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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

THE BANK OF NEW YORK MELLON, ) 

 ) 

 Plaintiff, ) 

 ) Case No. 12-cv-3896 

 v. ) 

 ) Judge Robert M. Dow, Jr. 

MARLENE ONTIVEROS, ET AL., ) 

 ) 

 Defendants. ) 

MEMORANDUM ORDER AND OPINION 

 Plaintiff The Bank of New York Mellon (“Bank of New York” or “Plaintiff”) filed a 

mortgage foreclosure complaint against Defendants Marlene and Fernando Ontiveros. Plaintiff 

alleges that Defendant Marlene Ontiveros signed a note and both Defendants signed a mortgage 

when they borrowed $174,800.00 in July 2003 and that they have now defaulted on those 

obligations. Plaintiff seeks damages, interest, and attorney’s fees and costs. This matter is now 

before the Court on Plaintiff’s motions for summary judgment [15] and to appoint special 

commissioner [18]. For the reasons stated below, the Court grants Plaintiff’s motions [15 and 

18]. 

I. Background 

 

 A. Fact Statements 

Local Rule of Civil Procedure 56.1 requires a party moving for summary judgment to file 

“a statement of material facts as to which the moving party contends there is no genuine issue 

and that entitle the moving party to a judgment as a matter of law.” N.D. Ill. R. 56.1(a)(3). The 

statement “shall consist of short numbered paragraphs” that refer to “materials relied upon to 

support the facts set forth.” N.D. Ill. R. 56.1(a). The party opposing summary judgment is then 

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required to file “a response to each numbered paragraph in the moving party’s statement, 

including, in the case of any disagreement, specific references to the affidavits, parts of the 

record, and other supporting materials relied upon.” N.D. Ill. R. 56.1(b)(3)(B). 

 “The obligation set forth in Local Rule 56.1 is not a mere formality. Rather, [i]t follows 

from the obligation imposed by Fed. R. Civ. P. 56(e) on the party opposing summary judgment 

to identify specific facts that establish a genuine issue for trial.” Sojka v. Bovis Lend Lease, 

Inc., 686 F.3d 394, 398 (7th Cir. 2012) (quotation marks and citations omitted). “Because of the 

important function local rules like Rule 56.1 serve in organizing the evidence and identifying 

disputed facts,” the Seventh Circuit has “consistently upheld the district court’s discretion to 

require strict compliance with those rules.” F.T.C. v. Bay Area Bus. Council, Inc., 423 F.3d 627, 

633 (7th Cir. 2005); see also Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 

2009); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (collecting cases). 

Indeed, as another court in this district previously observed, “the penalty for failing to properly 

respond to a movant’s 56.1(a) statement is usually summary judgment for the movant (at least if 

the movant has done his or her job correctly) because the movant's factual allegations are 

deemed admitted. Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000); see also Bank of New 

York Mellon Trust Company v. James, 2013 WL 6009260, at *1 (N.D. Ill. Nov. 13, 2013). 

 Here, the relevant facts are taken from Plaintiff’s Local Rule 56.1 Statement of Material 

Facts (“SOF”) [16]. Despite having the opportunity, Defendants—who are represented by 

counsel—failed to submit a response to Plaintiff’s SOF or a statement of additional facts. Local 

Rule 56.1(b)(3)(C) provides that “[a]ll material facts set forth in the statement required of the 

moving party will be deemed to be admitted unless controverted by the statement of the 

opposing party.” The Court therefore deems admitted all of the facts set forth in Plaintiff’s SOF. 

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 B. Factual Background 

 On or about July 24, 2003, America’s Wholesale Lender (“AWL”) lent Defendant 

Marlene Ontiveros the sum of $174,800.00. Defendant executed a note in favor of AWL in 

exchange for the $174,800.00. Countrywide Home Loans, successor to AWL, executed an 

Assignment of Mortgage to Plaintiff on July 30, 2003. Plaintiff has possession of the note and 

owns the note, which bears an indorsement. Pursuant to the note, Defendant agreed to pay 

interest at a yearly rate of 5.875%. Defendant also agreed to make monthly payments on the first 

day of every month. 

 AWL secured its interests in the note by recording a mortgage with the Cook County 

Recorder of Deeds on August 16, 2003. The property is commonly known as: 2213 South 59th 

Avenue, Chicago, IL 60804. 

 The mortgage provides that the note is fully secured, stating that: 

This Security Instrument secures to Lender: (i) the repayment of the Loan, and all 

renewals, extensions and modifications of the Note; and (ii) the performance of 

Borrower’s covenants and agreements under this Security Instrument and the 

Note. For this purpose, Borrower does hereby mortgage, grant and convey to 

Lender and Lender’s successors and assigns, the following described property * * 

*. 

The language of the Mortgage further provides 

If [after notice] the default is not cured on or before the date specified in the 

notice, Lender at its option may require immediate payment in full of all sums 

secured by this Security Instrument without further demand and may foreclose 

this Security Instrument by judicial proceeding. Lender shall be entitled to collect 

expenses incurred in pursuing the remedies provided in this Section 22, including, 

but not limited to, reasonable attorneys’ fees and costs of title evidence. 

In the mortgage, Defendants also agreed to pay taxes, insurance and any other escrow items that 

may apply. 

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 In November 2010, Defendants failed to pay the monthly installments of principal, 

interest, taxes, insurance and other escrow items. On September 20, 2011, the Notice of Default 

and Acceleration was mailed to Defendant. Currently, Defendants have failed to make payment 

on the note from November 2010 through the present. There remains an outstanding principal 

balance of $155,771.94 as of August 2, 2012, with interest accruing on the unpaid principal 

balance at $24.40 per day, plus attorney’s fees, foreclosure costs, late charges, advances, and 

expenses incurred by the Plaintiff as a result of the default. Plaintiff has submitted undisputed 

evidence that it has incurred reasonable attorney fees and other litigation and foreclosure 

expenses totaling $2,094.00. 

II. Analysis 

A. Summary Judgment Standard 

Summary judgment is proper if “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). To avoid summary judgment, the opposing party must go beyond the pleadings and “set 

forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250\ (1986) (quotation omitted). A genuine issue of material fact exists if 

“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

at 248. The party seeking summary judgment has the burden of establishing the lack of any 

genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

Summary judgment is proper against “a party who fails to make a showing sufficient to establish 

the existence of an element essential to that party’s case, and on which that party will bear the 

burden of proof at trial.” Id. at 322. The party opposing summary judgment “must do more than 

simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. 

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Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a 

scintilla of evidence in support of the [opposing] position will be insufficient; there must be 

evidence on which the jury could reasonably find for the [opposing party].” Anderson, 477 U.S. 

at 252. 

B. Applicable Law 

This matter is before the Court pursuant to the Court’s diversity jurisdiction. See 28 

U.S.C. § 1332. In diversity cases, the Court applies federal procedural law and state substantive 

law. E.g., Santa’s Best Craft, LLC v. St. Paul Fire & Marine Ins. Co., 611 F.3d 339, 345 (7th 

Cir. 2010). The Court applies the choice-of-law rules from the forum state to determine which 

state’s substantive law will govern. See ECHO, Inc. v. Whitson Co., 52 F.3d 702, 706 (7th Cir. 

1995). Here, both sides agree that Illinois substantive law applies. 

 Defendants primarily argue that Plaintiff must comply with Illinois Supreme Court Rules 

that govern foreclosure in Illinois state courts. Defendants are incorrect. The Illinois Supreme 

Court Rules are “the procedural rules of the Illinois courts, and thus do not set out substantive 

law which the federal courts must follow when sitting in diversity.” Bachenski v. Malnati, 11 

F.3d 1371, 1380 (7th Cir. 1993) (recognizing that state court rules are procedural). Under the 

Erie doctrine, state procedural rules, including the Illinois Supreme Court Rules, are 

“inapplicable” and “irrelevant” in federal court proceedings. See Alexander v. Mount Sinai 

Hosp. Med. Ctr. of Chicago, 2005 WL 3710369, at *7 (N.D. Ill. Jan. 14, 2005) (federal court 

with diversity jurisdiction over a medical malpractice case refusing to apply Illinois Supreme 

Court Rules relating to discovery and compelled testimony). Judicial rules constraining Illinois 

state courts, even those derived from the Illinois Constitution, do not impact federal procedures 

in mortgage foreclosure cases. See, e.g., Bancboston Mortgage Corp. v. Pieroni, 765 F. Supp. 

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429, 430 (N.D. Ill. 1991) (comparing federal and state court foreclosure cases and noting that 

“federal courts are not subject to the same constraint that is imposed by the judicial article of the 

Illinois Constitution and construed in Factor [to prohibit appointment of a commissioner for the 

purpose of selling the real estate at foreclosure sale], and the regular practice in federally-filed 

mortgage foreclosures is to appoint a special commissioner to conduct the sale”). 

 Not surprisingly, Defendants offer no authority for their statement that the Illinois 

Supreme Court Rules are substantive rather than procedural. And the Illinois Supreme Court 

Rules themselves confirm that they are procedural rules that apply only in Illinois courts. The 

Illinois Supreme Court derives its authority to make such rules from the Illinois Code of Civil 

Procedure. Rule 1 confirms that the rules “govern all proceedings in the trial court, except to the 

extent that the procedure in a particular kind of action is regulated by a statute other than the 

Civil Practice Law.” Ill. S. Ct. Rule 1. Thus, as previously noted, the Court will apply federal 

procedural law and Illinois substantive law to the present dispute. 

C. Mortgage Foreclosure 

 Plaintiff, the current holder of the note and assignee of the mortgage as established by the 

undisputed facts, moves for summary judgment, seeking to foreclosure on the mortgage at issue. 

Under the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15–1501 et seq, a mortgage is “any 

consensual lien created by a written instrument which grants or retains an interest in real estate to 

secure a debt or other obligation.” 735 ILCS 5/15–1207. “To foreclose” means “to terminate 

legal and equitable interests in real estate pursuant to a foreclosure.” 735 ILCS 5/15–1202. 

Illinois law requires that a copy of the Note and Mortgage be attached to the Complaint in 

a mortgage foreclosure action. 735 ILCS 5/15–1504. 

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 Federal Rule of Civil Procedure 56(e) makes clear that “a party opposing summary 

judgment may not rely on the allegations of her pleadings.” Waldridge, 24 F.3d at 920. “[I]f the 

non-movant does not come forward with evidence that would reasonably permit the finder of fact 

to find in her favor on a material question, then the court must enter summary judgment against 

[the nonmovant].” Id. (citations omitted). Defendants have made no evidentiary showing 

sufficient to establish that a genuine issue of fact exists. Copies of the mortgage and note were 

attached to Plaintiff’s complaint and were attached as exhibits to Plaintiff’s statement of facts. In 

light of Defendants’ failure to properly contest any of Plaintiff’s statements of fact, Plaintiff has 

shown that Defendants executed the note and mortgage and then defaulted under the terms of the 

note and mortgage. Furthermore, Bank of New York’s ownership of the note is shown by its 

possession as well as by the assignment of mortgage document attached to the complaint and to 

Plaintiff’s statement of facts. Thus, the factual record before the Court demonstrates that there 

are no genuine issues of material fact with respect to any elements of Plaintiff’s foreclosure 

claim; namely, that (1) Defendants had a mortgage; (2) they failed to pay; and (3) they defaulted. 

Defendants have put forth no evidence to contradict these facts. 

 Furthermore, Plaintiff has shown that it suffered damages as a result of Defendants’ 

actions. Plaintiff has presented evidence demonstrating that it is owed $186,607.00, plus interest 

of $24.40 per day after August 2, 2012. Plaintiff also has provided documentation showing that 

it has incurred $2,094.00 in attorneys’ fees and costs in seeking recovery of its damages. 

Because Plaintiff has submitted uncontroverted evidence supporting all elements of its mortgage 

foreclosure claim against Defendants Marlene and Fernando Ontiveros, the Court grants 

summary judgment on the claim and awards Plaintiff its requested relief. 

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III. Conclusion

 For the reasons stated above, the Court grants Plaintiff’s motion for summary judgment 

[15] and enters judgment in favor of Plaintiff Bank of New York and against Defendants 

Marlene Ontiveros and Fernando Ontiveros. The full details of the Judgment of Foreclosure will 

be set forth more fully in the separate judgment order entered this date, including the award of 

186,607.00, plus interest of $24.40 per day after August 2, 2012, and $2,094.00 in attorneys’ fees 

and costs. Furthermore, for the purposes of sale, the Court also grants Plaintiff’s motion to 

appoint special commissioner [18] and appoints The Judicial Sales Corporation as Special 

Commissioner for the purposes of conducting a public foreclosure sale of the subject property in 

accordance with the terms set forth in the Judgment of Foreclosure. 

Dated: January 13, 2014 __________________________________ 

 Robert M. Dow, Jr. 

 United States District Judge 

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