Illinois Official Reports
Appellate Court
U.S. Bank, N.A. v. Kosterman, 2015 IL App (1st) 133627
Appellate Court U.S. BANK, N.A., as Trustee for Bank of America Funding
Caption Corporation 2007-2 Trust, Plaintiff-Appellee, v. MATTHEW
KOSTERMAN and AMY KOSTERMAN, Defendants-Appellants.
District & No. First District, Second Division
Docket No. 1-13-3627
Filed August 18, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-36031; the
Review Hon. Darryl Simko, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Lucia Nale, Michelle V. Dohra, and Charles M. Woodworth, all of
Appeal Mayer Brown LLP, of Chicago, for appellants.
Sandra M. Emerson, Matthew C. Swenson, Richard F. Kohn, and
Lindsey N. McGuire, all of Emerson Law Firm, LLC, of Oak Park, for
appellee.
Panel PRESIDING JUSTICE SIMON delivered the judgment of the court,
with opinion.
Justice Neville concurred in the judgment and opinion.
Justice Liu dissented, with opinion.
OPINION
¶1 This is a mortgage foreclosure case in which the trial court dismissed defendants’
affirmative defenses, entered summary judgment in plaintiff’s favor, and entered an order of
possession in plaintiff’s favor. The trial court erred in finding that lack of standing is not an
affirmative defense. Moreover, defendants were improperly denied the opportunity to mount a
meaningful defense because plaintiff failed to produce the records relied upon by its affiant
and refused to produce the affiant for a deposition. Accordingly, we reverse and remand for
further proceedings consistent with this order.
¶2 BACKGROUND
¶3 Because the analysis in this case is best understood when examined alongside the
procedural history, many of the relevant events are set forth in the analysis section. Thus, this
section will serve only as a brief outline of the events leading up to the parties being at issue.
¶4 On October 20, 2006, defendants Matthew and Amy Kosterman executed a mortgage for
the property commonly known as 608 Bonnie Brae Place in River Forest, Illinois. The
mortgage was executed to secure a loan evidenced by a promissory note. The lender was HLB
Mortgage, a New York corporation. Defendants apparently made payments for several years.
¶5 On October 18, 2011, plaintiff U.S. Bank, as trustee for Bank of America Funding
Corporation 2007-2 Trust, filed a complaint to foreclose the mortgage on defendants’ property
alleging that defendants had failed to make payments when due. In response to the complaint,
defendants filed an answer that included two affirmative defenses. The trial court dismissed
the affirmative defenses with prejudice and did not grant leave to replead. Shortly thereafter,
plaintiff filed a motion for summary judgment which was granted, and an order of foreclosure
and an order of possession were thereafter issued in plaintiff’s favor. Defendants now appeal.
¶6 ANALYSIS
¶7 We review the dismissal of an affirmative defense de novo. CitiMortgage, Inc. v.
Bukowski, 2015 IL App (1st) 140780, ¶ 15. Like a motion to dismiss a plaintiff’s claim, a
motion to dismiss a defendant’s affirmative defense should not be granted with prejudice
unless it is clearly apparent that there is no set of facts that might entitle the defendant to some
relief. Mack Industries, Ltd. v. Village of Dolton, 2015 IL App (1st) 133620, ¶ 18; Farmers
Automobile Insurance Ass’n v. Neumann, 2015 IL App (3d) 140026, ¶ 16.
¶8 Here, defendants interposed two separate defenses in their answer: one was lack of
standing and the other was lack of capacity to sue. The trial court treated the putative defenses
as one in the same. However, “standing is not the same as legal capacity to sue.” Aurora Bank
FSB v. Perry, 2015 IL App (3d) 130673, ¶ 17. Capacity to sue is something the plaintiff must
allege; while lack of standing is a defense that a defendant can allege. See id. ¶ 16. Regardless,
the difference is not material to the outcome of this appeal because the trial court considered
both as challenges to standing.
¶9 At the hearing on plaintiff’s motion to strike defendants’ affirmative defenses, the trial
judge stated, “[A] claim or assertion that the plaintiff cannot maintain a cause of action is not
an affirmative defense under any definition of affirmative defense.” “[A challenge to standing]
doesn’t say this plaintiff has a cause of action, but [the defendant] can avoid the effect of that
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cause of action by some other affirmative matter. That’s what an affirmative defense does.”
The trial judge continued, “what you’re saying is this plaintiff doesn’t have a right to sue.
That’s a basis for dismissal, not an assertion of a defense.” The trial court explained that lack of
standing might be an “affirmative matter,” (invoking the phrasing for section 2-619 motions to
dismiss) but that “it just simply is not an affirmative defense.” Accordingly, the trial court
struck the defenses from defendants’ answer.
¶ 10 The Illinois Supreme Court has made clear that a challenge to standing in a civil case is an
affirmative defense. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508
(1988). So the trial judge’s explanation is inconsistent with established, binding precedent.
Plaintiff nevertheless claims that a challenge to standing is not an affirmative defense in a
foreclosure case. Within just the past two years, we have explained on at least six occasions
that the assertion of lack of standing in a foreclosure action is an affirmative defense that not
only can be raised in an answer, but must be, or else it is waived. See Aurora Bank, 2015 IL
App (3d) 130673, ¶ 18; Beal Bank v. Barrie, 2015 IL App (1st) 133898, ¶ 39; Bank of America,
N.A. v. Adeyiga, 2014 IL App (1st) 131252, ¶¶ 59-63; US Bank, National Ass’n v. Avdic, 2014
IL App (1st) 121759, ¶ 34; Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422,
¶¶ 24, 28; Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 24. Accordingly,
the trial court erred by striking defendants’ affirmative defense for lack of standing as a matter
of law.
¶ 11 Even though striking the affirmative defense was erroneous, we still must determine
whether the trial court erred in granting summary judgment in plaintiff’s favor. We review the
grant of summary judgment de novo. Cook v. AAA Life Insurance Co., 2014 IL App (1st)
123700, ¶ 24. Summary judgment is appropriate when the pleadings, depositions, admissions
and affidavits, viewed in a light most favorable to the nonmovant, fail to establish a genuine
issue of material fact, thereby entitling the moving party to judgment as a matter of law. 735
ILCS 5/2-1005 (West 2012); Progressive Universal Insurance Co. of Illinois v. Liberty Mutual
Fire Insurance Co., 215 Ill. 2d 121, 127-28 (2005). If disputes as to material facts exist or if
reasonable minds may differ with respect to the inferences drawn from the evidence, summary
judgment may not be granted. Associated Underwriters of America Agency, Inc. v. McCarthy,
356 Ill. App. 3d 1010, 1016-17 (2005).
¶ 12 Two weeks after defendants’ affirmative defenses were stricken, plaintiff filed a two-page
motion for summary judgment. Plaintiff’s motion for summary judgment was supported by the
affidavit of Carolyn Mobley, a vice president for loan documentation at Wells Fargo Bank. In
her affidavit, Mobley asserts that she has reviewed various records that support her averments.
However, none of the records were attached to her affidavit. The Illinois Supreme Court rules
require that affidavits submitted in support of motions for summary judgment “shall have
attached thereto sworn or certified copies of all documents upon which the affiant relies.” Ill.
S. Ct. R. 191(a) (eff. Jan. 4, 2013). Defendants responded to the summary judgment motion
with affidavits pursuant to Illinois Supreme Court Rule 191(b) (eff. Jan. 4, 2013) asserting that
they could not adequately respond to Mobley’s affidavit without the records or other
information she relied upon.
¶ 13 In response to defendants’ affidavits, plaintiff faxed defendants’ counsel a copy of an
11-page loan transaction history that was not even certified by Mobley, and that did not contain
any indication that the record produced was the one she relied upon. Again, the Illinois
Supreme Court Rules require that the affiant identify and certify the records forming the basis
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of the attestations. Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013). Mobley, in fact, averred that she
relied upon “data compilations, electronically imaged documents, and others” to reach her
conclusions. That attestation is not in line with the single record made available for the first
time while the summary judgment motion was pending. Plaintiff then transparently claimed
that the records were too numerous to make available. But if that was the case, defendants were
entitled to at least some access to the records. See Champaign National Bank v. Babcock, 273
Ill. App. 3d 292, 298 (1995) (holding that summaries may be used in place of producing a mass
of documents as long as the entirety of the documents is at least made accessible to the
opposing party). After producing that singular record, plaintiff, by letter dated January 31,
2013, offered defendants seven days to amend their response to the motion for summary
judgment. Plaintiff proceeded to file its reply on February 14, 2013.
¶ 14 While the parties awaited a ruling on the summary judgment motion, on February 20, 2013,
defendants filed a notice of telephonic deposition requesting to depose Mobley which also
requested that she produce the records she used to make out her affidavit. On February 26,
2013, the trial court granted plaintiff’s motion for summary judgment. On March 5, 2013,
plaintiff filed a motion to strike defendants’ outstanding discovery requests that were served 15
months earlier (some of which pertained to the issue of standing) as well as to strike the notice
of deposition served on Mobley. Plaintiff’s argument was that the discovery requests were
aimed at certain claims and defenses, including lack of standing, that had already been rejected
and, thus, that the discovery was unnecessary. Plaintiff contended that all defenses at that point
had been “forfeited.” On July 16, 2013, the trial court struck all of defendants’ outstanding
discovery requests. The order of possession was made final on October 25, 2013, ending the
case.
¶ 15 Plaintiff makes some plausible arguments in an attempt to counter the allegations made in
defendants’ affirmative defenses on the merits. But defendants never even had an opportunity
to explore their defenses. Many of plaintiff’s arguments offered to substantiate its standing
were not raised in the trial court. The evidence offered was not so conclusive that defendants
could have never raised a question of material fact. The chain of ownership and the series of
indorsements, in conjunction with the interactions of the different banking and servicing
entities and trusts, is relatively convoluted–at least something defendants were entitled to
explore. As plaintiff acknowledges, it is the plaintiff’s burden in a mortgage foreclosure case to
make out a prima facie case that it is entitled to enforce the instrument, but plaintiff also
recognizes that the defendant has the opportunity to rebut that showing. 1 Here, defendants
were denied that rebuttal opportunity.
¶ 16 The dissent does not wade into the trial court’s clear misstatement of the law, but instead
relies on the allegations that were pled by defendants at the outset of the case. Those
allegations were made without the opportunity to replead and without any of the discovery
requested, precisely because the trial court did not quarrel with the allegations that were pled,
but instead ruled that lack of standing could not be raised in an answer as a matter of law. The
dissent posits that defendants had “every opportunity” to argue their defenses. Defendants did
argue them, but the defenses were stricken at the pleading stage by an erroneous ruling. To
uphold the trial court’s action in the way plaintiff and the dissent would have us do would
require us to conclude that supplying a note, endorsed in blank, is sufficient to defeat any
1
See Pl. Br., p. 24, ¶ 2.
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fathomable defense that a borrower may have to standing, and that no set of facts could entitle
a defendant to any relief. But everyone agrees that supplying a note endorsed in blank is only
prima facie evidence of ownership that could potentially be rebutted.
¶ 17 The harm to defendants was compounded by the fact that the records apparently relied
upon by plaintiff’s affiant were never made available to defendants. Defendants were denied
the opportunity to depose the only person offering testimony against them. Without the records
and without being able to depose the affiant, defendants had no meaningful chance to
challenge the affiant’s contentions. All of the information was in plaintiff’s sole possession.
The events leading up to the trial court’s ruling essentially amounted to summary judgment by
ambush. This is especially true when defendants filed affidavits under Illinois Supreme Court
Rule 191(b) averring that they needed to conduct discovery to rebut Mobley’s attestations, but
the affidavits were not even acknowledged by the trial court.
¶ 18 The dissent would hold that there was no problem with the evidence submitted in support
of the summary judgment motion; believing that the belatedly-disclosed 11-page computer
printout that was never authenticated by the affiant is competent and sufficient to prove that
plaintiff was entitled to recover and the amount of damages. The dissent would also find that
the seven-day extension offered by plaintiff (not even the court) was a sufficient opportunity to
review the “business records” and file a counteraffidavit to challenge the evidence, therefore
“defendants were not prejudiced by plaintiff’s initial failure.” Not only are the requisite
findings and attestations to make this a business record absent, a holding that defendants
should have timely responded to this new evidence would unreasonably shift the burden to
defendants and would have required them to expediently respond to something not even
presented by motion or presented to the court at all. It was plaintiff’s burden to clearly and
appropriately demonstrate its right to recovery–to the court. Not to defendants’ counsel by fax.
Technically, the “business record” was never even made to supplement the summary judgment
motion. It was never taken into evidence and cannot support the entry of summary judgment.
¶ 19 To summarize, the trial court’s decision to not let defendants pursue any claim for lack of
standing beyond the pleading stage was an error of law. The more problematic issue with
striking the affirmative defenses at the pleading stage was that the trial judge then prevented
defendants from taking any discovery on possible defenses, or getting a clear demonstration of
plaintiff’s right to enforce the instrument. The dissent focuses extensively on defendants’
supposed failure to conduct discovery in regard to Mobley’s affidavit, but ignores plaintiff’s
failure to respond to any discovery requests, including those served in December 2012–at the
beginning stages of the case. The document requests served by defendants at that time
requested a whole host of relevant documents that defendants were denied. Of course, striking
those discovery requests after summary judgment was entered was easy. Why would
defendants need any evidence once they had already lost? The trial court’s summary judgment
order provides no reasoning for its decision, and a review of the record, even with the aid of
plaintiff’s appellate brief, fails to make clear that there is no set of facts that might entitle
defendants to some relief. It is also undeniable that plaintiff failed to prove its damages
because Mobley’s affidavit and any records it purported to authenticate should not have been
considered. At bottom, the cumulative effect of the affirmative defense being improperly
stricken, the denial of defendants’ requests for discovery, and plaintiff’s failure to produce the
evidentiary records, was that, despite being called defendants, they were denied the
opportunity to defend.
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¶ 20 Accordingly, on remand, defendants are entitled to take discovery on their challenge to
plaintiff’s standing and to replead their affirmative defense if necessary. Defendants are
likewise entitled to take discovery on the subject matter of Mobley’s affidavit.
¶ 21 CONCLUSION
¶ 22 Based on the foregoing, we reverse the trial court’s judgment.
¶ 23 Reversed and remanded.
¶ 24 JUSTICE LIU, dissenting.
¶ 25 I dissent, because the record shows that the circuit court conducted the proceedings in a
manner that allowed defendants every opportunity to raise and argue valid and well-pleaded
defenses, to engage in necessary discovery related to the alleged default and amounts due on
their loan, and to rebut the evidence that plaintiff presented in its motion for summary
judgment. During the pendency of this case, defendants successfully avoided a default
judgment despite failing to answer the complaint in a timely manner, asserted their lack of
ability to admit or deny the allegations in the complaint, had the opportunity to review the
pertinent records related to their loan payment history, and effectively stayed the proceedings
when they filed for chapter 7 bankruptcy after the circuit court entered a judgment of
foreclosure and sale. Following a review of the entire record in this case, I conclude that the
circuit court did not err in striking defendants’ affirmative defenses or in granting summary
judgment to plaintiff. I also find that the court did not abuse its discretion when it barred
defendants from proceeding with discovery requests after the judgment had been entered and
when it confirmed the judicial sale of the property.
¶ 26 In 2006, defendants executed a promissory note for $747,000; as security for this
indebtedness, defendants granted the lender a mortgage on their home. Five years later, they
failed to pay the monthly installments due on the loan. On October 18, 2011, plaintiff brought
a foreclosure lawsuit against defendants. Six months later, after plaintiff moved for a default
judgment, defendants were given additional time to appear and to respond to the complaint.
Defendants filed a motion to strike and dismiss the complaint, asserting that plaintiff failed to
specify the capacity in which it was bringing the suit as a “mortgagee.” The court denied this
motion and granted defendants some time to answer the complaint.
¶ 27 In their verified answer and affirmative defenses, defendants averred that they lacked
sufficient information to either deny or admit the allegation that they had failed to pay the
monthly installments due as of March 2011. They also asserted, as affirmative defenses, that
plaintiff lacked capacity to sue and lacked standing to bring the foreclosure case. The
affirmative defenses were later stricken. At the time plaintiff filed its motion for summary
judgment, plaintiff submitted Carolyn Mobley’s affidavit pursuant to Rule 191(a). Mobley
attested that she had determined the amounts due and owing based on her personal
examination of certain business records maintained by the loan servicing agent. No records,
however, were attached to her affidavit. In response, defendants argued that Mobley’s affidavit
was defective under Rule 191(a) because sworn and certified copies of the records on which
she relied were not attached. Defendants attested in their supporting Rule 191(b) affidavits that
they were “unable to fully respond to [Mobley’s] affidavit *** because any material facts
which ought to be in [Mobley’s] affidavit and might be included in [their] counter-affidavit”
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were not “known” to them. Defendants again averred that they “lack[ed] sufficient knowledge
to form a belief as to whether the amounts due as claimed by Plaintiff are accurate.” No other
defenses or substantive challenges to the motion–such as standing or capacity to sue–were
raised in the response.
¶ 28 While the summary judgment motion was pending, defendants served plaintiff with
interrogatories and requests to produce. The number of interrogatories, including subparts,
totaled over 60. Plaintiff did not respond to the discovery requests and, instead, responded to
defendants’ affidavits by producing a copy of the loan history records for their review.
Defendants then served a notice for Mobley’s deposition. A dispute arose between the parties
regarding the notice of deposition and the discovery requests, and the parties’ counsel engaged
in 201(k) conferences to resolve the dispute.
¶ 29 On February 26, 2013, the court entered summary judgment and a judgment of foreclosure
and sale in favor of plaintiff. The amounts due and owing for principal, interest, charges, and
legal fees and costs, as stated in the judgment of foreclosure and sale, totaled $830,828.69 and
were consistent with the figures set forth in Mobley’s affidavit. Following the entry of
judgment, plaintiff moved to strike the outstanding discovery requests; defendants moved to
compel discovery responses and Mobley’s deposition. The court entered an order striking the
defendants’ discovery requests and the deposition notice and barred defendants from
propounding further discovery without leave of the court. On October 25, 2013, the court
entered an order confirming the July 28, 2013 judicial sale of the property.
¶ 30 Order Striking Affirmative Defenses
¶ 31 Based on my review of the record, I find no error in the order striking the affirmative
defenses as to (i) lack of capacity and (ii) lack of standing. I differ with the circuit court,
however, as to the grounds for striking the standing defense as a matter of law. Nonetheless,
we review de novo the court’s judgment, and even if “the court was incorrect as to [a]
particular issue, we may affirm the decision of the trial court to grant summary judgment on
any basis in the record, regardless of whether it relied on that ground or whether its reasoning
was correct.” Castro v. Brown’s Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 552 (2000).
¶ 32 According to defendants, plaintiff lacked capacity to sue on the note because its name is
listed in SEC filings as “Banc of America Funding 2007-2 Trust,” not Bank of America
Funding Corporation (BAFC) 2007-2 Trust. Defendants cannot prevail on this assertion
because, unlike an affirmative defense, a misnomer is “not a ground for dismissal” and “may
be corrected at any time, before or after judgment, on motion, upon any terms and proof that
the court requires.” 735 ILCS 5/2-401(b) (West 2012). In addition, defendants’ assertion that
plaintiff is not an entity authorized to transact business in Illinois under the Business
Corporation Act of 1983 (Act) (805 ILCS 5/1.01 et seq. (West 2012)) lacks sufficient factual
support. It is apparent from the mortgage and note that are attached to the complaint that
plaintiff was a foreign corporation conducting interstate commerce. Therefore, it was not
required to obtain a certificate of authority under the Act. Bank of America, N.A. v. Ebro
Foods, Inc., 409 Ill. App. 3d 704, 710 (2011). Defendants’ challenge to plaintiff’s lack of
capacity to sue fails to raise any allegations that would defeat the presumption of this
exemption.
¶ 33 Additionally, defendants’ challenge based on lack of standing was also deficient because it
failed to raise a challenge to plaintiff’s status as a mortgagee. Plaintiff has standing to enforce
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the note because it is the legal holder of the indebtedness. 735 ILCS 5/15-1504(a)(3)(N) (West
2012); see Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 7
(2010); 735 ILCS 5/15-1208 (West 2012) (defining a “mortgagee” as the holder of an
indebtedness). “The mere fact that a copy of the note [was] attached to the complaint [was]
itself prima facie evidence that the plaintiff own[ed] the note.” Parkway Bank & Trust Co. v.
Korzen, 2013 IL App (1st) 130380, ¶ 24. Here, the note contained specific endorsement from
the original lender to American Home Mortgage and a blank endorsement by American Home
Mortgage. Therefore, plaintiff is the legal holder, absent evidence to the contrary. The 2006
note is a negotiable instrument, and a note endorsed in blank is payable to the bearer. 810 ILCS
5/3-205(b) (West 2012). Because plaintiff acquired the rights as the “bearer” of the note, it has
standing to enforce the note as the holder of the indebtedness. 810 ILCS 5/3-201(a) (West
2012). Defendants’ claim that these endorsements are not clearly visible or legible is
unavailing. They could have requested an opportunity to inspect the original note; it is not an
uncommon practice for a lender’s counsel in a foreclosure proceeding to present the original
note for review in open court or at counsel’s office.
¶ 34 Defendants also claim that plaintiff lacked standing because it failed to comply with the
Pooling and Servicing Agreement (PSA) with respect to the assignment of the note and
mortgage. Without a third-party beneficiary status, “a litigant lacks standing to attack an
assignment to which he or she is not a party.” Bank of America National Ass’n v. Bassman
FBT, L.L.C., 2012 IL App (2d) 110729, ¶ 15. Under Bassman, plaintiff’s actions are, at most,
voidable, not void; and defendants, therefore, lack standing to challenge the assignment. Id.
¶ 21. For the foregoing reasons, I therefore would affirm the order striking defendants’
affirmative defenses.
¶ 35 Order Granting Summary Judgment
¶ 36 I agree with the circuit court’s award of summary judgment in this case. Defendants failed
to file any counteraffidavit to dispute the liability and damages asserted by plaintiff, after
obtaining the documentation, i.e., loan history records, that Mobley purportedly reviewed
before attesting to defendants’ delinquency in the Rule 191 affidavit. I also find that defendants
were not prejudiced by plaintiff’s initial failure to attach these business records to Mobley’s
affidavit, because defendants ultimately had the opportunity to review them and to assert any
issue of material fact in a supplemental response to the motion. The complained-of defect in
Mobley’s affidavit–involving the failure to attach the records on which she relied–was
effectively cured when plaintiff’s counsel tendered a set of business records to defendants’
counsel for review. Defendants had an opportunity, at that time, to amend their response prior
to the hearing on the summary judgment motion. At that time, it became incumbent on
defendants to present counteraffidavits in opposition to the motion in order to create a genuine
issue of material fact to defeat summary judgment. PNC Bank, National Ass’n v. Zubel, 2014
IL App (1st) 130976, ¶ 21. Defendants, however, presented no evidence to rebut either the
allegation of their default on the loan or the amount that was allegedly due and owing. Here,
plaintiff submitted the affidavit of Mobley to establish that defendants owed $803,378.79 in
principal, accrued interest, and charges as of August 30, 2012. If defendants disputed the
alleged liability and the amount due on the note according to Mobley after reviewing the
business records, they should have filed a counteraffidavit challenging the amounts in dispute.
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¶ 37 Furthermore, defendants did not assert their defenses related to standing or capacity to sue
in their response to the summary judgment motion. The fact that the affirmative defenses were
stricken did not preclude defendants from raising them as affirmative matters in opposition to
the summary judgment motion. Aurora Bank FSB v. Perry, 2015 IL App (3d) 130673, ¶ 20.
Because defendants ultimately raised no issue of material fact as to liability and damages,
summary judgment was proper.
¶ 38 Order Quashing Notice of Deposition and Striking Discovery
¶ 39 The majority concludes that the circuit court erred in striking defendants’ discovery
requests on the basis that defendants were unable to assert an adequate defense because their
affirmative defenses were stricken and they had no access to the loan records that Mobley
relied on in preparing her affidavit. The circuit court’s ruling on discovery matters are
reviewed for an abuse of discretion. Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002).
See Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 34 (according “great
deference” to trial court’s resolution of a discovery dispute).
¶ 40 Defendants were notified of the damages that plaintiff sought to recover on the delinquent
loan as early as April of 2012, when plaintiff submitted a prove-up affidavit in support of its
motion for default and judgment of foreclosure and sale. Four months later, in their verified
answer and affirmative defenses, defendants represented that they lacked sufficient
information to either admit or deny that they failed to pay the monthly installments due on the
loan and, similarly, could not admit or deny that they owed plaintiff the alleged damages pled
in the complaint. Again, during the summary judgment proceedings, plaintiff provided them a
copy of the business records that contained the requested information. At that time, defendants
were given the business records necessary to rebut evidence of the default and damages and
should have determined whether there were specific payments, credits, assessments, penalties,
fees or other amounts in dispute; they could have then sought discovery related specifically to
a disputed material fact in the case. Instead, they waited until the summary judgment motion
was pending before seeking discovery on the default and damages. And when they did, they
filed over 60 interrogatories, including subparts, well in excess of the limited number (30) of
interrogatories that a party is permitted to propound absent an agreement or leave of the court.
Ill. S. Ct. R. 213(c) (eff. Jan. 1, 2007). The court did not abuse its discretion when it struck the
discovery requests and quashed the notice of deposition after summary judgment and the
judgment of foreclosure and sale had been entered. See Korzen, 2013 IL App (1st) 130380,
¶ 60 (affirming denial of postjudgment discovery request because “when the [judgment of]
foreclosure has been entered, the defendant has lost the case for all intents and purposes”).
¶ 41 Under the circumstances, I find that the court did not abuse its discretion in striking
defendants’ request to depose Mobley and defendants’ discovery requests after the court ruled
on the motion for summary judgment and entered a judgment of foreclosure and sale.
¶ 42 Order Confirming the Sale
¶ 43 Lastly, I find that the court did not abuse its discretion in confirming the judicial sale. The
entry of an order confirming the sale is reviewed for an abuse of discretion. CitiMortgage, Inc.
v. Moran, 2014 IL App (1st) 132430, ¶ 25. Section 15-1508(b) of the Illinois Mortgage
Foreclosure Law provides:
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“Unless the court finds that (i) a notice required in accordance with subsection (c) of
Section 15-1507 was not given, (ii) the terms of sale were unconscionable, (iii) the sale
was conducted fraudulently, or (iv) justice was otherwise not done, the court shall then
enter an order confirming the sale.” 735 ILCS 5/15-1508(b) (West 2012).
Defendants do not assert that the first three grounds apply here. The only issue, therefore, is
whether “justice was otherwise not done.” Id. In Wells Fargo Bank, N.A. v. McCluskey, 2013
IL 115469, ¶ 26, the supreme court explained the test vacating a sale under the fourth basis:
“To vacate both the sale and the underlying default judgment of foreclosure, the
borrower must not only have a meritorious defense to the underlying judgment, but
must establish under section 15-1508(b)(iv) that justice was not otherwise done
because either the lender, through fraud or misrepresentation, prevented the borrower
from raising his meritorious defenses to the complaint at an earlier time in the
proceedings, or the borrower has equitable defenses that reveal he was otherwise
prevented from protecting his property interests.”
¶ 44 Here, defendants have not asserted that, due to fraud or misrepresentation, they were
prevented from raising meritorious defenses earlier in the proceedings; indeed, they did raise
their defenses earlier and they were stricken. They also do not assert any equitable defenses.
Under the circumstances, I would find that the court properly confirmed the judicial sale.
¶ 45 For the reasons stated, I respectfully dissent.
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