PNC Bank, National Ass'n v. Nordwall

499 B.R. 599, 2013 WL 5670860, 2013 U.S. Dist. LEXIS 150913
CourtDistrict Court, C.D. Illinois
DecidedJuly 22, 2013
DocketNo. 11-cv-1451
StatusPublished
Cited by1 cases

This text of 499 B.R. 599 (PNC Bank, National Ass'n v. Nordwall) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PNC Bank, National Ass'n v. Nordwall, 499 B.R. 599, 2013 WL 5670860, 2013 U.S. Dist. LEXIS 150913 (C.D. Ill. 2013).

Opinion

ORDER & OPINION

JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on multiple motions filed by Plaintiff: Motion for Summary Judgment (Doc. 44), Amended Motion for Default Judgment (Doc. 52),1 Motion for Judgment of Foreclosure (Doc. 45), Motion to Appoint Special Commissioner (Doc. 46), and Motion for Attorney Fees (Doc. 48). For the following reasons, all of Plaintiffs Motions are granted.

Procedural History

Plaintiff filed its Complaint against Defendants Michael A. Nordwall and Michael A. Nordwall, Ltd., on December 14, 2011. (Doc. 1). In it, Plaintiff alleged that the mortgage on Defendant Michael A. Nord-wall’s property, which matured on February 7, 2011, was in default, with a total outstanding balance of $404,611.66 as of October 20, 2011, and interest accruing at the rate of $64.07 per day. (Doc. 1). Neither defendant has answered or otherwise appeared. Plaintiff initially sought default judgment and judgment of foreclosure on June 22, 2012. (Docs. 11, 12). Subsequently, Defendant Michael Nordwall’s bankruptcy trustee, Charles E. Covey, was allowed to intervene in this case on August 22, 2012. (Text Order, Aug. 22, 2012). Intervenor filed an answer on September 6, 2012, and a counterclaim on January 1, 2013, claiming a right to set aside the mortgage. (Docs. 23, 39). Pursuant to Magistrate Judge Cudmore’s Report and Recommendation, adopted by this Court, Defendant Michael A. Nordwall, Ltd. was found in default, but the remainder of Plaintiffs previous motions were denied as premature. (Docs. 38, 40). Shortly thereafter, on February 1, 2013, Plaintiff filed the currently pending motions.

Motion for Summary Judgment

Plaintiff filed a Motion for Summary Judgment against Intervenor, seeking judgment as a matter of law with respect to Intervenor’s avoidance counterclaim and asserting there are no disputed material facts and that it should be entitled to foreclose the mortgage. (Doc. 44).

I. Summary Judgment Standard

Summary judgment shall be granted where “the. movant shows that there is no [602]*602genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir.2009). All inferences drawn from the facts must be construed in favor of the non-movant. Smith v. Hope School, 560 F.3d 694, 699 (7th Cir.2009).

To survive summary judgment, the “nonmovant must show through specific evidence that a triable issue of fact remains on issues on which he bears the burden of proof at trial.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir.2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the evidence on record could not lead a reasonable jury to find for the non-movant, then no genuine issue of material fact exists and the mov-ant is entitled to judgment as a matter of law. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir.1997). At the summary judgment stage, the Court may not resolve issues of fact; disputed material facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II. Background2

Defendant Michael A. Nordwall applied for and received a mortgage on a commercial property located at 910 W. Glen Ave., Peoria, Illinois (“Property”). National City Bank of the Midwest was the mortgagee, and Plaintiff is its successor in interest. The mortgage was executed on November 7, 2005, and recorded with the Peoria County Recorder of Deeds on November 17, 2005, as document number 05-38331 (“Mortgage”). (Doc. 1-2 at 2-3). The Mortgage secures a loan evidenced by a promissory note (“Note”) dated November 7, 2005, in the amount of $435,200.00, bearing interest at the rate of 6.25% and with a maturity date of November 7, 2010. (Doc. 1-2 at 2). The maturity date was extended to February 7, 2011, pursuant to a Modification Agreement dated November 1, 2010. (Doc. 1-2 at 4-5). Defendant Michael A. Nordwall, Ltd.3 served as guarantor for the Note as modified. (Doc. 1-2 at 6). The recorded Mortgage includes, inter alia, the following information: (1) the name of the mortgagor and mortgagee, (2) the amount of indebtedness secured, (3) the nature of the indebtedness, (4) a legal description of the property subject to mortgage, (5) that the indebtedness was secured by a promissory note, and (6) the signature of the mortgagor. (Doc. 1-3 at 2-3, 13). The Mortgage referenced the Note by amount and date.4 Defendants defaulted under the terms of the Note and Mortgage, failing to pay the amount due upon its maturity on February 7, 2011.

On March 2, 2011, Defendant filed for relief under Chapter 7 of the Bankruptcy [603]*603Code. Intervenor Charles E. Covey serves as Defendant’s Chapter 7 Bankruptcy Trustee. On December 14, 2011, Plaintiff filed its Complaint, claiming that it has a valid mortgage lien on the Property and seeking to foreclose the Mortgage. In his affirmative defense and counterclaim, In-tervenor seeks to avoid the Mortgage under his “strong arm” powers as bankruptcy trustee under 11 U.S.C. § 544 because the Mortgage failed to include the interest rate and maturity date on its face. He argues that § 11 of the Illinois Conveyances Act, 765 Ill. Comp. Stat. 5/11, requires disclosure of such terms.

III. Discussion

In its Motion for Summary Judgment, Plaintiff argues it is entitled to judgment based on the undisputed facts. It argues Intervenor’s counterclaim is without merit, and that Intervenor cannot avoid the Mortgage pursuant to 11 U.S.C. § 544. In his Response, Intervenor maintains that the two facial deficiencies — the lack of a stated interest rate and maturity date— render the Mortgage avoidable by him as Trustee of Defendant’s bankruptcy estate. Further, Intervenor argues that there are disputed facts, particularly over which debt or debts the Mortgage secures.

Pursuant to the “strong arm” provision of the bankruptcy code, a bankruptcy trustee may avoid a debtor’s obligation or a transfer of the debtor’s property that is voidable by “a bona fide purchaser of real property.” 11 U.S.C. § 544(a)(3).

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Bluebook (online)
499 B.R. 599, 2013 WL 5670860, 2013 U.S. Dist. LEXIS 150913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pnc-bank-national-assn-v-nordwall-ilcd-2013.