United States District Court, N.D. Illinois
March 12, 2004.
Countrwide Home Loans
Bobby Wilkerson a/k/a Bobby E. Wilkerson, Karen L.S. Wilkerson, City of DeKalb and Citifinancial Services, Inc., Defendants
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Countrywide Home Loans, Inc., filed a mortgage foreclosure
action, naming as defendants, Bobby Wilkerson, Karen Wilkerson, the City
of DeKalb, and Citifinancial Services, Inc. On January 16, 2004,
plaintiff filed a motion for default order against Citifinancial Services
(served but no appearance or answer), and a motion for summary judgment
as to both Wilkersons and the City of DeKalb. The Wilkersons filed a
response to the summary judgment motion, objecting to the foreclosure
based on plaintiff's purported failure to either conduct a face-to-face
meeting or make reasonable efforts to arrange such a meeting in violation
of section 203.604 of the Code of Federal Regulations, 24 C.F.R. § 203.604.
Plaintiff, in turn, submitted an affidavit stating that on July 17,
2003, one of its field services representatives went to the Wilkersons'
home in an attempt to conduct a face-to-face meeting, found no one home
(presumably), and left a card on the door requesting the Wilkersons to
contact plaintiff to arrange the meeting. According to the affiant, the
Wilkersons failed to contact plaintiff thereafter to arrange a meeting.
Summary judgment is appropriate if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law. Hardy v. University of Illinois at Chicago, 328 F.3d 361, 363 (7th
Cir. 2003). It is undisputed here that under Illinois law the failure to
comply with HUD's mortgage services requirements is a complete defense to
a mortgage foreclosure action. See Mellon Mortgage Co. v. Larios, 1998 WL
292387, * 2 (N.D. Ill. May 20, 1998), citing Bankers Life Co. v. Denton,
120 Ill. App.3d 576, 579, 458 N.E.2d 203, 205 (1983); Mortgage Assoc.,
Inc. v. Smith, 1986 WL 10384, * 2 (N.D. Ill. Sept. 16, 1986).
Under section 203.604 of the Code of Federal Regulations, a mortgagee
must have a face-to-face meeting with the mortgagor, or make a reasonable
effort to arrange such a meeting prior to proceeding with a foreclosure.
24 C.F.R. § 203.604(b). A face-to-face meeting is not required if a
reasonable effort to arrange the meeting is unsuccessful.
24 C.F.R. § 203.604(c)(5). A reasonable effort to arrange such a meeting
"shall consist at the minimum of one letter sent to the mortgagor
certified by the Postal Service as having been dispatched."
24 C.F.R. § 203.604(d). Such a reasonable effort to arrange a
face-to-face meeting "shall also include at least one trip to see the
mortgagor at the mortgaged property" unless certain exceptions not
applicable here exist. See 24 C.F.R. § 203.604(d). The court interprets
this straightforward language to require both the sending of a certified
letter and a personal visit to constitute a reasonable effort at
arranging a face-to-face meeting.
In this case, plaintiff has established as a matter of fact that it
made the personal visit to the mortgaged property, although the
Wilkersons were apparently not home and a face-to-face meeting never took
place. The Wilkersons' unsupported assertion that such a visit did not
occur does not create a question of material fact in that regard in the
face of plaintiff's affidavit.
Plaintiff has not offered at this point, however, any evidence that it
also sent a certified letter in an effort to arrange such a meeting. The
burden to offer such proof belongs to plaintiff as it is seeking to avail
itself of the exception to the general requirement that a face-to-face
meeting actually take place. Having failed to do so, plaintiff has not
established that it is entitled to judgment as a matter of law. The
court, therefore, denies plaintiff's summary judgment motion.
This is an attempt to collect a debt
and any information obtained will
be used for that purpose.
THIS CAUSE COMING ON TO BE HEARD ON motion of plaintiff for entry of an
Order finding certain Defendant in default;
IT IS HEREBY ORDERED that the following defendant is in default:
Citifinancial Services, Inc.
© 1992-2004 VersusLaw Inc.