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Taylor v. Bayview Loan Servicing, LLC

Court of Appeals of Illinois, First District, Fourth Division

July 25, 2019

JAMES P. TAYLOR and KATHERINE TAYLOR, Plaintiff-Appellant,

          Appeal from the Circuit Court of Cook County No. 17 CH 4455 Honorable Anna Helen Demacopoulos, Judge Presiding.

          Attorneys for Appellant: James P. Taylor & Katherine L. Taylor, pro se.

          Attorneys for Appellee: James V. Noonan, of Noonan & Lieberman, Ltd, of Chicago, for appellee.

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



         ¶ 1 Plaintiffs James and Katherine Taylor, pro se, appeal from an order of the circuit court of Cook County dismissing their amended complaint for wrongful foreclosure against defendant Bayview Loan Servicing, LLC (Bayview).[1] The wrongful foreclosure complaint alleged certain wrongdoings by Bayview, which was the plaintiff in an underlying foreclosure action against the Taylors (Bayview Loan Services, LLC v. Taylor, No. 12 CH 16916) (foreclosure action). The circuit court dismissed the amended complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2016)) finding that such a complaint was barred by section 15-1509(c) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1509(c) (West 2016)) where a final judgment had been entered in the foreclosure action and title to the property had vested in another entity. The Taylors now appeal this ruling. For the reasons that follow, we conclude section 15-1509(c) operates to bar the Taylors' wrongful foreclosure complaint and therefore affirm the judgment of the circuit court.

         ¶ 2 BACKGROUND

         ¶ 3 On March 28, 2017, James filed a pro se complaint for wrongful foreclosure and for other relief in the circuit court against Bayview. This complaint was later amended to add Katherine as a plaintiff. In their amended complaint, the Taylors alleged counts against Bayview for a violation of the Fair Debt Collection Practices Act, common law fraud, fraudulent concealment, negligent misrepresentation, and intentional infliction of emotional distress. These counts were based on Bayview's allegedly improper conduct related to the foreclosure action. Specifically, the Taylors alleged that on March 6, 2014, Bayview became a party to the foreclosure action when the circuit court entered an order allowing it to substitute as party plaintiff. Then, in August 2015, the Taylors received an IRS Form 1099-C which discharged the debt associated with the promissory note at issue in the foreclosure action. The 1099-C form indicated that the Taylors would not be personally liable for the debt. On September 3, 2015, the sale of the property at issue in the foreclosure action was confirmed and a personal deficiency judgment was entered against Katherine. According to the Taylors, the 1099-C form operated to extinguish the mortgage debt and therefore no personal deficiency judgment should have been entered against Katherine in the foreclosure action.

         ¶ 4 Bayview filed a motion to dismiss pursuant to section 2-619(a)(4) and section 2-619(a)(9) of the Code in which it argued the Taylors' claims were barred for two reasons; pursuant to section 15-1509(c) of the Foreclosure Law and by virtue of the doctrine of res judicata. Regarding section 15-1509(c), Bayview asserted that title to the property had vested to a third party purchaser by judicial deed and because the title vested, the Taylors (who were parties to the foreclosure action) were barred from bringing any claim against Bayview. Bayview further argued that all of the elements of res judicata were met in the case; the parties are the same, there is an identity in the cause of action because the Taylors are attacking the foreclosure action through their wrongful foreclosure complaint, and the parties to the foreclosure action and this action are identical.

         ¶ 5 In response, the Taylors argued that section 15-1509(c) of the Foreclosure Law and res judicata do not apply because the final judgment in the foreclosure action was void due to "a fraud upon the court" and "extrinsic fraud." The Taylors asserted that the March 6, 2014, order to substitute plaintiff in the foreclosure action was void because they never received notice of the proceeding. According to the Taylors, they received a notice of motion which indicated the motion to substitute plaintiff would be presented on March 16, 2014, accordingly they were not present in court on March 6, 2014, when the order was entered.[2] The Taylors maintained that they were intentionally and knowingly prevented from attending the March 6, 2014, proceeding and were thus prohibited from raising a defense and responding to the motion to substitute.

         ¶ 6 The circuit court held a hearing on the matter. The Taylors consistently maintained that because the order substituting Bayview as the party plaintiff in the foreclosure action was void, all of the subsequent orders in the foreclosure action were also void and, therefore, their wrongful foreclosure complaint could not be barred by section 15-1509(c) or res judicata. The circuit court then inquired whether the Taylors had raised this issue in the foreclosure action. The Taylors informed the court that a motion to dismiss Bayview for lack of standing had been extensively litigated and ultimately denied.

         ¶ 7 After hearing the arguments of the parties, the circuit court granted Bayview's motion to dismiss with prejudice finding section 15-1509(c) of the Foreclosure Law barred the wrongful foreclosure complaint. This appeal follows.

         ¶ 8 ANALYSIS

         ¶ 9 Prior to addressing the merits of this appeal, we acknowledge Bayview's extensive argument regarding the Taylors' failure to follow our supreme court's rules regarding briefs (see Ill. S.Ct. R. 341 (eff. May 25, 2018)) and its suggestion that we forfeit the entirety of the Taylors' arguments. We observe that even though the Taylors are pro se, they are still held to the same standards as an attorney, including the requirement that our supreme court rules must be followed. See Ammar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 162931, ¶ 16. While their statement of facts was argumentative and citation to relevant legal authority was lacking in several places, we will forfeit only those arguments raised by the Taylors that are insufficiently presented. See Walters v. ...

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