Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bank of America, N.A. v. Basile

Court of Appeals of Illinois, Third District

May 20, 2014

BANK OF AMERICA, N.A., Plaintiff-Appellee,
v.
PERRY BASILE, a/k/a Perry A. Basile; ERICA BASILE, a/k/a Erica G. Basile; HARRIS, N.A.; WESLAKE COUNTRY CLUB ASSOCIATION; UNKNOWN OWNERS and NONRECORD CLAIMANTS, Defendants-Appellants.

Supplemental opinion filed October 27, 2014

Held [*]

In view of the procedural delays in an action to foreclose the mortgage on defendants’ residence arising from defendants’ apparent desire to “stall” the foreclosure and remain in the residence for as long as possible without paying, as they did from 2008, the judgment of foreclosure and sale finally entered in 2012 was affirmed, and pursuant to Supreme Court Rule 375(b), the parties were directed to follow the appellate court’s directions for filings preliminary to the appellate court’s supplemental opinion determining whether sanctions will be imposed for defendants’ appeal and the appropriate amount of those sanctions.

Appeal from the Circuit Court of Will County, No. 09-CH-1717; the Hon. Richard J. Siegel, Judge, presiding.

Counsel on Theodore Woerthwein (argued) and John Miller, both of Woerthwein & Miller, of Chicago, for appellants. Appeal

Robine K. Morrison and Phoebe Coddington (argued), both of Winston & Strawn LLP, of Chicago, for appellee.

Panel JUSTICE McDADE delivered the judgment of the court, with opinion. Justices O'Brien and Schmidt concurred in the judgment and opinion.

OPINION

McDADE JUSTICE

¶ 1 Defendants, Perry Basile and Erica Basile, were sued by plaintiff, Bank of America, N.A., under the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq. (West 2008)). The circuit court entered judgment of foreclosure and sale in favor of plaintiff. We affirm.

¶ 2 On July 22, 2005, defendants executed a mortgage related to property located at 1758 Autumn Woods Lane in Romeoville. The mortgage secured a $135, 800 loan from plaintiff. After defendants failed to make any payments on the loan for more than a year, plaintiff filed a complaint to foreclose mortgage. The mortgage and defendants' note were attached to the complaint. Defendants' last payment on the mortgage was apparently six years ago (February 2008).

¶ 3 Defendants were personally served with the complaint. Defendants did not, however, file an appearance or respond to the complaint until after the circuit court entered a default judgment against them. Defendants subsequently filed a motion to vacate the default judgment, which the court granted.

¶ 4 On December 16, 2009, defendants filed an answer (the 2009 Answer), which contained three affirmative defenses: (1) plaintiff failed to provide notice of default, (2) plaintiff failed to provide sufficient or accurate copies of the notice of rescission, and (3) defendants exercised their right of rescission on March 6, 2008.

¶ 5 After plaintiff filed a motion to strike the affirmative defenses, defendants withdrew them and requested leave to amend the 2009 Answer or replead the affirmative defenses. The court entered an order withdrawing the affirmative defenses and granted defendants 28 days to replead their answer and/or affirmative defenses.

¶ 6 Defendants filed an amended answer 57 days later on September 30, 2010 (the 2010 Answer). The 2010 Answer again included three affirmative defenses: (1) the mortgage and/or note were altered and/or defaced, making them unenforceable, (2) defendants had exercised their right of rescission on March 6, 2008, so there was no mortgage to enforce, and (3) plaintiff failed to provide sufficient or accurate copies of the notice of rescission.

¶ 7 On October 14, 2010, plaintiff moved to strike defendants' affirmative defenses. At the hearing on plaintiffs motion, defendants requested leave to withdraw and replead their affirmative defenses. At the hearing on plaintiff s motion to strike, plaintiff s counsel informed the court that defendants had agreed to withdraw their affirmative defenses. Based on this agreement, the court granted defendants "leave to withdraw their answer and affirmative defenses" and ordered defendants "to answer or otherwise plead to the complaint within 28 days." Defendants never filed an amended answer.

¶ 8 On December 30, 2011, plaintiff moved for summary judgment allowing it to foreclose and sell the property. Plaintiff attached defendants' 2009 Answer to its motion. In response, defendants argued that the 2010 Answer and affirmative defenses contained therein were still in effect. Additionally, for the first time, defendants raised a new affirmative defense challenging plaintiffs standing to bring the complaint, arguing that Fannie Mae owned the note, not plaintiff

¶ 9 Defendants also moved for leave to file a motion to dismiss, which seems to contend that both the 2009 and 2010 Answers were still in effect. Defendants argue that they never actually withdrew the 2010 Answer and plaintiff has acknowledged the continued viability of the 2009 Answer by attaching it to its motion for summary judgment. Defendants reasserted their claim that plaintiff lacked standing. Upon hearing argument, the court denied defendants leave to file a motion to dismiss.

¶ 10 The matter proceeded to a hearing on plaintiff s motion for summary judgment. The circuit court heard argument on the issues of (1) whether the 2009 and 2010 Answers and corresponding affirmative defenses were still in effect, and (2) plaintiffs standing. Ultimately, the court granted plaintiffs motion for summary judgment. The court specifically held that no affirmative defenses existed on file.

¶ 11 Defendants filed a motion to reconsider, arguing that the circuit court erred in finding plaintiff had standing. The motion did not challenge the court's finding that no affirmative defenses existed on file.[1] Instead, defendants moved for leave to file a new amended answer and affirmative defenses, which included the exact three affirmative defenses pled in the 2009 Answer plus a fourth affirmative defense challenging standing. After hearing argument, the court denied the motion to reconsider and found the motion for leave to file amended pleadings to be moot.

¶ 12 Pursuant to plaintiffs motion, the court confirmed the sale in foreclosure by order of October 19, 2012. On November 19, 2012, defendants moved for reconsideration of the order confirming sale, arguing that plaintiff did not have standing to foreclose. The court rejected this claim. Defendants appealed.

¶ 13 ANALYSIS

¶ 14 At the outset, we note that there is a great deal of confusion with regard to the procedural posture of this case. Upon review of the record, we attribute much of this confusion to defendants, who on several instances failed to comply with the circuit court's imposed deadlines. First, defendants, who were personally served, did not take any legal action until a default judgment was entered against them. Second, after the court entered an order withdrawing the 2009 affirmative defenses and granted defendants 28 days to replead their answer and/or affirmative defenses, defendants did not file an amended answer until 57 days later. Lastly, and most significantly, after the court granted defendants' request for "leave to withdraw their [2010] answer and [2010] affirmative defenses" and ordered defendants "to answer or otherwise plead to the complaint within 28 days, " defendants did nothing for over a year. Only after plaintiff filed its motion for summary judgment did defendants choose to act by moving for leave to file a motion to dismiss, whereby they confusingly argued that both the 2009 and 2010 Answers were still in effect.

ΒΆ 15 Defendants now argue that the circuit court erred in: (1) determining defendants did not have any affirmative defenses on file at the time plaintiffs motion for summary judgment was argued, (2) denying defendants' motion to file an amended answer and affirmative defenses after summary judgment was entered, and (3) refusing to adjudicate defendants' rescission claim. We ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.