United States District Court, E.D. Wisconsin
DECISION AND ORDER
HON RUDOLPH T. RANDA U.S. District Judge
This action, arising from a home equity loan between the Plaintiff Johnson Bank and pro se Defendant Jean M. Haster, is before the Court on Johnson Bank’s summary judgment motion on its breach of contract claim.(ECF No. 17.) Haster has a number of counterclaims which are not addressed herein. After two stays/extensions of time to respond (ECF Nos. 25, 31), the summary judgment motion is briefed and ready for resolution.
Summary Judgment Standard
Summary judgment is appropriate “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment should be granted when a party that has had ample time for discovery 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. If the moving party establishes the absence of a genuine issue of material fact, the non-moving party must demonstrate that there is a genuine dispute over the material facts of the case. Id. at 323-24. The Court must accept as true the evidence of the nonmovant and draw all justifiable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate only “where the factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” See Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Johnson Bank followed the procedure outlined in Civil Local Rule 56(a) (E.D. Wis.), applicable when a party is moving for summary judgment and the opposing party proceeds pro se, and included the text of rules 56(c), (d), and (e) of the Federal Rules of Civil Procedure Civil L. R. 56(a) and (b) and Civil L. R. 7 as a part of the motion.
Haster responded to Johnson Bank’s proposed findings of fact and presented further statements of material facts. (ECF No. 34.) In her response, Haster relies on her declaration, exhibit J (ECF No. 34-1), which she had previously filed on April 16, 2015 as ECF No. 23. In reply, Johnson Bank relies on its response (ECF No. 27) to that declaration. Haster declares “. . . I have personal knowledge of the facts set forth herein, except as to those stated on information and belief, and to those, I am informed and believe them to be true.” (Haster Decl., 2.)
However, Fed.R.Civ.P. 56(c)(4) states “[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.” Luster v. Ill. Dep’t. of Corr., 652 F.3d 726, 731 n.2 (7th Cir. 2011). Under Rule 56(c)(4), any statement of purported fact not made on personal knowledge may not be used to support or oppose summary judgment and, therefore, unless agreed to by Johnson Bank, such statement or fact by Haster has been excluded. Specifically, the Court has excluded paragraphs 12, 13, 15, 16, 17, 18, 25, 32, 35, 36, 67, 81 of the Haster declaration.
Civil L.R. 56(b)(2)(B) and (C) provide that:
[e]ach party opposing a motion for summary judgment must file . . .
a concise response to the moving party’s statement of facts that must contain:
(i) a reproduction of each numbered paragraph in the moving party’s statement of facts followed by a response to each paragraph, including, in the case of any disagreement, specific references to the affidavits, declarations, parts of the record, and other supporting materials relied upon, and
(ii) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, declarations, parts of the record, and other supporting materials relied upon to support the facts described in that paragraph. A non-moving party may not file more than 100 separately-numbered statements of additional facts.
(Emphasis added.) However, in opposing the specific facts, Haster has cited “Defendant[’]s Declaration attached hereto & Exhibit J-Defendant[’]s Other Declaration.” (See ECF No. 34, ¶¶ 7, 8, 18, 19, 21, 24, 25, 29.) Citation to an entire declaration is not a specific reference and does not comply with the requirements of Civil L.R. 56(b)(2)(B). Thus, such responses do not create a factual dispute.
Johnson Bank, a state-chartered bank, filed this action in the Circuit Court for Waukesha County, Wisconsin. Haster removed the case to this Court, invoking diversity jurisdiction as provided by 28 U.S.C. § 1332.
In October 2008, Haster entered into a Home Equity Total Line of Credit Agreement (“Home Equity Agreement”) with Johnson Bank. (Vela Aff. ¶ 5, Ex. 1.) (ECF Nos. 20, 20-1.) The transaction involved the execution of two main documents: the Home Equity Agreement and the Mortgage Agreement. Both documents were drafted by Johnson Bank.
The Home Equity Agreement provided $250, 000 worth of credit to Haster. As to its term, the Agreement states:
The term of your Credit Line will begin as of the date of this Agreement (“Opening Date”) and will continue until termination of your Credit Line Account. All indebtedness under this Agreement, if not already paid pursuant to the payment provisions below, will be due and payable upon termination. The draw period of your Credit Line will begin on a date, after the Opening Date, when the Agreement is accepted by us . . . and the meeting of all of our other conditions and will continue as follows: One year from the date of this agreement; automatically extended from year to year after this date, unless the Lender gives [Haster] notice to the contrary at least 30 days prior to the annual anniversary date. You may obtain credit advances during this period (“Draw Period”).
(Id. “Term”, 1.) The Home Equity Agreement obligated Haster to pay the “Credit Line Account . . . in full upon termination in a single balloon payment, ” stating that “[she] must pay the entire outstanding principal, interest and any other charges then due.” (Id., “Balloon Payment, ” 1.)
The Home Equity Agreement states:
You promise to pay JOHNSON BANK, or order, the total of all credit advances and FINANCE CHARGES, together with all costs and expenses for which you are responsible under this agreement or under the “Mortgage” which secures your Credit Line. You will pay your Credit Line according to the payment terms set forth below. If there is more than one Borrower, each is jointly and severally liable on this Agreement. . . . We can release any Borrower from responsibility under this Agreement, and the others will remain responsible.
(Id., “Promise to Pay, ” 1.)
The Agreement also states: “You acknowledge this Agreement is secured by the following collateral described the security instrument listed herein: a Mortgage dated October 6, 2008, to us on real property located in Waukesha County, State of Wisconsin.” (Id., “Collateral, ” 2.) The Agreement also states: “During the Draw Period we will honor your request for credit advances subject to the section below on Lender’s Rights. . . . Any credit advances in excess of your Credit Limit will not be secured by the Mortgage covering your principal dwelling.” (Id., “Credit Limit, ” 1.)
With respect to termination by Johnson Bank, the Agreement provides:
We can terminate your Credit Line Account and require you to pay us the entire outstanding balance in one payment, and charge you certain fees, if any of the following happen:
(1) You commit fraud or make a material misrepresentation at any time in connection with this Credit Agreement. This can include, for example, a false statement about your income, assets, liabilities, or any other aspects of your financial condition.
(2) You do not meet the repayment terms of the Credit Agreement.
(3) Your action or inaction adversely affects the collateral for the plan or our rights in the collateral. This can include, for example, failure to maintain required insurance, waste or destructive use of the dwelling, failure to pay taxes, death of all persons liable on the account, transfer of title or sale of the dwelling, creation of a senior lien on the dwelling without our permission, ...