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Deutsche Bank National Trust Co. v. Iordanov

Court of Appeals of Illinois, First District, Fifth Division

September 23, 2016

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Long Beach Mortgage Loan Trust 2004-3 Asset-Backed Certificate Series 2004-3, Plaintiff-Appellee,
v.
PLAMEN IORDANOV, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County No. 08 CH 44283 Honorable Pamela Meyerson, Judge Presiding.

          JUSTICE REYES delivered the judgment of the court, with opinion. Justices Lampkin and Burke concurred in the judgment and opinion.

          OPINION

          REYES JUSTICE.

         ¶ 1 In this mortgage foreclosure action, defendant Plamen Iordanov (defendant) appeals following the circuit court of Cook County's entry of an order approving the sale of the property in question in favor of plaintiff Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2004-3 Asset-Backed Certificate Series 2004-3 (plaintiff). Defendant's sole contention on appeal is that plaintiff lacked standing to bring the foreclosure action, and thus, the circuit court erred in entering the order approving sale. Because defendant failed to timely raise plaintiff's lack of standing as an affirmative defense in response to either the complaint or the amended complaint, we find the circuit court did not err when it approved the sale of the property in question and affirm the judgment of the circuit court.

         ¶ 2 BACKGROUND

         ¶ 3 Prior to reciting the facts in this matter, we observe that the litigation before the circuit court was quite extensive, proceeding over a seven-year period. Therefore, we will enumerate only those facts pertinent to this appeal. ¶ 4 The Initial Complaint

         ¶ 5 On November 25, 2008, plaintiff filed its complaint to foreclose the mortgage against defendant regarding the property located at 6540 North Washtenaw Avenue in Chicago (the property) pursuant to the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2008)). Plaintiff alleged it was "the Mortgagee under 735 ILCS 5/15-1208" of the Foreclosure Law and that defendant was in default as of June 1, 2008, for failure to make payments pursuant to the mortgage. Attached to the complaint were copies of the mortgage and note, which indicated the original lender and note holder was Long Beach Mortgage Company. The note attached to the complaint contained no indorsements or assignments.

         ¶ 6 On May 13, 2009, plaintiff presented its motions for default and judgment of foreclosure. Defendant appeared in court and requested time to consult with an attorney and to seek a possible loan modification. The court granted defendant 28 days to file an answer or otherwise plead to the complaint and continued plaintiff's motions to June 24, 2009. Thereafter, on June 9, 2009, defendant filed his pro se appearance and answer. In his answer, defendant stated he had insufficient information on which to admit or deny the allegations in the complaint and further stated as other affirmative matter, "I'm in proces [sic] of Modification of the Loan[ ] I need more time to complete it." Plaintiff then filed a motion for summary judgment and a briefing schedule was entered. Defendant, however, failed to respond to the motion. The circuit court thereafter granted plaintiff's request for summary judgment and judgment of foreclosure.

         ¶ 7 The Release

         ¶ 8 On December 29, 2009, a release of the mortgage on the property (the release) was executed by JPMorgan Chase Bank, N.A., successor in interest from the Federal Deposit Insurance Corporation, as receiver for Washington Mutual Bank formerly Washington Mutual Bank, FA, s/b/m to Washington Mutual Home Loans, Inc., s/b/m to Long Beach Mortgage Company (JPMorgan) and filed with the Cook County recorder of deeds on January 12, 2010.

         ¶ 9 The Amended Complaint

         ¶ 10 After the release was brought to plaintiff's attention, on August 2, 2010, plaintiff filed a motion to amend its complaint in order to add two new counts: (1) a declaratory judgment that the release was invalid because the mortgage had not been paid off and (2) rescission of the release due to a mistake of fact. The amended complaint included a third count for foreclosure of the mortgage, which alleged the same facts as the original complaint. Attached to the amended complaint were copies of the mortgage, note, and release. No assignment was attached to the amended complaint. The circuit court granted plaintiff's motion to amend the complaint on September 14, 2010, and stayed the enforcement of the judgment of foreclosure until further order of court. Thereafter, defendant filed a number of motions that were stricken by the circuit court. Defendant, however, on November 18, 2011, was granted additional time to answer or otherwise plead to the amended complaint.

         ¶ 11 Defendant's Response to the Amended Complaint

         ¶ 12 On December 12, 2011, defendant, who was now represented by counsel, filed a motion to dismiss plaintiff's amended complaint pursuant to section 2-615 and section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a)(9) (West 2008)).[1] It appears from the record, however, that this motion was never presented to the circuit court for ruling. Subsequently, on December 14, 2011, defendant filed a "motion for summary judgment" that was "stricken" on February 10, 2012, by the circuit court for being "not readable." The court further ordered, "Plaintiff shall send defendant [a] copy of [the] amended complaint who states it has not been answered."

         ¶ 13 Plaintiff's Motion for Default

         ¶ 14 On May 8, 2012, plaintiff filed a motion to find defendant in default for failure to answer counts I and II of the amended complaint.[2] In response, defendant asserted he filed an answer to the complaint in January 2012, and then again in February 2012, along with a counterclaim filed on February 28, 2012. Defendant attached a two-page answer to the amended complaint with an illegible file stamp, on which someone had written in handwriting the date "12 Jan 26." This document was immediately preceded by a fax cover sheet from defendant's counsel to plaintiff's counsel, which indicated a two-page document was transmitted on January 27, 2012. Defendant also attached a three-page answer to the amended complaint, again with an illegible file stamp with handwriting to suggest it was filed "12 Feb 28" along with a fax cover sheet indicating a three-page document had been faxed to plaintiff's counsel on February 29, 2012. Neither of the answers filed with the circuit court included any affirmative defenses. Defendant also included a copy of his counterclaim that indicated it was filed on February 28, 2012. However, it is unclear from the record whether defendant notified plaintiff of this response since no certificate of service accompanied defendant's response in the record on appeal.

         ¶ 15 The circuit court entered an order on July 10, 2012, finding that (1) defendant was in default, (2) the release was recorded in error, and (3) the release is "rescinded and held for naught." The circuit court further allowed plaintiff to enforce its judgment of foreclosure that was previously entered on August 5, 2009, and vacated the order of September 14, 2010, staying enforcement ...


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