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Rosestone Investments, LLC v. Garner

Court of Appeals of Illinois, First District, Fourth Division

November 7, 2013

ROSESTONE INVESTMENTS, LLC, Assignee of Aurora Loan Services, LLC, Plaintiff-Appellee,
v.
JAMES GARNER, Defendant-Appellant.

Appeal from the Circuit Court of Cook County. No. 08 CH 34917 The Honorable Jean Prendergast Rooney, Judge Presiding.

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Lavin and Epstein concurred in the judgment and opinion.

OPINION

FITZGERALD JUSTICE

¶ 1 The instant cause involves a mortgage foreclosure case that has been ongoing for several years. Ultimately, defendant-appellant James Garner (defendant) appeals pro se from a trial court order confirming the sale of the subject property. He raises myriad contentions for our review and, throughout his brief on appeal, makes several accusations of impropriety against opposing counsel and the multiple trial court judges before whom his case appeared. As for the relief he seeks, he asks that we reverse several of the trial court's orders and judgments, remand the matter with directions to dismiss the foreclosure case in its entirety, and for any other relief deemed appropriate. For its part, plaintiff-appellee Rosestone Investments, LLC (plaintiff), which obtained the order of sale from the trial court, has chosen not to file a brief in this cause. Therefore, we consider the instant appeal on appellant's brief only, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133 (1976). For the following reasons, we affirm.

2 BACKGROUND

¶ 3 As we will discuss in more detail below, defendant's brief on appeal is woefully inadequate. With particular relevance to our effort to set forth the facts of this cause, we note that his "Statement of Facts" section, while containing record citations (though not always correct ones), comprises nothing more than a continuous rendition of his arguments and allegations of fraud and "unfairness" perpetuated against him by the trial court, plaintiff and plaintiff's counsel, all because he "has been targeted by the Democratic Machine for more than a decade." For this reason, we note that we present only those facts most relevant to our decision here and that we have taken them directly from the record.

¶ 4 The property at issue is located at 5114 South Damen Avenue in Chicago. Plaintiff filed its complaint to foreclose mortgage against defendant on September 19, 2008. As per the complaint, Resmae Mortgage Corporation held the original note on the mortgage, which was then transferred through "Mortgage Electronic Registration Systems" (MERS) and assigned to Aurora Loan Services, LLC. Eventually, the note was assigned to plaintiff Rosestone Investments, LLC, as the assignee of Aurora Loan Services, LLC. Defendant's signature is clear and apparent upon the face of the note. Defendant was served via publication.

¶ 5 On February 10, 2009, defendant filed a motion to vacate; however, he did not ask that service be quashed. On the same date, plaintiff requested the entry of a judgment of foreclosure and filed a motion to shorten the redemption period to 30 days from the date of judgment, asserting that the property had been abandoned. Defendant failed to appear in court. The trial court denied plaintiff's motion to reduce the redemption period but did enter a judgment of foreclosure and order of sale.

¶ 6 Defendant filed a motion to vacate the judgment of foreclosure and order of sale, and this was granted by the trial court. The court further ordered defendant to appear in court and file his answer to the complaint, which he had not yet done, by February 28, 2009, and also set a status date for March 10, 2009. Defendant, however, did not appear or answer by the deadline. Instead, he filed a motion to substitute judge, an appearance and jury demand, and a pauper petition. Plaintiff filed a motion for default and to appoint a selling officer. The trial court granted plaintiff's motion at the March 10, 2009, status hearing, which defendant failed to attend. Although defendant still had not filed an answer or even a motion to extend the time to answer, he filed another motion to vacate the default and appointment, and the trial court kindly granted his motion. It denied his motion to substitute judge.

¶ 7 Defendant finally filed his answer to plaintiff's September 19, 2008, complaint on April 30, 2009. In it, he denied that he ever signed the mortgage note and that he was the owner of or had any interest in the property in question, and he did not assert any affirmative defenses. In addition to his answer, defendant also filed a motion to dismiss the complaint and a motion to reconsider the denial of his motion to substitute judge, accompanied by a copy of a letter of complaint he sent to the chief judge of the circuit court and a copy of a complaint he filed with the Judicial Inquiry Board. Plaintiff, meanwhile, filed a motion to vacate the trial court's last order vacating the judgment of foreclosure. Defendant did not appear in court. Due to scheduling conflicts and the pendency of multiple notices of appeal filed by defendant in our court[1] during this time, the cause was set aside and continued.

¶ 8 In October 2009, plaintiff again moved for default and foreclosure. In January 2010, the trial court entered and continued plaintiff's motion to vacate the court's order vacating the judgment of foreclosure. The court then struck defendant's motion to reconsider the denial of his motion to substitute judge; notably, defendant again failed to appear for this hearing. However, defendant filed another motion to vacate this, which was granted. The cause was then transferred to a different trial judge, who denied defendant's motion to substitute; defendant failed to appear for this hearing as well. Defendant filed yet another motion to vacate but, again, failed to appear and his motion was stricken.

¶ 9 Defendant then filed a motion to dismiss the cause, in which, for the first time, he raised the issue of standing. He alleged therein that plaintiff did not have the "legal capacity" to file for foreclosure in this case because, while it had filed its complaint against him on September 19, 2008, MERS had not executed the assignment of the mortgage to plaintiff until September 23, 2008, a few days later. Accordingly, and attaching the assignment of mortgage to his motion, defendant asserted that, at the time it filed the complaint, plaintiff was not the legal holder of the note. The trial court struck defendant's motion as untimely, but allowed him to refile the motion. The same series of events then repeated themselves: defendant filed the same motion to dismiss, he then failed to appear in court, and the trial court struck his motion. Defendant filed the same motion to dismiss for a third time, along with another motion to vacate. The trial court set a hearing date for September 1, 2010.

¶ 10 On that date, defendant again failed to appear in court. The trial court proceeded with the scheduled hearing on defendant's motions. Noting that the burden of establishing sufficient grounds for vacating the judgment was on defendant as the movant, the court examined the record and discussed how defendant had been less than diligent in pursuing this cause, had obtained delays by filing meritless and untimely appeals, and had failed to appear, answer or allege any affirmative defenses. Accordingly, the court denied his motion to vacate and struck his motion to dismiss.

ΒΆ 11 Following this, defendant filed yet another motion to vacate. On November 15, 2010, the trial court again granted his motion to vacate; it further ordered him to file an answer, allowed him to file a motion to dismiss and set a status date for January 5, 2011. Defendant filed an answer, again denying that he ever signed the mortgage note or that he was the owner of or had any interest in the property; nor, again, did he assert any affirmative defenses to the foreclosure. Defendant also filed a motion to dismiss, again ...


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