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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JEFF FOSTER,

Plaintiff,

v.

PNC BANK, N.A.,

Defendant.

Case No. 12-cv-3130

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Jeff Foster filed this lawsuit against PNC Bank related to five loans on properties 

in Chicago and Florida that he obtained from PNC Bank and its predecessors. The 

case was narrowed following the Court’s ruling on PNC’s motion to dismiss. At issue 

now on summary judgment are two loans, the eight remaining counts in Foster’s 

complaint, and PNC’s counterclaims.

For the reasons stated below, PNC’s motion for summary judgment [157] is

granted.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

A genuine dispute as to any material fact exists if “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts are 

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material. Id. After a “properly supported motion for summary judgment is made, the 

adverse party must set forth specific facts showing that there is a genuine issue for 

trial.” Id. at 250 (internal quotations omitted). 

The Court “consider[s] all of the evidence in the record in the light most favorable 

to the non-moving party, and [] draw[s] all reasonable inferences from that evidence 

in favor of the party opposing summary judgment.” Skiba v. Ill. Cent. R.R. Co., 884 

F.3d 708, 717 (7th Cir. 2018) (internal citation and quotations omitted). In doing so, 

the Court gives the non-moving party “the benefit of reasonable inferences from the 

evidence, but not speculative inferences in [its] favor.” White v. City of Chi., 829 F.3d 

837, 841 (7th Cir. 2016) (internal citations omitted). “The controlling question is 

whether a reasonable trier of fact could find in favor of the non-moving party on the 

evidence submitted in support of and opposition to the motion for summary 

judgment.” Id. (citation omitted). 

BACKGROUND

I. Parties and Procedural History

Plaintiff, Jeffrey Foster (“Foster”), is self-employed, and has been a licensed real 

estate broker since 1983. (DSOF ¶2).1 He owns the two properties at issue in this 

litigation: 6201 Kilpatrick Avenue, Chicago, Illinois and 56 Fiesta Way, Fort 

Lauderdale, Florida. (Id.). Defendant PNC Bank, National Association (“PNC”) is a 

national banking association, and the successor to MidAmerica Bank, FSB. (Id. ¶1).

On December 14, 2015, the Court granted in part and denied in part PNC Bank’s 

1 The facts in this Background section are undisputed unless otherwise noted. PNC’s 

Statement of Facts (Dkt. 159) is “DSOF”.

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motion to dismiss portions of Foster’s second amended complaint. (Dkt. 94). Foster 

filed his Third Amended Complaint on December 28, 2015. (Dkt. 95, “TAC”).2

II. The Loans

A. The Florida Loan

Foster obtained a first lien mortgage in the original principal amount of $1.1 

million (the “Florida Loan”) to purchase a second home located at 56 Fiesta Way, Fort 

Lauderdale, Florida 33301 (the “Florida Property”). (DSOF ¶5). The Florida Loan is 

evidenced by an adjustable rate note dated January 30, 2004 (the “Florida Note”) in 

favor of MidAmerica Bank, FSB. The Florida Note is secured by a mortgage dated 

January 30, 2004 (the “Florida Mortgage”) against the Florida Property. (Id.). Foster 

does not dispute that he signed the Florida Note or the Florida Mortgage or that he 

received the funds from the Florida Loan. (Id. ¶6). Pursuant to the terms of the 

Florida Mortgage, Foster agreed to be responsible for separately paying his property 

taxes and all insurances required by PNC for the Florida Property. (Id. ¶7).

The parties entered a Loan Modification Agreement dated May 20, 2010 extending

the term of the Florida Loan 40 years and reducing the interest rate (“Florida 

Modification”). (Id. ¶¶8-9). As part of the Florida Modification, Foster was required 

to escrow payments for property taxes and flood insurance. (Id. ¶9). He remained 

responsible for obtaining and separately paying for his own hazard insurance 

2 In addition to the federal question jurisdiction under the FCBA and FCRA, it is 

undisputed that there is diversity jurisdiction over the state law claims in this case as PNC 

is a Delaware citizen and Foster is a Florida citizen. (DSOF ¶3). There is also no dispute 

that Florida law applies to the state law claims as to the Florida Property, and Illinois law 

as to the Illinois property.

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coverage. (Id.). Section 5 of the Florida Mortgage details Foster’s obligations to 

maintain insurance on the Florida Property. (Id. ¶12). It provides, in pertinent part:

Property Insurance. Borrower shall keep the improvements now existing or

hereafter erected on the Property insured against loss by fire, hazards included

within the term “extended coverage” and any other hazards, including, but not

limited to, earthquakes and floods, for which Lender requires insurance. This

insurance shall be maintained in the amounts (including deductible levels) and

for the periods that Lender requires. What Lender requires pursuant to the

preceding sentences can change during the term of the Loan. The insurance

carrier providing the insurance shall be chosen by Borrower subject to Lender’s

right to disapprove Borrower’s choice, which right shall not be exercised

unreasonably . . . . If Borrower fails to maintain any of the coverages described

above, Lender may obtain insurance coverage, at Lender’s option and at

Borrower’s expense. Lender is under no obligation to purchase any particular type

of amount of coverage...Borrower acknowledges that the cost of insurance

coverage so obtained might significantly exceed the cost of insurance Borrower

could have obtained....

(Id.; Thomas Aff. (Dkt. 157-1), Exh. 5).

Under the Florida Modification, Foster’s monthly payment amount included funds 

for flood insurance and property taxes. (DSOF ¶31). In March 2011, PNC sent Foster 

a letter notifying him that his flood insurance was not sufficient under the National 

Flood Insurance Program because his coverage was less than $250,000. (Id. ¶36).

PNC sent Foster a second letter to this effect in April 2011. (Id. ¶37). In May 2011, 

PNC obtained lender placed flood gap insurance and advanced funds from Foster’s 

escrow account in the amount of $647.28. (Id. ¶38). In 2012, pursuant to the Florida 

Note, PNC sent Foster a letter dated April 17, 2012 providing notice of the default 

and intent to accelerate the Loan unless the default was cured. (Id. ¶52).3 PNC 

3 According to PNC, beginning in April 2012 Foster remitted partial payments. (DSOF ¶

48). PNC returned those funds for a time and then started depositing them in a suspense 

account. (Id. at ¶¶ 48-49). 

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asserts (though Foster disputes) that the Florida Loan remains due and owing for the 

February 1, 2012 payment and all payments thereafter. (Id. ¶50).

B. The Illinois Loan

In 2002, Foster obtained an equity line of credit in the original principal amount 

of $1.2 million from National City Bank (“2002 Loan”). (DSOF ¶59). One year later, 

Foster refinanced the 2002 Loan with MidAmerica Bank in the amount of $1.89 

million (the “2003 Loan”). (Id. ¶60). The 2003 Loan was paid off in 2006. (Id. ¶63).

(The parties dispute whether Foster then signed a 2006 note and mortgage agreement 

on the Illinois Property for Home Equity Line of Credit in the amount of $1.89 million, 

see id. ¶61). In 2009, Foster contacted PNC about payments on the Kilpatrick Home, 

and PNC offered, and Foster accepted, a written Short Term Repayment Modification 

Program (“Repayment Program”). (Id. ¶68).4 PNC advised Foster in writing that his 

monthly account payment would return to being calculated according to the normal 

terms of the original contract after April 7, 2011. (Id. ¶69). In 2012, PNC sent Foster 

a Notice of Default dated April 24, 2012 advising him that he had 30 days to cure the 

default on the Illinois Note. (Id. ¶76). PNC asserts (though Foster disputes) that 

Foster failed to cure the default on the Illinois Loan. (Id. ¶78).

III. Foster’s Claims and PNC’s Counterclaims

PNC seeks summary judgment in its favor on Foster’s claims remaining in this 

case for violation of the Fair Credit Billing Act (“FCBA”) (Illinois Loan (Equity Line)) 

(Count I); violation of the Fair Credit Reporting Act (“FCRA”) (Illinois Loan and 

4 Foster disputes, however, that this Repayment Program was based on the Illinois Loan or 

Illinois Note. (Dkt. 165 ¶68).

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Florida Loan) (Count II); breach of contract (Illinois Loan) (Count III); breach of 

contract (Florida Loan) (Count IV); breach of implied duty of good faith and fair 

dealing (Florida Loan) (Count V); fraud (Florida Loan) (Count VII); unjust 

enrichment and disgorgement (Florida Loan) (Count VIII); and breach of fiduciary 

duty (Florida Loan) (Count X). PNC also moves for summary judgment on its 

counterclaims: for judgment on the Florida Note and judgment on the Illinois Note 

and foreclosure of the Illinois Mortgage.

ANALYSIS

PNC argues that Foster’s claims do not have merit and he has no evidence that 

he suffered any damages as a result any PNC conduct. PNC also contends that Foster 

is in default on the Florida and Illinois loans and therefore it is entitled to summary 

judgment on its counterclaims including the equitable remedy of foreclosure on the 

Illinois Property. (Dkt. 158 at 7).5 Foster responds that PNC’s motion should be 

denied because there are numerous genuine issues of fact about his claims and PNC’s 

counterclaims. (Dkt. 164).

I. Fair Credit Reporting Act-Illinois and Florida Loans (Count II)

In Count II Foster alleges PNC violated the Fair Credit Reporting Act. 15 U.S.C. 

§§ 1681-1681u. “Under that Act, when a credit-reporting agency notifies a debt 

collector of a disputed debt, the debt collector (called a ‘furnisher’ under the statute) 

must ‘conduct an investigation with respect to the disputed information.’” Walton v. 

EOS CCA, 885 F.3d 1024, 1028 (7th Cir. 2018) (quoting 15 U.S.C. § 1681s-2(b)(1)(A)).

5 Page numbers are taken from the CM/ECF header at the top of filings.

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Generally the “reasonableness” of a furnisher’s procedures “cannot be resolved on 

summary judgment unless the reasonableness or unreasonableness of the procedures 

is beyond question.” Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir. 2001). 

In addition, a showing of damages is required because “the Fair Credit Reporting Act 

is not a strict liability statute.” Walton v. BMO Harris Bank N.A., 761 F. App'x 589, 

592 (7th Cir. 2019).

PNC argues that it conducted a reasonable investigation in accordance with its 

internal procedures in reviewing the disputes it received from the credit reporting 

agencies (CRAs). (Dkt. 158 at 21–22, 31). As PNC points out (id. at 21), its duty to 

investigate is triggered only when a CRA notifies it of a dispute. Gulley v. Pierce & 

Assocs., P.C., 436 F. App'x 662, 665 (7th Cir. 2011) (“absent a formal notice from a 

credit reporting agency, [the bank’s] duty to investigate was never triggered”).

Regarding the Illinois Loan, in January 2012, PNC received a single notice of dispute 

from a CRA. (DSOF ¶ 72). Foster also identifies only this one dispute. (Foster Aff.

(Dkt. 166), ¶ 183). Although he argues that this was “one of many such disputes that 

Foster submit[ed] [sic] regarding PNC’s incorrect reporting” (Dkt. 165 at 49, citing 

Foster Aff., ¶¶ 179, 181-183), he does not provide any evidence of any other disputes 

that PNC received from a CRA for the Illinois Loan.

Regarding the Florida Loan, PNC received notices of dispute from two CRAs in 

January 2012. (DSOF ¶ 54). Foster identifies the same January 2012 disputes. 

(Foster Aff., ¶ 185). He argues again that there were “many such disputes” but, again,

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does not provide any evidence of any other disputes that PNC received from a CRA 

for the Florida Loan. (Dkt. 165 at 37, citing Foster Aff., ¶¶ 179, 181, 184-185).

PNC argues that Foster’s FCRA claim fails as a matter of law because he has no 

evidence that he suffered any damages. (Dkt. 158 at 31-32). The Court agrees. Foster 

does not provide any evidence that he suffered damages because of PNC’s alleged 

failure to investigate his January 2012 disputes to the CRAs. See Crabill, 259 F.3d 

at 664 (“Without a causal relation between the violation of the statute and the loss of 

credit, or some other harm, a plaintiff cannot obtain an award of ‘actual damages’”); 

Bagby v. Experian Info. Sols., Inc., 162 F. App'x 600, 604 (7th Cir. 2006) (“rather than

delving into a reasonableness inquiry before one is necessary, we begin our analysis 

with damages.”).

Foster does not provide evidence that he was ever denied credit or a loan as a 

result of PNC not reasonably investigating his January 2012 disputes to the CRAs. 

He refers generally to a “drop in my credit score related to the negative reporting 

from PNC.” (Foster Aff., ¶ 191). But he does not provide evidence that the drop in his 

credit score was linked to PNC’s alleged failure to reasonably investigate his disputes. 

In fact the date he says that his credit score decreased, November 2011, is before his 

January 2012 disputes to the CRAs. (Foster Aff., ¶ 190). Foster also claims that 

lenders indicated to him they wanted to help him but that a loan would not be 

possible, and Foster “did not waste the lender’s time putting together an application 

that we both knew was going to be turned down.” (Id., ¶¶ 191-92). This admission 

that he never applied for a loan belies his assertion that he was harmed by PNC’s 

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alleged failure to investigate his disputes to the CRAs. See Momient v. Nw. Collectors, 

Inc., 666 F. App'x 531, 536 (7th Cir. 2016) (“Momient lacks evidence that Northwest’s 

alleged failure to investigate his accusations that two major credit bureaus were 

given misinformation caused him any harm.”).6

Because Foster has failed to provide any evidence of damages caused by PNC’s

alleged FCRA violations, the Court need not reach the question of the reasonableness 

of PNC’s investigation. See Bagby, 162 F. App'x at 603-4 (on summary judgment, 

reasonableness inquiry unnecessary until plaintiff has shown she suffered damages); 

Waletzko v. Corelogic Credco, LLC, 2016 U.S. Dist. LEXIS 140304 (W.D. Wis. Oct. 7, 

2016).7 Judgment is entered in PNC’s favor on Count II.

II. Illinois Loan 

a. Fair Credit Billing Act (Count I)

The Court previously held that the only portion of Count I that may proceed is 

directed at the Equity Line on the Illinois Property. (Dkt. 94 at 6, 23). The FCBA 

6 The Court also agrees with PNC that statements in Foster’s Affidavit that lenders told 

him they could not give him a loan are hearsay because they are offered for the truth of the 

matter asserted—that Foster was denied credit. “A party may not rely upon inadmissible 

hearsay to oppose a motion for summary judgment.” Gunville v. Walker, 583 F.3d 979, 985 

(7th Cir. 2009).

7 Foster argues that a reasonable investigation by PNC would have uncovered “numerous 

inaccurate reports.” (Dkt. 164 at 32). To the extent Foster attempts to bring a FCRA claim 

based on PNC allegedly transmitting inaccurate information, that claim fails. See Walton, 

761 F. App'x at n.1 (“Walton cannot bring an individual claim against BMO Harris for 

transmitting inaccurate information; only the Federal Trade Commission (or a state 

agency) may bring such a claim. Therefore, Walton is limited to challenging the bank's 

investigation procedures.”) (citation omitted); see also Momient, 666 F. App'x at 536

(consumers cannot privately enforce duty of furnisher to give credit bureaus accurate 

information).

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requires creditors who offer open-end credit plans to communicate with consumers to 

resolve billing errors. 15 U.S.C. § 1666. Under § 1666(a): 

If a creditor, within sixty days after having transmitted to an obligor a 

statement of the obligor’s account in connection with an extension of 

consumer credit, receives...a written notice...from the obligor in which 

the obligor—

(1) sets forth or otherwise enables the creditor to identify the name and 

account number (if any) of the obligor,

(2) indicates the obligor’s belief that the statement contains a billing 

error and the amount of such billing error, and

(3) sets forth the reasons for the obligor’s belief (to the extent applicable) 

that the statement contains a billing error.

15 U.S.C. § 1666(a). See also Pinner v. Schmidt, 805 F.2d 1258, 1264 (5th Cir. 

1986) (“To trigger the creditor's obligation to reinvestigate and verify the billing, the 

debtor must give written notice of the specific dispute within sixty days of receipt of 

the statement.”); Trang Nguyen v. USAA Fed. Sav. Bank, 2008 U.S. Dist. LEXIS 

59738, at *12 (S.D. Ind. July 28, 2008) (“The United States Code and the Code of 

Federal Regulations both clearly state that only timely notice of a billing error will 

trigger a creditor's obligations under FCBA.”); Jeffries v. Dutton & Dutton P.C., 2006 

U.S. Dist. LEXIS 32439, at *20 (N.D. Ill. May 11, 2006) (“notice [under § 1666(a)] 

must be in writing and include the consumer's name and account number, his belief 

that the statement contains a billing error, the reasons for his belief, and the amount 

of the error.”).

Foster argues that his attorney’s October 13, 2011 letter to Mr. Thomas Bell of 

PNC Bank “dispute[s] PNC’s efforts to enforce the May 31, 2006 documents related 

to loan for the Kilpatrick Home as late as October 13, 2011.” (Dkt. 164 at 16). The 

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October 13, 2011 letter is the only document he identifies as allegedly satisfying the 

written notice requirement of the FCBA. (Id.). But this letter does not satisfy the 

requirements of the FCBA. It does not refer to a specific billing statement, identify a 

specific billing error or the amount of any error, and it does not demonstrate that it 

was sent 60 days after Foster received a specific statement. Therefore judgment will 

be entered on Count I in PNC’s favor.

b. Breach of Contract (Count III)

In Foster’s TAC, he alleges breach of contract by PNC as to the Equity Line on the 

Illinois Property. (TAC, pp. 42-43). Foster’s response brief (Dkt. 164) does not address 

or argue this breach of contract claim. As the Seventh Circuit explained in 

Rozumalski v. W.F. Baird & Assocs.,

It is a well-settled rule that a party opposing a summary judgment 

motion must inform the trial judge of the reasons, legal or factual, why 

summary judgment should not be entered, and if she loses the motion, 

she cannot make novel points on appeal. We apply waiver even if the 

issue may have been before the district court in more general terms, still 

holding a party to its responsibility to make a specific argument.

937 F.3d 919, 925 (7th Cir. 2019) (internal quotations and citations omitted).

In addition, the court “has no obligation to research and construct the legal 

arguments open to the parties.” Vakharia v. Little Co. of Mary Hosp. & Health Care 

Ctrs., 62 F. App'x 122, 124 (7th Cir. 2003) (citation omitted). Therefore Foster has 

waived any argument in support of his breach of contract claim in Count III and 

judgment will be entered in favor of PNC on that count.

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III. Foster’s Affidavit

Before proceeding to Foster’s claims related to the Florida Loan and PNC’s 

counterclaims, the Court addresses PNC’s objections to Foster’s Affidavit. Under 

Federal Rule of Civil Procedure 56(c)(4), “[a]n affidavit or declaration used to support 

or oppose a motion must be made on personal knowledge, set out facts that would be 

admissible in evidence, and show that the affiant or declarant is competent to testify 

on the matters stated.” Fed.R.Civ.Pro. 56(c)(4). PNC objects to the affidavit as being 

self-serving and based on speculation, conjecture, and inadmissible hearsay. (Dkt. 

171). The first critique is not convincing as “most evidence can be called self-serving, 

but a witness’s self-interest does not prevent a trier of fact from crediting a statement 

based on personal knowledge.” Koger v. Dart, 2020 U.S. App. LEXIS 5639, at *6 (7th 

Cir. Feb. 25, 2020).

However PNC’s other critiques are well-founded. Rule 56(c)(4) requires an 

affidavit to set out facts that would be admissible in evidence, and a party “may not 

rely upon inadmissible hearsay to oppose a motion for summary judgment.” Gunville 

v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). In addition, merely conclusory 

allegations do not preclude summary judgment. See RB&W Mfg. LLC v. Buford, 263 

F. App'x 486, 490 (7th Cir. 2008) (affidavit only providing conclusory allegations

insufficient to prevent summary judgment); Young v. Monahan, 420 F. App'x 578, 

583 (7th Cir. 2011) (plaintiff cannot survive summary judgment by substituting 

conclusory allegations in the complaint with conclusory allegations from affidavits).

A plaintiff also cannot rely on statements that are outside his personal knowledge or 

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based on speculation or conjecture to avoid summary judgment. See Stagman v. Ryan, 

176 F.3d 986, 995 (7th Cir. 1999) (“statements outside the affiant's personal 

knowledge or statements that are the result of speculation or conjecture or merely 

conclusory do not meet this requirement [in Rule 56]”); Landale Signs & Neon, Ltd. 

v. Runnion Equip. Co., 2019 U.S. Dist. LEXIS 28889, at *8 (N.D. Ill. Feb. 25, 2019)

(same). Foster’s affidavit contains many conclusory statements without supporting 

documentation with regards to his providing proof of insurance (see e.g. Foster Aff. 

¶125) and being current on his loan payments (e.g. id. ¶¶172-76) and never signing 

the 2006 Illinois loan documents (e.g. id. ¶¶31, 81). The Court will not rely on 

conclusory statements to defeat summary judgment. 

IV. Florida Loan 

a. Breach of Contract (Count IV)

Foster argues that PNC breached its contract with Foster by improperly obtaining

force-placed flood insurance and by requiring wind insurance. (Dkt. 164 at 18–20).

Foster says he “does not dispute that PNC has the right to purchase force-placed 

insurance under certain circumstances [but he] disputes that those circumstances 

existed here.” (Id. at 18). Indeed he does not dispute that the terms of the Florida 

Mortgage required him to be responsible for “all insurances required by PNC for the 

Florida Property.” (DSOF ¶7; Dkt. 165 ¶7). As to the flood insurance, he argues that 

when PNC acquired the force-placed insurance, a gap in the required coverage did 

not exist. (Id. at 20). PNC, on the other hand, contends that Foster failed to provide 

proof of flood gap coverage or sufficient flood insurance. (Dkt. 158 at 11). PNC also

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argues that Foster has failed to provide evidence that any of his alleged damages 

were caused by a breach of contract. (Id. at 31-32).

Under Florida law, proving a breach of contract requires: “(1) the existence of a 

contract, (2) a breach of the contract, and (3) damages resulting from the breach.” 

Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. Dist. Ct. App. 2006). “In Florida, a 

breach of contract claim requires a party to show that damages resulted from the 

breach.” Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir. 2012) (emphasis in 

original). In addition, Section 5 of the mortgage “allows a lender to purchase 

necessary insurance in the event that a borrower fails to carry such insurance, and it 

allows the lender to pass the cost of that insurance on to the borrower. It does not 

obligate a lender to shop around and find the lowest-cost insurance, nor does it 

preclude a lender from charging a reasonable commission.” Edwards v. Green Tree 

Servicing, LLC, 2015 U.S. Dist. LEXIS 151377, at *10 (N.D. Fla. Oct. 22, 2015)

(interpreting the same language as Section 5 of the mortgage here).

1. Flood Insurance

Foster concedes that PNC had the right to obtain flood insurance under the 

mortgage, but argues that PNC obtained the insurance in May 2011 when he already 

had it. PNC provided a sworn affidavit that Foster did not submit proof of sufficient 

flood insurance so it obtained flood insurance for him, and once he provided proof of 

the insurance, PNC refunded the total amount of the premium advanced. (Thomas 

Affidavit, ¶¶41-43; see also Dkt. 171 at 23). Foster does not dispute that he received 

PNC’s March 2011 letter advising that his flood insurance coverage was not sufficient 

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but contends that he never received PNC’s April 2011 letter warning that it would 

obtain the flood insurance for him. (Dkt. 165, ¶¶36-37). Foster also asserts that PNC 

already knew he had sufficient flood insurance because of his calls to PNC. (Dkt. 164 

at 11). He states that he talked “with a PNC representative named Ari, but was not 

able to obtain a response from PNC.” (Dkt. 165, ¶36). By May 2011, Foster says he 

“had provided proof of flood insurance to PNC, speaking with PNC on at least two 

occasions regarding the issue and my resolution of it.” (Foster Aff., ¶125). 

Foster does not provide any documentary evidence that PNC had proof of his flood 

insurance in spring 2011 nor does he attest that he had personal knowledge of the 

records in PNC’s possession at the time. Foster’s vague references to conversations 

with PNC do not establish that PNC had such proof. See RB&W Mfg. LLC, 263 F. 

App'x at 490 (conclusory allegation did “nothing more that relate Buford’s 

understanding of what happened, rather that state facts that would allow a court to 

make a legal determination--that is, who said what to whom.”); see also Firestone 

Fin., LLC v. Meyer, 2017 U.S. Dist. LEXIS 25208, at *36-37 (N.D. Ill. Feb. 23, 2017)

(collecting cases). Therefore Foster cannot overcome PNC’s sworn statement that it 

did not receive proof of sufficient flood insurance before it obtained the force-placed 

insurance in May 2011.8

8 Foster argues that PNC’s letters advising him about hazard insurance raises genuine 

issues of fact about whether PNC obtained lender-placed hazard insurance. (Dkt. 164 at 

24). PNC provided verified discovery responses stating that it did not obtain lender placed 

hazard insurance on the Florida Loan. (Dkt. 171 at 21; Dkt. 157-3). Foster’s conjecture in 

his affidavit and response brief do not raise a genuine issue of material fact about whether 

PNC obtained lender-placed hazard insurance. Foster also argues that PNC’s letters about 

hazard insurance at a minimum show PNC breached “its duties under the contracts” by 

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Also, Foster fails to explain what damages he suffered as a result of PNC obtaining 

force-placed flood insurance. Foster states that he had to pay a $82.00 shortfall for 

March 2011, and then when PNC acquired the flood insurance in May 2011, it 

“charged Foster $647.28 for it.” (Dkt. 164 at 11, 20). Although not entirely clear, 

Foster apparently contends that these amounts are the damages resulting from 

PNC’s alleged breach as to the force-placed flood insurance. In any event, Foster 

admits that under the Florida Modification in 2010, he was required to escrow 

payments for flood insurance. (Dkt. 165 at ¶9). Foster also admits that the $647.28 

premium was “reasonably priced force-placed insurance.” (Dkt. 164 at 23). Foster’s 

damages discussion is otherwise very general and does not link any specific damages 

to the alleged breach based on the force-placed flood insurance. (Dkt. 164 at 32-33). 

Because he failed to show any genuine issue for trial about whether PNC breached 

the mortgage agreement by obtaining force-placed flood insurance and because he 

failed to provide evidence of damages resulting from this alleged breach, both 

essential elements of his claim, Foster’s breach of contract claim based on the flood 

insurance does not survive summary judgment. See Celotex, 477 U.S. at 322-23.

2. Wind Insurance

As to the wind insurance, Foster argues that paragraph 5 of the mortgage does 

not identify wind insurance as a requirement of the mortgage. (Dkt. 165 at 6). He 

states that he learned PNC required comprehensive wind insurance coverage in 

November 2011. (Id.; Foster Aff., ¶ 151). Although he believed he was not required to 

failing to adequately monitor his accounts. (Dkt. 164 at 24). Foster does not develop this 

argument or cite to any particular contractual provision that PNC breached in this way.

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do so by PNC, Foster maintained wind insurance from 2004 to 2009. (Dkt. 165 at 7). 

Foster also contends that “the parties’ practice was not to require wind insurance.”

(Dkt. 164 at 21).

To argue that the mortgage required wind insurance, PNC relies on Curtis v. 

Cenlar FSB, 2014 U.S. Dist. LEXIS 157172, at *9 (S.D.N.Y. Nov. 5, 2014) aff’d 654 F. 

App'x 17 (2d Cir. 2016). In Curtis, a district court in the Southern District of New 

York, interpreting Florida state law, found that a term in a mortgage agreement, 

identical to the one in paragraph 5 of the mortgage here, encompassed wind 

insurance. The Court interpreted the provision as requiring wind insurance both 

under the both the “extended coverage” and “any other hazard” language. Foster 

argues that PNC cannot rely on that case because it is a 2014 case, but the Curtis 

court interpreted a 2008 mortgage agreement. Foster does not explain why this 

analysis would not apply to the 2004 mortgage and 2010 loan modification 

agreements. Given that the Curtis court was analyzing the same language at issue 

here under Florida law, the fact that the Second Circuit Court of Appeals affirmed

the district court decision, and the fact that Foster has not cited any contrary 

authority, this Court follows the Curtis court’s interpretation of the provision in the 

mortgage, and finds that PNC did not breach its agreement with Foster when it 

required wind insurance.

Foster also argues that the parties’ conduct modified the contract. (Dkt. 164 at 21-

22). “A written agreement may be modified by the subsequent conduct or course of 

dealing of the parties. Of course, no such modification can occur unless it is by mutual 

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consent, and supported by consideration.” Rhodes v. BLP Assocs., 944 So. 2d 527, 530 

(Fla. Dist. Ct. App. 2006) (emphasis added) (citations omitted). Foster has not 

provided evidence of mutual consent or consideration to support the contention that 

PNC and Foster modified the contract to not require wind insurance. 

Therefore, Foster failed to provide any evidence that PNC breached the Florida 

Mortgage agreement by requiring wind insurance. For these reasons, judgment on 

Count IV will be entered in PNC’s favor.

b. Breach of Implied Duty of Good Faith and Fair Dealing (Count 

V)

Foster argues that PNC breached its duty of good faith because of the “egregious 

costs” of the force-placed flood and wind insurance. (Dkt. 164 at 22-23).9 “[T]he 

implied covenant of good faith and fair dealing is a part of every contract under 

Florida law.” Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1291 (11th Cir. 

2001). “One party cannot capriciously exercise discretion accorded it under a contract 

so as to thwart the contracting parties’ reasonable expectations.” Id.

“A breach of the implied covenant of good faith and fair dealing is not an 

independent cause of action, but attaches to the performance of a specific contractual 

obligation.” Centurion Air Cargo v. UPS Co., 420 F.3d 1146, 1151 (11th Cir. 2005). 

“[A] claim for a breach of the implied covenant of good faith and fair dealing cannot 

be maintained under Florida law in the absence of a breach of an express term of a 

contract.” Id. One of the limitations on a breach of implied covenant of good faith and 

9 Foster focuses his good faith and fair dealing claim on the wind insurance. His brief 

mention of the flood insurance issue (Dkt. 162 at 22-23) is underdeveloped and therefore 

waived. See Rozumalski, 937 F.3d at 925; Vakharia, 62 F. App'x at 124.

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fair dealing claim is “where there is no accompanying action for breach of an express 

term of the agreement.” Herrera v. Bank of Am., N.A., 2016 U.S. Dist. LEXIS 117431, 

at *32 (S.D. Fla. Aug. 31, 2016).

In response to the summary judgment motion, Foster does not identify an express 

contractual provision that PNC breached. Foster argues that the mortgage 

agreement did not permit PNC to obtain force-placed wind insurance, but this Court

has ruled that under Section 5 of the mortgage, PNC was permitted to obtain forceplaced wind insurance. Foster otherwise does not claim a breach of any express term 

of the Florida Mortgage.10 See Herrera, 2016 U.S. Dist. LEXIS 117431, at *32-33 

(granting summary judgment for defendant bank where there was “no accompanying 

action for breach of an express term of the agreement, [and so] Plaintiff may not 

separately maintain a claim for breach of the implied covenant of good faith”). In 

addition, Foster does not provide any evidence of commissions, kickbacks, or bad faith 

on the part of PNC, or the marketprice for wind insurance in the relevant timeframe.

See Tiara Condo. Ass'n v. Marsh & McLennan Cos., 607 F.3d 742, 747 (11th Cir. 2010) 

(because plaintiff did not offer evidence that any of defendant’s alleged errors were 

10 The Court notes that in Foster’s TAC, he cited Section 9 of the Florida Mortgage in his 

allegations related to his good faith and fair dealing claim (“[i]f Borrower fails to perform 

the covenants and agreements. . . then Lender may do and pay for whatever is reasonable 

or appropriate to protect the Lender’s interest in the Property Lender’s rights.”) (Dkt. 157-

1, Exh. 5, § 9.). Foster does not reference Section 9 in his summary judgment response or 

Local Rule 56.1 statements. Even if Foster had referenced his complaint, simply relying on 

that allegation would not be sufficient at this stage. See Mack v. City of Chi., 2019 U.S. 

Dist. LEXIS 48554, at *12 (N.D. Ill. Mar. 25, 2019) (plaintiff’s Local Rule 56.1 statement 

citing only to unverified pleadings rather than evidence in the summary judgment record

could not to avoid summary judgment) (citing Johnson v. Advocate Health & Hosps. Corp., 

892 F.3d 887, 896 (7th Cir. 2018) (“It is the [non-movant's] responsibility to go beyond the 

pleadings and designate specific facts showing that there is a genuine issue for trial.”)).

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intentional or made in bad faith, affirming summary judgment on plaintiff’s breach 

of implied covenant and fair dealing claim); see also Ernie Haire Ford, Inc., 260 F.3d 

at 1291 (“Yet, the limit placed on a party's discretion is not great...Unless no 

reasonable party...would have made the same discretionary decision..., it seems 

unlikely that [the party's] decision would violate the covenant of good faith....”)

(internal citations and quotations omitted).

In 2011, PNC obtained force-placed wind insurance for the Florida Property at a 

premium of $37,730. (PNC Resp.11 ¶ 21; DSOF ¶17). In 2012, Foster obtained his own 

wind insurance for $4,457. (Dkt. 165 ¶46). In 2014, PNC obtained lender-placed wind 

insurance coverage for $37,625 and in 2015, it was $15,192.42. (DSOF ¶¶22-23).

Foster also received quotes for wind coverage on the property that did not exceed 

$6,000.00 per year. (PNC Resp. ¶22). Foster actually attaches only two quotes to his 

affidavit and they are for the same general period, for February 2013-2014 and May 

2013-2014. (Foster Aff., Exh. 51). Thus while PNC’s 2011 and 2014 premiums appear 

to be more than the 2012 premium Foster obtained or the 2013-2014 quotes, Foster 

does not provide any evidence that PNC acted in bad faith or was receiving any 

commissions or kickbacks when it obtained the wind insurance.12 Thus Foster’s 

11 PNC’s response to Foster’s additional statement of facts (Dkt. 172) is abbreviated as 

“PNC Resp.”

12 As Foster points out, although PNC argues that American Security Insurance Company 

filed its rates with and had the approval of the Florida Office of Insurance Regulation, that 

only applies to the 2015 coverage. Before that, the wind coverage placed by PNC was obtained 

from Voyager Indemnity Insurance Company. (Dkt. 165 ¶25; Thomas Aff., Exhs. 10-14). And 

those documents state that the policy rates are not approved by a Florida regulatory agency. 

(Thomas Aff., Exs. 11, 14). Nevertheless, Foster does not explain how this fact creates a 

genuine issue of material fact that PNC breached the covenant of good faith and fair dealing.

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argument that the price differential “suggests a breach of PNC’s duties to act in good 

faith and deal fairly,” (Dkt. 164 at 23), without any citation to any authority, does not 

help him avoid summary judgment. 

In short, Foster has failed to base his good faith and fair dealing claim on an 

accompanying breach of an express term of the parties’ agreement and even if he did, 

he failed to offer any evidence of bad faith, kickbacks or commissions received by 

PNC. Foster therefore has not shown that there is a genuine issue of fact for a jury 

to decide about whether PNC’s conduct violated the covenant of good faith and fair 

dealing. PNC’s summary judgment motion as to Count V is granted.

c. Fraud (Count VII)

Under Florida law, the elements of a fraud claim are: “(1) a false statement 

concerning a specific material fact; (2) the maker's knowledge that the representation 

is false; (3) an intention that the representation induces another's reliance; and (4) 

consequent injury by the other party acting in reliance on the representation.” LopezInfante v. Union Cent. Life Ins. Co., 809 So. 2d 13, 15 (Fla. Dist. Ct. App. 2002). Foster 

does not identify a specific false statement by PNC that gives rise to his fraud claim. 

Nor does he cite to any part of the record when arguing in general terms that PNC 

made false statements. (Dkt. 164 at 28-29). The most specific argument the Court can 

discern about his fraud claim is: “when PNC told Foster that it had to acquire that 

force-placed insurance because Foster had no other flood insurance, PNC made a false 

statement that it knew or should have known was false.” (Id. at 29). This is not 

enough to survive summary judgment.

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First, “[i]t is not the role of the Court to scour the record in search of evidence to 

defeat a motion for summary judgment; instead, the nonmoving party bears the 

responsibility of identifying evidence to defeat summary judgment.” Platinum 

Supplemental Ins., Inc. v. Guarantee Tr. Life Ins. Co., 2019 U.S. Dist. LEXIS 202467, 

at *11-12 (N.D. Ill. Nov. 21, 2019). Second, even assuming Foster cited to a specific 

statement that PNC made about the flood insurance, Foster does not provide any 

evidence that the statement was false, that PNC knew that statement was false or 

that PNC intended to induce Foster’s reliance on the statement.

Foster has not provided evidence of fraud to survive summary judgment and 

judgment on Count VII will be entered in PNC’s favor.

d. Unjust Enrichment and Disgorgement (Count VIII)

Foster does not respond to any of PNC’s arguments (Dkt. 158 at 23-24) about why 

his unjust enrichment claim fails. As discussed above related to Count III, Foster 

must inform the Court of the reasons why summary judgment should not be entered. 

See Rozumalski, 937 F.3d at 925; Vakharia, 62 F. App'x at 124. Foster has waived 

any argument in support of his unjust enrichment and disgorgement claim in Count 

VIII and judgment will be entered in favor of PNC on that count.

e. Breach of Fiduciary Duty (Count X)

To prove breach of fiduciary duty, Florida law requires: “the existence of a 

fiduciary duty, and the breach of that duty such that it is the proximate cause of the 

plaintiff's damages.” Mahdavieh v. Suntrust Mortg., Inc., 2014 U.S. Dist. LEXIS 

47775, at *13 (S.D. Fla. Apr. 7, 2014). Foster argues that his breach of fiduciary duty 

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claim should survive summary judgment based on PNC’s handling of the escrow

account and failing to pay the proper premium for flood insurance in March 2011.

(Dkt. 164 at 29-30).13

Foster does not point to evidence of damages resulting from the alleged breach of 

fiduciary duty. Foster relies on Mahdavieh, in which the court explained that under 

Florida law an escrow holder can breach its fiduciary duty to plaintiffs by charging 

them for unnecessary and excessive force-placed insurance. Id. at *15–16. That case 

was decided on a motion to dismiss. It did not require the court to decide whether the 

insurance was unnecessary and excessive or whether plaintiff provided evidence of 

damages proximately caused by the breach of fiduciary duty.

Foster also does not provide evidence or even allege that PNC breached its 

fiduciary duty “by selecting an overpriced [flood] insurance policy in order to line its 

own pockets.” Edwards, 2015 U.S. Dist. LEXIS 151377, at *24. Foster claims only 

that PNC erroneously obtained flood insurance for one month when he actually had 

flood insurance. Indeed he admits that the $647.28 premium was “reasonably priced 

force-placed insurance.” (Dkt. 164 at 23). He does not cite any authority that PNC’s 

conduct as to the flood insurance constitutes a breach of fiduciary duty. He also does 

not explain specifically what damages arose from this alleged breach. Judgment is 

granted in favor of PNC on Count X.

13 Foster’s brief argument does not discuss wind insurance. The Court will not construct 

Foster’s argument for him as to wind insurance or search the record for evidence to defeat 

the summary judgment motion on that issue. Vakharia, 62 F. App'x at 124; Platinum 

Supplemental Ins., 2019 U.S. Dist. LEXIS 202467, at *11-12.

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V. PNC’s Counterclaims 

a. Florida Loan

As to the Florida Loan, PNC argues Foster defaulted under the Florida Note and 

Modification and thus PNC requests that judgment be entered against Foster in the 

amount of $1,754,030.15. (Dkt. 158 at 33-34). Foster does not dispute that PNC has 

standing to enforce the Florida Loan Documents. (see Dkt. 158 at 33; Dkt. 164). PNC 

provided a sworn affidavit detailing the history of the Florida Loan and Modification, 

and providing the amount due on the Loan and attaching a PNC payoff statement. 

(Thomas Aff.).

Foster generally argues that there are issues of fact about PNC’s accounting for 

Foster’s payments and handling of the escrow account. (Dkt. 164 at 33). But the Court 

has already found that Foster has not shown any genuine issues of material fact about 

PNC’s right to obtain and escrow monies for wind and flood insurance or about the 

costs of that insurance. Foster contends that “PNC made numerous mistakes with its 

calculations regarding the amounts of Foster’s payments” on the Florida Loan. (Dkt. 

165 ¶53). And in his affidavit, Foster makes conclusory statements such as that “it 

appeared that PNC did not properly credit [his] payments” and PNC “continued to 

have issues properly applying [his] payments.” (Foster Aff. ¶¶111, 118). These 

conclusory allegations, not supported by any documentation, do not create a genuine 

issue of material fact as to PNC’s counterclaim on the Florida Loan.14

14 Foster has not raised affirmative defenses to PNC’s counterclaim on the Florida Loan (see

Dkt. 42) and even if he did, he would have the burden of proving the affirmative defense. 

See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096 (Fla. 2010).

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Foster has not presented admissible evidence precluding summary judgment on 

PNC’s counterclaim as to the Florida Loan. Therefore judgment on the Florida Loan 

in favor of PNC is warranted. Given PNC’s representation that it is holding in 

suspense $341,787.30 remitted from Foster (DSOF ¶58), that amount will be 

deducted from PNC’s judgment amount.

b. Illinois Loan

As to the Illinois Loan, PNC argues that because Foster defaulted on his 

obligations under the Illinois Note and Mortgage, and because PNC is the holder of 

the Note and the Mortgagee, PNC is entitled to foreclose its interest in the Illinois 

Property. PNC contends that it is entitled to: (i) judgment against Foster for all 

amounts due in connection with the Illinois Note and (ii) entry of a judgment allowing 

the foreclosure of the Illinois Mortgage on the Illinois Property, to be submitted after 

judgment is entered in favor of PNC. Foster argues that there are questions about 

whether Foster ever executed the 2006 documents for the Illinois Property and about 

PNC’s application of payments.

1. Equitable Estoppel

PNC argues that Foster is equitably estopped from denying that he is bound by 

the terms of the Illinois Loan. (Dkt. 158 at 26). In Illinois the elements of equitable 

estoppel are: 

“(1) the other person misrepresented or concealed material facts; (2) the

other person knew at the time he or she made the representations that 

they were untrue; (3) the party claiming estoppel did not know that the 

representations were untrue when they were made and when they were 

acted upon; (4) the other person intended or reasonably expected that 

the party claiming estoppel would act upon the representations; (5) the 

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party claiming estoppel reasonably relied upon the representations in 

good faith to his or her detriment; and (6) the party claiming estoppel 

would be prejudiced by his or her reliance on the representations if the 

other person is permitted to deny the truth thereof.”

Bayview Loan Servicing, LLC v. Szpara, 2015 IL App (2d) 140331, ¶ 36, 46 N.E.3d 

950, 958 (2015). PNC argues that Foster “acted as though the loan closed” by drawing 

down credit and seeking a modification on the loan. But PNC does not identify a

misrepresentation of material fact Foster made to PNC, does not claim that Foster 

knew at the time that his misrepresentation was untrue, that PNC relied on a specific 

misrepresentation, or that PNC would be prejudiced by its reliance on Foster’s 

representations. Thus Foster is not equitably estopped from arguing he did not sign 

the Illinois Note and Mortgage. However Foster’s arguments fail.

2. Judgment and Foreclosure

PNC asserts that the Illinois Loan is evidenced by a note dated May 31, 2006 from 

Foster in favor of MidAmerica Bank in the principal amount of $1.89 million (the 

“Illinois Note”), and the Illinois Loan is secured by an Equity Cash Line Credit 

Mortgage, executed by Foster, notarized, and recorded with the Cook County 

Recorder of Deeds as Document No. 0617308074 on June 22, 2006 (the “Illinois 

Mortgage”). (DSOF ¶ 61). PNC says it is the holder of the Note and is the Mortgagee

under Illinois law. (Dkt. 158 at 34).

Under the Illinois Mortgage Foreclosure Law, the court may enter a judgment of 

foreclosure “upon motion supported by an affidavit stating the amount which is due 

the mortgage . . . where all the allegations of fact in the complaint have been proved 

by verification of the complaint or affidavit.” 735 ILCS 5/15-1506(a)(2). “In Illinois, 

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evidence of a holder's possession of both a mortgage and promissory note establishes 

a prima facie case of foreclosure in favor of the holder.” Amos Fin. LLLC v. Sneed, 

2017 U.S. Dist. LEXIS 226914, at *4 (N.D. Ill. Oct. 3, 2017) (citing Illinois law)

(citation omitted). Under Illinois law, a “mortgagee” means “(i) the holder of an 

indebtedness or obligee of a non-monetary obligation secured by a mortgage or any 

person designated or authorized to act on behalf of such holder and (ii) any person 

claiming through a mortgagee as successor.” 735 ILCS 5/15-1208. Foster does not 

dispute that PNC is the successor to MidAmerica Bank FSB. (DSOF ¶ 1). See 

CitiMortgage, Inc. v. Trsinski, 2017 IL App (2d) 160283-U, ¶ 2 (2017) (“A successor 

bank that merges with the original mortgagee obtains the mortgage rights possessed 

by the original bank as a matter of law...plaintiff's unrefuted allegations and exhibits 

established that it was the successor by merger to the original lender, ABN AMRO, 

and therefore had standing to file the foreclosure action.”).

Here, PNC has established a prima facie case of foreclosure in its favor by 

attaching a true and accurate copy of the note and mortgage to the Morris Affidavit. 

The Morris Affidavit also establishes the total amount owed by Foster: $1,910,557.77. 

See HSBC Bank USA v. Davis, 2018 U.S. Dist. LEXIS 35147, at *5 (N.D. Ill. Mar. 5, 

2018) (“HSBC satisfies those requirements [of the Illinois Mortgage Foreclosure 

Law]: it attached the mortgage, Davis’ promissory note, and an ‘Assignment of 

Mortgage’ to its complaint, [], and also filed multiple affidavits establishing Davis' 

default on her mortgage and the amount she owes because of that default)15; see also

15 In HSBC Bank USA, the Court also noted that even if HSBC had omitted the 

Assignment of Mortgage and attached only the note to its complaint, HSBC would have 

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Amos Fin., LLC v. Sneed, 2020 U.S. App. LEXIS 6687, at *6 (7th Cir. Mar. 3, 2020)

(“Given the documentation that Amos provided to the district court...the court 

properly determined that Amos had standing to initiate foreclosure.”).

Foster’s defense to PNC’s counterclaim is that he did not sign the 2006 note and 

mortgage and those documents do not contain a loan number. (Dkt. 164 at 8, 14). 

Foster says that he signed “some documents” on May 31, 2006 (id. at 8), both not the 

note and mortgage. But PNC provided expert testimony by a Forensic Document 

Examiner, and in her report she concluded that “it is highly probable/probable” that 

the person who signed the documents that Foster admits to signing also signed the 

documents at issue. (Expert Report of Ellen Mulcrone Schuetzner, Dkt. 157, Exh. E). 

Foster has not provided any rebuttal expert report. In addition, the mortgage is 

notarized. See Butler v. Encyclopedia Britannica, Inc., 41 F.3d 285, 294-95 (7th Cir. 

1994) (“A notary public's certificate of acknowledgment, regular on its face, carries a 

strong presumption of validity [and] to overcome this presumption, clear and 

convincing evidence is required.”); Ashland Ave. Invs., LLC v. Marquette Nat'l Bank, 

2016 U.S. Dist. LEXIS 194892, at *8 (N.D. Ill. Apr. 29, 2016) (“to rebut the 

presumption of validity, Toy must prove, by clear and convincing evidence from a 

disinterested witness, that she did not sign the Guarantee”). Foster’s speculation that

PNC did not know what happened in 2006 is not clear and convincing evidence that 

made a prima facie showing that it owns the note, thus shifting the burden to Davis to 

prove that HSBC has no interest in her mortgage. 2018 U.S. Dist. LEXIS 35147, at *6-7.

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can overcome the presumption of validity of the notarized signature. And his own 

testimony that he did not sign is not testimony by a disinterested witness.16

Finally, Foster’s conclusory statements that he “did not fail to make payments to 

PNC” (Dkt. 165 ¶75) do not overcome PNC’s sworn affidavit about the amount owed 

and attaching a PNC payoff statement. (Morris Aff.).

PNC’s motion for summary judgment as to the Illinois Loan is granted.

CONCLUSION

For the stated reasons, Defendant PNC’s summary judgment motion [157] is 

granted. Summary judgment is granted in PNC’s favor on all of Plaintiff Foster’s 

claims. PNC’s motion for summary judgment on its counterclaims as to the Florida 

Loan and Illinois Loan is also granted. As to the Florida Loan, given PNC’s 

representation that it is holding in suspense $341,787.30 from Foster, that amount 

will be deducted from PNC’s judgment, so the total judgment amount is

$1,412,242.85. There being no just reason to delay, the Court enters partial final 

judgment under Federal Rule of Civil Procedure 54(b) as to the claims related to the 

Florida Loan. As to the Illinois Loan, PNC’s counsel shall submit a proposed order, 

as to the requested judgment for foreclosure on the Illinois Property, to this Court's 

16 Further, Foster does not cite any authority for the proposition that an incorrect loan 

number on a loan document bars enforcement of the note and mortgage. And as with the 

Florida Loan, Foster did not raise any affirmative defense to the PNC counterclaim on the 

Illinois Loan. (Dkt. 42). A lack of standing affirmative defense is the borrower’s burden to 

plead and prove. Deutsche Bank Nat'l Tr. Co. v. Iordanov, 2016 IL App (1st) 152656, ¶ 34, 

407 Ill. Dec. 769, 777, 64 N.E.3d 147, 155 (2016); see also Amos Fin., LLC, 2020 U.S. App. 

LEXIS 6687, at *6.

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proposed order inbox (Proposed_Order_Rowland@ilnd.uscourts.gov) on or before May

1, 2020.17

Dated: March 25, 2020

E N T E R:

MARY M. ROWLAND

United States District Judge

17 While this Court will enter a foreclosure order, any ensuing foreclosure will need to be 

conducted in compliance with any emergency orders regarding foreclosures then in place 

per the Governor of Illinois (see State of Illinois COVID-19 Executive Orders) or the Mayor 

of Chicago (see City of Chicago Coronavirus Response Center, 

https://www.chicago.gov/city/en/sites/covid-19/home.html) in light of the coronavirus 

pandemic. 

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