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HSBC Bank USA, N.A. v. Rowe

Court of Appeals of Illinois, Third District

June 23, 2015

HSBC BANK USA, NATIONAL ASSOCIATION as Trustee for Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-3, Plaintiff-Appellee,
v.
SCOTT ROWE; NANCI ROWE a/k/a NANCI L. ROWE; BENEFICIAL ILLINOIS INC.; PORTFOLIO RECOVERY ASSOCIATES LLC; WHEATLAND HOMEOWNERS ASSOCIATION; CITY OF AURORA; UNKNOWN OWNERS and NONRECORD CLAIMANTS, Defendants-Appellants

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 2010-CH-7142. Honorable Thomas A. Thanas, Judge, Presiding.

Affirmed.

LYTTON, JUSTICE delivered the judgment of the court, with opinion. Justices Carter and Schmidt concurred in the judgment and opinion.

OPINION

LYTTON, JUSTICE

[¶1] Plaintiff, HSBC Bank USA, filed a complaint to foreclose mortgage against defendants, Scott and Nanci Rowe. Pursuant to plaintiff's motion, the trial court struck defendants' affirmative defense of lack of standing. The court also denied defendants' motion to deem their requests for admissions admitted. After granting summary judgment on the complaint, the court entered a judgment for foreclosure and sale. Defendants appeal, arguing that the court: (1) erred in granting summary judgment; and (2) abused its discretion in denying defendants' motion to deem requests admitted. We affirm.

[¶2] FACTS

[¶3] On November 18, 2010, plaintiff filed a complaint to foreclose mortgage against defendants. In section D of the complaint, " Mortgage Electronic Registration Systems, Inc. [(MERS)] as nominee for Mortgageit, Inc.," was named as the original mortgagee. Section N of the complaint read: " Capacity in which Plaintiff brings this foreclosure: Plaintiff is the Mortgagee under 735 ILCS 5/15-1208."

[¶4] Plaintiff attached copies of the promissory note and mortgage as exhibits to the complaint. The promissory note was executed by Scott Rowe in favor of MortgageIt, Inc., and was in the amount of $335,250. The first page of the copy of the note was signed and stamped by MortgageIt, certifying that it was a " true and correct copy of the original." Only Scott Rowe's signature appeared on the note, with no other markings on the signature page. To secure repayment of the note, the mortgage was executed the same day in favor of MERS, the mortgagee and nominee for MortgageIt.

[¶5] On December 12, 2012, defendants filed an amended answer and an affirmative defense of lack of standing. Defendants alleged plaintiff lacked standing to pursue the foreclosure because: (1) plaintiff had not attached an assignment of mortgage to the complaint; (2) the assignment for the mortgage from MERS to plaintiff was invalid; and (3) plaintiff had no valid interest in the note.

[¶6] Plaintiff filed a motion to strike defendants' affirmative defense of lack of standing. Plaintiff argued that the note and mortgage were legally inseparable. Plaintiff attached to its motion a second copy of the note. This copy of the note did not contain the " true and correct" stamp on the first page, but did include an indorsement in blank below Scott Rowe's signature. At a March 13, 2013, hearing, plaintiff produced the original note and mortgage in open court. Defendants withdrew their affirmative defense of lack of standing, and plaintiff's motion to strike the affirmative defense was declared moot, with defendants given 21 days to replead affirmative defenses.

[¶7] On April 3, 2013, defendants filed their third affirmative defense, alleging again that plaintiff lacked standing to foreclose. Defendants posited, inter alia, that " [t]he Trojan Assignment surreptitiously inserted at Par. 'Q' of the Mortgage is void ab initio and confers no interest in the Legal Title to the property or the Note to M.E.R.S., Inc." Paragraph Q of the mortgage defines " Successor in Interest of Borrower" as " any party that has taken title to the Property, whether or not that party has assumed Borrower's obligations under the Note and/or this Security Instrument." Defendants also alleged that the memorialized assignment of the note to plaintiff was a " made-to-order fraud on the [trial] Court and exists as a criminal cloud on title." Defendants claimed that the assignment of the mortgage by MERS, which it attached as exhibit 1, was invalid because it did not include plaintiff's name. Plaintiff again responded with a motion to strike the affirmative defense, this time attaching the note and the written assignment of the note to plaintiff. The trial court granted the motion to strike.

[¶8] On July 30, 2013, defendants served plaintiff with requests for admission of facts and of genuineness of documents pursuant to Illinois Supreme Court Rule 216 (eff. May 1, 2013). Plaintiff, having been granted a 28-day extension, filed its response to defendants' requests on September 27. In its response, plaintiff, through its attorneys, objected generally to the request on the grounds that defendants had not complied with Supreme Court Rule 216. Specifically, plaintiff asserted that defendants had not sent the requests as a separate document, as required by the rule.

[¶9] Plaintiff also objected individually to each request to admit the genuineness of documents and all but 2 of 22 requests for admission of fact. Plaintiff objected to each request to admit the genuineness of documents as vague, confusing, or not reasonably calculated to lead to the discovery of relevant evidence. Plaintiff objected to the requests for admissions of facts on the same grounds. Many objections found in plaintiff's response are followed by the phrase, " [w]ithout waiving said objection, Plaintiff ***," followed by plaintiff's response to the request in the form of a denial or admission. Plaintiff's responses were not sworn.

[¶10] On February 24, 2014, defendants filed a motion to deem the requests admitted. Defendants argued that because plaintiff's responses were not sworn and were otherwise nonresponsive, Supreme Court Rule 216 dictated that the requests be deemed admitted. The trial court ...


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