from the Circuit Court of Lake County, No. 10-CH-2877; the
Hon. Luis A. Berrones, Judge, presiding.
H. Olsen, of The Rogers Law Group, of Deerfield, for
M. Horner and Edward J. Lesniak, of Burke, Warren, MacKay
& Serritella, P.C., of Chicago, for appellee.
BURKE JUSTICE delivered the judgment of the court, with
opinion. Justices Hutchinson and Spence concurred in the
judgment and opinion.
1 In this appeal, a follow-on to our decision in First
Mortgage Co. v. Dina, 2014 IL App (2d) 130567 (Dina
I), defendants Daniel Dina and Gratziela Dina appeal
from a new foreclosure judgment and a new order confirming a
judicial sale in favor of plaintiff, First Mortgage Co.
(First Mortgage). We now affirm.
2 In Dina I, we held, based on our interpretation of
the Residential Mortgage License Act of 1987 (Act) (205 ILCS
635/1-1 et seq. (West 2006)), that, if the original
mortgagee, First Mortgage Company of Idaho, LLC (FMCI),
lacked a license required by the Act, the Dinas' mortgage
(which First Mortgage had acquired from FMCI) would be void.
Based on uncertainty about FMCI's licensure status, we
vacated a prior foreclosure judgment and sale and remanded
the cause. In the period between the remand and the new
foreclosure judgment, the General Assembly passed Public Act
99-113 (eff. July 23, 2015) (the amendment), which amended
the Act so as to reject the holding in Dina I. On
remand, the trial court granted judgment in favor of First
Mortgage based not on the amendment but on its ruling that
the Act was inapplicable to FMCI because FMCI did not engage
in business in Illinois. We hold that the Act was applicable
to FMCI, but we affirm on the basis that, as a result of the
amendment, an exception to the law-of-the-case doctrine
3 I. BACKGROUND
4 On May 21, 2010, First Mortgage filed a complaint to
foreclose a property in North Barrington. The named
defendants were Daniel Dina, the property owner and borrower,
and Gratziela Dina, who had cosigned the mortgage. The
mortgage was dated November 16, 2007. The Dinas filed an
answer with affirmative defenses, one of which was that First
Mortgage lacked standing, as it was neither the original
mortgagee, which was FMCI, nor FMCI's successor in
interest. First Mortgage moved for summary judgment. It
responded to the lack-of-standing defense by, among other
things, filing a "Statement of Merger" filed with
the Idaho Secretary of State. The statement showed that,
effective April 30, 2011, FMCI, First Mortgage's wholly
owned subsidiary, had merged into First Mortgage. The Dinas,
having missed the deadline to respond to the motion for
summary judgment, sought leave to file a late response in
which they asserted, among other things, that neither First
Mortgage nor FMCI was licensed under the Act. The court
allowed the filing.
5 First Mortgage responded that, as a "registered
domestic entity with the National Information Center under
the laws of Oklahoma, " it was a bank, and thus was
exempt from the licensing requirements of the Act. The
exhibit attached in support states that First Mortgage
"was established as a Domestic Entity Other" on or
as of January 1, 2007.
6 The court granted the motion for summary judgment on August
14, 2012, and entered the judgment for foreclosure and sale
the same day. The property was sold and the court confirmed
the sale, over the Dinas' objection, on February 19,
2013. After the court denied the Dinas' motion for
reconsideration, they appealed.
7 We addressed three questions on appeal: (1) whether the
Dinas' lack-of-licensure defense was procedurally
forfeited, (2) whether there was a question of material fact
as to FMCI's licensure, and (3) whether the lack of a
required license was a defense to foreclosure. Dina
I, 2014 IL App (2d) 130567, passim. We vacated
the summary judgment and ensuing orders, stating in summary
that a question of material fact had existed as to FMCI's
status under the Act (Dina, 2014 IL App (2d) 130567,
¶ 13), with the following being our main intermediate
(1)First Mortgage failed to demonstrate that the entity that
made the mortgage was exempt from the Act. Dina,
2014 IL App (2d) 130567, ¶ 14.
(2)"[A] mortgage made by an entity that lacked
authorization under the *** Act to conduct *** business
[requiring such authorization] is void as against public
policy." Dina, 2014 IL App (2d) 130567, ¶
(3)The Dinas raised their lack-of-licensure defense by the
wrong means, but, because the issue implicated public policy,
and because First Mortgage had a full opportunity to respond,
they did not forfeit the defense. Dina, 2014 IL App
(2d) 130567, ¶ 25.
first point, some explanation is necessary. On appeal, First
Mortgage argued that the Dinas' argument failed because
public records showed that it was a bank, and thus
exempt from the Act. Whether First Mortgage was a bank was of
course not relevant to whether FMCI was a bank. Thus, First
Mortgage had failed to show that the entity that made the
mortgage was exempt from the Act. Therefore (on March 31,
2014), we vacated the order for summary judgment, the
foreclosure judgment, and the order approving the sale, and
we remanded the matter for further proceedings. (We made
modifications not relevant here when we denied rehearing on
May 22, 2014.) First Mortgage petitioned for leave to appeal
to our supreme court, but the court denied leave on September
24, 2014. First Mortgage Co. v. Dina, No. 117903
(Ill. Sept. 24, 2014).
8 On May 13, 2015, First Mortgage moved in the trial court
for additional time to file a new motion for summary
judgment. It gave the following reason: "Subsequent to
the entry of [a scheduling order] Plaintiff learned that
there is presently pending in the Illinois legislature
HB2814, a bill that, if passed, will be dispositive of the
primary legal issue in this case. The bill will have the
effect of reversing the Illinois Appellate
Court's decision in this case, by establishing that
a loan contract is not rendered void by virtue of the fact
that the originator was not licensed under the [Act]."
(Emphasis added.) The court gave First Mortgage until July 8,
2015, to file a new motion for summary judgment.
9 On July 8, 2015, First Mortgage filed a new motion for
summary judgment, despite the continued pendency of the
amendment to the Act in the General Assembly. It asserted two
bases for the mortgage's validity. One, it anticipated
that the General Assembly would pass the amendment, which
would " 'reveal the legislature's intent in
enacting [the] statute' " (quoting Daley v.
Zebra Zone Lounge, Inc., 236 Ill.App.3d 511, 515
(1992)). Alternatively, it argued that, by the terms of
sections 1-3(a) and 1-3(h) of the Act (205 ILCS 635/1-3(a),
(h) (West 2006)), the Act "only applies to entities
engaged in the business of residential mortgage lending in
Illinois." Further, as an affidavit established,
"the only loan FMCI ever made in the State of Illinois
was the loan at issue in this case."
10 On July 23, 2015, the General Assembly approved Public Act
99-113, which amended section 1-3(e) of the Act to provide:
"A mortgage loan brokered, funded, originated, serviced,
or purchased by a party who is not licensed under this
Section shall not be held to be invalid solely on the basis
of a violation under this Section. The changes made to this
Section by this amendatory Act of the 99th General Assembly
are declarative of existing law." Pub. Act 99-113,
§ 5 (eff. July 23, 2015) (amending 205 ILCS 635/1-3(e)).
11 On September 10, 2015, the Dinas filed their response.
They argued that the lack-of-licensure defense remained
viable for two reasons:
(1)Our holdings in Dina I created law of the case
that barred First Mortgage from asserting that the Act was