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MB Fin. Bank, N.A. v. Allen

Court of Appeals of Illinois, First District, Sixth Division

June 12, 2015

MB FINANCIAL BANK, N.A., Successor in Interest to Heritage Community Bank, Plaintiff-Appellant,
v.
DANIEL L. ALLEN; MARGARET B. ALLEN; UNKNOWN OWNERS and NONRECORD CLAIMANTS, Defendants-Appellees

Modified upon denial of rehearing July 24, 2015.

Appeal from the Circuit Court of Cook County. No. 13 CH 03633. Honorable Allen P. Walker, Judge Presiding.

For Plaintiff-Appellant: Robert G. Higgins, Michael R. Brancheau, HIGGINS LAW OFFICE, Chicago, Illinois.

For Defendants-Appellees: Christopher Kruger, Werner Gruber, KRUGER & GRUBER, LLP, Chicago, Illinois.

Presiding Justice Hoffman and Justice Hall concurred in the judgment and opinion.

OPINION

Page 437

ROCHFORD, JUSTICE.

[¶1] Plaintiff, MB Financial Bank, N.A. (MBF), brought a foreclosure action

Page 438

against defendants, Daniel L. Allen and Margaret B. Allen (the Allens), the mortgagors and owners of the multiunit building located at 1532 E. Marquette Road, in Chicago (the property) which was encumbered by the mortgage. The circuit court entered a judgment of foreclosure and sale in the amount of $891,285.95 in favor of MBF against both Daniel and Margaret " on the note." After the judicial sale, the circuit court denied MBF's request for the entry of a personal deficiency judgment against both Daniel and Margaret finding the complaint which had deviated from the statutory short form complaint set forth in section 15-1504 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1504 (West 2010)), did not sufficiently allege such a claim. The circuit court subsequently denied MBF's motion to reconsider and its oral motion for leave to file an amended complaint. The circuit court also entered an order: modifying the language of the judgment of foreclosure so as to make clear that personal deficiency judgments could only be entered if properly pled as required by the Foreclosure Law; and striking the language " on the note" from the paragraphs in the judgment of foreclosure which entered money judgments against Daniel and Margaret. For the reasons that follow, we: reverse the denial of MBF's motion to reconsider, as the request for the entry of personal deficiency judgments was sufficiently supported by the allegations of the complaint, its exhibits, and the evidence; enter the deficiency judgments pursuant to our authority under Illinois Supreme Court Rule 366(a)(5) (Ill. S.Ct. R. 366(a)(5) (eff. Feb. 1, 1994)); and vacate the order modifying the language of the judgment of foreclosure.

[¶2] On April 9, 2008, Heritage Community Bank (Heritage), the predecessor in interest to MBF, made a loan of $900,000 to the Allens. In return, the Allens executed a note, " jointly and severally" promising to pay the amount of the loan to Heritage. The note was later amended and made payable to MBF. The note authorized a confession of judgment against the Allens for any unpaid amount " as evidenced by an affidavit by an officer of the lender setting forth the amount then due." The note was secured by a mortgage dated April 9, 2008, which was executed by the Allens and made them jointly and severally responsible for all obligations of the mortgage. The mortgage was subsequently modified on April 9, 2011, in favor of MBF. The mortgage encumbered the property and authorized MBF, upon a default by the Allens, to foreclose upon the property and " obtain a judgment for any deficiency." The mortgage gave MBF, in addition to those rights and remedies specifically set forth in the mortgage and note, all rights and remedies " available at law or in equity." The Allens failed to pay the balance of the principle and interest due on the note when it matured on October 12, 2012.

[¶3] On February 6, 2013, pursuant to the Foreclosure Law (735 ILCS 5/15-1101 et seq. (West 2010)), MBF filed suit against the Allens based upon their failure to meet their obligations under the note and the mortgage. The complaint attached copies of the mortgage, the modification to the mortgage, and the note. MBF contended the Allens " did not pay the balance of principal and interest due on the note when it became due," and asserted the amount then due under the note was $884,044.72. MBF's prayers for relief included a request for a judgment of foreclosure and sale and a " personal judgment for deficiency, if applicable and sought, and only against parties who have not received a Chapter 7 bankruptcy charge or who are not protected by the automatic stay at sale confirmation." MBF also generally sought

Page 439

" [s]uch other and further relief as this court deems just."

[¶4] The complaint generally followed the statutory short form complaint set forth in section 15-1504(a) of the Foreclosure Law. 735 ILCS 5/15-1504(a) (West 2010). MBF's complaint differed from the statutory form in some respects including, as relevant here, paragraph (M). Section 15-1504(a)(3)(M) includes the language: " (M) Names of defendants claimed to be personally liable for deficiency, if any." 735 ILCS 5/15-1504(a)(3)(M) (West 2010). In its paragraph (M), MBF instead alleged:

" (M) Names of persons who executed the Note, Assumption Agreements(s), or Personal Guarantee: Daniel L. Allen and Margaret B. Allen.

Please note that no personal deficiency will be sought against any party who has received a Chapter 7 discharge or who is protected by the automatic stay at sale confirmation."

[¶5] The Allens filed an answer to the complaint which included a denial of the allegations of paragraph (M). In their answer, the Allens admitted that " true" copies of the note and mortgage were attached to the complaint.

[¶6] On April 22, 2013, MBF filed a motion for summary judgment. MBF attached the verified declaration of Robert Romero, vice president of MBF. Mr. Romero stated that he had personal knowledge of the facts set forth in his declaration and had reviewed the relevant records. Mr. Romero stated that the Allens had defaulted on their loan and " each of them is therefore indebted to plaintiff" for the sum of $885,581.08, which was the total unpaid principal, interest, and late fees as of April 19, 2013, and for attorney fees. Additionally, MBF attached a proposed judgment of foreclosure and sale and other relief (proposed judgment) which included the entry of a money judgment and a deficiency judgment against both Daniel and Margaret. MBF requested entry of an order in ...


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