Case 1:06-cv-02648 Document 125 Filed 03/28/08 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Thomas Davis, )
)
Plaintiff, )
)
vs. )
) No. 06 C 2648
Elite Mortgage Services Inc., )
E & I Funding Corp., )
Decision One Mortgage Co., )
Mortgage Electronic Registration Systems, Inc... ) Robert Gettleman,
Melvin Brooks, LeAndre Burnett, ) Judge Presiding
Lorie Westerfield, Esq., Earnest Terrell Rowell, )
Johnnie Pierre, NovaStar Mortgage Inc. )
and All Unknown Claimants, )
)
Defendants. )

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT OR, IN THE

ALTERNATIVE, TO DISMISS OR STRIKE FOUR OF NOVASTAR’S
AFFIRMATIVE DEFENSES AS INSUFFICIENT IN LAW

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiff Thomas

Davis (“Plaintiff”), by his attorney, John Elson, Northwestern University Legal Clinic,

and certified senior law students, Meghan Lind and Ethan White, move for partial

summary judgment on Defendant Novastar Mortgage, Inc.’s, (“Novastar”) First, Second,

Third and Fourth Affirmative Defenses. In the alternative, Plaintiff moves to dismiss or

strike these Defenses under Rule 12(c) or (f) as insufficient in law. In support of this

Motion, Plaintiff submits the accompanying Memorandum of Law and Local Rule 56.1

Statement and states as follows:

1. In its First and Second Affirmative Defenses, Novastar is claiming that

because it had no actual knowledge of Plaintiff’s equitable mortgage interest when it

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made its mortgage loan, it deserves good faith purchaser status and, therefore, a first-

position mortgage lien on Plaintiff’s Home.

2. As explained in his accompanying Memorandum of Law, Plaintiff seeks

dismissal of Novastar’s good faith purchaser defenses on three independent grounds:

i. Plaintiff’s undisputed possession of his home at the time of the Novastar

mortgage loan was constructive notice of Plaintiff’s equitable title claim;

ii. Plaintiff’s recording of his Notice of Equitable Mortgage and Affidavit of

Interest, (Exhibit A to this Motion), months before Novastar made its mortgage loan was

under Illinois statute conclusive notice of Plaintiff’s equitable claim to all subsequent

claimants, and;

iii. Under Illinois law, mortgage lenders do not have a right to bona fide purchaser

status with respect to the enforcement of their mortgage security interests.

3. In its Third Affirmative Defense, Novastar seeks dismissal of Plaintiff’s

Complaint on the ground that the Complaint itself shows that Plaintiff waived his

equitable mortgage claim because he did not conduct himself prudently or reasonably

with respect to the Property.

4. As explained in the accompanying Memorandum of Law, under the

Celotex doctrine, this Third Affirmative Defense should be dismissed because the facts

alleged in the Complaint do not support the waiver defense’s essential element that

Plaintiff’s actions manifested his intent to waive his claim of title to his Property.

5. In its Fourth Affirmative Defense, Novastar seeks dismissal of Plaintiff’s

Complaint on the ground that the Complaint itself shows that Plaintiff should be estopped

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from asserting his equitable mortgage claim because he did not conduct himself prudently

or reasonably with respect to the Property.

6. As explained in his accompanying Memorandum of Law, under the

Celotex doctrine, this defense should be dismissed because the facts alleged in the

Complaint do not support the essential elements of the estoppel defense that Plaintiff

either intended to cause, or was culpably negligent in causing, Novastar to rely on

Plaintiff’s conveyance of his Home to Rowell when Novastar made its mortgage loan to

Defendant Pierre.

7. Plaintiff has not submitted affidavits in support of this Motion For

Summary Judgment because on the basis of the allegations of the Complaint that

Novastar has either admitted, or has not denied, there are no material issues of fact and

Plaintiff, on the basis of the admitted and undenied facts, is entitled to judgment as a

matter of law. See Heck v. Rodgers, 457 F.2d 303, 307(7th Cir. 1972)(“There is nothing

contained in the Rule, (F.R.Civ.P. 56), which required the defendants to support their

undenied allegations by affidavit.”).

8. F.R.Civ.P. 12(c) and (f) provides an alternative basis for the dismissal of

Novastar’s first four Affirmative Defenses. Because Novastar’s Answer admits the

Complaint’s allegations showing that Novastar had constructive notice of Plaintiff’s

equitable claims, Novastar’s own Answer negates its First and Second Affirmative

Defenses asserting its good faith purchaser status. Because Novastar explicitly bases its

Third and Fourth Affirmative Defenses of waiver and estoppel entirely on facts alleged in

Plaintiff’s Complaint which contradict those Affirmative Defenses, Novastar’s own

Answer also negates these two Defenses. Therefore, because the pleadings demonstrate

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by themselves that Novastar’s Affirmative Defenses have no legal merit, they should

alternatively be dismissed or stricken as insufficient pursuant to F.R.Civ. P. 12 (c) or (f).

See Aetna Cas. and Sur. Co. v. William M. Mercer, Inc., 173 F.R.D. 235, 236 (N.D.Ill.,

1997).

Wherefore, for the reasons stated above and in the accompanying Memorandum

of Law, Plaintiff requests pursuant to either Rule 56 or Rule 12(c) or (f) of the Federal

Rules of Civil Procedure that this Court dismiss Novastar’s First, Second, Third and

Fourth Affirmative Defenses.

Respectfully submitted,

s/John S. Elson
Plaintiff’s Attorney

John S. Elson
Attorney No. 23460
Meghan Lind, Certified Senior Law Student
Ethan White, Certified Senior Law Student
Northwestern University Legal Clinic
357 East Chicago Avenue
Chicago, Illinois 60611
(312) 503-8576