Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County. No. 14 CH 4761.
Honorable Michael Mullen, Judge Presiding.
APPELLANT: Omar F. Uddin.
APPELLEE: Lucia Nale, Michelle V. Dohra, Charles M.
Woodworth, Jeffrey J. VanDam, Mayer Brown LLP.
and Lampkin, Justices concur in the judgment and opinion.
[¶1] Defendants Ian and Jacqueline Mundie
appeal from the circuit court of Cook County's order
denying their motion to dismiss which was brought pursuant to
section 2-615 of the Code of Civil Procedure (Code) (735 ILCS
5/2-615 (West 2014)). On appeal, defendants contend that the
circuit court erred in denying their motion because plaintiff
Wells Fargo Bank, N.A., insufficiently plead that it had the
capacity to sue as a " mortgagee." For the reasons
that follow we conclude an allegation that a plaintiff is a
mortgagee pursuant to section 15-1208 of the Illinois
Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS
5/15-1208 (West 2014)) is sufficient to plead capacity to sue
and, accordingly, we affirm the judgment of the circuit
[¶3] This matter commenced as a mortgage
foreclosure action pursuant to the Foreclosure Law (735 ILCS
5/15-1501 et seq. (West 2014)). Plaintiff filed a
complaint on March 19, 2014, alleging defendants were in
default for failure to make payments toward the mortgage on
the property located at 533 Fairview Circle in Schaumburg
(the property). Using the statutory form complaint (735 ILCS
5/15-1504 (West 2014)), plaintiff alleged, " Capacity in
which Plaintiff brings this foreclosure: Plaintiff is the
Mortgagee under 735 ILCS 5/15-1208." Attached to the
complaint were copies of the mortgage and note. The note was
endorsed in blank.
[¶4] Defendants filed an appearance in the
matter and thereafter filed a motion to dismiss pursuant to
section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)).
Defendants requested the circuit court " strike"
portions of the complaint due to plaintiff's failure to
sufficiently plead its capacity to sue as required under
section 15-1504 of the Foreclosure Law. According to
defendants, plaintiff could not qualify as the holder of the
indebtedness because the note listed a different entity as
the lender. Defendants further argued that plaintiff's
allegation that it was the " mortgagee" provided no
indication of plaintiff's interest in the loan. On August
28, 2014, the circuit court denied defendants' motion
without stating a basis. The record on appeal contains no
transcript of the hearing. Defendants were provided 28 days
to answer the complaint.
[¶5] Defendants subsequently answered the
complaint and asserted as affirmative defenses: (1) lack of
standing in that plaintiff did not demonstrate it was the
holder of an " original properly negotiated note" ;
(2) lack of consideration in that plaintiff did not pay the
original mortgagor, Washington Mutual Bank, in exchange for
the note; and (3) lack of privity to contract as defendants
did not execute a contract with plaintiff. On October 1,
2014, plaintiff filed a motion to strike the affirmative
defenses. On December 1, 2014, after plaintiff presented the
original note in court, the circuit court allowed defendants
to withdraw with prejudice their affirmative defenses and, as
a result, plaintiff withdrew its motion as moot.
[¶6] On January 22, 2015, plaintiff moved
for summary judgment and judgment of foreclosure. The parties
entered into a briefing schedule on the motion for summary
judgment. After the matter was fully briefed, the trial court
granted plaintiff's motion for summary judgment and a
judgment of foreclosure was entered. The property was
sold at a judicial sale on August 14, 2015. The sale was
confirmed by the circuit court on September 17, 2015, and an
order of possession was entered. This appeal followed.
[¶8] A motion to dismiss pursuant to section
2-615 of the Code attacks the legal sufficiency of a
complaint by alleging defects on the face of the complaint.
Id. ; Vitro v. Mihelcic, 209 Ill.2d 76, 81,
806 N.E.2d 632, 282 Ill.Dec. 335 (2004). When ruling on a
section 2-615 motion, the relevant question is whether the
allegations in the complaint, construed in a light most
favorable to the plaintiff, are sufficient to state a cause
of action upon which relief may be granted. Canel v.
Topinka, 212 Ill.2d 311, 317, 818 N.E.2d 311, 288
Ill.Dec. 623 (2004). Exhibits attached to a complaint become
part of the pleading for a motion to dismiss. Gagnon v.
Schickel, 2012 IL App. (1st) 120645, ¶ 18. A motion
to dismiss should not be granted " unless it is clearly
apparent that no set of facts can be proved that would
entitle the plaintiff to relief." Tedrick v.
Community Resource Center, Inc., 235 Ill.2d 155, 161,
920 N.E.2d 220, 336 Ill.Dec. 210 (2009). Illinois is a
fact-pleading state; conclusions of law and conclusory
allegations unsupported by specific facts are not sufficient
to survive dismissal. Anderson v. Vanden Dorpel, 172
Ill.2d 399, 408, 667 N.E.2d 1296, 217 Ill.Dec. 720 (1996). We
review the dismissal of a complaint pursuant to section 2-615
de novo. Mauvais-Jarvis v. Wong, 2013 IL
App. (1st) 120070, ¶ 64. De novo consideration
means we perform the same analysis that a trial court would
perform. Khan v. BDO Seidman, LLP, 408 Ill.App.3d
564, 578, 948 N.E.2d 132, 350 Ill.Dec. 63 (2011).
[¶9] Defendants argue that the allegation
that plaintiff was a mortgagee was insufficient, because
section 15-1504(a)(3)(N) requires plaintiff to plead
specifically whether it is the holder of the indebtedness, a
pledgee, an agent, the trustee under a trust deed, or in what
other capacity it acts. 735 ILCS 5/15-1504(a)(3)(N) (West
2014). According to defendants, plaintiff's allegation
that it was a mortgagee lacked the required specificity
because plaintiff did not " choos[e] from the
examples" listed in section 15-1504(a)(3)(N). Defendant
further argues that the definition of mortgagee in section