United States District Court, N.D. Indiana, South Bend Division
LT. HENRY G.L. MCCULLOUGH, III, et al., Plaintiffs,
CITIMORTGAGE, INC., Defendant.
OPINION AND ORDER
R. Leichty Judge
Henry McCullough and Princess Naro-McCullough, husband and
wife, filed this lawsuit following a series of bankruptcies
and subsequent state court foreclosure proceedings. The
McCulloughs allege that CitiMortgage discriminated against
them because of their race and violated the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§§ 1961 et seq., in acquiring their Loan
responded with a counterclaim, seeking enforcement of the
Loan Modification Agreement. At present, CitiMortgage has
just requested summary judgment on the McCulloughs’
claims. Even though the McCulloughs were given proper
Faulkner notice (ECF 52) pursuant to N.D. Ind. Local
Rule 56-1(f), they have not responded to CitiMortgage’s
motion. This presiding judge, having been recently reassigned
to the case, now grants summary judgment.
the McCulloughs have not addressed CitiMortgage’s
assertions of fact, the court will accept those facts as
undisputed. See Fed. R. Civ. P. 56(e). Construing
all facts in the most favorable light to the McCulloughs and
likewise viewing all reasonable inferences in their favor,
the following facts emerge.
1994, the McCulloughs executed a promissory note in the
amount of $158, 620 with Union Federal Savings Bank of
Indianapolis. ECF 19-1. To secure this note, the McCulloughs
executed a mortgage on their Granger, Indiana home in favor
of Union Federal. ECF 19-5. Through a series of assignments,
CitiMortgage eventually became the holder of the mortgage on
the McCullough property. ECF 19-9.
2006, the McCulloughs began a series of bankruptcy
proceedings. Their first Chapter 13 bankruptcy petition was
filed on October 9, 2006 and dismissed on November 23, 2009
without a discharge. ECF 51-1 at 3, 12. Their second Chapter
13 bankruptcy petition was filed on January 6, 2010 and
dismissed on July 19, 2012, via their own motion to dismiss.
Id. at 12, 17. Finally, the McCulloughs filed for
Chapter 13 bankruptcy, which was subsequently converted to a
Chapter 7 petition, on October 15, 2012. Id. at 19.
In this third bankruptcy proceeding, the McCulloughs finally
received a discharge on February 3, 2014. Id. at 25.
the discharge, CitiMortgage filed a foreclosure action
against the McCulloughs in state court. Id. at 26.
CitiMortgage was successful at the trial level and was
affirmed on appeal by the Indiana Supreme Court (Id.
at 81); however, before CitiMortgage sought to enforce the
foreclosure, it pursued a Loan Modification Agreement with
the McCulloughs (ECF 51 at 7; ECF 1-1 at 20-25). On December
22, 2017, the McCulloughs entered into a Loan Modification
Agreement that maintained their responsibility for the unpaid
principal balance of the previous loan and total interest, a
total of $150, 067.38. ECF 51 at 8; ECF 1-1 at 21. Because of
the Agreement, CitiMortgage filed a motion to set aside the
judgment, which was granted by the state court on February 9,
2018. ECF 51-1 at 66-67.
McCulloughs now claim that the Loan Modification Agreement
was procured illegally in violation of RICO and that
CitiMortgage discriminated against them on the basis of their
race. In particular, the McCulloughs claim that CitiMortgage
“intimidate[ed] harass[ed] and coerc[ed]” them
into signing a “new mortgage.” ECF 7 at 2.
judgment is warranted when “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). The non-moving party must present the
court with evidence on which a reasonable jury could rely to
find in his favor. Goodman v. Nat’l Sec. Agency,
Inc., 621 F.3d 651, 654 (7th Cir. 2010). The court must
deny a summary judgment motion when there is admissible
evidence that creates a genuine issue of material fact-a
triable issue. Luster v. Ill. Dept. of Corrs., 652
F.3d 726, 731 (7th Cir. 2011).
court “is not to sift through the evidence, pondering
the nuances and inconsistencies, and decide whom to
believe.” Waldridge v. Am. Heochst Corp., 24
F.3d 918, 920 (7th Cir. 1994). Instead, the “court has
one task and one task only: to decide, based on the evidence
of record, whether there is any material dispute of fact that
requires a trial.” Id. The court must construe
all facts in the light most favorable to the non-moving
party, view all reasonable inferences in that party’s
favor, Bellaver v. Quanex Corp., 200 F.3d 485,
491-92 (7th Cir. 2000), and avoid “the temptation to
decide which party’s version of the facts is more
likely true.” Payne v. Pauley, 337 F.3d 767,
770 (7th Cir. 2003).
court is not “obliged to research and construct legal
arguments for parties, especially when they are represented
by counsel, ” Nelson v. Napolitano, 657 F.3d
586, 590 (7th Cir. 2011); however, the court is obliged to
liberally construe the pleadings of pro se