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Parkway Bank & Trust Co. v. Korzen

Court of Appeals of Illinois, First District, First Division

December 16, 2013

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

On Appeal from the Circuit Court of Cook County No. 10 CH 36598 Honorable Robert Senechalle, Judge Presiding.

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

OPINION

DELORT JUSTICE

¶ 1 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 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.

¶ 2 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)).

¶ 3 BACKGROUND

¶ 4 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.

¶ 5

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 nonresidential. 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. 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

February 22, 2012 (continued)

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 (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.

June 6, 2012 (continued)

2. Korzen was not named as a defendant in the original complaint. June 6, 2012

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 (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 (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.

¶ 6 ANALYSIS

¶ 7 Violation of Appellate Rules

¶ 8 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.

¶ 9 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)).

¶ 10 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 (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 (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 (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 (2004) (reviewing court has choice to review merits, even in light of multiple Rule 341 mistakes).

¶ 11 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 (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 (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 (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]

¶ 12 Standard of Review

¶ 13 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.

¶ 14 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 (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.

¶ 15 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 (2008). ¶ 16 With these standards in mind, we will review the 15 points of error, some of which we have aggregated due to relatedness.

¶ 17 Service of Process on Defendant Korzen

¶ 18 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.

¶ 19 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 (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.

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

¶ 21 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.

¶ 22 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."

¶ 23 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 (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.

¶ 24 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 (2010). It is not the plaintiff's burden to prove it does have standing. Wexler v. Wirtz Corp., 211 Ill.2d 18, 22 (2004); Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill.App.3d 1, 7 (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).

¶ 25 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.

¶ 26 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 (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.

¶ 27 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 (2011). "Where the language is clear and unambiguous, the statute must be given effect as written without resort to further aids of statutory construction." Alvarez v. Pappas, 229 Ill. 2D 217, 228 (2008).

¶ 28 Section 15-201 of the Code of Civil Procedure (then Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201), interpreted in First Federal, provided as follows:

"In the trial of a foreclosure action, the evidence shall be taken in open court.
Where any fact alleged in the complaint is not denied by the answer filed thereto, a sworn verification of the complaint or a separate affidavit filed in the case setting forth such fact, is sufficient evidence thereof and no further evidence of such fact shall be required.
Where none of the facts alleged in the complaint are denied, upon motion supported by an affidavit stating the amount which is due the plaintiff, the court shall enter a ...

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