage payment for the Property. Following this initial

default, Defendants did not make any other payments toward the

mortgage loan. On July 3, 2011, another default occurred when the

loan matured and the Defendants failed to pay the whole amount

outstanding. 

UCB filed this action on February 28, 2012, asserting two claims

against the Findleys. See, ECF No. 1. In Count I, UCB seeks

foreclosure of the mortgage against the Property. Count II, asserted

in the alternative, seeks judgment against Mr. Findley based on his

default under the terms of the Note that evidenced the loan. 

Defendants, pro se, filed their joint Answer on March 21, 2012

and their joint Amended Answer on April 2, 2012. See, ECF Nos. 6 and

7. Mr. Findley admitted that he executed the loan documents,

including the Mortgage, Assignment of Rents and Leases, and Note.

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However, the Findleys denied allegations concerning the loan default,

performance and amounts outstanding.

On November 9, 2012, Plaintiff moved for summary judgment as to

both counts. See, ECF No. 17. Defendants failed to respond to this

Motion; however, Plaintiff failed to send proper notice to Defendants

pursuant to Local Rule 56.2. The Court thus ordered Plaintiff to

provide Defendants notice in the manner required by Local Rule 56.2. 

See, ECF No. 22. Plaintiff filed the required notice on May 22,

2013. See, ECF No. 23. In light of the new notice, the Court gave

Defendants another opportunity to file a response to Plaintiff’s

Motion for Summary Judgment by June 21, 2013. See, ECF No. 22. 

Defendants again failed to respond, and no response has been filed as

of this date. 

II. LEGAL STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure,

summary judgment should be entered only if there is no genuine issue

as to any material fact, and the moving party is entitled to judgment

as a matter of law. See, Jay v. Internet Wagner Inc., 233 F.3d 1014,

1016 (7th Cir. 2000).

The Local Rules of this District state the parties’ obligations

with respect to motions for summary judgment: 

Each party opposing a motion filed pursuant to

FED R. CIV. P. 56 shall serve and file (1) any

opposing affidavits and other materials referred

to in FED. R. CIV. P. 56(e); (2) a supporting

memorandum of law; and (3) a concise response to

the movant’s statement. . . . 

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See, L.R. 56.1(b). Where a party fails to respond to a motion for

summary judgment, the Court may exercise its discretion properly and

rule on the merits of the unopposed motion. Easley v. Kimsee, 382

F.3d 693, 699 (7th Cir. 2004). To date no response has been filed

after two attempts to elicit one. Having given Defendants ample

opportunity to respond, the Court will exercise its discretion and

rule on the merits of the unopposed motion.

III. ANALYSIS

For purposes of determining whether a material issue of fact

exists, uncontested allegations to which a party had an opportunity

to respond are taken as true. Flora v. Home Federal Sav. and Loan

Ass’n, 685 F.2d 209 (7th Cir. 1982). 

The undisputed facts as presented by Plaintiff are that

Defendants signed a Mortgage Agreement. The Mortgage secured a

$671,650.00 loan to Defendants that was defaulted on when they

stopped making payments on February 3, 2011. The loan matured and

all principal and interest were due on July 3, 2011. Defendants have

made no payments since the default, despite demands by Plaintiff.

UCB, as the holder of the Mortgage Agreement, is entitled to

enforcement of the instrument, pursuant to Illinois Mortgage

Foreclosure Law, 735 ILCS 5/15-1101 et seq. UCB is the holder of the

indebtedness because on July 31, 2009, UCB acquired the Note and

Mortgage after the Illinois Department of Financial Professional

Regulation-Division of Banking closed down the original Mortgagee,

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Mutual Bank. On the same day, FDIC, the Receiver for Mutual Bank,

transferred the Note and Mortgage to UCB.

The factual record before this Court demonstrates that there are

no genuine issues of material fact with respect to any elements of

UCB’s foreclosure claim. Plaintiff asserts: (1) Defendants had a

mortgage; (2) they failed to pay; and (3) they defaulted. Defendants

have put forth no evidence to contradict these facts.

For the reasons stated herein, the Court grants Count I of

Plaintiff’s Motion for Summary Judgment, seeking judgment of

foreclosure and sale, and appointment of a sale officer. Plaintiff

requests relief under Count II alternatively in the event the Court

found against it on Count I. As the Court has found in UCB’s favor

on Count I, Count II is dismissed as moot.

IV. CONCLUSION

For the reasons stated herein, Plaintiff’s Motion for Summary

Judgment as to Count I is granted. See, ECF No. 17. Count II of

Plaintiff’s Complaint is dismissed as moot.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Date: September 26, 2013

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