U.S. Bank Trust National Association v. Junior , 2016 IL App (1st) 152109 ( 2016 )

2016 IL App (1st) 152109FIFTH DIVISION
June 24, 2016
No. 1-15-2109
U.S. BANK TRUST NATIONAL ASSOCIATION, Not in ) Appeal from the
Its Individual Capacity but Solely as Owner Trustee for ) Circuit Court of
Newlands Asset Holding Trust, ) Cook County
)
Plaintiff-Appellee, )
) No. 13 CH 28475
v. )
)
NATALIE JUNIOR and MARVIN JUNIOR, ) Honorable
) Pamela M. Meyerson,
Defendants-Appellants. ) Judge Presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
Justice Lampkin concurred in the judgment and opinion.
Justice Gordon dissented, with opinion.
OPINION
¶1 Defendants Natalie and Marvin Junior, pro se, appeal from the circuit court of Cook
County’s order approving the sale of their property in a judicial foreclosure action. 1 On appeal,
defendants contend that the Illinois mortgage foreclosure procedures violate due process. For the
reasons that follow, we affirm the judgment of the circuit court.
1
We observe that defendants’ brief indicates they are appealing the order granting
summary judgment in favor of the plaintiff. No such order exists in the record. Defendants’ reply
as well as the notice of appeal, however, state they are seeking a reversal of the circuit court’s
“final judgment,” which, in foreclosure cases, procedurally would be the order approving the
sale. See Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶ 12.
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¶2 BACKGROUND
¶3 Initially, we note that defendants represented themselves in the proceedings below. No
transcript of the proceedings is included in the record on appeal. Accordingly, the facts recited
herein are derived from the documents filed with the circuit court and included in the record on
appeal.
¶4 This matter commenced as a mortgage foreclosure action pursuant to the Illinois
Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2014)).
JPMorgan Chase Bank, N.A. (JPMorgan), initially filed the complaint on December 30, 2013,
alleging defendants were in default for failure to make payments toward the mortgage on the
property located at 15616 S. Ridgeway Avenue in Markham (the property). Attached to the
complaint were copies of the mortgage and the note, which included a chain of indorsements
from their original mortgage lender, First Home Mortgage Corporation to JPMorgan. The note
was also indorsed in blank. The complaint also included copies of three loan modification
agreements; the most recent being executed on January 18, 2013, between defendants and
JPMorgan.
¶5 On March 4, 2014, defendants were present at a case management conference and were
provided until April 1, 2014, to file an appearance and answer or otherwise plead.
¶6 Defendants did not file an appearance. On August 7, 2014, however, defendants filed a
document entitled “Counter Claim” with the circuit court. In this document, defendants generally
alleged that: (1) JPMorgan is not the holder of the note; (2) “[t]he original 13th Amendment to
our Constitution has been illegally removed from publication”; (3) JPMorgan knowingly filed
fraudulent documents with the court to expedite the foreclosure; (4) JPMorgan violated the Truth
in Lending Act; (5) JPMorgan violated New Jersey business law; (6) JPMorgan violated New
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Jersey banking law; and (7) JPMorgan did not comply with the National Housing Act (12 U.S.C.
§ 1701 et seq. (2012)). Defendants also made discovery requests for production of such items as
the original promissory note, the “call reports,” and the “original order.” The record does not
indicate whether defendants were granted leave to file this document.
¶7 On August 8, 2014, the circuit court found defendants to be in default and entered a
judgment of foreclosure and sale. Thereafter, on August 10, 2014, Marvin filed a motion to
vacate the judgment of foreclosure on behalf of defendants, arguing that they were not present in
court when the judgment was entered and, generally, that there is a defense to the foreclosure
action. The circuit court denied the motion, but did not provide a basis for its ruling.
¶8 On January 7, 2015, JPMorgan filed a motion to substitute party plaintiff from JPMorgan
to U.S. Bank Trust National Association (U.S. Bank).
¶9 On January 13, 2015, defendants filed a “Writ in the Nature of Discovery,” which set
forth generalized statements citing to the Uniform Commercial Code (810 ILCS 5/1-101 et seq.
(West 2014)) and the Truth in Lending Act (15 U.S.C. § 1601 et seq. (2014)). The document also
contained requests for numerous items of discovery.
¶ 10 On February 10, 2015, defendants filed a three-page document in which they maintained
there is a “missing 13th Amendment” which prohibits lawyers from serving in government, and,
therefore, the court did not have subject matter jurisdiction over the foreclosure action.
¶ 11 The property was subsequently sold at a judicial sale on March 20, 2015, pursuant to the
judgment of foreclosure previously entered on August 8, 2014. On March 24, 2015, JPMorgan
filed two motions to strike the documents filed on January 13 and February 10, 2015, with
prejudice. Neither of these documents were noticed for presentment before the court. Thereafter,
JPMorgan filed a motion to confirm the sale. On June 10, 2015, the circuit court granted
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JPMorgan’s motion and struck the two documents. The circuit court also entered a briefing
schedule on the motion to confirm the sale. In addition, the court, having not yet ruled on the
motion to substitute plaintiff, requested that JPMorgan provide the court with the documents
supporting its motion.
¶ 12 Defendants’ response to the motion to confirm the sale was similar in form and substance
to their prior filings. Defendants argued that they had been requesting discovery documents for a
year and a half, that JPMorgan had not proven it had standing, and that the court and JPMorgan’s
counsel did not have jurisdiction to enter the order approving the sale based on the “missing 13th
Amendment.” In addition, defendants asserted that, when asked, a judge must provide his or her
“Oath of Office.” Defendants’ response cited various provisions of the Uniform Commercial
Code and a Massachusetts foreclosure case.
¶ 13 In reply, JPMorgan maintained that defendants set forth no reason pursuant to section 15-
1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 2014)) to deny the confirmation
of the sale. JPMorgan also filed with the circuit court a document entitled “Assignment of
Judgment for Foreclosure and Sale” which indicated that it has assigned and transferred all of the
rights and interests under the judgment of foreclosure entered in this matter on August 8, 2014,
to U.S. Bank for good and valuable consideration.
¶ 14 On July 14, 2015, the sale was confirmed by the circuit court and an order of possession
was entered in favor of U.S. Bank. 2 This appeal followed.
¶ 15 ANALYSIS
¶ 16 Prior to addressing the merits of the appeal, we observe that pro se litigants, such as
2
No order granting JPMorgan’s motion to substitute plaintiff is provided in the record on
appeal. However, based on the record provided, it is evident that this request was granted by the
circuit court.
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defendants here, are not entitled to more lenient treatment than attorneys. See Lewis v. Heartland
Food Corp., 2014 IL App (1st) 123303, ¶ 5. In Illinois, parties choosing to represent themselves
without a lawyer are “presumed to have full knowledge of applicable court rules and procedures
and must comply with the same rules and procedures as would be required of litigants
represented by attorneys.” In re Estate of Pellico, 394 Ill. App. 3d 1052, 1067 (2009).
¶ 17 With these principles in mind, we note that the brief filed by defendants fails to comply
with our supreme court rules at various levels. First, defendants’ brief fails to abide by our
supreme court’s rules regarding the structure and content of appellate briefs. See Ill. S. Ct. R.
341 (eff. Jan. 1, 2016); R. 342 (eff. Jan. 1, 2005). These rules are not mere suggestions, but are
compulsory. In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57. The purpose of these
rules is to require the parties to present clear and orderly arguments before a reviewing court, so
that the court can properly ascertain and dispose of the issues involved. Hall v. Naper Gold
Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7.
¶ 18 Here, defendants’ brief fails to provide a statement of facts regarding the history of the
matter in the circuit court in violation of Rule 341(h)(6). Ill. S. Ct. R. 341(h)(6) (eff. Jan. 1,
2016). The brief also contains no citations to the record in violation of Rule 341(h)(7). Ill. S. Ct.
R. 341(h)(7) (eff. Jan. 1, 2016). The failure to substantiate factual assertions with such citation to
the record warrants the dismissal of an appeal because it renders it “next to impossible for this
court to assess whether the facts as presented *** are an accurate and fair portrayal of the events
in this case.” Collier v. Avis Rent A Car System, Inc., 248 Ill. App. 3d 1088, 1095 (1993).
Defendants’ brief also does not contain an appendix as required by Illinois Supreme Court Rule
342 (eff. Jan. 1, 2005).
¶ 19 Second, defendants’ assertions are not coherent legal arguments and are not supported by
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citations to legal authority as required by Illinois Supreme Court Rule 341 (eff. Jan. 1, 2016).
Rule 341(h)(7) requires that the argument “shall contain the contentions of the appellant and the
reasons therefor, with citation of the authorities and the pages of the record relied on.” Ill S. Ct.
R. 341(h)(7) (eff. Jan. 1, 2016). “It is a rudimentary rule of appellate practice that an appellant
may not make a point merely by stating it without presenting any argument in support.” Housing
Authority of Champaign County v. Lyles, 395 Ill. App. 3d 1036, 1040 (2009). Failure to properly
develop an argument does “not merit consideration on appeal and may be rejected for that reason
alone.” Id. While defendants reference numerous cases outside of our jurisdiction, at no point in
their argument do they reference an Illinois Appellate Court or an Illinois Supreme Court case in
support of their argument. Although in certain instances we may consider cases from other
jurisdictions (see Majmudar v. House of Spices (India), Inc., 2013 IL App (1st) 130292, ¶ 18),
defendants here do not set forth a compelling reason for us to do so as none of the cases relied
upon involve the Foreclosure Law.
¶ 20 While we understand that defendants represent themselves in this appeal, we cannot
bypass our supreme court rules to make an exception for a brief that does not comply with the
rules in multiple aspects. “Supreme Court Rule 341 governing the form and contents of briefs is
not just an arbitrary exercise of the supreme court’s supervisory powers; its end purpose is that a
reviewing court may properly ascertain and dispose of the issues involved.” Tannenbaum v.
Lincoln National Bank, 143 Ill. App. 3d 572, 574-75 (1986). As a reviewing court, we are
entitled to have the issues clearly defined with pertinent authority cited. McCann v. Dart, 2015
IL App (1st) 141291, ¶ 15 (quoting Northwestern Memorial Hospital v. Sharif, 2014 IL App
(1st) 133008, ¶ 20). An appellant cannot expect this court to develop arguments and research the
issues on the appellant’s behalf. See Northwestern Memorial Hospital, 2014 IL App (1st)
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133008, ¶ 20 (“It is well established that ‘[r]eviewing courts are entitled to have the issues
clearly defined, to be cited pertinent authorities and are not a depository in which an appellant is
to dump *** argument and research as it were, upon the court.’ ” (quoting In re Estate of Kunz, 7
Ill. App. 3d 760, 763 (1972))).
¶ 21 Despite the deficiencies in defendants’ brief, we turn to consider the merits of the appeal.
Defendants assert that the Illinois foreclosure procedures violated their due process rights.
Defendants, however, do not specifically address which aspects of the Foreclosure Law violate
due process. In response, U.S. Bank argues that this issue was not raised in the circuit court and
is therefore forfeited on appeal.
¶ 22 We note, however, that U.S. Bank has failed to acknowledge that defendants are
challenging the constitutionality of the Foreclosure Law for the first time on appeal. Generally,
arguments that are not raised in the circuit court are forfeited on appeal. 1010 Lake Shore Ass’n
v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14. “The purpose of this court’s
forfeiture rules is to encourage parties to raise issues in the trial court, thus ensuring both that the
trial court is given an opportunity to correct any errors prior to appeal and that a party does not
obtain a reversal through his or her own inaction.” Id. A statute’s constitutionality, however, may
be challenged at any time provided that the challenging party comply with Illinois Supreme
Court Rule 19 (eff. Sept. 1, 2006). We note that defendants have not complied with Rule 19, nor
have they requested this court grant them leave to comply with the rule.
¶ 23 Rule 19 provides:
“(a) Notice Required. In any cause or proceeding in which the constitutionality or
preemption by federal law of a statute, ordinance, administrative regulation, or other law
affecting the public interest is raised, and to which action or proceeding the State or the
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political subdivision, agency, or officer affected is not already a party, the litigant raising
the constitutional or preemption issue shall serve an appropriate notice thereof on the
Attorney General, State’s Attorney, municipal counsel or agency attorney, as the case
may be.
(b) Contents and Time for Filing Notice. The notice shall identify the particular
statute, ordinance, regulation, or other law, and shall briefly describe the nature of the
constitutional or preemption challenge. The notice shall be served at the time of suit,
answer or counterclaim, if the challenge is raised at that level, or promptly after the
constitutional or preemption question arises as a result of a circuit or reviewing court
ruling or judgment.
(c) Purpose of Notice. The purpose of such notice shall be to afford the State,
political subdivision, agency or officer, as the case may be, the opportunity, but not the
obligation, to intervene in the cause or proceeding for the purpose of defending the law or
regulation challenged. The election to intervene shall be subject to applicable provisions
of law governing intervention or impleading of interested parties.” Ill. S. Ct. R. 19 (eff.
Sept. 1, 2006).
¶ 24 The purpose of Rule 19 is to provide the Attorney General with the opportunity to appear
and represent the interests of the state in the action. In re Marriage of Vailas, 406 Ill. App. 3d 32,
42 (2010). An appellate court may permit a party to file a late notice pursuant to Rule 19 and
address the constitutionality of a statute for the first time on appeal if the purpose of the rule has
been served, and the opposing party is not prejudiced because it was aware of the constitutional
nature of the claim. Forest Preserve District of Du Page County v. First National Bank of
Franklin Park, 401 Ill. App. 3d 966, 994 (2010). However, our supreme court rules are “not
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suggestions. They have the force of law, and the presumption must be that they will be obeyed
and enforced as written.” Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). This court has specifically
found that “[f]ailure to comply with Rule 19 results in forfeiture of the issue.” Vailas, 406 Ill.
App. 3d at 42. It is within this court’s discretion to decline to address a constitutional challenge
to a statute where a party did not comply with Rule 19. Village of Lake Villa v. Stokovich, 211
Ill. 2d 106, 119 (2004)).
¶ 25 While we may allow defendants leave to comply with the rule (see Stokovich, 211 Ill. 2d
at 118-19, we decline to exercise our discretion in such a manner. First and foremost, defendants
here have failed to notify the Attorney General of their intent to challenge the constitutionality of
the Foreclosure Law and, therefore, have failed to comply with Rule 19. As previously
discussed, the failure to strictly comply with Rule 19 is reason alone to forfeit defendants’
constitutional challenge. See Vailas, 406 Ill. App. 3d at 42. Further, part of our analysis
regarding whether defendants sufficiently complied with Rule 19 requires us to identify when
defendants had standing to challenge the constitutionality of the statute. See Villareal v. Peebles,
299 Ill. App. 3d 556, 561 (1998). The record does not disclose exactly at what point during the
foreclosure proceedings this question arose, thus, we cannot determine when defendants had
standing. See id. Moreover, even assuming for the sake of argument that defendants had
standing, at the latest, when the order approving the sale was entered on July 14, 2015,
defendants did not raise their constitutional claim until they filed their brief on February 18,
2016. Accordingly, defendants’ seven-month delay does not constitute prompt notice as required
by Rule 19. See id.; see also People ex. rel. Ward v. 1963 Cadillac Coupe, 38 Ill. 2d 344, 348
(1967) (delay of 3½ months was “scarcely” consistent with a statute requiring the state’s attorney
to “promptly” exercise discretion). “While we have discretion to excuse late compliance with
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Rule 19 [citation], we will not excuse noncompliance [citation].” Vailas, 406 Ill. App. 3d at 42
(citing Stokovich, 211 Ill. 2d at 119, and citing Pappas v. Calumet City Municipal Officers’
Electoral Board, 288 Ill. App. 3d 787, 791 (1997)). Thus, we decline to exercise our discretion to
allow defendants to bring forth Rule 19 and conclude defendants’ constitutional argument is
forfeited.
¶ 26 Forfeiture aside, we observe that defendants’ due process claim revolves around the
argument that the Foreclosure Law is constitutionally defective in that it allows a foreclosure to
proceed without original documentary evidence. As stated in Parkway Bank & Trust Co. v.
Korzen, 2013 IL App (1st) 130380:
“For over 25 years, the Foreclosure Law has been interpreted as not requiring
plaintiffs’ production of the original note, nor any specific document demonstrating that
it owns the note or the right to foreclose on the mortgage, other than a copy of the
mortgage and note attached to the complaint.” (Emphasis in original.) Id. ¶ 26 (citing
First Federal Savings & Loan Ass’n v. Chicago Title & Trust Co., 155 Ill. App. 3d 664,
665-67 (1987)).
Upon examining the statutes at issue, specifically section 15-201 of the Code of Civil Procedure
(Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201) and section 15-1506 of the Foreclosure Law (735 ILCS
5/15-1506 (West 2010)), the Korzen court concluded the law as interpreted in First Federal has
remained good law. Korzen, 2013 IL App (1st) 130380, ¶ 31. According to Korzen:
“None of the versions of the statute use the word ‘original,’ nor does any
specifically provide that originals must be produced in open court. With respect to
production of original loan documents, the former law interpreted in First Federal is
substantially the same as the current law. Both laws provide: (a) that the evidence to
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support the allegations of the complaint shall be taken in open court; and (b) in cases of
default or nondenial, the evidence of the indebtedness and security foreclosed shall be
exhibited to the court and appropriately marked, and the exhibits or copies thereof shall
be filed in the case. The only changes to the statute are merely stylistic, including one
clarification that evidence of the indebtedness and security must now be exhibited in ‘all’
cases.” Id.The Korzen court thus held that “in Illinois, production of the original note in open court, rather
than simply relying on the copy attached to the complaint, is not a required element of proof in a
foreclosure case.” Id. ¶ 32. We agree with the Korzen court and note that the language of section
15-1506 has remained unchanged since Korzen was published.
¶ 27 Furthermore, the legislature is presumed to be aware of judicial decisions interpreting
legislation. Pielet v. Pielet, 2012 IL 112064, ¶ 48 (citing Kozak v. Retirement Board of the
Firemen’s Annuity & Benefit Fund, 95 Ill. 2d 211, 218 (1983)). “ ‘Where statutes are enacted
after judicial opinions are published, it must be presumed that the legislature acted with
knowledge of the prevailing case law.’ ” Burrell v. Southern Truss, 176 Ill. 2d 171, 176 (1997)
(quoting People v. Hickman, 163 Ill. 2d 250, 262 (1994)). Similarly, the legislature is presumed
to have acted with such knowledge when amending a statute. Morris v. William L. Dawson
Nursing Center, Inc., 187 Ill. 2d 494, 499 (1999). Therefore, when the legislature reenacts a
statute without modification it is assumed to have intended the same effect. Williams v.
Crickman, 81 Ill. 2d 105, 111 (1980); People ex rel. Klaeren v. Village of Lisle, 316 Ill. App. 3d
770, 782 (2000). As section 15-201 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110,
¶ 15-201) was subsequently reenacted as section 15-1506(b) of the Foreclosure Law (735 ILCS
5/15-1506(b) (West 2012)) and the legislature did not change the statute to require a plaintiff in a
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foreclosure action to produce the original loan documents, it is presumed that the legislature
acted with the intent to continue the practice of allowing plaintiffs to attach copies of the loan
documents to establish a prima facie case. See Williams, 81 Ill. 2d at 111; Korzen, 2013 IL App
(1st) 130380, ¶ 24.
¶ 28 We are mindful that Korzen did not take into consideration Illinois Supreme Court Rule
113 (eff. May 1, 2013), as it was not applicable to the complaint filed in that case. As
JPMorgan’s complaint was filed on December 30, 2013, Rule 113 is applicable to the matter at
bar. Rule 113 provides in pertinent part that, “In addition to the documents listed in section 15-
1504 of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1504), a copy of the note, as it
currently exists, including all indorsements and allonges, shall be attached to the mortgage
foreclosure complaint at the time of filing.” Ill. S. Ct. R. 113(b) (eff. May 1, 2013).
¶ 29 Here, JPMorgan attached to its complaint a copy of the mortgage executed between
defendants and First Home Mortgage Corporation on December 22, 1999. Also attached to the
complaint was a copy of the note, which contained numerous indorsements from: (1) First Home
Mortgage Corporation to American Home Mortgage; (2) American Home Mortgage to Chase
Manhattan Mortgage Corporation; and (3) Chase Manhattan Mortgage Corporation to JPMorgan.
The last page of the note contained an indorsement in blank from JPMorgan. The note thus
demonstrates that JPMorgan was the holder of the note at the time the complaint was filed. See
Bayview Loan Servicing, LLC v. Cornejo, 2015 IL App (3d) 140412, ¶ 12 (the copies of the
mortgage and note attached to the complaint are prima facie evidence that the plaintiff holds the
note). Further, JPMorgan’s complaint complies with Rule 113(b), as it attached a copy of the
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note as it existed at the time the complaint was filed, including all indorsements and allonges. 3
We further observe that Rule 113(b) does not require the plaintiff to provide the original note,
but expressly states “a copy of the note, as it currently exists **** shall be attached to the
mortgage foreclosure complaint at the time of filing.” (Emphasis added.) Ill. S. Ct. R. 113(b)
(eff. May 1, 2013). Thus, Rule 113(b) is consistent with section 15-1506 of the Foreclosure Law
which also does not expressly require the original loan documents be presented, but which
requires copies to be filed with the court. Compare Ill. S. Ct. R. 113(b) (eff. May 1, 2013), with
735 ILCS 5/15-1506 (West 2012); see Korzen, 2013 Ill App (1st) 130380, ¶ 31.
¶ 30 Leaving no issues remaining for this court to address, we must presume the circuit court
acted in conformity with the law and affirm its judgment. See Foutch v. O’Bryant, 99 Ill. 2d 389,
391-92 (1984).
¶ 31 CONCLUSION
¶ 32 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.
¶ 33 Affirmed.
¶ 34 Justice Gordon, dissenting.
¶ 35 I must respectfully dissent. I would reverse and remand because U.S. Bank failed to
comply with Illinois Supreme Court Rule 113 (eff. May 1, 2013).
¶ 36 Supreme Court Rule 113 provides that "[a]ll plaintiffs seeking a judgment of foreclosure
*** shall be required to submit" a prove-up affidavit which provides the information listed in
paragraph (c) of this rule. Ill. S. Ct. R. 113(c) (eff. May 1, 2013). In the case at bar, there is no
question that Rule 113 applied, because it became effective on May 1, 2013, and this foreclosure
3
We observe that the issue of whether JPMorgan's affidavit in support of the judgment of
foreclosure complied with Illinois Supreme Court Rule 113(c) (eff. May 1, 2013) was not argued
before the circuit court or on appeal.
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action commenced months later, on December 30, 2013. Ill. S. Ct. R. 113(a) (eff. May 1, 2013)
(the rule applies "to those foreclosure actions filed on or after the effective date of May 1,
2013").
¶ 37 The record before us fails to contain a paragraph (c) affidavit filed by either U.S. Bank or
its predecessor, Chase. The committee notes could not be more clear: "No judgment of
foreclosure will be entered without compliance with Paragraph C." Ill. S. Ct. R. 113, Committee
Comments (adopted Feb. 22, 2013). Thus, defendants are correct that they failed to receive the
due process to which they were entitled.
¶ 38 For the reasons I explain more fully below, I must respectfully dissent.
¶ 39 Background
¶ 40 As the following description of the facts makes clear, defendants have asked repeatedly,
and since the beginning of this action, for documents and accurate information. This is just the
4
type of situation that Rule 113 was designed to avoid.
¶ 41 On December 30, 2013, Chase filed its complaint to foreclose a mortgage against
defendants. Supra ¶ 4. Attached to the complaint were copies of the mortgage and the note,
including a chain of indorsements from the original lender, First Home Mortgage Corporation, to
Chase. Supra ¶ 4. In their brief to this court, defendants stated that, on February 25, 2014, they
moved for discovery requesting original documents pertaining to financial information. A
4
In footnote 3 of the majority opinion, the majority observes that defendants did not
specifically cite Supreme Court Rule 113. Supra ¶ 29 n.3 (citing Ill. S. Ct. R. 113(a) (eff. May 1,
2013)). The majority does not disagree with the facts that defendants have asked repeatedly for
documents and accurate information, and that this is just the type of situation that Rule 113 was
designed to avoid. The majority also does not dispute the fact that neither U.S. Bank nor Chase
made any attempt to comply with Rule 113. As the majority observed in paragraph 24 of its
opinion, "our supreme court rules are 'not suggestion. They have the force of law, and the
presumption must be that they will be obeyed and enforced as written.' " Supra ¶ 24 (quoting
Bright v. Dicke, 166 Ill. 2d 204, 210 (1995)).
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written order, dated March 4, 2014, confirms that plaintiff's counsel and defendants were in court
and that defendants were "waiting for a response to a request for discovery submitted to
plaintiff's counsel," and the appellate record contains a discovery request from plaintiffs filed on
March 19, 2014. This request is accompanied by two affidavits of service: one that indicates that
Chase was served on February 25, 2014; and another that indicates Chase was served again on
March 31, 2014. On April 1, 2014, defendants moved for a default judgment against Chase
based on its failure to respond to defendants' discovery requests.
¶ 42 A "Certificate of Service," filed July 2, 2014, states that "the foregoing notice and
Plaintiff's Response to Defendants' First Rule 214 Request for Production of Documents were
served" on defendants. However, the record does not show a response.
¶ 43 On August 7, 2014, defendants filed a document in which they stated that they "ma[d]e a
special appearance to the Court." The document also stated that it was asserting a counterclaim
and moving for a default judgment due to Chase's failure to produce documents. Defendants
alleged, among other things, that Chase had filed fraudulent documents with the court and that
Chase was not the holder of the note:
"JP Morgan [Chase] is not the Holder in due course therefore the so-called Plaintiff does
not possess the Note. In the Closing accounting there is a zero Balance which means the
Defendant is not the creditor. The purpose and reasoning that the Defendants have
requested Discovery Documents is to ascertain and prove that JP Morgan [Chase] has
conducted Fraud on a Massive level."
Supra ¶ 6.
¶ 44 On August 8, 2014, the trial court issued two written orders: (1) an "Order of Default"
stating that defendants had "failed to appear" and entering a default judgment against them; and
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(2) a "Judgment for Foreclosure and Sale" in favor of Chase. On August 18, 2014, defendants
filed a motion for reconsideration and to vacate the judgment of foreclosure alleging a defense to
the foreclosure action. The trial court denied this motion on December 2, 2014. Supra ¶ 7.
¶ 45 On January 7, 2015, Chase moved to substitute U.S. Bank as party plaintiff, stating:
"Subsequent to filing the complaint, servicing rights of the subject loan has transferred to
RoundPoint Mortgage Servicing Corporation and RoundPoint Mortgage Servicing
Corporation would like to proceed in the name of the trustee on behalf of the trust, U.S.
Bank Trust National Association, not in its individual capacity but solely as Owner
Trustee for Newlands Asset Holding Trust."
Chase's motion provides no date for when the loan was transferred. The motion states only that
it occurred sometime "[s]ubsequent to filing the complaint." Thus, when defendants asserted
that Chase no longer held the loan, they were correct.
¶ 46 On January 13, 2015, defendants again submitted a request for discovery, including
financial records, and claimed that there was "an offsetting liability." Supra ¶ 9. In addition,
they sought documents substantiating the "exchange" with Roundpoint. On February 10, 2015,
defendants filed a document asserting that "the above banks" were not the holder of the note and
thus could not foreclose on the property. The banks listed were: Chase; RoundPoint; and First
Home Mortgage, Corp., the original lender. If Chase's motion for substitution, filed on January
7, 2015, was correct, then defendants were correct that the three listed banks were not the correct
parties in the foreclosure action.
¶ 47 On March 20, 2015, the property was sold at a judicial sale. Supra ¶ 11. On March
24, 2015, Chase moved to strike defendants' January 13, 2015, discovery request, and
defendants' February 10, 2015, filing. A "Report of Sale," filed April 3, 2015, states that U.S.
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Bank placed the highest bid and thus was sold defendants' home. On April 3, 2015, Chase
moved for an order approving the sale and for the entry of an order of possession. On May 27,
2015, defendants filed a response in opposition to the motion, in which defendants again
renewed their discovery demands. Defendants argued that they had been requesting documents
in discovery for a year and a half, and that Chase had failed to prove that it had standing.
Defendants may be correct, if the mortgage transferred before January 2015, as Chase's January
2015 substitution motion alleged.
¶ 48 On June 10, 2015, the trial court set a briefing schedule on Chases' motion to confirm the
sale, and the trial court directed Chase "to provide the Court with documents supporting its
motion to substitute" U.S. Bank as plaintiff. Supra ¶ 11. The trial court also granted Chase's
motion to strike defendants' January 13, and February 10, 2015, filings.
¶ 49 In response to the trial court's request for additional documentation in support of its
motion to substitute, Chase filed an assignment to U.S. Bank, dated June 26, 2015–which is after
the trial court ordered Chase to provide proof. Supra ¶ 13. However, the record fails to contain
an order granting Chase's motion to substitute U.S. Bank. Supra ¶ 14 n.2. On July 14, 2015, the
trial court confirmed the sale and entered an order of possession in favor of U.S. Bank. Supra ¶
14. The majority concludes in a footnote that it is "evident" that the trial court granted Chase's
substitution motion. Supra ¶ 14 n.2.
¶ 50 In their reply brief to this court, defendants assert that, when the property was sold to
U.S. Bank, they received a notice in the mail stating "that their mortgage payment arrangements
would remain the same, not that the property was sold." However, when they appeared in court,
"they were given 60 days to vacate the property," which they did.
¶ 51 As the above factual statement makes clear, defendant repeatedly sought documents in
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discovery and the accurate information which Illinois Supreme Court Rule 113 (eff. May 1,
2013) guaranteed them.
¶ 52 Analysis
¶ 53 Supreme Court Rule 113(a) states that the rule applies "only to those foreclosure actions
filed on or after the effective date of May 1, 2013." Ill. S. Ct. R. 113 (eff. May 1, 2013). As
noted above, since this action was filed months later on December 30, 2013, there is no question
that Rule 113 applies.
¶ 54 The committee notes to Rule 113 state unequivocally: "No judgment of foreclosure will
be entered without compliance with Paragraph (c)." Ill. S. Ct. R. 113, Committee Comments
(adopted Feb. 22, 2013).
¶ 55 Paragraph (c) requires that "all" plaintiffs seeking a judgment of foreclosure, by default
or not, "shall" be required to submit an affidavit which provides the following information and
documents:
"(ii) An identification of the books, records and/or other documents in addition to the
payment history that the affiant reviewed and/or relied upon in drafting the affidavit,
specifically including records transferred from any previous lender or servicer. The
payment history must be attached to the affidavit in only those cases where the defendant
filed an appearance or responsive pleading to the complaint for foreclosure.
(iii) The identification of any computer program or computer software that the entity
relies on to record and track mortgage payments. Identification of the computer program
or computer software shall also include the source of the information, the method and
time of preparation of the record to establish that the computer program produces an
accurate payment history, and an explanation as to why the records should be considered
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'business records' within the meaning of the law." Ill. S. Ct. R. 113(c)(2)(ii), (iii) (eff.
May 1, 2013).
¶ 56 The rule then provides a blank form for the affidavit which states: "The amount due is
based on my review of the following records: ______. A true and accurate copy of the payment
history and any other document I reviewed when making this calculation is attached to this
affidavit[.]" Ill. S. Ct. R. 113(c)(4), Form 1 (eff. May 1, 2013).
¶ 57 Rule 113 requires the attachment of the payment history only when defendants filed an
appearance or responsive pleading; and it is arguable whether defendants filed an appearance or
responsive pleading. However, Rule 113 still requires the filing of a paragraph (c) affidavit in
every foreclosure, and no such affidavit appears in the appellate record. While the majority is
willing to presume that the trial court entered an order substituting U.S. Bank as party plaintiff
even though no such order appears in the record, for us to also presume the existence of a
paragraph (c) affidavit would be going too far.
¶ 58 For these reasons, I must respectfully dissent.
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