Court of Appeals of Illinois, First District, Fifth Division
U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Specialty Underwriting and Residential Finance Trust Mortgage Loan Asset-Backed Certificates Series 2006-BC3, Plaintiff-Appellee,
JOSEPH HARTMAN, Defendant-Appellant.
from the Circuit Court of Cook County, No. 08 CH 16169 The
Honorable Michael F. Otto, Judge Presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court,
with opinion. Justices Lampkin and Reyes concurred in the
judgment and opinion.
GORDON, PRESIDING JUSTICE
1 The instant appeal arises from the trial court's grant
of summary judgment in favor of plaintiff U.S. Bank on its
foreclosure complaint and the court's subsequent order
confirming the sale of defendant Joseph Hartman's home.
Defendant argues that the trial court erred in granting
summary judgment because plaintiff lacked standing to
foreclose on defendant's mortgage, and further argues
that plaintiff's complaint should be stricken because it
contained a "blatant mischaracterization of fact."
For the reasons that follow, we affirm.
3 On May 1, 2008, plaintiff filed a complaint to foreclose
defendant's mortgage. In setting forth the information on
the mortgage, the complaint alleges: "Name of the
mortgagee, trustee or grantee in the Mortgage: M.E.R.S.,
Inc., as nominee for MILA, Inc., d/b/a Mortgage Investment
Lending Associates, Inc., " and further alleges:
"Capacity in which Plaintiff brings this suit: Plaintiff
is the trustee for the holder of the Mortgage given as
security." The complaint alleges that defendant was the
mortgagor on a condominium on Altgeld Street in Chicago and
that he was in default of the monthly payments from January
2008 through the present. The complaint sought a judgment of
foreclosure and sale, an order approving the foreclosure
sale, and an order granting possession of the property.
4 Attached to the complaint was a copy of the executed and
recorded mortgage, as well as a "lost document
affidavit." The "lost document affidavit"
stated that the note could not be located in plaintiff's
records. The "affidavit" was not signed or
5 On November 5, 2008, plaintiff filed a motion for an order
of default against defendant, alleging that defendant had
been served, a total of 60 days had elapsed since the date of
service, and no motion or answer had been filed by defendant.
6 On January 2, 2009, defendant filed his appearance and an
answer to the foreclosure complaint. In the answer, defendant
admitted the above-quoted allegations concerning the
"[n]ame of the mortgagee, trustee or grantee" and
the "[c]apacity in which Plaintiff brings this
suit." Defendant denied the allegations that he was in
default of the mortgage. Defendant's answer did not
contain any affirmative defenses, but only asked for an order
dismissing plaintiff's complaint against him.
7 On January 9, 2009, despite defendant's January 2
appearance, the trial court entered an order of default
against defendant, finding that he had failed to appear
and/or plead. On the same day, the court entered a judgment
for foreclosure and sale. On January 30, 2009, defendant
filed a petition to vacate the default judgment, claiming
that he had filed his appearance on January 2 but mistakenly
went to the wrong courtroom on January 9. The resolution of
defendant's petition is not contained in the record on
appeal, but it was presumably granted, as further proceedings
continued in the case.
8 On May 1, 2009, plaintiff filed a motion for summary
judgment, claiming that there were no material issues of fact
and that plaintiff was entitled to summary judgment. Attached
to the motion was a "supplemental affidavit" from
Chris Decker, an authorized employee of Wilshire Credit
Corporation, the current servicer of the loan. The affidavit
stated, in relevant part, that "[p]laintiff is the
holder and owner of the note *** and mortgage *** granted to
M.E.R.S., Inc., as nominee for MILA, Inc., D/B/A Mortgage
Investment Lending, on January 24, 2006 by [defendant], and
secured by the property commonly known as *** West Altgeld
Street, Unit ***, Chicago, Illinois 60614." The
affidavit further stated that "[o]wnership of the
subject mortgage was transferred from M.E.R.S., Inc., as
nominee for MILA, Inc., D/B/A Mortgage Investment Lending to
[plaintiff]." Attached to the affidavit was a copy of
the executed note, as well as a copy of the executed and
9 Also attached to the affidavit was a copy of an assignment
of mortgage, in which Mortgage Electronic Registration
Systems, Inc. (MERS), as nominee for MILA, Inc., d/b/a
Mortgage Investment Lending, assigned defendant's
mortgage to plaintiff. The assignment is dated April 30,
2008, one day before the filing of plaintiff's complaint
for foreclosure, and was recorded on July 2, 2008.
10 Defendant did not file a response to the motion for
summary judgment and, on July 7, 2009, the trial court
granted plaintiff's motion for summary judgment. On the
same day, the court entered a judgment for foreclosure and
11 On April 27, 2012, defendant filed an emergency motion to
vacate the judgment of foreclosure and to stay the sale of
the property. In the motion, defendant claimed that neither
he nor his counsel was aware of the judgment of foreclosure
entered on July 7, 2009. Defendant further claimed that the
property was scheduled for a sheriff's sale on May 1,
2012, but that he had entered into a contract for the sale of
the property to the holder of the second mortgage on the
property. Defendant asked for the judgment of foreclosure to
be vacated in the interests of justice. ...