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U.S. Bank N.A. v. Gold

Court of Appeals of Illinois, Second District

September 23, 2019

U.S. BANK N.A., as Trustee Relating to Chase Funding LLC Mortgage Backed Certificates Series 2006-2, Plaintiff-Appellee,
v.
WILLIAM GOLD, a/k/a William S. Gold; JULIE GOLD, a/k/a Julie L. Gold; MR. DAVID'S CARPET SERVICE, LTD.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; COUNTRYWIDE HOME LOANS, INC.; LINCOLN PARK SAVINGS BANK; THE UNITED STATES OF AMERICA; and UNKNOWN OWNERS AND NONRECORD CLAIMANTS, Defendants (William Gold, a/k/a William S. Gold, Defendant-Appellant).

          Appeal from the Circuit Court of Lake County, No. 09-CH4751; the Hon. Michael B. Betar and the Hon. Margaret A. Marcouiller, Judges, presiding.

          Attorneys for Appellant: Carla Sherieves, of CMS Law, LLC, of Chicago, for appellant.

          Attorneys for Appellee: Adam A. Price, of Codilis & Associates, P.C., of Burr Ridge, for appellee.

          JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

          OPINION

          MCLAREN, JUSTICE

         ¶ 1 Defendant William Gold appeals from the order of the Lake County circuit court granting summary judgment and a judgment of foreclosure to plaintiff, U.S. Bank N.A., as trustee relating to Chase Funding LLC Mortgage Backed Certificates Series 2006-2, and the order approving the report of sale and distribution. Defendant contends that his counteraffidavit opposing summary judgment was timely filed and that it properly challenged the sufficiency of plaintiff s notice of default. No argument is raised with respect to the approval of the sale and distribution. For the reasons that follow, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 In 2006, defendants William and Julie Gold secured repayment of a promissory note in the amount of $1, 500, 000 by executing a mortgage on property in Highland Park, Illinois. Beginning in 2009, defendants defaulted on their monthly payments. In October 2009, plaintiff filed a complaint to foreclose on defendants' mortgage. Defendants answered the complaint, denying plaintiffs allegations.

         ¶ 4 In 2017, plaintiff moved for summary judgment and a judgment of foreclosure and sale. Hearing on the motions was set for September 6, 2017. That morning, defendant William Gold filed a counteraffi davit, in which he alleged, inter alia, that plaintiffs "notice of acceleration/notice of default" did not comply with the notice requirement stated in the mortgage. Specifically, defendant alleged that paragraph 22 of the mortgage required that he be informed "of the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure, " whereas the notice he received stated "you have the right *** to bring a court action to assert the nonexistence of a default or any other defense you may have to the acceleration and sale." (Emphases added.) Defendant did not present this point in his response to plaintiffs summary judgment motion or raise it as an affirmative defense.

         ¶ 5 The trial court ordered additional briefing relative to defendant's counteraffidavit. Plaintiff requested that the court strike the counteraffidavit as untimely and noncompliant with Illinois Supreme Court Rule 191(a) (eff Jan. 4, 2013). On October 25, 2017, the court struck defendant's counteraffidavit and granted plaintiffs motion for summary judgment and a judgment of foreclosure. On May 4, 2018, the court entered an order approving the report of sale and distribution and a personal deficiency judgment against defendant in the amount of $1, 342, 622.19. Defendant filed a motion for leave to file a late notice of appeal on June 11, 2018, which this court granted on June 25. The notice of appeal was filed on June 27, 2018.

         ¶ 6 II. ANALYSIS

         ¶ 7 Defendant requests that this court reverse the order granting summary judgment and the final order approving the report of sale and distribution. We review de novo an order granting a motion for summary judgment. Williams v. Manchester, 228 Ill.2d 404, 417 (2008). We review for an abuse of discretion an order approving a sale and distribution. Household Bank, FSB v. Lewis, 229 Ill.2d 173, 178-79 (2008). To the extent we also interpret a provision in the mortgage, the interpretation of a contract involves a question of law, which we review de novo. Phoenix Insurance Co. v. Rosen, 242 Ill.2d 48, 54 (2011).

         ¶ 8 Defendant's only argument on appeal is that the trial court erred in striking his counteraffidavit in opposition to summary judgment as "untimely and conclusory." Defendant argues that the affidavit was timely filed and that it "challenged the sufficiency of plaintiffs notice of default." We agree with defendant that an affidavit may be timely filed at the time of the hearing. See 735 ILCS 5/2-1005(c) (West 2018) ("[t]he opposite party may prior to or at the time of the hearing on the motion file counteraffidavits"). However, we also determine that the affidavit did not comply with Rule 191(a), as it contained a legal conclusion upon which defendant's entire claim was based. Thus, it was not truly an affidavit but a pleading attempting to raise an affirmative matter. As such, it was untimely and properly stricken.

         ¶ 9 Rule 191(a) provides, inter alia, that an affidavit in opposition to a motion for summary judgment "shall set forth with particularity the facts upon which the *** counterclaim *** is based *** [and] shall not consist of conclusions but of facts admissible in evidence." Ill. S.Ct. R. 191(a) (eff. Jan. 4, 2013). Defendant avowed in his affidavit that he did not receive a notice of default that complied with the mortgage terms stated in paragraph 22. He explained that the notice stated "you have the right to *** bring a court action to assert the nonexistence of a default or any other defense you may have to the acceleration and sale, " whereas paragraph 22 requires the notice to inform the ...


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