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Parkway Bank & Trust Co. v. Korzen

Court of Appeals of Illinois, First District, First Division

September 23, 2013

PARKWAY BANK AND TRUST COMPANY, Plaintiff-Appellee,
v.
VICTOR KORZEN and TOMAS ZANZOLA, Defendants-Appellants (Unknown Owners and Nonrecord Claimaints, Defendants)

As Supplemented December 16, 2013.

As Corrected April 16, 2014.

Page 1053

On Appeal fro the Circuit Court of Cook County. No. 10 CH 36958. Honorable Robert Senechalle, Judge Presiding.

SYLLABUS

In a groundless appeal from a foreclosure proceeding involving frivolous and confusing pleadings and procedures by defendants with respect to their vacant lot, the appellate court affirmed the judgment for plaintiff, recognized plaintiff's right to petition for attorney fees, and directed defendants to show cause why a fine of $10,000 should not be imposed on them pursuant to Supreme Court Rule 375.

Victor Korzen and Tomas Zanzola, both of Chicago, appellants pro se.

Scott & Kraus, of Chicago (Eugene S. Kraus and Sonia S. Kinra, of counsel), for appellee.

JUSTICE DELORT delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Cunningham concurred in the judgment and opinion.

OPINION

Page 1054

DELORT, JUSTICE.

This appeal of a mortgage foreclosure case involving an empty lot is so groundless that we would normally dispose of it with a brief summary order. However, it provides us an opportunity to review a number of tactics a small number of debtors use both to delay the ultimate resolution of cases against them and to use

Page 1055

the legal system for improper purposes. Some people might classify those who engage in these tactics as " sovereign citizens," but regardless of the nomenclature, their methods are not only counterproductive, but detrimental to the efficient and fair administration of justice. A recent New York Times article noted the FBI has labeled the strategy as " 'paper terrorism.'" Erica Goode, In Paper War, Floor of Liens Is the Weapon, N.Y. Times, Aug. 23, 2013, at A1.

Because of the growing number of these cases, we issue this opinion to provide guidance to the many courts confronted with similar matters.[1] We affirm the judgment below and retain jurisdiction to award additional attorney fees as provided by the underlying contract and to consider the imposition of sanctions under Illinois Supreme Court Rule 375 (Ill. S.Ct. R. 375 (eff. Feb. 1, 1994)).

BACKGROUND

Defendants-appellants, Victor Korzen and Tomas Zanzola, who are the owners of the subject property, raise no less than 15 points in their pro se appeal. Establishing a framework to properly analyze these contentions requires us to set out the chronology of the case in unusually excruciating detail, as follows.

Date

Event

January 5, 2007

Defendant Zanzola signs a promissory note to borrow

$100,000 from Parkway Bank & Trust Company (Parkway).

The note matures six months later, on July 5, 2007. The note

provides that Zanzola will be responsible to pay Parkway's

attorney fees, court costs, and expenses, including for

appeals, if Zanzola fails to repay the note on time. The

note states that it is secured by a January 5, 2007

mortgage, assignment of rents, and " commercial security

agreement" between Zanzola and defendant Korzen for property

located at 1527 East Thomas Street in Palatine (the

property). The note was thereafter renewed in like form for

six successive six-month terms, the last terminating on

July 5, 2010.

January 5, 2007

Zanzola and Korzen sign a mortgage on the Thomas Street

property with Parkway. The mortgage contains a standard

" due on sale" clause providing that Parkway may declare the

note immediately due and payable if the mortgagors transfer

any of their interest in the property. The mortgage also

provides that if the note is not paid on time, Parkway may

obtain a court order foreclosing the mortgagors' interest in

the property. Like the note, the mortgage provides that the

mortgagors shall pay Parkway's " reasonable" attorney fees

and court costs " at trial and upon any appeal."

In the mortgage, Zanzola and Korzen waived their rights of

redemption and reinstatement in case of a foreclosure, a

waiver which is only valid if the property is not

" residential" as defined by the Illinois Mortgage

Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et

seq . (West 2010)). Under the Foreclosure Law, the property

is only " residential" if the borrower actually lives in

a residence constructed on the property. 735 ILCS 5/15-1219

(West 2010).

January 5, 2007

Zanzola and Korzen sign an assignment of rents in favor of

Parkway, another act which suggests that the property is not

" residential" under section 15-1219 of the Foreclosure Law.

January 22, 2007

Korzen signs and records a deed quitclaiming his interest in

the property to himself and Zanzola as joint tenants. Korzen

signs a certificate with the deed asserting that the

transaction between Zanzola and him is exempt from real

estate transfer taxes.

August 26, 2010

Parkway files this mortgage foreclosure lawsuit, along with

a civil cover sheet indicating that the property is " vacant

land." The lawsuit names both Korzen and Zanzola as

defendants. The lawsuit contains two counts. Count I seeks a

mortgage foreclosure and follows the standard statutory

format. Parkway attached three exhibits to the complaint to

support its allegations in count I: (a) a copy of the

January 5, 2007 promissory note, whose most recent renewal

matured on July 5, 2010; (b) a copy of the January 5, 2007

mortgage; and (c) a copy of the January 5, 2007 assignment

of rents. Count I, paragraph 3, alleges that the default on

the note and mortgage occurred through failure to pay

amounts due under the note on and after March 8, 2010, and

that the amount currently due is about $106,377.23 plus

continuing per diem interest of $28.39.

Count II is a claim for breach of the promissory note

against Zanzola.

September 1, 2010

The circuit court appoints a special process server to serve

defendants.

September 12, 2010

The special process server personally serves Zanzola at an

address in Prairie Grove, McHenry County, Illinois.

September 14, 2010

The Cook County sheriff's deputy assigned to serve

defendants reports that he could not serve Korzen at 410

South Warner in Palatine, because he moved from that

address " five years ago."

October 20, 2010

Both defendants file motions in the circuit court to defend

as poor persons without paying filing fees. The court

grants the motions.

October 28, 2010

Zanzola files an appearance, listing his Prairie Grove

address; Korzen also files an appearance, listing an address

in Chicago. The two defendants jointly file a fill-in-the-

blank form answer, denying the allegations of count I,

paragraph 3 of the complaint, and claiming that they have

insufficient knowledge to admit or deny count I,

paragraph 2.

Under the portion of the answer labeled " Other affirmative

matter," defendants state the following:

" Missing:

4.1 Proof of claim accompanied with the evidence of debt;

4.2 Original Wet Script ink Promissory Note;

4.3 Original Title;

4.4 Current complete copy of the Bank's Original

Application and the CUSIP number of the Application."

January 31, 2011

The special process server personally serves Korzen at his

address in Chicago.

February 22, 2011

Defendants fail to appear for the case management

conference.

August 16, 2011

Parkway issues a request to admit facts to defendants,

seeking admission of various basic facts regarding the

transaction. These include genuineness of the documents

signed by defendants and the default created by the missed

payments.

August 31, 2011

On Parkway's motion, the circuit court strikes the

affirmative matter contained in paragraph 4 of defendants'

answer. Defendants never amended these statements, nor

filed traditional affirmative defenses at any later date.

September 15, 2011

Korzen recasts the " other affirmative matter" material which

the circuit court struck from his answer and files it as a

request for production of documents on Parkway. Included

in the request is a demand for an " Original Wet Script ink

Promissory Note [ sic ]."

October 12, 2011

Parkway responds to defendants' request for production of

documents, acknowledging that Parkway will produce the

original note for inspection. Parkway responds to the other

requests by generally stating that they held no responsive

documents or that the requests were vague.

December 7, 2011

Parkway presents a motion for summary judgment which

relies, in part, on defendants' failure to respond to

Parkway's request to admit facts. Defendants file a written

motion for a continuance on Parkway's motion for summary

judgment.

December 8, 2011

The circuit court grants a briefing schedule on Parkway's

motion for summary judgment, and sets hearing on the

motion for February 9, 2012. The court also orders Parkway

to produce the original note for inspection at its office by

December 29, 2011.

December 15, 2011

Parkway's attorneys send Zanzola and Korzen letters stating

as follows:

" This letter will serve to confirm our telephone

conversation earlier today. You previously requested that

Parkway Bank produce the original Note at issue in the

above-captioned case for inspection by you at a Parkway Bank

location. As discussed in our telephone conversation,

Parkway Bank shall produce the Note for your inspection upon

setting up an appointment with your loan officer.

Your loan officer is Loukas Rogaris. Mr. Rogaris can be

reached at [phone number]. The Order entered on December

8, 2011, requires that you inspect the original Note by

December 29, 2011, so please be sure to contact Mr. Rogaris

promptly.

Please feel free to contact me should you have any

questions."

January 4, 2012

Defendants file responses to Parkway's request to admit

facts, about four months late. Defendants' response includes

a request to " toll the statute of limitations." The response

is laden with objections and nonsense legalistic jargon. The

record does not indicate that defendants ever: (1) requested

a conference pursuant to Illinois Supreme Court Rule 201(k)

(Ill. S.Ct. R. 201(k) (eff. July 1, 2002)) to resolve the

objections; (2) filed any motion to request a ruling on the

objections; or (3) filed or presented a motion asking the

circuit court to extend the time to respond to the request

to admit facts. See Ill. S.Ct. R. 216(c) (eff. Jan. 1,

2011) (" Any objection to a request or to an answer shall be

heard by the court upon prompt notice and motion of the

party making the request." ).

January 12, 2012

Defendants file a pleading objecting to Parkway's motion for

summary judgment. In the objection, defendants refer to

themselves as " alleged defendants." The only point raised in

the objection is that the alleged failure of Parkway to

produce the original note for inspection creates a material

issue of genuine fact preventing summary judgment. The

objection is unverified. It contains no supporting

affidavit, nor it is executed under section 1-109 of the

Illinois Code of Civil Procedure (Code of Civil Procedure)

(735 ILCS 5/1-109 (West 2010)). In particular, the objection

also contains no affidavit pursuant to Illinois Supreme

Court Rule 191(b) (Ill. S.Ct. R. 191(b) (eff. July 1,

2002)), explaining why the lack of the original note

prevented them from fully responding to the motion for

summary judgment.

Defendants also file a similar pleading objecting to

Parkway's motion to default unknown owners and nonrecord

claimants, even though they have no standing to do so

since that motion was not directed against them.

January 19, 2012

Parkway files a reply in support of its motion for summary

judgment. The reply asserts that Parkway's attorneys sent

defendants a letter on December 15, 2011, offering

defendants an opportunity for them to inspect the original

notes by making an appointment to see them at Parkway's

office (not its attorneys' offices). It also states that

defendants admitted all the relevant facts by failing to

timely respond to plaintiff's request to admit facts.

February 7, 2012

Defendants file a motion to dismiss the case with prejudice,

based on Parkway's alleged failure to respond to the demand

to produce the original note. The motion consists merely of

fact-based assertions, and is not accompanied by any

affidavit. In the motion, defendants admit receiving the

December 15, 2011 letter from Parkway, but state that they

left messages to establish an appointment to which Parkway

did not respond. In particular, defendants assert that when

they did reach a representative of Parkway on January 19,

2012, he incorrectly claimed that Parkway had until February

9, 2012 to produce the note. The record does not show that

defendants scheduled this motion for hearing on any

particular date, nor that they ever visited Parkway to view

the original note.

February 9, 2012

The circuit court grants Parkway's motion for summary

judgment of foreclosure and orders that the property be sold

at auction to satisfy the debt. The order finds that

defendants waived their rights to redeem the property

pursuant to section 15-1601 of the Foreclosure Law (735

ILCS 5/15-1601 (West 2010)), which indicates that the

property is non-residential. The order contains no language

pursuant to Illinois Supreme Court Rule 304(a) (Ill. S.Ct.

R. 304(a) (eff. Feb. 26, 2010)) indicating that the order is

final or appealable.

February 16, 2012

Defendants file a notice of appeal from the February 9, 2012

order of foreclosure, which is premature because such orders

are interlocutory and not appealable until the court has

confirmed the sale. EMC Mortgage Corp. v. Kemp, 2012 IL

113419, ¶ 11, 982 N.E.2d 152, 367 Ill.Dec. 474. The appeal is assigned docket number 1-12-

0556 in this court.

February 22, 2012

Parkway's attorneys send a letter to defendants, advising

them that their notice of appeal is premature. The letter

cites two precedential cases so holding, and requests that

defendants dismiss the appeal. If they do not, the attorneys

state that they will file an emergency motion to dismiss the

appeal and seek sanctions against them under Illinois

Supreme Court Rule 375 (Ill. S.Ct. R. 375 (eff. Feb. 1,

1994)).

February 22, 2012

Defendants file a " motion and declaration" which asks the

circuit court to vacate the order of foreclosure and sale,

and various other orders, and to dismiss the case. The

pleading is supported by no affidavits, and was filed both

in the circuit court and in this court. It raises a first

group of entirely new issues. The main arguments in, and

elements of, this confusingly drafted document are:

1. Parkway improperly objected to defendants' request for

production of the " original title," " Parkway Bank's original

application and CUSIP number," and " documents evidence

Bank's Right to Ownership of Victor Korzen's property,"

claiming these requests were " vague."

2. A recitation of various telephone and other

communications between the parties regarding inspection of

the note.

3. Only Korzen owns the subject property. However,

Parkway did not serve Korzen but instead only mailed

Korzen's service copy to Zanzola. Defendants claim this

was " in violation of process service requirements." The

motion does not address, in any way, the apparently valid

service on Korzen by the special process server on January

31, 2011.

4. The trial judge " blatantly" issued the foreclosure order

" in clear violation and ignorance" of the allegedly

nonproduced documents and that he " engaged himself in fraud

*** possibly in conspiracy with" Parkway.

5. The foreclosure violated a laundry list of various

statutes. This list is, like the 15 points in defendants'

brief now before us, presented in conclusory fashion without

explaining what occurred that actually violated the

particular statutes. In addition, many of the cited statutes

are utterly inapplicable.

The claims include: (a) Parkway failed to provide proof of

debt as required by the federal Fair Debt Collection

Practices Act (15 U.S.C. § 1692 et seq . (2006)); (b) there

was a " genuine issue of material fact" under section 2-615

of the Code of Civil Procedure (a provision which has

nothing to do with genuine issues of material fact); (c)

there are applicable " exceptions" under section 15-1506 of

the Foreclosure Law, a provision which sets forth the

evidence required to obtain a foreclosure judgment; (d)

there was a " lack of evidence that the property belongs to

the claimant" under section 12-204 (735 ILCS 5/12-204 (West

2010)) (a statute which deals with personal property, not

real estate); and (e) violation of owner protection

provisions, workout options, and a mediation program (none

of which apply to vacant land).

February 29, 2012

Defendants file a " clarification letter" in both the

appellate and circuit courts stating that Parkway's

attorneys have sent them a " threat letter *** blackmailing

them with 'sanctions.'" The letter states that they have

filed a " motion and declaration to vacate the order for

summary judgment,"

and that because the circuit court's failure to act on the

motion within seven days renders the foreclosure order

appealable, they request to amend the notice of appeal to be

a notice of interlocutory appeal.

March 12, 2012

A motion panel of this court denies Parkway's motion to

dismiss the appeal in case No. 1-12-0556, without

explanation.[2] By separate order, the same panel construes

the February 29, 2012 " clarification letter" as a motion to

amend the notice of appeal, and then denies that motion.

March 16, 2012

Korzen and Zanzola sign and record two documents with the

Cook County Recorder of Deeds as document number

1207622015.

The first is entitled " GRANTEE/ASSIGNEE'S NOTICE OF

UPDATE OF LAND PATENT." The recorded document

claims to operate nunc pro tunc to October 24, 2006. It is

laden with nonsense legal jargon, cites at least 21 ancient

laws and treaties, and concludes that the new land patent is

" prima facie conclusive evidence of title." It also states

that if the land patent is not challenged within 90 days

" with lawfully documented proof to the contrary," all claims

against the property will be " forever" estopped. Attached to

the recorded document are copies of original land patents,

apparently covering a larger parcel containing the

underlying property, from the United States of America,

signed by President James K. Polk in 1848.

The second, labeled " NOTICE OF ACKNOWLEDGMENT,

DELIVERY AND ACCEPTANCE OF DEED," states that

Korzen and Zanzola accepted a copy of " our acknowledged

deed" from the recorder of deeds, " thereby perfecting and

correcting the deed, without any intent of granting or

assigning *** to any person other than ourselves."

March 23, 2012

Korzen records his own affidavit with the recorder of deeds

as document number 1208318023, stating that he is a

" living, breathing, sentient being on the land, a Natural

Person and therefore is not and cannot be any ARTIFICIAL

PERSON and, therefore, is exempt from any and all

identifications, treatments, and requirements as such

pursuant to any process, law, code, or statute or any color

thereof." The affidavit proceeds to essentially disclaim the

authority of the American court system.

Zanzola records a similar affidavit with the recorder of

deeds of McHenry County, apparently his home county, as

document number 2012R0011749.

Neither of these affidavits makes any specific reference to

the subject property.

March 26, 2012

Defendants file an " emergency motion for admission of

public records" and to stay the foreclosure sale (" emergency

motion" ). The motion inconsistently asserts that only

Korzen owns the property, but also claims that both Korzen

and Zanzola do. In large part, it relies on the land patent

and " artificial person" documents, claiming that the

documents make them the " rightful owners" of the property.

No facts in the motion are supported by any affidavit. The

motion includes, as exhibits, the various documents

defendants recorded on March 16 and 23, 2012.

March 29, 2012

The circuit court enters an order finding it has no

jurisdiction to consider defendants' emergency motion

because of the pending appeal.

March 30, 2012

On its own motion, the circuit court vacates its March 29,

2012 order, and finds that it does have jurisdiction because

the appeal was premature and an appeal of an unappealable

order does not divest the court of jurisdiction. The order

relies on King City Federal Savings & Loan Ass'n v. Ison, 80

Ill.App.3d 900, 902, 400 N.E.2d 562, 36 Ill.Dec. 142 (1980).

The court sets a briefing schedule on the emergency motion

and a hearing date for May 14, 2012, and stays the sale

pending that hearing.

April 3, 2012

The property is sold at auction, but the sale is later

vacated because it was in violation of the March 30 stay

order.

April 20, 2012

Parkway responds to the emergency motion, and includes a

voluminous 21-part assemblage of prior orders and pleadings

illustrating the history of the case.

May 4, 2012

Defendants reply in support of their emergency motion, and

combine the reply with yet another motion to dismiss the

case. The reply repeats many of the arguments defendants

made earlier, but includes a second group of new arguments.

These claims, none of which are supported by affidavit, are:

1. Parkway's attorneys are third-party debt collectors

operating on their own behalf and interest.

2. Parkway's attorneys have no " corporate resolution or

other lawfully recognizable notarized contract and/or a

specific, detailed, and binding agreement between" Parkway

and themselves.

3. The summary judgment was entered without consideration

of the land patent. (Defendants do not explain how the land

patent could have been so considered, since it was created a

month after the court entered the foreclosure order.)

4. By asserting that defendants had admitted various facts

by failing to timely respond to the request to admit facts,

plaintiffs' attorneys lied and engaged in misconduct.

Similarly, the foreclosure judgment was " conspiratorial" and

" done with prejudice and with bias."

5. Because the subject property is a " private section, a

backyard, of the household located in a residential area, it

is not commercial, and the provisions of the Fair Debt

Collection Practices Act do, in fact, apply to it."

6. One particular attorney for Parkway " undertook unlawful

action *** with her intent to snatch Victor Korzen's

property for her wanton personal monetary enrichment."

7. Because Parkway did not " reveal" in the notes that it

would " claim to be 'the true owner'" of the property, the

assignment of rents is invalid and the court itself is

" constitutionally defective and without lawful

jurisdiction."

8. The land patent trumps all claims by Parkway with respect

to the property.

May 14, 2012

The court denies defendants': (1) emergency motion, which

the order calls the " motion for admission of public

records" ; (2) motion to stay sale; and (3) motion to vacate

the foreclosure. The court also vacates the April 3, 2012

sale.

June 6, 2012

Defendants file a motion to reconsider the May 14, 2012

order. Again, the motion is not supported by any affidavit.

The motion is more than merely a motion to reconsider, as it

adds the following third group of new issues:

1. The complaint violates Federal Rule of Civil Procedure

17(a) (Fed. R. Civ. P. 17(a)) because it was not brought by

the real party in interest.

2. Parkway violated the Truth in Lending Act (15 U.S.C. §

1601 et seq . (2006)) because it is not the owner of the

loan. Rather, it is a servicer for the true owner and

therefore has committed fraud, theft, and extortion.

3. Federal Rule of Evidence 1002 (Fed. R. Evid. 1002)

required Parkway to produce the original note.

4. Parkway failed to produce a " debt validation notice"

within five days of contacting defendants to collect the

debt, in violation of the Fair Debt Collection Practices

Act.

5. The circuit court failed to act on its own motion to hold

Parkway's attorney in contempt for only serving one of the

two defendants.

6. Parkway's attorneys violated section 15-1104 of the

Foreclosure Law (735 ILCS 5/15-1104 (West 2010)) by

wrongfully inducing the court into making a finding of

abandonment regarding the subject property. (The court

made no such finding, however.)

7. Parkway violated various federal rules by not making

certain disclosures at the closing.

In the motion, defendants repeat two particular arguments on

which we specially remark below, because it is this motion

upon which defendants rely in this court. These arguments

are:

1. Because defendants hold a land patent, no one else can

claim any ownership interest in the property.

2. Korzen was not named as a defendant in the original

complaint.

July 3, 2012

The circuit court sets a briefing schedule on the motion to

reconsider, stays the sale pending the hearing, and sets the

motion for hearing on August 22, 2012.

July 19, 2012

Parkway files a motion for sanctions against defendants.

August 22, 2012

The circuit court denies defendants' motion to reconsider

and enters and continues plaintiff's motion for sanctions

" generally."

The record contains a transcript of the proceedings this

day. The transcript shows that Zanzola confronted the judge

with demands to show Zanzola his oath of office. Zanzola

also confirmed that the property was a backyard with a shed,

but otherwise vacant. After the judge ruled, Zanzola

objected, stating that plaintiff, as a " corporation cannot

otherwise contend with a living natural man or woman," and

mis-citing Rundle v. Delaware, 55 U.S. (14 How.) 80, 14 L.Ed. 335 (1852),

for that proposition. Korzen requested leave of court to

take depositions.

August 22, 2012

Defendants file a motion for leave to take discovery

depositions of Parkway's attorneys, requesting that they

bring, among other things, a copy of the visas that allowed

the attorneys to enter the United States. Defendants set the

depositions, apparently without any permission from the

presiding judge to do so, for the Third Municipal District

courthouse in Rolling Meadows, Illinois.

September 10, 2012

This court dismisses defendants' appeal in case No. 1-12-

0556 for want of prosecution.

October 23, 2012

Defendants serve a subpoena directly on Parkway Bank

requesting production of materials regarding the contract

between Parkway and its attorneys. Included are demands

that Parkway produce the " bona fide" written contract

between it and its law firm; documentation that the person

who signed the contract for Parkway was authorized to do so

by Parkway's board of directors, and law licenses, oaths of

office, bonds, and malpractice insurance for the attorneys.

October 26, 2012

Parkway files a motion to quash the subpoena, noting that

discovery is inappropriate because the case is essentially

over, the materials sought are irrelevant, and that it was

inappropriate to subpoena documents directly from it rather

than making a request through its attorneys of record.

November 9, 2012

The circuit court grants Parkway's motion to quash the

subpoena.

November 9, 2012

The circuit court sets a briefing schedule on plaintiff's

motion to confirm the sale, with a hearing date of January

10, 2013.

November 30, 2012

Defendants file a response to the motion to confirm sale,

raising a host of the same issues they raised in their

earlier pleadings. The response raises a fourth group of new

issues, claiming that the sale should not be confirmed

because the bank's attorneys failed " to prove they are

attorneys licensed" in Illinois. It also claims that the

attorneys' letter asking them to withdraw their premature

appeal was " pertinacious and frivolous." The response does

not, however, invoke any of the statutory bases applicable

to judicial confirmation of foreclosure sales. See, e.g .,

NAB Bank v. LaSalle Bank, N.A ., 2013 IL App (1st) 121147,

¶ ¶ 8-21, 984 N.E.2d 154, 368 Ill.Dec. 429 (applying standards in section 15-1508(b) (735 ILCS

5/15-1508(b) (West 2010)). The response is not supported by

any affidavit.

January 10, 2013

The circuit court enters an order confirming the sale,

finding that Parkway purchased the property for a credit bid

of a sum less than what was owed, resulting in a deficiency

of $50,958.09. The court awards Parkway an additional

$17,058.15 in postforeclosure judgment attorney fees, but

denies Parkway's motion for sanctions.

February 7, 2013

Defendants file a notice of appeal from the foreclosure

order and the order confirming sale.

ANALYSIS

Violation of Appellate Rules

Before we discuss the merits of the appeal, we address Parkway's complaint regarding various errors and omissions in defendants' brief, and defendants' failure to file a docketing statement. It asks us to dismiss the appeal based on these errors and omissions.

Defendants' brief contains: (1) a table of contents containing no citations to authority as required by Illinois Supreme Court Rule 341(h) (Ill. S.Ct. R. 341(h) (eff. Sept. 1, 2006)); (2) a five-page list of 15 issues for appeal, many of which are barely comprehensible; (3) a jurisdictional statement saying that the circuit court judge was ignorant; (4) a three-page cavalcade of citations to mostly irrelevant statutes, including some never relied on in the court below; (5) a four-line statement of facts referring the reader to an attached exhibit which is actually an affidavit signed by one of the defendants haranguing the judge and Parkway's attorneys; (6) a half-page argument section merely incorporating a particular pleading filed in the court below and not citing the record in any manner; (7) a " standard of review" paragraph citing an inapplicable federal court rule; (8) a two-page conclusion repeating much of the same material already presented; and (9) a short appendix containing a few selected documents from the record, but not including copies of the orders actually being appealed from as required by Illinois Supreme Court Rule 342 (Ill. S.Ct. R. 342 (eff. Jan. 1, 2005)).

We agree that defendants' brief fails to comply with virtually all of the requirements of Illinois Supreme Court Rule 341. This court is entitled to be presented with clearly defined issues, citations to pertinent authority and cohesive arguments. U.S. Bank v. Lindsey, 397 Ill.App.3d 437, 459, 920 N.E.2d 515, 336 Ill.Dec. 306 (2009). The court " is not merely a repository into which an appellant may 'dump the burden of argument and research.'" Id. (quoting Obert v. Saville, 253 Ill.App.3d 677, 682, 624 N.E.2d 928, 191 Ill.Dec. 740 (1993)). The rules of procedure concerning appellate briefs are rules, not mere suggestions, and it is within our discretion to strike a brief and dismiss the appeal for failure to comply with those rules. See Niewold v. Fry, 306 Ill.App.3d 735, 737, 714 N.E.2d 1082, 239 Ill.Dec. 785 (1999). However, despite defendants' manifest disregard for the appellate rules, we believe that plenary review of this particular case is important to provide guidance to lower courts faced with similar improper litigation tactics. Accordingly, we decline to dismiss the appeal and find that defendants' lack of compliance with Supreme Court Rule 341(h) does not preclude our review. See In re Estate of Jackson, 354 Ill.App.3d 616, 620, 821 N.E.2d 1199, 290 Ill.Dec. 625 (2004) ( reviewing court has choice to review merits, even in light of multiple Rule 341 mistakes).

We turn to the merits of defendants' appeal, so much as we can discern them from their brief. See Twardowski v. Holiday Hospitality Franchising, Inc ., 321 Ill.App.3d 509, 511, 748 N.E.2d 222, 254 Ill.Dec. 776 (2001) (pro se briefs failed to clearly articulate the errors relied upon for reversal or present an organized and cohesive argument in compliance with supreme court rules, but reviewing court nevertheless addressed the merits); A.J. Maggio Co. v. Willis, 316 Ill.App.3d 1043, 1048, 738 N.E.2d 592, 250 Ill.Dec. 376 (2000) (" the waiver rule is a limitation on the parties and not on the courts" ); Village of Maywood v. Health, Inc ., 104 Ill.App.3d 948, 952, 433 N.E.2d 951, 60 Ill.Dec. 713 (1982) (in the interest of justice, reviewing court exercised its discretionary authority to consider portions of the defendants' brief where the points cited were not argued).[3]

Standard of Review

Despite the numerous points of alleged error, the case hinges on the circuit court's approval of two key orders: the order granting Parkway's summary judgment motion, which resulted in an order of foreclosure and sale; and the order confirming the judicial sale of the subject property. The standards for our review of each of these orders is well established.

Summary judgment is appropriate " if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2010). Summary judgment is a drastic measure and should only be granted when the moving party's right to judgment is " clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual Insurance Co ., 154 Ill.2d 90, 102, 607 N.E.2d 1204, 180 Ill.Dec. 691 (1992). " Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied." Id. However, " summary judgment requires the responding party to come forward with the evidence that it has -- it is '" the put up or shut up moment in a lawsuit." '" Eberts v. Goderstad, 569 F.3d 757, 767 (7th Cir. 2009) (quoting Koszola v. Board of Education of the City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004), quoting Schacht v. Wisconsin Department of Corrections, 175 F.3d 497, 504 (7th Cir. 1999)). We review a circuit court's entry of summary judgment de novo. Outboard Marine Corp ., 154 Ill.2d at 102.

With respect to the order confirming sale, we note that section 15-1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 2010)) grants broad discretion to courts in approving or disapproving judicial sales. We review approval of judicial sales for abuse of discretion. Household Bank, FSB v. Lewis, 229 Ill.2d 173, 178, 890 N.E.2d 934, 322 Ill.Dec. 15 (2008).

With these standards in mind, we will review the 15 points of error, some of which we have aggregated due to relatedness.

Service of Process on Defendant Korzen

Defendants claim that Parkway violated " process service requirements" by mailing the complaint and summons to Zanzola but not to Korzen. Korzen asserts that the mailing of the summons to Zanzola and naming Zanzola as a defendant was particularly wrong because only he, not Zanzola, is the owner of the subject property. Korzen's sole ownership assertion is belied by the January 22, 2007 postmortgage deed in which Korzen quitclaimed his interest to himself and Zanzola as joint tenants. It is also refuted by the fact that both Korzen and Zanzola signed the underlying mortgage. Because they did so, both are proper defendants in the case. 735 ILCS 5/15-1501(a) (West 2010). Additionally, Korzen never " interven[ed]" into the case as he claims. Both Korzen and Zanzola were named as defendants in the original complaint and that complaint was never amended.

The record demonstrates that Korzen was personally served on January 31, 2011, and that Zanzola was personally served on September 12, 2010. This was all that was necessary; any additional copies that may have been mailed by virtue of a later request he made to Parkway's attorneys were superfluous. Korzen never filed a motion to quash the January 31 service. In fact, the January 31 service was itself unnecessary because Korzen had already appeared in the case and filed an answer on October 28, 2010. By doing so, he waived his right to contest service. Under section 2-301(a-5) of the Code of Civil Procedure (735 ILCS 5/2-301(a-5) (West 2010)), a defendant who voluntarily files an answer waives all objections to the court's jurisdiction. See Poplar Grove State Bank v. Powers, 218 Ill.App.3d 509, 515, 578 N.E.2d 588, 161 Ill.Dec. 230 (1991) (holding that a defendant " may not, by his voluntary action, invite the court to exercise its jurisdiction over him while he simultaneously denies that the court has such jurisdiction" ). Accordingly, the manner of service of process in this case provides no basis for us to disturb the judgments below.

Parkway's Standing to Foreclose and the Sufficiency of its Proof -- " Show Me the Note"

Defendants claim that Parkway did not demonstrate its standing to foreclose because it did not establish the fact that it was the true holder of its own loan. The linchpin of this argument is that defendants requested Parkway to produce the " original title" or original note(s) on numerous occasions but that Parkway did not do so.

The first part of this argument is easy to resolve. Defendants do not explain what an " original title" is. They also fail to cite any authority as to why such a document would either be a necessary element of proof in a foreclosure case, nor why it might be relevant here. Parkway responded to this request by saying that it was " vague."

An " original title" is " [a] title that creates a right for the first time" such as the title held by a fisherman who catches a particular fish for the first time. Black's Law Dictionary 1623 (9th ed. 2009). The term is used only once in the entire Illinois Compiled Statutes, and then merely in connection with an automobile title certificate. 625 ILCS 5/3-116(e) (West 2010). Our supreme court has not referred to an " original title" for land for over 40 years, but in that context, it apparently referred it as the type of ownership held by the sovereign nation or state in land before it was first deeded to private owners. Hickey v. Illinois Central R.R. Co ., 35 Ill.2d 427, 446-47, 220 N.E.2d 415 (1966) (referring to the State of Illinois' original title to the bed of Lake Michigan). So understood, an " original title" for land is not a written document that can be produced, but merely a characteristic or classification of ownership. Therefore, it is not something that Parkway could have produced.

The second part of this argument, dealing with production of the original notes, is more complicated. Preliminarily, we note that Parkway was free to ignore the document request which defendants slid into their answer. Discovery requests do not belong in the middle of answers, and the court struck the request anyway. Defendants did renew the same request later, however. While defendants frame the lack of production under the rubric of standing, it is really a discovery dispute. We examine it under both characterizations. The standards applicable to standing in a foreclosure case are well settled. Standing is an affirmative defense and, as such, it is the defendant's burden to prove that the plaintiff does not have standing. Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217, 252, 930 N.E.2d 895, 341 Ill.Dec. 381 (2010). It is not the plaintiff's burden to prove it does have standing. Wexler v. Wirtz Corp ., 211 Ill.2d 18, 22, 809 N.E.2d 1240, 284 Ill.Dec. 294 (2004); Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill.App.3d 1, 7, 940 N.E.2d 118, 346 Ill.Dec. 118 (2010) (foreclosure case). The mere fact that a copy of the note is attached to the complaint is itself prima facie evidence that the plaintiff owns the note. U.S. Bank, N.A. v. Dunn, No. 12 CV 1963, 2013 WL 1222054, at *3 (N.D. Ill. Mar. 25, 2013).

During the peak of the recent mortgage foreclosure crisis, a member of the United States House of Representatives, Marcy Kaptur, of Ohio, led the " show-me-the-note" charge, suggesting that borrowers could halt foreclosure cases and squat for free in their homes until the bank shows them the original note. Becky Yerak, Distressed Homeowners Fight Foreclosure By Taking Their Lenders To Court, Chicago Tribune, Feb. 22, 2009, § C, at 1. This tactic, however, does not work in Illinois.

For over 25 years, the Foreclosure Law has been interpreted as not requiring plaintiffs' production of the original note, nor any specific documentation demonstrating that it owns the note or the right to foreclose on the mortgage, other than the copy of the mortgage and note attached to the complaint.[4] First Federal Savings & Loan Ass'n v. Chicago Title & Trust Co ., 155 Ill.App.3d 664, 665-67, 508 N.E.2d 287, 108 Ill.Dec. 126 (1987). First Federal interpreted former section 15-201 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201), a predecessor to the current section 15-1506(b) of the Foreclosure Law (735 ILCS 5/15-1506(b) (West 2010)). To ensure that First Federal is still good law, we must examine the statute in effect at the time the First Federal court interpreted it and compare it to the current statute.

The primary aim of statutory construction is to determine the legislature's intent, beginning with the plain language of the statute. General Motors Corp. v. Pappas, 242 Ill.2d 163, 180, 950 N.E.2d 1136, 351 Ill.Dec. 308 (2011). " Where the language is clear and unambiguous, the statute must be given effect as written without resort to further aids of statutory ...


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