principal place of business in Wisconsin. (PI. L.R. 56.1 | 8.) In March 2002, Osceola
maintained a checking account at RiverBank. (Pl. L.R. 56.149.) On or about March 15, 2002,
Osceola issued check number 48887 to Kimball Midwest at P.O. Box 714048, Cincinnati, Ohio,
in the amount of $71.25. (Pl. L.R. 56.1 10.) Osceola has not issued any other check numbered
48887. (Pl. L.R. 56.1 11.)

On or about May 9, 2002, Burks deposited a check purporting to be number 48887 drawn
on Osceola’s account at RiverBank (the “Check”) into an account in the possession of BMB at
Great Lakes. (Pl. L.R. 56.1] 12.) The Check deposited by Burks listed BMB as the payee and
was in the amount of $110,636.10. (Pl. L.R. 56.1 J 13.) Great Lakes presented the Check to
RiverBank, which honored the check and paid. (PI. L.R. 56.1 J 14.) RiverBank deducted funds
from Osceo}a’s account to cover the Check, transferring such funds to Great Lakes. (PI. L.R.
56.1] 15.) The Check cleared and Burks thereafter withdrew these funds from his account at
Great Lakes. (Pl. L.R. 56.1 16.) In June 2002, Osceola learned that RiverBank deducted funds
from Osceola’s checking account to cover the Check and reported to RiverBank that the Check
was not authorized, drafted, or issued by Osceola and that Osceola’s signature had been forged.
(Pl. L.R. 56.1417.) At no time did Osceola authorize or issue the Check nor has Osceola ever
authorized the transfer of funds to BMB. (PI. L.R. 56.1 | 18.) Moreover, Osceola has never
conducted business with BMB nor has it ever become indebted to BMB at any time. (Pl. L.R.
56.11 19.)

RiverBank credited Osceola’s account in the amount of $110,626.10 to cover the lost
funds. (Pl. L.R. 56.1] 20.) During all relevant times, BancInsure had executed and issued a

financial institution bond in favor of RiverBank. (Pl. L.R. 56.1 { 21.) RiverBank notified


CONCLUSION
For the reasons stated above, BancInsure’s motion for summary judgment is granted on
its Count IV claim for unjust enrichment [#11]. Counts I, I and If are moot. BanclInsure shall

submit within 14 days a judgment order agreed to in form which includes prejudgment interest.

waren: heehee porn —
(OAN Y LEFKOW

United States District Judge

It is so ordered.

Dated: April 8, 2004


to the affidavits, parts of the record, and other supporting materials relied upon to support the
facts set forth in that paragraph.” BanclInsure has abided by this Rule and has set forth 22 facts
supported with specific citations to the record.

Part (b) of Local Rule 56.1 requires a party opposing summary judgment to file, inter
alia, a concise response to the movant’s statement of material facts. For purposes relevant here,
that statement is required to include 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.” Defendants have not complied
with this rule. They have set forth no response to each numbered paragraph in Banclnsure’s
statement and have not identified whether they agree or disagree with each such statement.
Moreover, even when defendants apparently take issue with certain portions of BancInsure’s
statement of material facts, they provide no specific citations to the record in support. Because
defendants did not comply with Local Rule 56.1(b), BancInsure’s statement of material facts is
deemed admitted. See, e.g., Local Rule 56.1(6) (“All material facts set forth in the statement
required of the moving party will be deemed admitted unless controverted by the statement of the
opposing party.”); Bordelon v. Chicago Sch. Reform Bad. of Trs., 233 F.3d 524, 529 (7th Cir.
2000); Dimmitt & Owens Fin. v. Superior Sports Prods., Inc., 196 F. Supp. 2d 731, 736 (N.D. Il.
2002).

Great Lakes Bank (“Great Lakes”) is a bank authorized to transact business in Ilinois.
(Pl. LR. 56.1 J 6.) Osceola Bancorporation d/b/a The RiverBank (“RiverBank”) is a bank
authorized to transact business in Wisconsin with its principal place of business in Wisconsin.

(Pl. L.R. 56.14 7.) Osceola Medical Center (“Osceola”) is a Wisconsin Company with its


Banclnsure of a loss due to forgery on the Check and on or about August 6, 2002, Bancinsure
paid to RiverBank $100,636.10 pursuant to the bond. (Pl. L.R. 56.1 J 22.) In connection
therewith, RiverBank assigned all of its rights against any third parties causing or contributing to
the loss to BancInsure. (Jd.)
DISCUSSION

Plaintiff seeks summary judgment on its unjust enrichment and conversion claims.
Starting with the conversion claim,

Under Illinois law “[t]he essence of conversion is the wrongful deprivation of one

who has a right to the immediate possession of the object lawfully held.” In re

Thebus, 108 0l.2d 255, 91 Ill. Dec. 623, 628, 483 N.E.2d 1258, 1260 (1985)

(quoting Bender v. Consolidated Mink Ranch, Inc., 110 1l.App.3d 207, 65

IL.Dec. 801, 806, 441 N.E.2d 1315, 1320 (1982)). To prevail, “[o]ne claiming

conversion must show a tortious conversion of the chattel, a right to property in it,

and a right to immediate possession which is absolute.” In re Thebus, 91 Ill.Dec.

at 628, 483 N.E.2d at 1260 (quoting Jensen v. Chicago & W. Ind. R.R. Co., 94

DL. App.3d 915, 50 Il.Dec. 470, 474, 419 N.E.2d 578, 592 (1981)). Although

money may be the subject of conversion, it must be capable of being described as

a specific chattel; “an action for conversion of funds may not be maintained to

satisfy a mere obligation to pay money... . It must be shown that the money

claimed, or its equivalent, at all times belonged to the plaintiff and that the

defendant converted it to his own use.” In re Thebus, 91 Il.Dec. at 628-29, 483
N.E.2d at 1260-61 (emphasis added).

National Union Fire Ins. Co. of Pittsburgh, PA v. Wilkins-Lowe Co., Inc., 29 F.3d 337, 340 (7th
Cir. 1994) (brackets in original). See also, Sutherland v. O'Malley, 882 F.2d 1196, 1200 (7th
Cir. 1989 ) (“In order to satisfy this requirement, the plaintiff must have a ‘right to a specific fund
or specific money in coin or bills.’”) (quoting Mid-America Fire & Marine Ins. Co. v. Middleton,
127 Ill. App. 3d 887, 891-92, 468 N.E. 2d 1335, 1338 (1984)). An action for “conversion will
not lie for money represented by a general debt or obligation.” In re Thebus, 108 Il. 2d at 261,

483 N.E. 2d at 1261 (citation omitted and emphasis removed),


Minate Onder Form (06/97)
4

United States District Court, Northern District of Diinois

Name of Assigned Jud Sitting Judge if Oth
aor Magistrate Sadge Joan H. Lefkow than Asstgoed ‘Todge
CASE NUMBER 03 C 2692 DATE 4/8/2004
CASE Bancinsure vs. BMB Electric Co., Inc., et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
q) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due, .
(4) og Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at .
(©) im) Pretrial conference[held/continued to) [set for/re-set for} on set for at .
(O) Oo Trial[set for/re-set for} on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 CUFRCP41(a)(1) CFRCP41(a)(2).
(10) Mf [Other docket entry) | Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, BancInsure’s motion for summary judgment is granted on its Count
IV claim for unjust enrichment [#11]. Counts I, I and II are moot. BancInsure shall submit within 14
days a judgment order agreed to in form which includes prejudgment interest.
(11) MM __ [For further detail see order attached to the original minute order.]
No notices required, advised in open court, :
No notices required. number of potices
o | Notices mailed by judge's staff.
Notified counsel by telephone. APR 09 20 04
Docketing to mail notices.
Mail AO 450 form.
Copy to judge/magistrate judge.
courtroc ere sofe ate
MD feputy's ble ey ae uo Vv
initials
Date/time received in
central Clerk's Office sailing deputy tin



Banclnsure cites no case supporting a conversion claim under a factual scenario similar to
that present here. Indeed, it would not appear that the defendants converted money belonging
Osceola and not to BancInsure’s subrogee, RiverBank. Moreover, simply because RiverBank
was obligated to repay such funds when the payment was procured by fraud does not necessarily
mean that the funds converted were those belonging to RiverBank. Therefore, whether an action
for conversion exists under the facts in this case is not as clear as Banclnsure suggests.

In any event, the court need not delve deeper into the Count I conversion claim because
unjust enrichment is easily proven based on the undisputed facts. Under Dlinois law “[t]o state a
cause of action based on a theory of unjust enrichment, a plaintiff must allege that the defendant
has unjustly retained a benefit to the plaintiffs detriment, and that defendant’s retention of the
benefits violates the fundamental principles of justice, equity and good conscience.” HP! Health
Care Servs., Inc. v. Mt. Vernon Hosp., 131 Ul. 2d 145, 160, 545 N.E. 2d 672, 679 (1989). There
exists no reason for BMB and Burks to retain the funds conveyed to them via Burks’ deposit of
the Check with Great Lakes. Furthermore, retention by BMB and Burks of the funds in question
violates principles of justice, equity and good conscience. Neither BMB nor Burks had any
professional or commercial contacts with Osceola through which any payments were required or
through which retention of the funds could otherwise be justified. Accordingly, plaintiffs motion

for summary judgment on the Count IV unjust enrichment claim is granted.


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION ore
pocierep
BANCINSURE, as assignee and subrogee to ) APR 0 9 2004
OSCEOLA BANCORPORATION d/b/a THE)
RIVERBANK, i)
)
Plaintiff, )
)
vs. ) No. 03 C 2692
) Judge Joan H. Lefkow
BMB ELECTRIC CO., INC., an Illinois )
corporation and BRUCE M. BURKS, an )-
Individual, )
)
Defendants. )
)
MEMORANDUM OPINION AND ORDER

Plaintiff, BancInsure Inc., as assignee and subrogee to Osceola Bancorporation d/b/a The
RiverBank (“BancInsure”) moves for summary judgment on its Count I (Conversion) and Count
IV (Unjust Enrichment) claims brought against defendants BMB Electric Co., Inc., (“BMB”) and
Bruce M. Burks (“Burks”) (collectively “defendants”).' BancInsure is an Oklahoma corporation
with its principal place of business in the State of Oklahoma.” BMB is an Ilinois corporation
with its principal place of business located in Illinois. Burks is a citizen of Illinois. The amount
in controversy exceeds $75,000 exclusive of interests and costs. This court's jurisdiction,

therefore, is invoked pursuant to 28 U.S.C. § 1332(a)(1). For the reasons set forth below,

‘Count I of Bancinsure's Complaint alleges common law fraud while Count III seeks relief based on a
constructive trust theory.

Bor diversity purposes, the court looks at the citizenship of the assignee, BanclInsure. See, e.g., Hartford
Accident & Indem. Co. v. Sullivan, 846 F.2d 377, 382 (7th Cir. 1988) (“As the wording of [28 U.S.C. §) 1359
indicates, if the assignment is not collusive or otherwise improper, the assignee’s citizenship determines whether his
suit is within the diversity jurisdiction.”).


BancInsure’s motion for summary judgment is granted.
SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The
party seeking sumsbaty judgment bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Id. at 324;
Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be
outcome determinative under the governing law, Insolia, 216 F.3d at 598-99. Although a bare
contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most
favorable to the nonmoving party as well as view all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

FACTS

Local Rule 56.1(a) provides that a motion for summary must include, inter alia, a

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

that entitle the moving patty to a judgment as a matter of law." This statement of material facts

“shall consist of short numbered paragraphs, including within each paragraph specific references
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