govinfo:USCOURTS-ilsd-3_25-cv-01343-0

UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ILLINOIS 
 
WESTERN EQUIPMENT FINANCE, INC., 
 
 Plaintiff, 
 
 v. 
 
TONY R WESTON d/b/a WESTONS LAWN 
SERVICE, 
 
 Defendant. 
 
 
 
 

 
 
MEMORANDUM AND ORDER 
This case is before the Court on Plaintiff Western Equipment Finance’s Motion for 
Summary Judgment (Doc. 22). It asks the Court to enter judgment in its favor on all three of its 
claims. Defendant Tony Weston d/b/a Westons Lawn Service failed to file a substantive response 
to the motion, but he did file an objection to the entry of summary judgment against him based 
solely on his failure to timely respond to the motion (Doc. 30). Plaintiff filed a reply (Doc. 31). 
I. BACKGROUND 
Plaintiff alleges the following undisputed factual assertions, which the Court accepts as 
true for the purposes of summary judgment.1 
On May 18, 2018, Plaintiff, as creditor, and Defendant, as debtor, entered into a Master 
Equipment Financing Agreement (“the Master Agreement”), wherein Plaintiff agreed to provide 
financing for equipment for Defendant through equipment schedules, and Defendant agreed to 
grant Plaintiff a security interest in certain collateral as security for Defendant’s obligations. 
 
1 At the time that Plaintiff filed its motion for summary judgment, these facts were already deemed admitted 
because Defendant failed to respond to Plaintiff’s requests for admission of fact under Federal Rule of Civil 
Procedure 36. See FED. R. CIV. P. 36(a)(3) (“A matter is admitted unless, within 30 days after being served, the party 
to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter 
and signed by the party or its attorney.”). The facts are also deemed admitted because Defendant failed to file a 
substantive response to Plaintiff’s motion for summary judgment. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); 
Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995). Page ID
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Pursuant to the Master Agreement, Plaintiff extended financing to Defendant through three 
equipment schedules: (1) Schedule No. xxxxx936 (“the First Schedule”), (2) Schedule No. 
xxxxx057 (“the Second Schedule), and (3) Schedule No. xxxxx743 (“the Third Schedule”). 
The First Schedule was entered into on March 30, 2023. Plaintiff financed Defendant’s 
acquisition of two (2) Western 10 FT Wideout Snow Plows, one (1) Snow X Salt Spreader – 5 
Yards, and two (2) Western 10 FT Skid Steer Snow Push Boxes (“the First Collateral”). 
Defendant agreed to make sixty consecutive monthly payments of $1,279.92, plus any applicable 
taxes, and granted Plaintiff a first priority security interest in the First Collateral. On March 29, 
2023, Plaintiff filed a UCC-1 with the Illinois Secretary of State reflecting its security interest in 
the First Collateral. 
The Second Schedule was entered into on April 3, 2023. Plaintiff financed Defendant’s 
acquisition of two (2) 10’ Western Wideout Snow Plows, two (2) Snow X Salt Spreaders – 5 
yards, and four (4) 10’ Western Skid Steer Snow Push Boxes (“the Second Collateral”). 
Defendant agreed to make sixty consecutive monthly payments of $2,025.42, plus any applicable 
taxes, and granted Plaintiff a first priority security interest in the Second Collateral. On March 
29, 2023, Plaintiff filed a UCC-1 with the Illinois Secretary of State reflecting its security 
interest in the Second Collateral. 
The Third Schedule was entered into on April 6, 2023. Plaintiff financed Defendant’s 
acquisition of one (1) Exmark Lazer S 96 IN Mower, one (1) Exmark Radius 60 IN Mower, one 
(1) Exmark Z Aerate 36 24 IN, one (1) Exmark Z-Aerate 40 IN Aerator, one (1) Exmark Stand 
on Aerator Spreader Attachment, one (1) Exmark Lazer Z X Series 60 IN Mower, and one (1) 
Exmark Lazer Z X Series 72 IN Mower (“the Third Collateral”). Defendant agreed to make sixty Page ID
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consecutive monthly payments of $2,922.18, plus any applicable taxes, and granted Plaintiff a 
first priority security interest in the Third Collateral. On March 31, 2023, Plaintiff filed a UCC-1 
with the Illinois Secretary of State reflecting its security interest in the Third Collateral. 
Plaintiff fulfilled all its obligations under the Master Agreement, First Schedule, Second 
Schedule, and Third Schedule (collectively “the Agreements”). Defendant failed to make timely 
payments under the Agreements. Failure to make timely payments is an Event of Default under 
the Master Agreement. Upon the occurrence of an Event of Default, Plaintiff is entitled to seek 
the past due and future balance owed under the Agreements, return of the First Collateral, 
Second Collateral, and Third Collateral (collectively “the Collateral”), repossession costs for the 
Collateral, prejudgment interest at the rate of 1.5% per month, and attorney’s fees and costs. It is 
further entitled to late charges. 
The balance due to Plaintiff under the Agreements, which includes the principal balance 
due, late charges, default fees, repossession fees, and ACH return fees, is $246,998.06. The total 
prejudgment interest that has accrued is $67,424.35. To collect under the Agreements, Plaintiff 
has incurred attorney’s fees and costs of $8,692.46. Plaintiff has demanded the return of the 
Collateral, but Defendant has failed or refused to return it to Plaintiff. The Collateral is not 
subject to subject to any state tax, assessment, or fine. Plaintiff estimates that the fair market 
value of the Collateral is approximately $207,900.00, depending on the condition. 
II. LEGAL STANDARD 
A. Summary Judgment: 
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary 
judgment is appropriate if the movant shows that there is no genuine dispute as to any material Page ID
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fact and that the movant is entitled to judgment as a matter of law. Archdiocese of Milwaukee v. 
Doe, 743 F.3d 1101, 1105 (7th Cir. 2014) (citing FED. R. CIV. P. 56); accord Anderson v. 
Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of material fact is not 
demonstrated by the mere existence of “some alleged factual dispute between the parties,” 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986), or by “some metaphysical doubt as to 
the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 
Rather, a genuine issue of material fact exists only “if the evidence is such that a reasonable jury 
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In assessing a 
summary judgment motion, the Court views the facts in the light most favorable to and draws all 
reasonable inferences in favor of the nonmoving party. Anderson, 699 F.3d at 994; Delapaz v. 
Richardson, 634 F.3d 895, 900 (7th Cir. 2011). However, the “favor toward the nonmoving party 
does not extend to drawing inferences that are supported by only speculation or conjecture.” 
Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 503 (7th Cir. 2017) (quoting Argyropoulos v. 
City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (internal quotation marks and citation omitted)). 
The initial summary judgment burden of production is on the moving party to show the 
Court that there is no reason to have a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); 
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the nonmoving party carries 
the burden of proof at trial, the moving party may satisfy its burden of production in one of two 
ways. First, it may present evidence that affirmatively negates an essential element of the 
nonmoving party’s case. See F
ED. R. CIV. P. 56(c)(1)(A). Second, it may point to an absence of 
evidence to support an essential element of the nonmoving party’s case without submitting any 
evidence. See FED. R. CIV. P. 56(c)(1)(B). Where the moving party fails to meet its strict burden, Page ID
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the Court cannot enter summary judgment for the moving party even if the opposing party fails 
to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th 
Cir. 1992). 
B. Choice of Law: 
Plaintiff argues that North Dakota law applies to its breach of contract claim, and Illinois 
law governs its claims of replevin and detinue. Defendant did not file a substantive response to 
the motion and failed to object to Plaintiff’s argued choice of law. Accordingly, Defendant has 
forfeited the issue. See e.g., McCleskey v. CWG Plastering, LLC, 897 F.3d 899, 901 (7th Cir. 
2018) (determining that a party forfeited the choice of law issue by failing to challenge the 
governing law). 
III. ANALYSIS 
A. Count 1 – Breach of Contract: 
 In North Dakota, a party asserting a breach of contract claim must prove three elements: 
“(1) the existence of a contract; (2) breach of the contract; and (3) damages which flow from the 
breach.” Three Aces Props. LLC v. United Rentals (N. Am.), Inc., 952 N.W.2d 64, 69 (N.D. 
2020). Based on the undisputed facts, construed in the light most favorable to Defendant, 
Plaintiff has established all three elements. There were four contracts—the Agreements—that 
governed the relationship between Plaintiff and Defendant. Plaintiff fulfilled all its obligations 
under the Agreements. Defendant breached the Agreements by failing to make timely payments 
as required. As a result of the breach, Plaintiff has not received the money it is owed under the 
Agreements. Therefore, Plaintiff is entitled to summary judgment on its breach of contract claim. 
 In addition, there is no genuine dispute as to the amount of damages owed to Plaintiff. Page ID
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The Agreements state that, upon default, Plaintiff is entitled to seek the past due and future 
balance owed under the Agreements, prejudgment interest at 1.5% per month, and attorney’s fees 
and costs. Here, Defendant owes Plaintiff $246,988.06 under the Agreements, $67,424.35 in 
prejudgment interest, and $8,682.46 in attorney’s fees and costs, for a total of $323,114.87. 
Plaintiff is entitled to judgment in that amount on Count 1, to be offset by any amount recovered 
from the disposition of the Collateral. 
B. Counts 2 and 3 – Replevin and Detinue: 
 Under Illinois statute, an action for replevin may be brought to seek return of property 
that is wrongfully detained by another. To establish a claim for replevin, a plaintiff must prove 
that: “(1) it is the owner of the relevant property or lawfully entitled to its possession; (2) that the 
property is wrongfully detained by the defendant (after the defendant has refused a demand to 
surrender the property); and (3) that the property is not subject to any state tax, assessment, or 
fine.” Firestone Fin. Corp. v. King Amusements, Inc., No. 12 C 04519, 2013 WL 1286665, at *7 
(N.D. Ill. Mar. 28, 2013). An action for detinue in Illinois is “a common law analogue of 
replevin.” Firestone Fin., LLC v. WA Gym Naperville N., LLC, No. 21 C 1183, 2022 WL 
4094161, at *7 (N.D. Ill. Sept. 7, 2022). To succeed on a detinue claim, the plaintiff must show 
that its right to possess the property in question is superior to that of the defendant. If a plaintiff 
makes the required showing, it may recover the property and damages for its detention. 
FirstMerit Bank, N.A. v. Micro Medics Computer, No. 14 CV 2396, 2014 WL 4494731, at *2 
(N.D. Ill. Sept. 9, 2014). 
 The undisputed facts, viewed in the light most favorable to Defendant, show that Plaintiff 
has proven both claims. The Agreements provide that, upon default, Plaintiff is entitled to the Page ID
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Collateral. As such, Plaintiff has a right to possess the collateral that is superior to that of 
Defendant. Plaintiff has demanded the return of the Collateral, but Defendant has failed or 
refused to return it to Plaintiff. The Collateral is not subject to subject to any state tax, 
assessment, or fine. Thus, Plaintiff is entitled to summary judgment on its replevin and detinue 
claims. However, since replevin and detinue provide overlapping remedies, the Court will first 
order detinue and give Defendant an opportunity to surrender the collateral to Plaintiff. If 
Defendant does not surrender it, Plaintiff may seek an order of replevin. 
IV. CONCLUSION 
 For the foregoing reasons, the Court GRANTS Plaintiff Western Equipment Finance’s 
Motion for Summary Judgment (Doc. 22). 
 Plaintiff is entitled to judgment in th e amount of $323,114.87 on Count 1, which consists 
of: 
x $246,998.06 in amount owed under the Agreements; 
 
x $67,424.35 in prejudgment interest; and 
x $8,692.46 in attorney’s fees and costs. 
 
 This amount is to be offset by any amount recovered from the disposition of the property 
listed below. 
 Plaintiff is further entitled to immediate possession of, and Defendant shall immediately 
surrender, the following property from Defendant: 
x two (2) Western 10 FT Wideout Snow Plows, one (1) Snow X Salt Spreader – 5 
Yards, and two (2) Western 10 FT Skid Steer Snow Push Boxes; 
 
x two (2) 10’ Western Wideout Snow Plows, two (2) Snow X Salt Spreaders – 5 yards, 
and four (4) 10’ Western Skid Steer Snow Push Boxes; and Page ID
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x one (1) Exmark Lazer S 96 IN Mower, one (1) Exmark Radius 60 IN Mower, one (1) 
Exmark Z Aerate 36 24 IN, one (1) Exmark Z-Aerate 40 IN Aerator, one (1) Exmark 
Stand on Aerator Spreader Attachment, one (1) Exmark Lazer Z X Series 60 IN 
Mower, and one (1) Exmark Lazer Z X Series 72 IN Mower.
Defendant shall surrender the property to Plaintiff at a place and time directed by Plaintiff 
within fourteen (14) days of the Court’s entry of judgment. If Defendant fails to turn over the 
property within the prescribed time, Plaintiff may seek an order of replevin from the Court to 
enforce the judgment. 
The Court DIRECTS the Clerk of Court to enter judgment accordingly and close the 
case.
IT IS SO ORDERED.
DATED: June 10, 2026
J. PHIL GILBERT
United States District Judge Page ID
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