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U.S. Bank, NA v. Avdic

Court of Appeals of Illinois, First District, Fifth Division

May 2, 2014

ASIM AVDIC, Defendant-Appellant Hidajeta Avdic; Bank of America, N.A., Successor by Merger to LaSalle Bank, N.A.; United Survey Service, LLC; Unknown Owners and Nonrecord Claimants, Defendants

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Appeal from the Circuit Court of Cook County. No. 10 CH 283362. Honorable Darryl B. Simko, Judge Presiding.


The trial court's orders in a residential mortgage foreclosure action granting the mortgagee summary judgment, denying the mortgagor's motion to strike the mortgagee's affidavit supporting the entry of summary judgment and his motion to reconsider and confirming the judicial sale of the property were affirmed, where the mortgagee's case was established by the evidence and the mortgagor did not present any competing affidavit or evidence, the mortgagor's denials and claim of insufficient knowledge did not raise a material issue of fact, and the mortgagee complied with section 15-1504(a) of the Mortgage Foreclosure Law by setting forth the required information in its complaint.

For APPELLANT: Andjelko Galic, of counsel, Law Offices of Andjelko Galic, Chicago.

For APPELLEE: Louis Manetti, Jr., Margaret Manetti, of counsel, Codilis & Associates, P.C., Chicago.

JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Taylor concurred in the judgment and opinion.


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[¶1] In this mortgage foreclosure action, defendant, Asim Avdic, appeals following the circuit court of Cook County's entry of an order approving the sale of his property. Avdic challenges the court's orders granting summary judgment for plaintiff, U.S. Bank, N.A., denying his motion to

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strike U.S. Bank's affidavit, denying his motion to reconsider, and approving the sale of the property.


[¶3] On July 1, 2010, U.S. Bank filed a foreclosure complaint against Asim Avdic, Hidajeta Avdic,[1] Bank of America, N.A., and United Survey Service, LLC,[2] regarding the mortgage and note executed by Asim and Hidajeta Avdic for property located at 3707 W. North Shore Avenue in Lincolnwood, Illinois. The complaint alleged that U.S. Bank was the mortgagee pursuant to section 15-1208 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1208 (West 2010)). The complaint also alleged that Asim and Hidajeta Avdic, as mortgagors, executed a mortgage in the amount of $417,000 on February 22, 2008, and the mortgage was recorded on April 15, 2008, in Cook County. Further, the original mortgagee was Mortgage Electronic Registration Systems, Inc. (MERS), " as Nominee for LaSalle Bank N.A." The complaint alleged that defendants had not paid the monthly installments of principal, interest, taxes, and insurance from September 2009 through the time of filing the complaint, and the principal balance was $409,821.19 at that time.

[¶4] U.S. Bank attached a copy of the mortgage and note to the complaint. The mortgage was dated February 22, 2008, and provided that MERS was the beneficiary, LaSalle Bank was the lender, and Asim Avdic was the borrower. It was signed by both Asim and Hidajeta Avdic, and it was also notarized. The accompanying note was for the amount of $417,000, with an interest rate of 6.125%, and monthly payments of $2,533.74. The first payment was due on April 1, 2008. It was signed by Asim Avdic. The note was also endorsed " PAY TO THE ORDER OF U.S. Bank NA WITHOUT RECOURSE" and signed by officers of LaSalle Bank and U.S. Bank.

[¶5] On July 21, 2010, Asim and Hidajeta Avdic filed a verified answer to the complaint and entered an appearance as pro se defendants. They admitted to nearly all the paragraphs in the complaint. In relevant part, they admitted that: February 22, 2008, was the date of the mortgage; that Asim and Hidajeta Avdic were the mortgagors; MERS was the original mortgagee; the mortgage was recorded on April 15, 2008; the original amount of the mortgage was $417,000; Asim Avdic was the owner of the property and executed the note; and U.S. Bank brought the foreclosure action as the mortgagee under section 15-1208 of the Foreclosure Law. The only paragraph to which the Avdics responded that they had insufficient information to admit or deny was paragraph 3(J), which provided, " Mortgagors have not paid the monthly installments of principal, taxes, interest and insurance for 09/01/2009, through the present; the principal balance due of the Note and the Mortgage is

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$409,821.19, plus interest, costs, advances and fees. Interest accrues pursuant to the note." Thereafter, attorney Andjelko Galic filed a notice of substitute appearance on October 12, 2010.

[¶6] The record reflects that U.S. Bank subsequently moved for summary judgment and for entry of judgment of foreclosure on two or three occasions in late 2010 and early 2011, but the motions were either withdrawn without prejudice or never proceeded upon. The motion for summary judgment filed in November 2010 included the affidavit of ...

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