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Aurora Bank FSB v. Perry

Court of Appeals of Illinois, Third District

April 8, 2015

AURORA BANK FSB, Plaintiff-Appellee,
v.
JOHN B. PERRY AND EVELYN PERRY, Defendants-Appellants, and (Discovery Bank; Midland Credit Management, Inc.; the Country Walk Property Owners Association a/k/a the Gray Hawk Property Owners' Association, Defendants)

Page 1167

As Corrected.

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 11-CH-5079. The Honorable Richard J. Siegel, Judge, Presiding.

Lloyd Brooks (argued) and Deadra Woods Stokes, both of Consumer Legal Group, P.C., of Matteson, for appellants.

Ralph T. Wutscher, Jeffrey T. Karek (argued), and F. John McGinnis, all of McGinnis Wutscher Beiramee LLP, of Chicago, for appellee.

PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Holdridge and Wright concurred in the judgment and opinion.

OPINION

McDADE PRESIDING JUSTICE.

Page 1168

[¶1] Defendant-appellants, Evelyn and John Perry (the Perrys), appeal from a trial court order granting summary judgment to plaintiff-appellee, Aurora Bank. In this appeal the Perrys contend that the trial court erroneously decided the issue of capacity as an issue of standing. The Perrys also appeal the trial court's subsequent confirmation of the sale of the subject property and substitution to plaintiff. We affirm the trial court's rulings.

[¶2] FACTS

[¶3] Aurora Bank filed a mortgage foreclosure complaint on October 26, 2011, against Evelyn and John Perry claiming default of mortgage payment for the real estate at 2182 White Thorn Drive in Aurora, Illinois. Aurora's complaint alleged its capacity for bringing the suit was mortgagee by way of assignment. It also said it was " designated and authorized to act on behalf of the owner of the note to enforce the note and mortgage at issue." Aurora attached a copy of the mortgage, a corporate assignment agreement, and the note, blank but endorsed, to the complaint.

[¶4] Mortgage Electronic Registration Systems, Inc. (MERS), the original mortgagee

according to the mortgage, held: " only legal title to the interest granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of lender" .

[¶5] The corporate assignment of mortgage agreement stated that the mortgage was assigned to Aurora on July 27, 2011, and further stated in pertinent part:

" Assignor: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR FIRST NATIONAL BANK OF ARIZONA, ITS SUCCESSORS AND/OR ASSIGNS *** Assignee: AURORA BANK FSB***."

[¶6] The note for the mortgage was made by First National Bank of Arizona, which endorsed to First National Bank of Nevada. First National Bank of Nevada endorsed the note to Residential Funding, which endorsed a blank note.

[¶7] The Perrys' answer to this complaint denied many of Aurora's allegations, including the assertion that Aurora had capacity. They further asserted fraud as an affirmative defense. Aurora filed its reply in opposition to the Perrys' affirmative defense, a motion for judgment of foreclosure and order of sale and a motion for summary judgment that sought judgment of foreclosure and order of sale. The Perrys filed their response to the motion for summary judgment asserting Aurora did not have standing.

[¶8] Due to communication issues, their original counsel withdrew. They retained new counsel who moved for leave to supplement their reply brief in opposition to Aurora's motion for summary judgment. After a hearing on the matter, ...


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