978-1285770178 Case Printout Case CPC-12-08

Unlock access to all the studying documents.

View Full Document

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except

Eligio V. GAITAN, Defendant–Appellee,

Mortgage Electronic Registration Systems, Inc., HSBC Mortgage Services, Unknown Owners, and Non–Record,

Claimants–Defendants.

ORDER

Justice SPENCE delivered the judgment of the court:

Held: The trial court did not err in granting summary judgment for plaintiff and entering a foreclosure judgment

in its favor, as: plaintiff had standing to bring the foreclosure suit; the trial court did not abuse its discretion in con–

sidering an affidavit attached to plaintiff’s amended motion for summary judgment; the failure to provide proper

sure judgment because: (1) plaintiff lacked standing to bring the suit; (2) the affidavit attached to plaintiff’s motion

for summary judgment was improper; (3) defendant did not receive notice of the motion; and (4) an affidavit plain-

the subject property and had not been served. On March 30, 2007, the parties agreed to the entry of an order vacat-

ing the default order and foreclosure judgment. The agreed order also provided that defendant was submitting to the

court’s jurisdiction.

Procedure (735 ILCS 5/2–619 (West 2006)). He alleged that plaintiff did not have legal capacity or standing to sue

because the mortgage and note showed Encore Credit Corporation (Encore) as the lender of the sum claimed by

plaintiff, and the complaint had no attached assignment or chain of assignments. Defendant also alleged that plaintiff

did not provide him with the notice of default and acceleration as required by the mortgage. Defendant attached an

affidavit stating that he did not receive a notice of acceleration from plaintiff prior to the suit’s filing; the copy of the

out prejudice, giving defendant leave to replead, which he did on May 23, 2008. Plaintiff moved to strike the

amended lack-of–standing defense, and the trial court granted the motion “with prejudice” on October 27, 2008. De-

fendant moved to reconsider the dismissal on November 26, 2008, and the trial court denied the motion January 5,

2009, “for the reasons stated by the Court on the record.”

¶ 9 On January 22, 2009, attorney Roger Clark filed a motion to allow the appearance of John Koziel as substi-

tute counsel for defendant. The trial court granted the motion the next day.

¶ 10 On April 15, 2009, defendant moved to compel outstanding discovery requests. The trial court denied the

motion on November 18, 2009, on the basis that defendant failed to attach copies of the allegedly defective respons-

endorsed in blank is payable to the bearer and may be negotiated by transfer of possession alone, giving the transfer-

ee the right to enforce the note and mortgage by which the note was secured. Plaintiff further argued that its affidavit

established defendant’s failure to make payment on the note when due and also established the current balance due.

gued that plaintiff failed to call the motion for a hearing within 60 days as required by local court rules. Defendant

also filed a motion to compel discovery.

¶ 14 On April 26, 2010, the trial court ordered plaintiff to comply with certain discovery requests. On December

14, 2010, defendant moved for sanctions based on plaintiff’s failure to comply with discovery orders. The trial court

default or acceleration.

¶ 16 Defendant filed a response to plaintiff’s motion for summary judgment on May 11, 2011. He argued that

the motion was not properly before the court because it was served on attorney Clark after he had withdrawn, in–

stead of attorney Koziel. Defendant also argued that plaintiff’s affidavit was made by an employee of Wells Fargo, a

due in part to plaintiff’s presentation of the note and mortgage in open court, which were not found to be deficient.

Plaintiff further argued that defendant did not offer any counter-affidavit to plaintiff’s affidavit and therefore could

not contest all wellpleaded, uncontradicted facts. Plaintiff argued that the affidavit was based upon the affiant’s per–

sonal knowledge and included copies of the payment history, indorsed note, and mortgage on which she relied.

Plaintiff also argued that although defendant claimed that he did not receive required notices of default and accelera–

judgment. The affidavit was from Lindsay Andersen, who stated that she was the vice president of loan documenta-

tion at Wells Fargo, America’s Servicing Company, the service agent for plaintiff. She attested that currently and

prior to the commencement of the action, Wells Fargo serviced defendant’s loan, and business records showed that

judgment of foreclosure and sale in plaintiff’s favor. The order contained an Illinois Supreme Court Rule 304(a)

(eff.Feb.26, 2010) finding that there was no reason to delay the enforcement or appeal of the order. Defendant time-

ly appealed.

¶ 21 II. ANALYSIS

¶ 24 B. Standing

¶ 25 Turning to the merits, defendant first argues that plaintiff lacked standing to bring the foreclosure com-

plaint. Defendant maintains that plaintiff has no legally-recognized interest in the note that is the subject of the suit.

Defendant argues that the note is not bearer paper and that plaintiff produced no evidence of transfer or negotiation

prejudice” on October 27, 2008. Although defendant thereafter moved to reconsider the dismissal, the trial court

denied the motion January 5, 2009, “for the reasons stated by the Court on the record.” On appeal, defendant has not

argued that the trial court erred in striking his amended affirmative defense of lack of standing, thereby forfeiting the

issue for review. Ill. S.Ct. R. 341(h)(7) (eff. July 1, 2008) (points not argued are forfeited).

not state a payee, and it is payable to “order” if it is payable to an identified person.FN1 810 ILCS 5/3–109 (West

2004).

Krilich v. Millikin Mortgage Co., 196 Ill.App.3d 554, 563, 143 Ill.Dec. 487, 554 N.E.2d 422 (1990) (adjustable rate

note subject to mortgage agreement and rider was a negotiable instrument).

¶ 29 A “holder” of a negotiable instrument is the person possessing the negotiable instrument if the instrument

is payable either to bearer or to that person. 810 ILCS 5/1–201(20)(West 2004). As the note here was payable to

that person. 810 ILCS 5/3–205(a) (West 2004). If the holder indorses the instrument and does not make a special

indorsement, it is a “ ‘blank indorsement.” ’ 810 ILCS 5/3–205(b) (West 2004). In such a scenario, the instrument

becomes payable to bearer and may be negotiated by transfer or possession alone until specially indorsed. Id. This

type of instrument can be labeled as “bearer paper,” which is defined as “[a]n instrument payable to the person who

holds it rather than to the order of a specific person.” Black’s Law Dictionary 1135 (7th ed.1999).

¶ 31 In his reply brief, defendant disputes the authenticity of the photocopies of the indorsements on the note.

However, plaintiff stated in several pleadings that it brought the original note to court. As the appellant, defendant

has the burden to provide a sufficiently complete record of trial proceedings to support his claims of error, and the

reviewing court will resolve any doubts that arise from the incompleteness of the record against him. Foutch v.

O’Bryant, 99 Ill.2d 389, 391–92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984). As defendant did not provide any tran–

the blank indorsement into a special indorsement and making Impac the instrument‘s holder. See 810 ILCS 5/1–

201(20)(West 2004). Impac then indorsed the note in blank, once again making the instrument bearer paper enforce-

able by the party in possession. See 810 ILCS 5/3–205(b) (West 2004). As we must assume that plaintiff did bring

indorsement appearing upon a bill or note will be presumed valid.”). Thus, as plaintiff showed possession of the note

indorsed in blank, it was the holder of the note and was entitled to enforce the note.

¶ 33 “The assignment of a mortgage note carries with it an equitable assignment of the mortgage by which it

was secured.” Federal National Mortgage Ass’n v. Kuipers, 314 Ill.App.3d 631, 635, 247 Ill.Dec. 668, 732 N.E.2d

¶ 35 Defendant additionally argues that plaintiff did not support its amended motion for summary judgment

with an affidavit of an employee, but rather an employee of Wells Fargo. Defendant argues that the affidavit con-

tained no foundation as to personal knowledge, “aside from the evidence used not being produced prior to the sanc-

tion order.”

¶ 37 The decision to strike a Rule 191 affidavit is generally within the trial court’s sound discretion. Pekin In-

surance Co. v. Precision Dose, Inc., 2012 IL App (2d) 110195, ¶ 33, 360 Ill.Dec. 171, 968 N.E.2d 664. We note that

while defendant did not move to strike the affidavit in question, he did discuss the affidavit’s alleged deficiencies in

his responses to plaintiff’s motion for summary judgment, thereby arguably preserving the issue for review. Cf.

had personal knowledge of the facts in the affidavit derived from her review of plaintiff’s business records; plaintiff

had possession of the note; an attached exhibit showed all payments and charges for the note; and the exhibit was

created and stored in the normal course of plaintiff’s business. Padmore signed the affidavit under the title of vice

was not served with notice of the motion, as required by Illinois Supreme Court Rules 11 (eff.Dec.29, 2009) and 12

(eff.Dec.29, 2009).

¶ 41 Plaintiff admits that it mistakenly served defendant’s prior attorney but argues that any error is harmless

under the facts of this case. We agree. The failure to provide notice of a motion makes the trial court’s resulting or-

he will lose his property to foreclosure. However, the prejudice must result from not timely receiving notice of the

motion, rather than the result of the ruling on the motion itself. In Marzano, this court found that the defendant did

not show prejudice where she did “not explain with any particularity how her preparation was compromised by the

inadequate notice.” Id. This is all the more true here, where defendant was clearly aware of the motion when he

moved to strike it in February 2010; the briefing schedule spanned many months in the following year; the trial court

material in support of showing notice and that he “properly complained of the use of barred material but the Trial

Court in error allowed said barred evidence.”

¶ 45 Plaintiff argues that defendant’s affidavit is inadmissible to support or rebut a motion for summary judg-

ment because it is unsigned. See Kohls v. Maryland Casualty Co., 144 Ill.App.3d 642, 645, 98 Ill.Dec. 847, 494

states that all notices “shall be deemed to have been given to Borrower when mailed by first class mail or when ac–

tually delivered to Borrower’s notice address if sent by other means”), and defendant’s statement that he did not re–

ceive the notice is not evidence that it was not mailed.

ments on his loan.

¶ 48 Although defendant argues that the trial court improperly considered this affidavit in light of the February

2011 sanction order barring plaintiff from producing any new evidence, the lack of a transcript of the summary

judgment proceeding hinders our review of this issue. Without the transcript, we are unable to review the trial court’s

¶ 49 III. CONCLUSION

¶ 50 For the reasons stated, we affirm the judgment of the Du Page County circuit court.

¶ 51 Affirmed.

END OF DOCUMENT