Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. 09 CH 11323 . The Honorable Daniel P. Brennan, Judge Presiding.
Where the mortgage and note underlying the instant mortgage foreclosure action had been assigned to plaintiff after the initial mortgage foreclosure action was filed, the original plaintiff was no longer the mortgagee or complainant, and even if defendants' claims that the original plaintiff was operating as an unlicensed debt collector were true, defendants did not explain how the original plaintiff's activities would have rendered all of the pleadings in the case a nullity; therefore, the entry of summary judgment for plaintiff, the confirmation of the sale, and the distribution of the property were affirmed.
For Appellants: Stephen D. Richek, of Chicago, IL.
For Appellee: Morris, Laing, Evans, Brock & Kennedy, Chtd., of Chicago, IL.
JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Fitzgerald Smith concurred in the judgment and opinion.
[¶1] The plaintiff, Deutsche Bank National Trust (Deutsche Bank), succeeded to this action under the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West 2012)), seeking foreclosure on property owned by defendants' Anna Cichosz and Maciej Reng (defendants). The trial court granted Deutsche Bank summary judgment, and subsequently confirmed the sale and distribution of defendants' property. Defendants' timely appeal argues that all orders relating to the judgment of foreclosure are void because the original plaintiff and mortgagee, Mortgage Electronic Registration Systems, Inc. (MERS), operated as an unregistered " debt collection agency" under the Collection Agency Act (Act) (225 ILCS 425/1 et seq. (West 2012)), thereby nullifying the original complaint. We affirm.
[¶3] The limited common law record reveals the following facts which animate our
disposition. On March 12, 2009, MERS filed the present action against defendants seeking foreclosure of the residential property located at 104 S. Maple Lane in Prospect Heights, Illinois. According to the complaint and attached mortgage documents, defendants obtained a mortgage for the subject property on September 29, 2006, for $287,000. The mortgage listed MERS, a Delaware corporation, as the mortgagee and stated MERS was acting as " nominee" for the " Lender and Lender's successors and assigns." MERS is well known in the foreclosure setting as a membership organization that typically records, trades, and forecloses loans on behalf of many lenders, acting for lender accounts rather than their own. Mortgage Electronic Registration Systems, Inc. v. Estrella, 390 F.3d 522, 524-25 (7th Cir. 2004). Here, the mortgage identified the " Lender" as WMC Mortgage Corp., a California corporation. The accompanying note identified WMC Mortgage Corp. as having the beneficial interest in the subject property. However, by the time MERS filed the foreclosure action, MERS asserted it was holder of both the note and the mortgage. Defendant Reng filed a pro se answer admitting that fact and also admitting the assertions of default.
[¶4] On October 28, 2009, apparently in response to MERS's motion, the court ordered substitution of plaintiffs, replacing MERS with Deutsche Bank, " as trustee under pooling and servicing agreement dated as of January 1, 2007 securitized asset backed receivables LLC trust 2007-HE1 ...