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U.S. Bank National Association v. Hartman

Court of Appeals of Illinois, First District, Fifth Division

December 30, 2016

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,
v.
JOSEPH HARTMAN, Defendant-Appellant.

         Appeal 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.

          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.

         ¶ 2 BACKGROUND

         ¶ 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 notarized.

         ¶ 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 recorded mortgage.

         ¶ 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 sale.

         ¶ 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. ...


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