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Bank Fin, FSB v. Brandwein

Court of Appeals of Illinois, First District, Fifth Division

June 26, 2015

BANK FINANCIAL, FSB, Plaintiff-Appellee,
v.
BARRY BRANDWEIN, Defendant-Appellant (5628 North Broadway, LLC, Defendant)

Appeal from the Circuit Court of Cook County. No. 13 CH 10316. The Honorable Sanjay Tailor, Judge Presiding.

Affirmed.

For APPELLANT: Linda Spark, Chicago, IL.

For APPELLEE: James M. Crowley, Christina M. Ripley, Crowley & Lamb, P.C., Chicago, IL.

GORDON, JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

OPINION

GORDON, JUSTICE

[¶1] On August 27, 2009, 5628 North Broadway, LLC, received a $275,000 loan from plaintiff, Bank Financial, FSB, in exchange for a mortgage on a commercial property that rented space to an auto repair shop. Defendant, Barry Brandwein, who is the manager of the limited liability company, signed a promissory note to plaintiff for the amount of the loan. On April 17, 2013, plaintiff sought to foreclose the mortgage, as a result of unpaid loan payments and unpaid real estate taxes. The property was sold at a judicial sale, still leaving $73,459.61 of the loan unpaid. Plaintiff then sought to hold defendant liable for this amount, pursuant to the promissory note. Defendant filed a counterclaim for tortious interference and filed an affirmative defense in count II only, and did not file an answer to count I. On September 9, 2014, plaintiff moved for summary judgment on the basis of section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2012)). Defendant's response to the motion for summary judgment argued that plaintiff had attempted to collect rents from the tenants of the property, and this action made it difficult for defendant to collect rent and bring the loan payments current. The trial court granted plaintiff's motion for summary judgment, and this appeal followed.

[¶2] On appeal, defendant makes one claim: that the trial court erred in granting plaintiff's motion for summary judgment, because defendant raised a genuine issue of material fact that supported his claim that plaintiff committed tortious interference with his collection of the rent. For the following reasons, we do not find persuasive defendant's claim that the trial court erred in granting plaintiff's motion for summary judgment.

[¶3] BACKGROUND

[¶4] I. Pretrial Filings

[¶5] A. Complaint

[¶6] On April 17, 2013, plaintiff, Bank Financial, FSB, filed a complaint in the chancery division of the circuit court of Cook County against defendants, Barry Brandwein and 5628 North Broadway, LLC (the LLC). While Brandwein and the LLC are both named as defendants in the complaint, the answer was filed solely on behalf of Brandwein, and Brandwein is the sole defendant on appeal.

[¶7] Count I of the complaint sought to foreclose a mortgage on property located on North Broadway Street, in Chicago, Illinois (the property). The mortgagor was the LLC, the mortgagee was plaintiff, and the mortgage was for $275,000.[1] The complaint alleged that the LLC did not make their monthly payments to plaintiff and did not make the payments for real estate taxes as of April 15, 2013, and that, as a result, plaintiff had accelerated the payments due under the mortgage, pursuant to an acceleration clause in the mortgage where plaintiff reserved the " right at its option without notice to Borrower or Grantor to declare the entire indebtedness immediately due and payable, including any prepayment penalty that Borrower would be required to pay." The total due from the LLC was $279,122.43. The complaint sought, in part, to foreclose the mortgage, shorten redemption, and appoint a receiver to possess the property,

[¶8] Count II of the complaint stated that defendant and the LLC had signed a promissory note for the amount of the mortgage, and that they had breached the promissory note by failing to make monthly payments on the mortgage. The complaint sought to hold defendant and the LLC jointly and severally liable for the total amount of $279,122.43, as well as continually accruing interest, attorney fees, and costs.

[¶9] B. Petition to Appoint Receiver

[¶10] On June 18, 2013, plaintiff filed a petition to appoint a receiver. Defendant and the LLC did not respond to count I of the complaint or the petition to appoint a receiver. On September 3, 2013, the court entered an order appointing a receiver for the property and an order of default against defendant and the LLC. The court later entered an order of judgment of foreclosure and sale, foreclosing on the mortgage and approving the sale of the property at public auction.

[¶11] C. Motion to Transfer to Law Division and to Confirm Judicial Costs

[¶12] On November 5, 2013, plaintiff filed two motions, a " motion to confirm judicial sale; approve post judgment costs; enter deficiency judgment; and award immediate possession" and a motion to transfer the case to the law division. In the first motion, plaintiff stated that it had fairly auctioned the property for $220,000 on October 21, 2013, at the judicial sale, and requested the court to confirm the sale. After the judicial sale, there was a deficiency due from defendant and the LLC of $73,459.61. The second motion requested that the chancery court transfer the case to the law division, so that plaintiff could recover the remaining debt from defendant and the LLC, pursuant to count II of the complaint.

[¶13] On January 21, 2014, the chancery court entered an order granting plaintiff's motion to confirm the sale of the property with postjudgment costs and transferred the case to the law division to allow plaintiff to pursue count II of the complaint.

[¶14] D. Motion for Order of Default and Judgment

[¶15] On April 16, 2014, plaintiff filed a motion in the trial court seeking a default judgment against defendant and the LLC. The motion alleged that defendant and the LLC were personally served on March 14, 2014. Defendant and the LLC did not file their required answer by April 14, 2014. Plaintiff sought a default judgment against defendant and the LLC for $77,771.14. This amount reflected the previous deficiency in judgment along with accrued interest and additional court and attorney fees.

[¶16] E. Defendant's Motion to Dismiss and Plaintiff's Response

[¶17] On May 5, 2014, defendant filed a motion to dismiss. The motion alleged that defendant was not properly served in the foreclosure case and, therefore, the chancery court did not have personal jurisdiction over him. The motion further alleged that there were defects in the pleadings. Specifically, defendant stated that the " motion to confirm sale" referred to the property as a 12-unit nonresidential building, and the " order appointing receiver" referred to the property as a " three unit mixed commercial/residential building." Defendant asserted that the property is a single-unit garage used as an auto repair shop.

[¶18] On June 6, 2014, plaintiff filed a response to defendant's motion to dismiss. The response stated that any defects in the motions and orders, which plaintiff noted are not " pleadings," were not substantial. Rather, the important detail was that the property was commercial and not residential. Plaintiff also stated that defendant was attempting to attack count I of the complaint, claiming that the chancery court did not have personal jurisdiction. However, plaintiff argued that this was improper, as a final judgment in that case had been entered. Plaintiff also asserted that the motion to dismiss should be stricken because defendant's counsel had not entered her written appearance and filed the appropriate fee.

[¶19] On June 27, 2014, the trial court struck defendant's motion because his counsel had failed to enter her written appearance and pay the appropriate fee. Defendant and the LLC were granted 21 ...


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