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Wells Fargo Bank, N.A v. Cecil W. Watson

July 9, 2012

WELLS FARGO BANK, N.A.,
PLAINTIFF-APPELLEE,
v.
CECIL W. WATSON,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois Honorable Mark Thomas Carney, Judge, Presiding. Circuit No. 11-LM-2802

The opinion of the court was delivered by: Justice Carter

JUSTICE CARTER delivered the judgment of the court, with opinion.

Presiding Justice Schmidt and Justice Holdridge concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Wells Fargo Bank, N.A., brought suit pursuant to the Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 2010)) against defendant, Cecil W. Watson, for possession of a single-family residence located in Bolingbrook, Illinois. During the course of the trial court proceedings, plaintiff filed a motion for summary judgment. After a hearing, the trial court granted the motion. Defendant appeals the trial court's grant of summary judgment for plaintiff. We affirm the trial court's ruling.

¶ 2 FACTS

¶ 3 Defendant owned the residence in question and sold it to his cousin, Darrell Coburn, in May 2008. In order to finance the purchase, Coburn executed a note of approximately $177,000 and secured that debt with a mortgage from Franklin American Mortgage Company (Franklin), naming Mortgage Electronic Registration System, Inc. (MERS), as nominee for Franklin with the power to foreclose on the property in the event of a default by Coburn.*fn1 After the sale, defendant continued to reside at the residence with Coburn.

¶ 4 On September 1, 2009, plaintiff filed a mortgage foreclosure complaint in Will County case No. 09-CH-3901 (the foreclosure action), alleging that it was the holder of the mortgage and note for the property. Coburn was the only named defendant in that suit. On November 4, 2009, plaintiff filed motion for summary judgment in the foreclosure action and attached an undated supplemental document indicating that MERS, as nominee for Franklin, assigned the mortgage to plaintiff "prior to 08/24/2009." The document was signed by Jill Rein, a "Certifying Officer" for MERS, and was notarized on September 25, 2009. Records from the Will County recorder's office indicate that the assignment of mortgage in favor of plaintiff was not recorded until October 14, 2009, more than a month after the foreclosure action began on September 1, 2009.

¶ 5 On December 31, 2009, Coburn filed his response to the motion for summary judgment. Coburn claimed that he was procuring the necessary funds to cure his default before the next court date but did not challenge plaintiff's standing to bring the foreclosure action.

¶ 6 In July 2010, the trial court granted summary judgment for plaintiff in the foreclosure action. The property was sold at a public sale on December 8, 2010. On March 11, 2011, the trial court approved the foreclosure sale and entered the final foreclosure judgment. The foreclosure judgment was signed by the Honorable Richard J. Siegel and provided that plaintiff was entitled to possession of the property and that the sheriff was to evict Coburn from the property. Coburn did not appeal the foreclosure judgment.

¶ 7 On September 19, 2011, plaintiff filed the instant forcible entry and detainer action against defendant in Will County case No. 11-LM-2802, seeking an order of possession to the property. An unsigned and undated copy of the foreclosure judgment from case No. 09-CH-3901 was attached to the complaint. The instant case was assigned to the Honorable Mark Thomas Carney. On October 21, 2011, plaintiff filed a motion for summary judgment in the instant case. Attached to the motion for summary judgment were copies of the foreclosure judgment (unsigned and undated); a written demand for possession addressed to Coburn and unknown occupants; proofs of service showing that the demand had been personally served on defendant and served by substitute service on Coburn (by delivery to defendant) at the residence on June 2, 2011; and an affidavit of posting showing that the demand for possession had also been posted on the front door of the residence on June 2, 2011.

¶ 8 On November 4, 2011, Coburn filed a motion to vacate the foreclosure judgment in the foreclosure action. Coburn alleged in the motion to vacate that plaintiff lacked legal standing to file the mortgage foreclosure complaint. On that same date, defendant filed a response opposing summary judgment in the instant case. In his response, defendant made essentially the same allegation against plaintiff regarding lack of standing to file the mortgage foreclosure complaint in the mortgage foreclosure action. More specifically, defendant claimed that plaintiff filed the mortgage foreclosure complaint before the mortgage had been assigned to it and in so doing, obtained the mortgage foreclosure judgment by committing a fraud upon the court. Defendant attached to his response copies of the recorded deed transferring the property from defendant to Coburn in May 2008; the assignment of mortgage from MERS to plaintiff, which was notarized on September 25, 2009, and recorded on October 14, 2009; and the recorded notice of foreclosure.

¶ 9 On November 15, 2011, a hearing was held on Coburn's motion to vacate in the foreclosure action. At the conclusion of the hearing, Coburn's motion was denied. No explanation for the denial was provided in the written order. Coburn appealed that denial, and that appeal is currently before this court in appeal No. 3-11-0847.

ΒΆ 10 On November 16, 2011, a hearing was held on the motion for summary judgment in the instant case. At the conclusion of the hearing, the trial court granted plaintiff's motion for summary judgment. No explanation for the trial court's ruling was provided in the written order. Defendant appealed in the instant case to challenge the trial court's ruling and filed an emergency motion in this court to stay ...


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