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Bank of America, N.A. v. Land

Court of Appeals of Illinois, Fifth District

July 31, 2013

BANK OF AMERICA, N.A., as Successor by Merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, Plaintiff-Appellee,
v.
GEORGE M. LAND, EUNICE F. LAND, and Unknown Owners and Nonrecord Claimants, Defendants-Appellants.

Rule 23 Order Filed: June 24, 2013

Motion to Publish Granted: July 31, 2013

Appeal from the Circuit Court of Johnson County. No. 11-CH-21 Honorable James R. Williamson, Judge, presiding.

Attorney for Appellants Alfred E. Sanders, Jr., Sanders & Associates, 4503 ½ W. DeYoung, Suite A, Marion.

Attorney for Appellee Louis J. Manetti, Jr., Codilis & Associates, P.C.

JUSTICE WEXSTTEN delivered the judgment of the court, with opinion. Presiding Justice Spomer and Justice Stewart concurred in the judgment and opinion.

OPINION

WEXSTTEN, JUSTICE

¶ 1 FACTS

¶ 2 In July 2011, the plaintiff, Bank of America, N.A. (BOA), commenced a foreclosure action against the defendants, George and Eunice Land (the Lands), in the circuit court of Johnson County. BOA's complaint for foreclosure alleged that in June 2007, the Lands and one of its predecessors in interest had entered into a mortgage agreement through which the Lands had been loaned $125, 000 to finance their purchase of real estate commonly known as 4715 Lick Creek Road, Buncombe, Illinois. The complaint further alleged that the Lands had not paid a monthly mortgage installment since August 2010 and that the outstanding principal on their loan was approximately $121, 000.

¶ 3 In October 2011, after unsuccessfully moving to dismiss BOA's complaint for foreclosure, the Lands filed an answer with affirmative defenses and counterclaims. In November 2011, BOA filed a motion to strike the affirmative defenses and counterclaims. In March 2012, the circuit court entered a modified order striking the Lands' affirmative defenses without prejudice and dismissing their counterclaims without prejudice. Three weeks later, BOA filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). The cause proceeded to a hearing on BOA's motion for summary judgment in June 2012.

¶ 4 On the day of the hearing on BOA's motion for summary judgment, the Lands filed a response to the motion and a motion for leave to amend their answer with affirmative defenses and counterclaims. At the commencement of the hearing, BOA objected to the untimely filing of the Lands' response and motion for leave to amend, and the circuit court entertained arguments on the matter. Suggesting that the pleadings should have been filed "before walking in the courtroom" on the day of the scheduled hearing, the court ultimately struck the Lands' response to BOA's motion for summary judgment and denied their motion for leave to amend their answer with affirmative defenses and counterclaims. The court nevertheless allowed the Lands to file an affidavit in which they attested to having made a $489.80 payment on the loan in September 2009. See 735 ILCS 5/2-1005(c) (West 2010) (providing that a party in opposition to a motion for summary judgment "may prior to or at the time of the hearing on the motion file counteraffidavits").

¶ 5 In support of its motion for summary judgment, BOA submitted an affidavit from Jennifer Lynn Cherks, an assistant vice president of BOA. The affidavit included a record of all payments that the Lands had made on the aforementioned mortgage and stated the total "amount of the default" as of December 23, 2011. In response, the Lands objected to the admission of Cherks' affidavit, arguing, inter alia, that it included information that preceded BOA's acquisition of the loan.

ΒΆ 6 At the conclusion of the hearing, the circuit court granted BOA's motion for summary judgment. The court subsequently entered a written judgment for foreclosure and sale and awarded BOA $3, 654 in attorney fees and costs. The judgment included an express written finding that it was a final and appealable order and that there was "no just cause for delaying the enforcement of [the] judgment or appeal therefrom." See Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010). The Lands subsequently ...


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