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Pennymac Corp. v. Jenkins

Court of Appeals of Illinois, First District, Sixth Division

May 11, 2018

PENNYMAC CORP., Plaintiff-Appellee,
CLARENCE JENKINS and UNKNOWN OCCUPANTS, Defendants (Clarence Jenkins, Defendant-Appellant).

          Appeal from the Circuit Court of Cook County. No. 16 M1 719605 Honorable David A. Skryd, Judge Presiding.

          JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.



         ¶ 1 Defendant Clarence Jenkins (Jenkins) appeals the trial court's order granting summary judgment in favor of plaintiff Pennymac Corp. (Pennymac) in the instant forcible entry and detainer action. On appeal, Jenkins asserts that the trial court erred when it allowed Pennymac to be substituted as plaintiff and subsequently granted summary judgment because amending the complaint did not correct the defective notice of intent that listed another entity as plaintiff. We find that the trial court properly granted summary judgment and affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 This forcible entry and detainer action follows a foreclosure on the property at 1041 East 168th Street in South Holland (property). The foreclosure action was brought in Cook County circuit court under case number 09 CH 31971 against the mortgagor of the property, which was Jenkins's wife Bertina Jenkins. On January 27, 2014, an "Order Approving Report of Sale and Distribution, Confirming Sale and Order of Possession" was entered, granting possession to Bank of America, N.A., who was "the successful bidder" at the judicial sale. On April 1, 2014, a judicial sale deed was recorded with the Cook County Recorder of Deeds, conveying the property to "Citibank, N.A. as Trustee for CMLTI Asset Trust" (Citibank). On March 10, 2016, Citibank conveyed the property to Pennymac via quitclaim deed, and said deed was recorded on August 16, 2016.

         ¶ 4 On September 17, 2016, Jenkins was personally served at the property with a "Notice of Intent to File Forcible Entry and Detainer Action and Demand for Possession" (notice/demand). The notice/demand was dated September 8, 2016, and was signed by Matthew Gruca of "Pierce & Associates, P.C. Attorney for Plaintiff." On October 31, 2016, a complaint for foreclosure-related eviction was filed against Jenkins, with the plaintiff listed as "Citibank N.A. As Trustee for CMLTI Asset Trust." Jenkins was served with the complaint by the Cook County Sheriff's Office on November 5, 2016, and filed his appearance on November 15, 2016. Also on November 15, 2016, the original judge to whom this matter was assigned recused himself.

         ¶ 5 On November 22, 2016, Jenkins was granted seven days to file his answer or otherwise plead to the complaint. On November 29, 2016, Jenkins filed a motion to dismiss under section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2014)), contending that Citibank lacked standing to sue because it had conveyed the property to Pennymac via quitclaim deed on March 10, 2016. Thereafter, Citibank filed its response to Jenkins's motion to dismiss, acknowledging that filing the instant action with Citibank listed as plaintiff was "in error." The response further stated that Citibank was also filing a motion to amend its complaint and that said amendment would cure the issue of misnomer. Citibank argued that Illinois law recognized a difference between misnomer and mistaken identity and that this case involved misnomer, which is governed by section 2-401(b) of the Code (id. § 2-401(b)). Citibank further contended that allowing it to amend the complaint would be more efficient than requiring it to start the action anew. Also on November 29, 2016, Citibank filed a motion for leave to file amended complaint. However, the notice of motion stated that the motion would be presented in courtroom 1408, which was the courtroom of the judge who had previously recused himself from the case.

         ¶ 6 Recognizing its error, Citibank refiled its motion for leave to file an amended complaint on December 15, 2016, asserting that "Plaintiff's attorney inadvertently filed the Complaint naming Plaintiff owner as Citibank N.A. as Trustee for CMLTI Asset Trust" and that amending the complaint to name Pennymac, the actual owner of the property, would not cause any prejudice to Jenkins. Jenkins did not file a response to the motion to amend.

         ¶ 7 On December 20, 2016, the court ordered as follows: "Defendant's Motion to Dismiss is denied. Plaintiff's Motion for Leave to File Amended Complaint is granted. Plaintiff is granted leave to file Amended Complaint instanter. Defendant is granted through [January 4, 2017, ] to answer or otherwise plead." It is unclear whether the court heard oral argument on the motions because the record on appeal does not contain a report of proceedings from that date. The amended complaint was filed on December 20, 2016, and listed "Pennymac Corp." as the plaintiff.

         ¶ 8 On January 17, 2017, Jenkins filed his answer to the amended complaint and two affirmative defenses. Jenkins pled his affirmative defenses as follows:

"1. Plaintiff has not complied with the requirement of 735 ILCS 5/15-1703 for notice.
2. The notice of intent is not sufficient as a matter of law, since Citibank had no right to possession. While the name of the owner is not required, the name of a non-owner is not equivalent. United States Bank Nat'l Ass'n v. Luckett, 2013 IL App (1st) 113678 at Par. 29. The notice here is not sufficiently similar to the notice."

         ¶ 9 On March 7, 2017, Pennymac filed a motion for summary judgment. Pennymac's motion asserted that its notice/demand was proper and that it properly served the notice/demand on Jenkins. Pennymac stated that it was undisputed that Jenkins was personally served with the notice/demand, that he had no right to possession superior to Pennymac's right, and that he failed to vacate the property upon receipt of the notice/demand. Pennymac recognized that the notice/demand served on Jenkins erroneously listed the property's previous owner, Citibank, as the plaintiff, but argued that did not render the notice/demand defective because it adequately informed Jenkins of the property owner's intent to file the instant forcible entry and detainer action.

         ¶ 10 On March 28, 2017, Jenkins filed his opposition to Pennymac's motion for summary judgment and a cross-motion for summary judgment. Jenkins asserted that although Pennymac filed an amended complaint listing the proper plaintiff, the defective notice/demand that listed Citibank as plaintiff was still attached as an exhibit to the amended complaint. Jenkins further argued that the notice/demand here was not brought in the name of the party entitled to possession and, thus, summary judgment in favor of Pennymac would not be proper. Contrarily, Jenkins contended, "[b]ecause there is no question that the required notice did not name the party entitled to possession, Defendant Jenkins is entitled to summary judgment as a matter of law." Attached to Jenkins's opposition was his unnotarized affidavit dated March 25, 2017. Jenkins's affidavit stated that he and his wife had been negotiating with Pennymac for two years and that "[w]e were puzzled when we received a notice from Citibank because the mortgage was with Bank of America and Pennymac was our contact." Jenkins further attested that he called Pennymac, who confirmed it was the owner of the property but could not provide any information about the notice.

         ¶ 11 On April 17, 2017, the trial court granted Pennymac's motion for summary judgment in an order that stated:

"This cause coming to be heard on Plaintiff's motion for summary judgment, counsel for Plaintiff and Defendant present, the court finding that any issue regarding the notice served on September 17, 2016 that included the name of the plaintiff in the first complaint filed October 31, 2016 was cured by the filing of the amended complaint on December 20, 2016, as there was no dispute that the notice was served on Defendant Jenkins, and that the notice complied with 735 ILCS 5/9-104 and 735 ILCS 5/9-102, the court having heard argument, it is ordered:
1. Plaintiff's motion for summary judgment is granted and
2. Plaintiff is granted an order for possession by separate ...

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