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Standard Bank and Trust Company v. Michael Madonia

December 27, 2011

STANDARD BANK AND TRUST COMPANY,
PLAINTIFF-APPELLEE,
v.
MICHAEL MADONIA, LISA MADONIA, MONOGRAM CREDIT CARD BANK OF GEORGIA, UNIFUND CCR PARTNERS, ASSIGNEE OF BANK ONE, COLONIAL CREDIT
CORPORATION, RESURGENCE FINANCIAL LLC, CITIBANK (SOUTH DAKOTA) N.A., WORLDWIDE ASSET PURCHASING LLC, HARVEST CREDIT MANAGEMENT VII, MBNA AMERICA BANK NA, NON-RECORD CLAIMANTS AND UNKNOWN OWNERS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 09 CH 04192 Honorable Darryl B. Simko, Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

Unpublished opinion

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Harris concurred in the judgment and opinion.

OPINION

¶ 1 Defendants-appellants, Michael and Lisa Madonia (collectively, the Madonias), are mortgagors who appeal from the circuit court of Cook County's denial of their motion to vacate and their motion for leave to file an amended motion to vacate the circuit court's order granting summary judgment in favor of Standard Bank and Trust Company (Standard Bank) in a mortgage foreclosure action. On appeal, the Madonias argue that Standard Bank lacks standing to bring this action because it failed to present evidence showing that it became the holder of the mortgage and note. For the following reasons, we affirm the denial of the motion to vacate as Standard Bank's pleadings complied with section 5/28 of the Illinois Banking Act. 205 ILCS 5/28 (West 2008).

¶ 2 BACKGROUND

¶ 3 This is a mortgage foreclosure action concerning the real estate commonly known as 7404 W. 56th Street, Summit, Illinois (the property). On August 18, 1997, the Madonias executed a note and mortgage in favor of the Bank of Lyons, and the mortgage granted a lien on the property to secure the note which was in the amount of $41,000. On December 1, 1998, Bank of Lyons merged with East Side Bank and Trust Company. On September 1, 2000, East Side Bank and Trust Company changed its name to Bank Chicago. On April 15, 2003, Bank Chicago merged with Standard Bank.

¶ 4 On February 2, 2009, Standard Bank brought the instant foreclosure action, due to the Madonias' default under the note and mortgage under which more than $40,000 remained due and owing. Standard Bank brought this action as successor in interest to Bank of Lyons, and as the legal owner and holder of the note and mortgage executed by the Madonias. A copy of the note and mortgage signed by the Madonias was attached to Standard Bank's complaint. On March 29, 2010, the Madonias filed their pro se appearances. On May 22, 2010, the Madonias filed a verified answer to the complaint, which challenged Standard Bank's standing to bring the instant action. On June 25, 2010, Standard Bank filed its motion for summary judgment. On August 13, 2010, following a hearing on the motion for summary judgment, the trial court found in favor of Standard Bank and entered a judgment of foreclosure and sale. The judgment included Supreme Court Rule 304(a) language providing that there was no just cause for the delay, enforcement or appeal therefrom.

¶ 5 On September 13, 2010, the Madonias, acting pro se, filed a section 2-1301(e) motion to vacate order granting summary judgment (motion to vacate). On September 21, 2010, counsel for the Madonias was granted leave to appear on their behalf. Additionally, defense counsel made an oral motion for leave to file an amended motion to vacate order granting summary judgment. The amended motion to vacate alleged that Standard Bank had accepted payments from the Madonias after filing the foreclosure action, that Standard Bank's counsel may have a conflict of interest as he may have been on its board, and that Standard Bank misled the Madonias to believe that a refinance agreement was in process when Standard Bank filed this foreclosure action. The trial court denied the Madonias' pro se motion to vacate order and denied defense counsel's motion for leave to file an amended motion to vacate granting summary judgment. On October 21, 2010, the Madonias filed a notice of appeal seeking review of the trial court's September 21, 2010 order denying the motion to vacate and the August 13, 2010 order granting summary judgment and entering the judgment of foreclosure and sale.

¶ 6 ANALYSIS

¶ 7 Section 2-1301(e) of the Code of Civil Procedure (Code) provides that:

"[t]he court *** may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable." 735 ILCS 5/2-1301(e)(West 2002).

¶ 9 A trial court's decision to deny a motion to vacate is reviewed for an abuse of discretion. Larson v. Pedersen, 349 Ill. App. 3d 203, 207 (2004). "The moving party has the burden of establishing sufficient grounds for vacating the judgment." Id. The appellate court must determine whether the trial court's ruling denying the motion to vacate "was a fair and just result, which did not deny the moving party substantial justice." Deutsch Bank National v. Burtley, 371 Ill. App. 3d 1, 5 (2006), citing Mann v. Upjohn Co., 324 Ill. App. 3d 367, 377 (2001). An abuse of discretion occurs where the trial court "acts arbitrarily without the employment of conscientious judgment or its decision exceeds the bounds of reason and ignores principles of law such that substantial injustice results." Mann, 324 Ill. App. 3d at 377. "If reasonable persons could differ as to the propriety of the trial court's actions, then the trial court cannot be said to have exceeded its discretion." Merchants Bank v. Roberts, 292 Ill. App. 2d 925, 930 (1997).

ΒΆ 10 The Madonias assert that a plaintiff who is not the originating lender must show how the plaintiff obtained the note and mortgage by attaching to the complaint a copy of the assignment or a copy of the note endorsed to the plaintiff. The Madonias cite Bayview Loan Servicing, LLC. v. Nelson, 382 Ill. App. 3d 1184 (2009) and section 2-403(a) of the Code (735 ILCS 5/2-403(a) (West 2008)), in support of their contention. The Madonias further assert that Standard Bank's exhibit, attached to its complaint for foreclosure, did not contain a copy of any assignment from the original lender (Bank of Lyons) to Standard Bank. Consequently, the Madonias argue that Standard Bank's complaint amounted to a mere allegation of a ...


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