U.S. BANK N.A., as Trustee Relating to Chase Funding LLC Mortgage Backed Certificates Series 2006-2, Plaintiff-Appellee,
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).
from the Circuit Court of Lake County, No. 09-CH4751; the
Hon. Michael B. Betar and the Hon. Margaret A. Marcouiller,
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
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
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
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
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 ...