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Pnc Bank v. Perez

United States District Court, N.D. Illinois, Eastern Division

January 31, 2014

PNC Bank, National Association, successor in interest by merger to National City Bank, successor in interest by merger to Mid America Bank, FSB Plaintiff,
v.
Jose S. Perez; Katherine Perez, Defendants.

PNC Bank, National Association, successor in interest by merger to National City Bank, successor in interest by merger to Mid America Bank, FSB James M. Crowley, Jennifer E. Frick, CROWLEY & LAMB, P.C., Chicago, Illinois.

MOTION FOR JUDGMENT OF FORECLOSURE AND SALE

GERALDINE SOAT BROWN, Magistrate Judge.

NOW COMES the Plaintiff, PNC Bank, National Association, successor in interest by merger to National City Bank, successor in interest by merger to Mid America Bank, FSB, by its attorneys Crowley & Lamb, P.C., and moves the Court for the entry of a Judgment of Foreclosure and Sale in its favor and against the Defendant(s):

1. Jose S. Perez; and
2. Katherine Perez

and as grounds thereof state:

As appears from the Affidavit of Plaintiff placed on file in support of this Motion attached hereto as Exhibit "A", and from the pleadings and admissions on file, there is no genuine issue as to any material fact, and the Plaintiff is entitled to a Judgment of Foreclosure and Sale in this case as a matter of law.

EXHIBIT A

AFFIDAVIT IN SUPPORT OF PNC BANK, NATIONAL ASSOCIATION'S MOTION FOR JUDGMENT OF FORECLOSURE AND SALE

I, Jeffrey Claerr, being first duly sworn on oath, am over the age of eighteen years old, and state that the following are true and correct statements based on my personal knowledge:

1. I am an Assistant Vice President of the Commercial Banking - Asset Resolution Team, for PNC Bank, National Association ("PNC"). I have authority to make this statement on PNC's behalf because I am a person familiar with the business and its mode of operation.

2. Through regular training and my work activity, I am familiar with the general manner in which payments are received and applied. I have received training on and am familiar through regular use with the computer systems that reflect the terms of the loan, the payments made, and additional fees and charges associated with the account. I have also been trained on the scanning processes used to convert the information contained within documents into electronic data associated with the account and to store electronic images of the documents. I regularly access images of mortgages and notes to confirm the accuracy of the data stated in affidavits as to accounts. If called to testify at the trial of the above entitled case, I could competently testify as to the facts contained within this affidavit.

3. PNC Bank, National Association is the Plaintiff in this matter.

4. Jose S. Perez and Katherine Perez ("Borrowers") are borrowers on a promissory note secured by a mortgage given by Jose S. Perez and Katherine Perez (together "Defendants"). As evidenced by a note dated January 24, 2007 (the "Note"), Mid America Bank, FSB ("Mid America Bank"), loaned money to Borrowers in the original principal amount of $288, 000.00 (the "Loan"). PNC is the successor in interest by merger to National City Bank, successor in interest by merger to Mid America Bank, FSB. A true and accurate copy of the Note is attached hereto as Exhibit 1.

5. As security for the Note, Defendants executed a Mortgage dated January 24, 2007 (the "Mortgage"), pledging the property commonly known as 1300-1310 W.57th Street, Chicago, Illinois 60636 (the "Property") as security for the Note. The Mortgage was recorded with the Cook County Recorder of Deeds on February 6, 2007, as Document Number XXXXXXXXXX. A true and accurate copy of the Mortgage is attached hereto as Exhibit 2.

6. Upon merger with National City Bank, PNC acquired physical possession of the Note and Mortgage and has had possession of the Note and Mortgage throughout this litigation.

7. Pursuant to the terms of the Note, Borrowers were to make regular monthly payments as set forth in the Note beginning on March 1, 2007, and on the same calendar day monthly thereafter until February 1, 2037, and all unpaid amounts became due and owing.

8. The amounts stated herein are based on my review of the following records: Advanced Commercial Banking System ("ACBS") and Automated Financial Systems ("AFS"). I use ACBS to confirm the amounts due. Records from National City Bank are typically housed in AFS, whereas PNC's records are housed in ACBS. I rely on these records in my daily work activity.

9. A true and accurate copy of the payment histories for the Loan ("Loan Histories") and screen shots of the computer records of the above-listed systems that I reviewed and used to personally calculate the amount due are attached hereto as Exhibit 3.

10. PNC uses ACBS to automatically record and track mortgage payments. This type of record-keeping system is recognized as standard in the industry. When a mortgage payment is received by check, the following procedure is used to process and apply the payment, and to create the records I reviewed: a human payment processor manually enters the payment information and application into ACBS at or near the time of receipt of the payment. When a mortgage payment is received electronically, the following procedure is used to process and apply the payment, and to create the records I reviewed: the data concerning when the payment was received and how it was applied is automatically entered into ACBS at or near the time of receipt of the payment and is then viewable by me either in ACBS. The payment history is generated from ACBS data depending on the age of the records. The payment information and application records are therefore created simultaneously in ACBS at the same time as the entry of the data. The entries are made at or near the time that the payment is received.

11. National City Bank used AFS to automatically record and track mortgage payments. This type of record-keeping system is recognized as standard in the industry. When a mortgage payment is received by check, the following procedure is used to process and apply the payment, and to create the records I reviewed: a human payment processor manually enters the payment information and application into AFS at or near the time of receipt of the payment. When a mortgage payment is received electronically, the following procedure is used to process and apply the payment, and to create the records I reviewed: the data concerning when the payment was received and how it was applied is automatically entered into AFS at or near the time of receipt of the payment and is then viewable by me either in AFS. The payment history is generated from ACBS data depending on the age of the records. The payment information and application records are therefore created simultaneously in AFS at the same time as the entry of the data. The entries are made at or near the time that the payment is received.

12. The record-making process described in the preceding paragraph is done in the regular course of PNC's business. The payment data is kept in the above-listed databases for purposes of referring to the information at a later date. The above-listed databases accurately record mortgage payments when properly operated. My review of the records related to the Loan did not show that the process for tracking and recording payments worked improperly with respect to this Loan.

13. Borrowers defaulted under the terms of the Note by failing to make required payments of the unpaid principal amount, plus accrued interest, costs and other amounts under the terms of the Note. To date, the Note remains unpaid, no payments have been made by or on behalf of Borrowers to satisfy all amounts due Plaintiff under the terms of the Note.

14. Based on my review of PNC's records related to the Loan and the Loan Histories, the amount due and owing as of February 5, 2014 is:

Principal $269, 506.13 Interest $ 21, 459.41 Late Fees $ 1, 656.46 ___________ NET AMOUNT DUE $292, 622.00 FORECLOSURE COSTS: Clerk $ 400.00 Service $ 150.00

Recorder $ 52.00 Photocopies $ 5.20 Minutes of Foreclosure $ 325.00 ___________ Total $ 932.20 SUBTOTAL LOAN BALANCE AND COSTS $293, 554.20 Attorney Fees - Crowley & Lamb, P.C. $ 1, 361.00 ___________ TOTAL $294, 915.20

15. Said net amount due may be increased by $48.66 per day for interest subsequent to February 5, 2014, and in addition thereto under the terms of the Note and Mortgage, the net amount due will be increased for any subsequent Court costs to be taxed in this cause and for any subsequent necessary advancements.

AFFIANT STATES NOTHING MORE.

EXHIBIT 1

EXHIBIT 2

EXHIBIT 3


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