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U.S. Bank National Association, As Trustee For v. Jean J. Prabhakaran

February 15, 2013

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR PLAINTIFF-APPELLEE,
v.
JEAN J. PRABHAKARAN, DEFENDANT-APPELLANT.



Appeal from the Credit Suisse First Boston Heat 2005-5, Circuit Court of Cook County No. 07 CH 21109 Honorable John C. Griffin, Judge Presiding.

The opinion of the court was delivered by: Justice Reyes

JUSTICE REYES delivered the judgment of the court, with opinion.*fn1 Presiding Justice Lampkin and Justice Hall concurred in the judgment and opinion.

OPINION

¶ 1 In this mortgage foreclosure action, the defendant, Jean J. Prabhakaran, appeals the circuit court of Cook County's denial of her petition to vacate the foreclosure judgment and confirmation of sale pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). The defendant alleges the confirmation of sale was void because the plaintiff, U.S. Bank, N.A. (U.S. Bank), as trustee for Credit Suisse First Boston Heat 2005-5 (Credit Suisse), accepted additional payments from the defendant after the judgment of foreclosure was entered. The defendant also asserts she presented a meritorious defense in her section 2-1401 petition. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 On August 8, 2007, America's Servicing Company (ASC) filed a complaint to foreclose a mortgage against the defendant pursuant to sections 15-1504(a)(1) through (a)(3) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1504(a)(1)-(a)(3) (West 2006)). ASC alleged, inter alia, that the defendant was in default of her residential mortgage loan in an amount of unpaid principal totaling $130,116.91. ASC brought the suit as the legal holder of the indebtedness and attached to the complaint a copy of the mortgage. The mortgage identified the defendant as the mortgagor, the CIT Group/Consumer Finance, Inc., as the lender, and Mortgage Electronic Registration Systems, Inc., as the mortgagee. The complaint later was amended to reflect that the correct plaintiff at the time of filing the lawsuit was U.S. Bank, as trustee for Credit Suisse.

¶ 4 A special process server from Provest, LLC, personally served the defendant with the foreclosure complaint on August 10, 2007, at the subject property, 1412 South 6th Avenue in Maywood, Illinois. The defendant, represented by counsel, answered the complaint and asserted she was not in default on the loan until U.S. Bank refused tender of her mortgage payments.

¶ 5 On January 18, 2008, U.S. Bank moved for summary judgment, asserting the defendant's answer failed to raise a genuine issue of material fact. In support of its motion, U.S. Bank submitted an affidavit of judgment detailing the default. The affiant, Jamie Padmore, averred that the defendant "failed to make payments in accordance with the Note sued on herein and the loan is due for the 03/01/2007 payment. Plaintiff elected to accelerate the indebtedness pursuant to the terms of the Mortgage and Note, and there is due and owing as of March 11, 2008," a total of $147,263.31.

¶ 6 The defendant responded to the summary judgment motion on May 28, 2008, asserting "ongoing mortgage payments were made by the Defendant to the Plaintiff and/or Plaintiff's assigns on an ongoing basis to and including February 2008." The defendant contended the plaintiff failed to account for those payments and instead applied them to the defendant's account "in an escrow deficiency." The defendant responded that "copies of all remittances and verification of payments made to the Cook County Assessor" were attached in an exhibit. Five money orders and four checks with payments made to ASC between January 2007 and December 2007 were attached as unverified exhibits.

¶ 7 On June 4, 2008, U.S. Bank replied in support of its summary judgment motion, contending the defendant's response was not supported by affidavit. U.S. Bank argued the defendant's failure to include an affidavit in her response required the circuit court to admit the factual matters asserted in the plaintiff's affidavit and, thus, no genuine issue of fact remained as to the defendant's default.

¶ 8 The circuit court granted U.S. Bank's summary judgment motion on June 10, 2008. The court also entered a judgment of foreclosure on the same date. The defendant did not appeal these findings.

¶ 9 The property was subsequently sold to U.S. Bank on December 23, 2009 by judicial sale. On January 5, 2010, the circuit court confirmed the sale and entered an in rem deficiency judgment of $100,479.39. The defendant did not appeal the court's order confirming the sale.

The judicially appointed selling officer executed a judicial sale deed to U.S. Bank on January 19, 2010.

ΒΆ 10 On March 15, 2010, the defendant filed a pro se motion to stay possession, asserting "modification agreement in play since Oct. 20, 2009 making new instalament [sic] payments $1,300.14 per agreement. First payment due and paid Jan. 1, 10." The defendant attached to her motion an October 20, 2009 correspondence from ASC notifying the defendant of "upcoming changes to your adjustable rate mortgage loan interest rate and payment. The interest rate change date for your loan is December 01, 2009, with a new payment effective date of January 01, 2010." The correspondence indicated the "new total payment (including escrow, if applicable) due on January 01, 2010 is $1,300.14." Also attached to the defendant's motion was a ...


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