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Shain v. Zingre

United States District Court, E.D. Wisconsin

October 26, 2016

CLEVELAND SHAIN, Plaintiff,
v.
TAMI ZINGRE, Defendant.

          DECISION AND ORDER

          LYNN ADELMAN DISTRICT JUDGE

         The plaintiff, Cleveland Shain, filed a complaint against the defendant, Tami Zingre. After Shain filed an amended complaint, Zingre filed her answer and counterclaim. Shain did not file a timely response to the counterclaim, and the Clerk of Court entered his default. Before me now are Shain's motion to set aside the default, Zingre's motion for a default judgment, and several related motions.

         I. BACKGROUND

         A. Factual Background of the Parties' Claims

         In describing the factual background of this case, I rely on the allegations of the defendant's counterclaim, ECF No. 8, and the plaintiff's proposed answer to the counterclaim, ECF No. 47-1. However, at this point, I do not assume that anyone's factual allegations are true.

         Until shortly before this action was filed, the parties were engaged to each other. The parties met in Illinois in July 2011, shortly after the plaintiff's wife passed away. Later in 2011, the parties became engaged to be married. The plaintiff, who was 70 years old and retired, asked the defendant, who was 55 and employed as the Village Clerk of Diamond, Illinois, to retire and move with him to Wisconsin. The defendant alleges that she was reluctant to retire and move to Wisconsin, but she agreed to look for property in Wisconsin.

         On November 19, 2012, the parties purchased a home in Fond du Lac County, Wisconsin, as joint tenants with rights of survivorship. At the time of this purchase, the parties were living together in the defendant's home in Diamond, Illinois, and the plaintiff was in the process of selling his home in Coal City, Illinois. In mid-2013, the defendant retired, the plaintiff sold his home in Coal City, and the parties moved into the home they had purchased in Wisconsin.

         At the time the parties met, the plaintiff owned a number of rental properties in Illinois through a limited liability company, G.R.J.M., LLC. Just prior to August 1, 2013, the plaintiff was the sole member of this LLC. (The plaintiff's late wife was also a member of the LLC until her death on March 22, 2011.) On August 1, 2013, the plaintiff transferred a 50% interest in the LLC to the defendant. In May 2014, the parties decided to dissolve the LLC. As part of the dissolution, the LLC transferred six of the rental properties to the defendant, and at least six rental properties to the plaintiff.[1]Since the time of these transfers, the defendant has personally maintained and operated the six rental properties transferred to her and has collected all of the income generated by those properties.

         By the summer of 2014, the defendant had decided that she wanted to return to Illinois, and the plaintiff agreed to look for a new home there and to sell the home in Wisconsin. According to the defendant, the parties agreed that the new Illinois home would be purchased by her alone, and that 50% of the proceeds from the sale of the Wisconsin home would be used to pay for the new Illinois home. When the defendant faced difficulties in obtaining financing for the new Illinois home, she used the six rental properties that the LLC had transferred to her as collateral and was then able to secure financing.

         On June 4, 2015, the defendant made an offer on a home in Newark, Illinois. That day, the plaintiff told the defendant that he did not want to move to Illinois, and the defendant decided that she would do so without him. The defendant closed on the home on June 19, 2015, and moved into it a few days later. By late July 2015, the parties were estranged from each other. The plaintiff continues to live in the home in Wisconsin and intends to remain there. The defendant lives in her home in Illinois and intends to remain there.

         The plaintiff alleges that his decision to cause the LLC to transfer the six rental properties to the defendant, along with his decision to purchase the home in Wisconsin with her, were based on the defendant's promise to marry him. The plaintiff further alleges that the defendant obtained her interests in the properties through undue influence. The plaintiff seeks to have all interests in these properties restored to him. In her counterclaim, the defendant seeks partition of the Wisconsin property.

         B. Procedural Background

         Because the parties' motions relating to the plaintiff's default are intertwined with the procedural history of this case, I must describe that history in some detail.

         When the plaintiff commenced this action, he was represented by Attorney Ryan Doherty. The defendant responded to the plaintiff's complaint on November 17, 2015, by filing an answer to certain counts of the complaint, a motion to dismiss other counts of the complaint for failure to state a claim upon which relief can be granted, and a counterclaim. The plaintiff's answer to the counterclaim and response to the motion to dismiss were due on December 11, 2015. However, the plaintiff did not file either an answer to the counterclaim or a response to the motion to dismiss by that date. On December 14, 2015, the defendant requested ...


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