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UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: DYLAN REEVES, ) Case No. 13-21976

)

Debtor, ) Chapter 13

)

DYLAN REEVES, ) Adv. Pro. No. 16-00523

)

Plaintiff, ) Honorable Janet S. Baer

) Judge Presiding

v. )

)

KONDAUR CAPITAL CORP., )

)

Defendant. )

)

KONDAUR’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF KONDAUR’S CROSSMOTION FOR SUMMARY JUDGMENT

Defendant, Kondaur Capital Corp. (“Kondaur”), by its counsel, submits the following

memorandum in opposition to the Motion for Summary Judgment [Doc. 8] filed by Plaintiff,

Dylan Reeves (“Plaintiff”) and in support of Kondaur’s Cross-Motion for Summary Judgment.

Introduction

In the present adversary proceeding, Plaintiff seeks to avoid the lien because of an

alleged error in the Subject Mortgage concerning the legal description of the Subject Property.

See Adversary Complaint [Doc. 1]. Plaintiff’s present motion for summary judgment does not

touch on this subject, but rather relies fully on the legal theory that the language of the

Confirmation Plan itself avoids the lien. See Plaintiff’s Memo in Support of its Motion for

Summary Judgement [Doc. 8-1] (“Plaintiff’s Memo”). Under either theory, Plaintiff’s claims

fail as a matter of law, and judgment should be entered in favor of Kondaur pursuant to Federal

Bankruptcy Rule 7056.

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First, Plaintiff’s reliance on the Chapter 13 Plan to avoid Kondaur’s mortgage (“Subject

Mortgage”) fails because the mere confirmation of a Chapter 13 plan does not have any

preclusive effect on the validity or enforceability of the Subject Mortgage against the property at

issue (“Subject Property”). For this reason, as further detailed below, Plaintiff’s motion for

summary judgment must be denied.

Second, Plaintiff’s attempt to avoid the Subject Mortgage premised upon purported errors

in the legal description of the Subject Property also fails. The Subject Mortgage appears in the

chain of title for the Subject Property and any bona fide purchaser at the time of the filing of the

Plaintiff’s Bankruptcy Petition would have had constructive notice of that interest.

Accordingly, the Court should deny Plaintiff’s motion for summary judgment and

instead, grant judgment in favor of Kondaur as to the Plaintiff’s Adversary Complaint.

Statement of Material Facts

As an initial matter, Kondaur assumes that Plaintiff intends that its “Motion for Summary

Judgment” also stands for its Statement of Material Facts as required by Local Rule 7056-1(B),

as Plaintiff did not submit a separately labeled statement. See Motion for Summary Judgment

[Doc. 8].

To that extent, Kondaur incorporates by reference its concurrently filed response to

Plaintiff’s “Statement of Material Facts” and its own additional Statement of Material Facts

(“SOMF”) as required Local Rule 7056-1 (B) and Local Rule 7056-2 (A)(2).

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Standard of Review

Federal Bankruptcy Rule 7056 provides that Rule 56 of the Federal Rules of Civil

Procedure applies in adversary proceedings. Under Federal Rule 56(c) of the Federal Rules of

Civil Procedure, summary judgment is proper if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A party seeking summary judgment always bears the initial responsibility of informing

the court of the basis for its motions, and must identify those portions of the "pleadings,

depositions, answers to interrogatories, and affidavits, if any", which it believes demonstrate the

absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

On a summary judgment motion, the inferences to be drawn from the underlying facts

must be viewed in the light most favorable to the party opposing the motion. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). The existence of a material factual dispute is sufficient

only if the disputed fact is determinative of the outcome under applicable law. Anderson, 477

U.S. at 248.

The nonmoving party must offer more than “[c]onclusory allegations, unsupported by

specific facts” in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d

767, 773 (7th Cir. 2003). The nonmoving party cannot successfully oppose summary judgment

without presenting “definite, competent evidence to rebut the motion.” EEOC v. Sears, Roebuck

& Co., 233 F.3d 432, 437 (7th Cir. 2000); Anderson, 477 U.S. 242 at 256.

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Argument

I. The Confirmation of the Plan Does Not Affect the Subject Mortgage.

For his sole argument in support of his Motion for Summary Judgment, Plaintiff

erroneously suggests that Plaintiff’s inclusion of statements to the effect that the Subject

Mortgage and Loan “shall not be paid on any secured proof of claim; lien to be avoided and

treated as unsecured” is somehow sufficient to strip the Subject Mortgage and Kondaur’s rights

to the Subject Property. See Plaintiff’s Memo, p. 2. Plaintiff is incorrect because the

confirmation does not settle the validity or extent of Kondaur’s secured lien or other interest in

the property.

It is a legal maxim that “bankruptcy law permits a lien to pass through bankruptcy

unaffected.” Palomar v. First Am. Bank, 722 F.3d 992, 993 (7th Cir. 2013) (citing In re Tarnow,

740 F.2d 464, 465-66 (7th Cir. 1984); see also, Long v. Bullard, 117 U.S. 617, 620-21 (1886)

(“security was preserved notwithstanding the bankruptcy of [the] debtor.”) This “venerable

principle” allows “[t]he holder of [an allowed secured claim] can if he wants ignore the

bankruptcy proceeding and enforce his claim by foreclosing the lien.” Palomar, at 994.

Section 11 U.S.C. § 1322(b)(2) allows for a Chapter 13 plan to “modify the rights of

holders of secured claims”. However, the validity of lien must be resolved in an adversary

proceeding as mandated by Fed. R. Bankr. P. 7001(2). Strong v. U.S. Dep’t of Treasury, IRS (In

re Strong), 203 B.R. 105, 114 (N.D. Ill. 1996) (citing Cen-Pen Corp. v. Hanson, 58 F.3d 89, 92-

93 (4th Cir. 1995)). Accordingly, unless the “lien avoidance is actually litigated, confirmation

has no preclusive effect and does not bind a secured creditor on the scope or validity of its

lien.” Id. (emphasis added).

For this reason alone, Plaintiff’s Motion for Summary Judgment should be denied.

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In support of his motion, Plaintiff erroneously relies upon In re: Bateman, 331 F.3d 821

(11th Cir. 2003) for the proposition that the Subject Mortgage can be avoided merely through the

notations in the Plaintiff’s Chapter 13 plan. See Plaintiff’s Memo. Plaintiff’s reliance upon

Bateman is misplaced as that case does not support his argument that the Subject Mortgage can

be stripped or avoided by the mere filing of a Chapter 13 plan by the Plaintiff.

Briefly, in Bateman, following the debtor’s filing of his initial petition and Chapter 13

plan, the secured creditor filed a proof of claim providing for $49,178.80 in arrearages on its

mortgage loan. Id. at 823. Subsequently, the debtor filed an amended Chapter 13 plan which

provided payment to the secured creditor on his claim in the amount of $21,600.00. Id. The

secured creditor failed to object to the amended plan, and the bankruptcy court confirmed the

plan. Id. Nearly a year after the amended plan’s confirmation, the debtor filed an objection to

the secured creditor’s proof of claim. Id. The bankruptcy court sustained the debtor’s objection

and determined that “[a]s a matter of substance the Chapter 13 plan provided an objection to the

claim which placed a duty on [the secured creditor] to pursue the matter if the $21,600 was not

acceptable.” Id. The essence of the bankruptcy court’s ruling was that the secured creditor’s

proof of claim was reduced from $49,178.80 to $21,600, and that following the full payment of

that amount by the debtor pursuant to the plan, the secured creditor was barred from attempting

to collect on the difference. Id. at 824. The secured creditor appealed that determination.

As an initial matter, the court in Bateman notes that as a general matter “the holder of a

secured claim is entitled to protection under the bankruptcy code to the extent of the collateral’s

value securing the claim.” Bateman, 331 F.3d at 826. Further, the court in Bateman noted the

venerable rule that a secured creditor “need not do anything during the course of the bankruptcy

proceeding because it will always be able to look to the underlying collateral to satisfy its lien.”

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Id. at 827. Based, in part, upon these principles, the court in Bateman determined that the

secured creditor’s claim “is unaffected by the Plan and survives the bankruptcy unimpaired.”

Id., at 832. Appropriately, the court in Bateman reversed the bankruptcy court and determined

that the “lien and arrearage claim survives.” Id., at 833.

Notably, Plaintiff relies upon Bateman for the proposition that “[t]he binding effect of

confirmation is strong enough that a creditor may be held to a plan’s terms even if the provision

in the plan is not completely appropriate.” See Plaintiff’s Memo, p. 1-2. While admittedly, the

court in Bateman did uphold that debtor’s Chapter 13 plan (albeit without ANY EFFECT on the

lien or claim for arrearages), this ruling was entered based upon that secured creditor’s own

failings during the plan operation which included the acceptance of payments on its claim for

arrearages for three years. See Bateman, at 833-34. The court further justified this result

because as noted above, the secured creditor’s lien and claim for arrearages was unaffected by

the plan.

Importantly, although the court in Bateman did affirm the lower court’s refusal to dismiss

the amended Chapter 13 plan and that the secured creditor was bound by that plan, it explicitly

noted that based upon the failings of the plan, the secured creditor’s “claim for arrearage survives

the Plan and it retains its rights under the mortgage until [the secured creditor’s] claim is satisfied

in full.” Id., at 834. The effect of the Bateman court’s ruling is that the secured creditor could

not challenge the plan’s treatment of its arrearages – i.e. that it was being paid at a lesser amount

– however, the court explicitly noted that this payment did not cure the arrearages.

Consequently, Bateman provides zero support for Plaintiff’s argument that a confirmed Chapter

13 plan can operate to avoid a secured creditor’s lien.

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Moreover, unlike the secured creditor in Bateman, Kondaur has never filed a proof of

claim in the underlying bankruptcy action. See SOMF, ¶ 22. Instead, Kondaur has simply filed

a motion for relief from the automatic stay in order to proceed with satisfying the Subject Loan

through foreclosure on the Subject Property. See SOMF, ¶¶ 21-22. Additionally, unlike the

debtor in Bateman, Plaintiff does not provide for ANY payment towards the Subject Loan and its

arrearages, and instead, Plaintiff for his purported Chapter 13 plan attempts ipse dixit to avoid

the lien entirely without payment. Thus, the holding in Bateman which pertains to the general

validity of a defective the Chapter 13 plan is entirely inapposite to the present circumstances.

Further, the court in Bateman explicitly rejected the exact result that Plaintiff now

requests, i.e. the avoidance of a secured lien. Relying heavily upon a prior opinion by the Fifth

Circuit Court of Appeals, the court in Bateman stated that allowing the confirmation to strip a

lien by operation of Section 1327(c) of the Bankruptcy Code would allow the “Debtor [to]

materially improve his financial position, by unencumbering secured assets, through the simple

expedient of passing his property through the estate.” Bateman, at 831(internal citations

omitted); quoting Simmons v. Savell, 765 F.2d 547, 551 (5th Cir. 1985). Agreeing with the

reasoning from the Fifth Circuit, the court in Bateman concluded that “a secured creditor’s lien

survives a contrary plan confirmation.” Bateman, at 830.

Therefore, not only does the holding in Bateman NOT support the Plaintiff’s position, but

it explicitly mandates a determination in favor of Kondaur.

Accordingly, the Court should deny Plaintiff’s Motion for Summary Judgment and

instead, grant judgment in favor of Kondaur as to the adversary complaint filed by Plaintiff.

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II. Plaintiff’s Adversary Complaint is Legally and Factually Meritless.

As demonstrated above, Plaintiff’s Motion for Summary Judgment must be denied as the

argument that the mere confirmation of a plan allows for the avoidance of the Subject Mortgage

is contradicted by the applicable law. Quixotically, the basis for Plaintiff’s motion is completely

disconnected from the allegations contained in its Adversary Complaint. Compare Plaintiff’s

Memo [Doc. 8-1] with Adversary Complaint [Doc. 1]. To the extent that Plaintiff has not

abandoned those arguments, they nevertheless fail because they are not supported by the

incontrovertible facts in this matter or the law, and consequently, summary judgment is

appropriate in favor of Kondaur and against Plaintiff as to his Adversary Complaint.

Plaintiff’s sole argument in the Adversary Complaint is that Sections 502(b)(1) and

544(b)(1) of the Bankruptcy Code permit him to avoid the lien because there is an error in the

legal description contained in the Subject Mortgage. See Complaint, ¶ 21-23. Plaintiff is

incorrect.

As an initial matter, nowhere does Plaintiff dispute or allege – as he in good faith cannot

– the fact that he was extended a mortgage loan in the original principal balance of $231,300

secured by a mortgage against the Subject Property. See SOMF, ¶¶ 5-6. Further, it is undisputed

the Kondaur is now the mortgagee of the Subject Mortgage. See Plaintiff’s Motion, ¶ 16;

SOMF, ¶¶ 6, 11, 17, 18. Thus, the sole issue presented in Plaintiff’s Complaint is apparently

whether or not the various alleged deficiencies in the legal description of the Subject Mortgage

allows it to be avoided pursuant to Sections 502 and 504.

Section 502(b)(1) of the Bankruptcy Code provides for the general avoidance of claims to

the extent that the claim is “unenforceable against the debtor and the property of the debtor,

under any agreement or applicable law for a reason other than because such claim is contingent

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or unmatured.” 11 U.S.C. § 502(b)(1). Section 544(b)(1) of the Bankruptcy Code provides that

“the trustee may avoid any transfer of an interest of the debtor in property or any obligation

incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured

claim that is allowable under section 502 of this title.” 11 U.S.C. § 544(b)(1).

It is not entirely clear what “agreement or applicable law” Plaintiff contends that the

Subject Mortgage is voidable because as noted above, he apparently abandons this theory as to

his summary judgment motion. Nevertheless, assuming that Plaintiff contends that the purported

discrepancies in the legal description and parcel identification number (“PIN”) for the Subject

Property in the Subject Mortgage creates an issue as to the perfection of Kondaur’s lien, he is

incorrect.

Although not relied upon by Plaintiff in his Complaint – or summary judgment motion –

Section 544(a)(3) provides the bankruptcy trustee with the equivalent avoidance powers of a

hypothetical bona fide purchaser relative to any real property owned by the debtor at the time of

the filing of the petition. In re Vondall, 364 B.R. 668, 670 (B.A.P. 8th Cir. 2007). This includes

the ability to take property free of any liens which are not properly perfected at the time of the

filing of the petition. In re Marlar, 252 B.R. 743, 752 (B.A.P. 8th Cir. 2000), aff'd 267 F.3d 749

(8th Cir. 2001).

Of course the issue for Plaintiff with pursuing a claim under Section 544(a)(3) – or

Section 544(b)(1) – is that he does not have standing to assert the rights of the trustee. See e.g.,

Bank of N.Y. Mellon Trust Co., N.A. v. Wittman, Case No. 12-c-846, 2013 U.S. Dist. LEXIS

6603, *5 (E.D. Wis. Jan. 14, 2016). For this reason alone, his claims under the Adversary

Complaint fail as a matter of law.

Notwithstanding this failing, and assuming Plaintiff could articulate a theory under which

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he could pursue an avoidance based upon the rights of a bona fide purchaser – which he cannot –

his claims would still fail.

Under Illinois law, a mortgage is only valid and enforceable against a bona fide purchaser

if such a purchaser would have had constructive notice of the encumbrance. In re Richardson,

75 B.R. 601, 604 (Bankr. C.D.Ill. 1987). A bona fide purchaser may have constructive notice

through two methods: record notice and inquiry notice. Brown v. Job, 433 B.R. 700 (Bankr.

N.D.Ill. 2010). Record notice means notice under section 30 of the Illinois Conveyances Act

from an instrument duly recorded in the appropriate public office. See 765 ILCS 5/30 (2008).

Section 30 "imputes to a purchaser knowledge that could be gained from an examination of the

grantor-grantee index in the office of the Record of Deeds," as well as from court records for

the county where the property in question is located. Job, 433 BR. at 707-08 (“emphasis

added”).

A bona fide purchaser has constructive notice through the grantor-grantee index. Job,

433 BR. at 707-08; Wells Fargo Bank, N.A. v. Simpson, 2015 IL App (1st) 142925, ¶ 56

(“perspective purchaser of an interest in real estate is chargeable with knowledge of what appears

in the grantor-grantee index.”) Notably, Illinois courts have explicitly noted that mere use of a

tract index search relying upon the legal description is entirely insufficient for purposes of

determining constructive notice. See Devon Bank v. Miller, 397 Ill. App. 3d 535, 545, 921

N.E.2d 462, 473 (1st Dist. 2009); Skidmore, Owings & Merrill v. Pathway Financial, 173 Ill.

App. 3d 512, 515, 527 N.E.2d 1033, 1035 (3d Dist. 1988) (“Recording outside of the grantorgrantee index, as in the tract index, is recording merely for convenience.”)

Pursuant to the applicable Illinois law, a bona fide purchaser of the Subject Property is

tasked with searching the Cook County, Illinois grantor/grantee index, and would have

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constructive notice of any liens appearing against the Subject Property found in that index. Job,

433 BR. at 707-08. A lien appears within the chain of title sufficient to provide a bona fide

purchaser with constructive notice when the lien at issue appears in the grantor/grantee index as

of the date the property was transferred to the record owner. See e.g., Branch Banking & Trust

Co. v. Olsen, Case No. 14-cv-50027, 2014 U.S. Dist. LEXIS 70078, *4-6 (N.D. Ill. May 22,

2014).

Here, a search under the grantor/grantee index under the Plaintiff’s name with the online

database maintained by the Cook County Recorder of Deeds and publically available provides

notice of the Subject Mortgage recorded against the Subject Property. See SOMF ¶ 19;

Hardaway v. CIT Group/Consumer Fin. Inc., 836 F. Supp. 2d 677, 866 (N.D. Ill. 2011) (taking

judicial notice of “documents available to the public via the Cook County Recorder of Deeds

website.”). The Subject Mortgage appears in the search subsequent to the Warranty Deed which

conveyed the Subject Property to the Plaintiff. See SOMF ¶ 19; Grantor/Grantee Search Results

(Exs. H-1, H-2, H-3 to SOMF and Braun Declaration). Thus, any bona fide purchaser would

have constructive notice of the Subject Mortgage.

Consequently, a bona fide purchaser – or in this case, the Plaintiff – may not avoid the

Subject Mortgage based upon the purported errors in the legal description and PIN. In re

Vondall, 364 B.R. at 670; In re Marlar, 252 B.R. at 752.

Plaintiff makes a great deal about the various range numbers and PINs assigned to the

Subject Property. However, these issues are completely irrelevant under the applicable Illinois

law. See Miller, 397 Ill. App. 3d at 545. The only relevant search for purposes of establishing

constructive notice of a recorded lien is the grantor/grantee index search provided for under 765

ILCS 5/30. Id.

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Moreover, courts faced with similar arguments pertaining to discrepancies in the legal

description where – as here – the mortgage provides corroborating indicia in the document as to

the property being referenced have determined that reasonable notice of the lien was provided.

See e.g., Wittman, 2013 U.S. Dist. LEXIS at *23-24 (determining that mortgage found in

grantor/grantee record was sufficient to place subsequent purchasers on notice despite errors in

the legal description); Wenzel v. Green Tree Servicing, 554 B.R. 861, 866 (Bankr. W.D. Wis.

2016) (determining that trustee had no authority to avoid mortgage which appeared in

grantor/grantee index despite the complete lack of legal description); Hamilton v. Washington

Mut. Bank Fa, 563 F.3d 1171, 1183 (10th Cir. 2009) (determining that trustee could not use

strong-arm powers to avoid mortgage with incorrect legal description).

Here, the Subject Mortgage correctly indicates the Plaintiff’s name, provides the correct

common address of the Subject Property, and provides the same PIN provided for in the

Warranty Deed which conveyed the Subject Property to Plaintiff. See SOMF, ¶¶ 2-4, 6-8; see

also, Warranty Deed (Ex. A to SOMF); Subject Mortgage (Ex. B to SOMF). Additionally, the

legal description provided in the Subject Mortgage is nearly identical to the legal description in

the Warranty Deed except for the discrepancy as to the range number. See SOMF, ¶¶ 3, 7.

Moreover, a party searching the grantor/grantee index would also be made aware of the lis

pendens notice (“Lis Pendens”) filed by Urban Partnership Bank (“UPB”) as to its foreclosure

complaint against the Subject Property and Subject Mortgage which appears in the chain of title.

See SOMF, ¶¶ 14-15, 19. Notably, the Lis Pendens references the Subject Mortgage and

provides the correct legal description, and also notes the PIN which Plaintiff asserts is the correct

one. See SOMF, ¶¶ 14-15, 19; Lis Pendens (Ex. E to SOMF). The sum total of all these indicia

is that any reasonable party would be placed on constructive notice of the Subject Mortgage

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recording Kondaur’s interest against the Subject Property.

For all of these reasons, the entire premise for the Plaintiff’s theory on his ability to avoid

the Subject Mortgage is without any legal merit and not supported by the incontrovertible facts.

Accordingly, summary judgment is appropriate pursuant to Bankruptcy Rule 7056 in

favor of Kondaur and against the Plaintiff as to his Adversary Complaint.

WHEREFORE, Kondaur respectfully requests that this court deny Plaintiff’s motion for

summary judgment, grant summary judgment in its favor as to the Plaintiff’s Adversary

Complaint and provide such further and additional relief as the Court determines is necessary

and appropriate.

Dated: November 3, 2016 Respectfully submitted,

Ralph T. Wutscher KONDAUR CAPITAL CORP.

Coleman J. Braun

Allan Z. Enriquez

MAURICE WUTSCHER LLP

105 W. Madison Street, 18th Floor

Chicago, Illinois 60602

Tel. (312) 416-6170

Fax. (312) 284-4751 By: /s/ Coleman J. Braun

One of Its Attorneys

Certificate of Service

Coleman J. Braun, an attorney, certifies that on November 3, 2016, he caused the service

of a true and correct copy of the foregoing document and any referenced exhibits via ECF on all

parties who are Filing Users.

/s/ Coleman J. Braun

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