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Credit Union 1 v. Carrasco

Court of Appeals of Illinois, First District, Fourth Division

June 28, 2018

CREDIT UNION 1, Plaintiff-Appellee,
v.
YOLANDA CARRASCO a/k/a Yolanda C. Carrasco a/k/a Yolanda Martinez; ALEJANDRO MARTINEZ a/k/a Alejandro C. Martinez; CITIBANK (SOUTH DAKOTA) N.A.; UNKNOWN HEIRS AND LEGATEES OF YOLANDA CARRASCO a/k/a YOLANDA C. CARRASCO a/k/a YOLANDA MARTINEZ, IF ANY; and UNKNOWN OWNERS AND NON-RECORD CLAIMANTS; Defendants Yolanda Carrasco, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 14 CH 3405 The Honorable John J. Curry, Jr., Judge Presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice McBride concurred in the judgment and opinion.

          OPINION

          GORDON JUSTICE

         ¶ 1 The instant appeal arises from a foreclosure action filed by plaintiff Credit Union 1 against defendant Yolanda Carrasco with respect to a single family home in Calumet City. The trial court granted summary judgment in plaintiffs favor and, after the property was sold, entered an order approving the report of sale and distribution. Defendant appeals, arguing that plaintiff never established that it sent an acceleration notice as required under the terms of the mortgage, meaning that plaintiff did not have the right to initiate the foreclosure action. For the reasons that follow, we reverse.

         ¶ 2 BACKGROUND

         ¶ 3 On February 26, 2014, plaintiff filed a complaint for foreclosure of a single family home in Calumet City, alleging that defendant had failed to make payments due under the mortgage and note beginning in February 2011, leaving a current unpaid principal balance of $132, 961.37. Attached to the complaint was a copy of the mortgage. As relevant to the instant appeal, section 15 of the mortgage was entitled "Notices" and provided, in relevant part:

"All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means."

         ¶ 4 Additionally, section 22 was entitled "Acceleration; Remedies" and provided:

"Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument ***. The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence."

         ¶ 5 On February 23, 2015, defendant filed an appearance through counsel and, on August 28, 2015, filed an answer and affirmative defenses; none of defendant's defenses concerned the notice of acceleration. On October 16, 2015, plaintiff filed a motion to strike defendant's affirmative defenses, which was denied on February 26, 2016, without prejudice. On March 31, 2016, plaintiff filed another motion to strike defendant's affirmative defenses and for partial summary judgment on the affirmative defenses. On April 25, 2016, the trial court granted plaintiff's motion and dismissed defendant's affirmative defenses without prejudice and granted defendant 21 days to file amended affirmative defenses; defendant did not do so.

         ¶ 6 On November 23, 2016, plaintiff filed a motion for default judgment against all other defendants, since no other defendants had filed an appearance, [1] and also filed a motion for summary judgment against defendant. The motion for summary judgment claimed that defendant's answer did not present any facts to refute the allegations contained in plaintiff's complaint and contained merely general denials of the allegations. An affidavit of proveup attached to the motion for summary judgment indicated that the total amount due from defendant was $239, 923.13.

         ¶ 7 On February 3, 2017, defendant filed a response to the motion for summary judgment. As relevant to the instant appeal, the response claimed that defendant denied receiving an acceleration notice pursuant to section 22 of the mortgage. Attached to defendant's response was a certification sworn by defendant pursuant to section 1-109 of the Code of Civil Procedure (Code) (735 ILCS 5/1-109 (West 2016)), which provided, in relevant part:

"I am the only person responsible for retrieving the mail at [the property address in ...

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