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PNC Bank, N.A. v. Zubel

Court of Appeals of Illinois, First District, Third Division

December 23, 2014

PNC BANK, NATIONAL ASSOCIATION, Successor by merger to NATIONAL CITY BANK, Plaintiff-Appellee,
v.
MONIKA ZUBEL, Defendant-Appellant

Appeal from the Circuit Court of Cook County. No. 09 CH 36988. The Honorable Anthony C. Kyriakopoulos, Judge Presiding.

For Monika Zubel, Defendant-Appellant: Stephen D. Richek, of counsel, Leading Legal, LLC, Chicago, IL.

For Plaintiff-Appellee: James M. Crowley, Jennifer E. Frick, Crowley & Lam, PC, Chicago, IL.

PRESIDING JUSTICE PUCINSKI delivered the judgment of the court, with opinion.Justice HYMAN and Justice MASON concurred in the judgment and opinion.

OPINION

Page 870

PUCINSKI, PRESIDING JUSTICE.

[¶1] Defendant mortgagor Monika Zubel appeals an order of the circuit court granting plaintiff mortgagee PNC Bank's (PNC) motion for summary judgment in this mortgage foreclosure action brought in accordance with provisions of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2010)). Zubel also contests the propriety of the court's subsequent order approving the judicial sale of the mortgaged property and granting PNC an order of possession against her. She seeks reversal of the circuit court's orders, arguing that PNC's filings failed to comply with the requirements of the Foreclosure Law and that genuine issues of material fact exist that preclude summary judgment. For the reasons set forth herein, we affirm the judgment of the circuit court.

[¶2] BACKGROUND

[¶3] On October 2, 2009, PNC filed a complaint to foreclose mortgage against mortgagor Zubel regarding the mortgage and note executed with respect to property located at 6724 North Kenton Avenue in Lincolnwood, Illinois. In the complaint,

Page 871

PNC alleged that Zubel had not met any of her monthly mortgage payment obligations that year and was thus in default of her mortgage.

[¶4] Zubel filed an answer in response to PNC's foreclosure action in which she admitted that she was the mortgagor of the property identified in PNC's complaint; however, she neither admitted nor denied that she had failed to fulfill her mortgage obligations and had defaulted on her mortgage.[1]

[¶5] Thereafter, PNC filed a motion for summary judgment on its foreclosure action. In pertinent part, PNC argued that none of Zubel's filings created any genuine issue of material fact as to the default on her mortgage and that it was thus entitled to judgment as a matter of law. PNC's motion was supported by affidavits completed by two of its employees: Laura Cauper and Jason Cogar. In Cauper's affidavit, she averred that she was the authorized servicing agent with respect to Zubel's mortgage and was familiar with the business records that PNC had made in the regular course of its business with respect to Zubel's mortgage. Based on those documents, Cauper averred that PNC had not received all of the payments that it was due pursuant to the terms of Zubel's mortgage agreement.

[¶6] Jason Cogar, in turn, submitted an " affidavit of amount due," in which he averred that " Monika Zubel failed to pay amounts due under the Note," and identified $511,744.04 as the total amount " due and owing" to PNC. He explained that the calculation was based on his " review of books and records with respect to Defendant's loan." He further explained that " [i]n the ordinary and regular course of its business, PNC Bank, National Association, utilizes the Lender Processing Service, Inc., to process and store its customer information and to calculate the amount due and owing on any note at any given time. PNC Bank, National Association, utilizes the Program in the ordinary and regular course of its business to track and maintain the amounts due and owing from the Borrower on the mortgage loan at issue in this case. Based on *** PNC Bank, National Association's business practices, recording such information is a regular practice of the PNC Bank, National Association's regularly conducted business activities for the purpose of referring to the information at a later date, and the entries in those ...


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