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Appellate Court Date: 2021.03.25
10:56:47 -05'00'
U.S. Bank, National Ass’n v. Reinish, 2020 IL App (2d) 190175
Appellate Court U.S. BANK, NATIONAL ASSOCIATION, as Legal Title Trustee for
Caption Truman 2016 SC Title Trust, Plaintiff-Appellee, v. SUSAN M.
REINISH, Defendant-Appellant.
District & No. Second District
No. 2-19-0175
Rule 23 order filed April 1, 2020
Motion to
publish allowed April 21, 2020
Opinion filed April 21, 2020
Decision Under Appeal from the Circuit Court of Lake County, No. 17-CH-1336; the
Review Hon. Luis A. Berrones, Judge, presiding.
Judgment Affirmed.
Counsel on Richard D. Grossman, of Chicago, for appellant.
Appeal
Julie L. DeJong, of Codilis & Associates, P.C., of Burr Ridge, for
appellee.
Panel JUSTICE BRENNAN delivered the judgment of the court, with
opinion.
Presiding Justice Birkett and Justice Zenoff concurred in the judgment
and opinion.
OPINION
¶1 Defendant, Susan M. Reinish, appeals from the trial court’s order granting summary
judgment for plaintiff, U.S. Bank, National Association, as Legal Title Trustee for Truman
2016 SC Title Trust (U.S. Bank). For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 On May 19, 2006, Reinish executed a promissory note payable to World Savings Bank,
FSB, in the amount of $658,000. The note was secured by a mortgage on Reinish’s property
at 105 Sequoia Lane, Deerfield. Reinish defaulted on her obligation to make monthly
payments, beginning on May 1, 2017, and for each month thereafter. On October 2, 2017,
Wells Fargo Bank, N.A., as successor by merger to Wachovia Mortgage, FSB, formerly known
as World Savings Bank, filed a complaint to foreclose on Reinish’s mortgage. U.S. Bank was
substituted as plaintiff on February 9, 2019; we will refer to the bank mortgagees collectively
as “U.S. Bank.” In her answer, filed on March 21, 2018, Reinish generally denied the
complaint’s written allegations.
¶4 On May 3, 2018, U.S. Bank moved for summary judgment, and on August 22, 2018,
Reinish filed a memorandum in opposition. Reinish argued for the first time that U.S. Bank
had not sent her a notice of acceleration. She claimed that sending such notice was a condition
precedent to U.S. Bank filing a complaint for foreclosure and that, since it did not send her the
required notice, it had no enforceable right to foreclose. Reinish filed an affidavit stating that
she had never received any notice of acceleration.
¶5 On September 13, 2018, U.S. Bank filed a reply in support of its motion for summary
judgment, asserting that the mortgage contract did not require a notice of acceleration because
Reinish defaulted on her obligation to make monthly mortgage payments. It further asserted
that Reinish’s argument had been otherwise forfeited because she failed to address the issue in
her answer to the complaint. U.S. Bank argued that a mere denial that a notice of acceleration
had been received was insufficient to create a genuine issue of material fact.
¶6 The mortgage provisions underlying the notice-of-acceleration claims are contained in
paragraphs 26 and 27 of the mortgage, and they read as follows:
“26. AGREEMENTS ABOUT LENDER’S RIGHTS IF THE PROPERTY IS
SOLD OR TRANSFERRED:
Acceleration of Payment of Sums Secured. Lender may, at its option, require
immediate payment in full of all Sums Secured by the Security Instrument if all or any
part of the Property, or if any right in the Property, is sold or transferred without
Lender’s prior written permission. Lender also may, at its option, require immediate
payment in full if Borrower is not a natural Person and a beneficial interest in Borrower
is sold or transferred without Lender’s prior written permission. However, Lender shall
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not require immediate payment in full if this is prohibited by Federal Law in effect on
the date of the Security Instrument.
If Lender exercises the option to require immediate payment in full, Lender will
give me notice of acceleration. If I fail to pay all Sums Secured by this Security
Instrument immediately, Lender may then or thereafter invoke any remedies permitted
by this Security Instrument without further notice to or demand on me.
27. RIGHTS OF THE LENDER IF THERE IS A BREACH OF DUTY
It will be called a ‘Breach of Duty’ if (i) I do not pay the full amount of each payment
on the date it is due; or (ii) I fail to perform any of the promises or agreements under
the Note or this Security Instrument; or (iii) any statement made in my application for
this loan was materially false and misleading or if any statement in my application for
this loan was materially false or misleading by reason of my omission of certain facts;
or (iv) I have made any other statement to Lender in connection with this loan that is
materially false or misleading. If there is a Breach of Duty by me, Lender may demand
an immediate payment of all sums secured.” (Emphases added.)
¶7 On September 26, 2018, the trial court heard argument on the motion for summary
judgment and ultimately granted the motion. The property was sold at a judicial foreclosure
sale on January 8, 2018, and the sale was confirmed without objection. Reinish timely
appealed.
¶8 II. ANALYSIS
¶9 On appeal, Reinish’s sole argument is that the trial court erred in granting U.S. Bank’s
motion for summary judgment because there existed a genuine issue of material fact as to
whether U.S. Bank complied with the mortgage contract’s condition precedent that it provide
a notice of acceleration. In response, U.S. Bank argues that Reinish forfeited this issue because
she failed to deny the deemed allegation that proper notice was given, which operated to
judicially admit notice of acceleration, pursuant to section 15-1504(c) of the Illinois Mortgage
Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1504(c) (West 2018)) and Illinois
Supreme Court Rule 133(c) (eff. July 1, 1982). In the alternative, U.S. Bank contends that the
mortgage did not require a notice of acceleration because, as here, the borrower defaults by
reason of nonpayment. Reinish disagrees with this interpretation of the mortgage.
¶ 10 Summary judgment is properly granted where the pleadings, depositions, and admissions
on file, together with any affidavits, indicate that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018).
The purpose of summary judgment is not to answer a question of fact, but to determine whether
one exists. Ballog v. City of Chicago, 2012 IL App (1st) 112429, ¶ 18. Although a drastic
means of disposing of litigation, summary judgment is, nonetheless, an appropriate measure to
efficiently dispose of a suit when the moving party’s right to the judgment is clear and free
from doubt. Gaston v. City of Danville, 393 Ill. App. 3d 591, 601 (2009). When reviewing a
ruling on a motion for summary judgment, we conduct de novo review. Coleman v. East Joliet
Fire Protection District, 2016 IL 117952, ¶ 20.
¶ 11 Our review of U.S. Bank’s foreclosure complaint discloses that it scrupulously followed
the format prescribed in section 15-1504(a) of the Foreclosure Law (735 ILCS 5/15-1504(a)
(West 2018)). Where, as here, the complaint follows the prescribed format, it is statutorily
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“deemed and construed to include” certain allegations, even where not specifically set forth in
the complaint. Id.; see also Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380,
¶ 43. Among these deemed allegations, set forth in section 15-1504(c) is:
“(9) that any and all notices of default or election to declare the indebtedness due
and payable or other notices required to be given have been duly and properly given.”
735 ILCS 5/15-1504(c)(9) (West 2018).
¶ 12 Simply put, because U.S. Bank’s foreclosure complaint conformed to the format prescribed
in section 15-1504(a), it is deemed to allege that U.S. Bank provided Reinish a notice of
acceleration. Id. Assuming then, as Reinish contends, that a notice of acceleration was a
condition precedent to U.S. Bank moving forward with foreclosure, and having found that U.S.
Bank properly pled that it provided said notice pursuant to section 15-1504(c)(9)’s deemed-
inclusion provision, we next turn to the interplay between Reinish’s answer to U.S. Bank’s
complaint and Rule 133(c) and section 2-610(b) of the Code of Civil Procedure (735 ILCS 5/2-
610(b) (West 2018)).
¶ 13 Illinois Supreme Court Rule 133(c) (eff. July 1, 1982) provides:
“Condition Precedent. In pleading the performance of a condition precedent in a
contract, it is sufficient to allege generally that the party performed all the conditions
on his part; if the allegation be denied, the facts must be alleged in connection with the
denial showing wherein there was a failure to perform.”
¶ 14 When interpreting Rule 133(c), Illinois courts have repeatedly held that, where a complaint
for breach of contract alleges the performance of a condition precedent, the failure to deny the
same with specific facts in a party’s responsive pleading results in a forfeiture of the issue of
whether the condition precedent was performed. See Bank of New York Mellon v. Wojcik, 2019
IL App (1st) 180845, ¶ 21. Indeed, under such circumstances, the nonspecific denial is deemed
a judicial admission that cannot later be disputed to defeat a motion for summary judgment.
Id. ¶ 23.
¶ 15 Our review of Reinish’s answer to U.S. Bank’s complaint discloses that she neither denied
receiving notice of acceleration, nor filed an affirmative defense claiming lack of notice.
Accordingly, under Rule 133(c), Reinish is deemed to have judicially admitted U.S. Bank’s
allegation that proper notice was provided.
¶ 16 Moreover, we reach a similar determination by applying section 2-610(b) of the Code of
Civil Procedure, which provides:
“Every allegation, except allegations of damages, not explicitly denied is admitted,
unless the party states in his or her pleading that he or she has no knowledge thereof
sufficient to form a belief, and attaches an affidavit of the truth of the statement of want
of knowledge, or unless the party has had no opportunity to deny.” 735 ILCS 5/2-
610(b) (West 2018).
¶ 17 Thus, by not denying this allegation in the complaint, Reinish judicially admitted that she
received a notice of acceleration, and she could not properly assert a contrary position in
opposition to U.S. Bank’s motion for summary judgment.
¶ 18 To escape the above analysis, Reinish urges reliance on the decision in Cathay Bank v.
Accetturo, 2016 IL App (1st) 152783, where the court reversed a summary judgment order in
a mortgage foreclosure case. We find this reliance to be misplaced. In Accetturo, summary
judgment was reversed, not because the trial court relied upon the mortgagor’s failure to deny
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notice in answering the foreclosure complaint, but because the court improperly struck the
timely filed and properly pled affirmative defenses, claiming that the provided acceleration
notices were insufficient under the mortgage contract. Id. ¶ 47. Accordingly, the holding in
Accetturo is of no avail to Reinish.
¶ 19 Given that failure to provide a notice of acceleration is Reinish’s sole basis for asserting
that there was a genuine issue of material fact precluding entry of summary judgment, and
further given this court’s conclusion that Reinish has forfeited this argument, the trial court
correctly granted summary judgment in U.S. Bank’s favor.
¶ 20 Forfeiture aside, we also find that that the clear language of Reinish’s mortgage
demonstrates that a notice of acceleration was not required because the breach underlying the
foreclosure is Reinish’s failure to make payments.
¶ 21 A mortgage is a contract between the immediate parties. Resolution Trust Corp. v.
Holtzman, 248 Ill. App. 3d 105, 111 (1993). The main objective in construing a contract is to
give effect to the intent of the parties. Gallagher v. Lenart, 226 Ill. 2d 208, 232 (2007). Thus,
when construing the language of a contract, we give terms their plain and ordinary meaning.
Hunt v. Farmers Insurance Exchange, 357 Ill. App. 3d 1076, 1078 (2005). If a term that is
undefined by the contract has a plain and ordinary meaning, the term should be enforced as
written. Id. at 1078-79. Since words derive their meaning from context, the provisions of a
contract must be looked at as a whole. Gallagher, 226 Ill. 2d at 233.
¶ 22 A reading of the mortgage makes clear that paragraphs 26 and 27 address Reinish’s
different rights depending on her action or inaction. Paragraph 26 is titled “Agreements About
Lender’s Rights if the Property is Sold or Transferred,” and it obligates the lender to provide a
notice of acceleration as a condition precedent for foreclosure under this circumstance. Of
course, this situation did not occur here.
¶ 23 Paragraph 27 is titled “Rights of the Lender if There is a Breach of Duty.” One breach of
duty specifically delineated in paragraph 27 is the failure to make a mortgage payment in full
on the day it is due―the breach Reinish committed. The notice-of-acceleration condition found
in paragraph 26 does not apply to such a breach. Reinish asks us to disregard the headings for
paragraphs 26 and 27 and construe the paragraphs together to find an obligation to provide a
notice of acceleration under all the circumstances listed in both paragraphs. Doing so, however,
would ignore the plain and ordinary meaning of the terms in the contract and create an
obligation that clearly was not intended. For these reasons, were Reinish’s notice claim not
otherwise forfeited, we would nevertheless find that the trial court properly granted summary
judgment for U.S. Bank.
¶ 24 III. CONCLUSION
¶ 25 In sum, when Reinish failed, in her answer, to deny the deemed allegation that U.S. Bank
had sent her all proper notices, she forfeited the issue of whether U.S. Bank failed to comply
with a condition precedent in the mortgage contract. Forfeiture aside, a plain reading of the
mortgage makes clear that a notice of acceleration was not required because Reinish breached
her duty to make timely mortgage payments. For those reasons, the trial court’s order granting
U.S. Bank summary judgment is affirmed.
¶ 26 The judgment of the circuit court of Lake County is affirmed.
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¶ 27 Affirmed.
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