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Fifth Third Bank v. Brazier

Court of Appeals of Illinois, First District

September 27, 2019

FIFTH THIRD BANK, as Successor by Merger to MB Financial Bank, N.A., Plaintiff-Appellee,
v.
BYRON T. BRAZIER, a/k/a Byron T. Brazier Jr., a/k/a Bryon Braizer, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County No. 15 CH 3119 Honorable William B. Sullivan, Judge, presiding.

          Carlton Odim, of Odim Law Offices, of Chicago, for appellant

          John J. Lydon, Nazia J. Hasan, and Raymond J. Ostler, of Gomberg Sharfman, P.C., of Chicago, for appellee.

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

          OPINION

          ROCHFORD JUSTICE

         ¶ 1 Defendant-appellant, Byron T. Brazier, a/k/a Byron T. Brazier Jr., a/k/a Bryon Braizer, appeals from the entry of summary judgment against him with respect to a claim that he breached a promissory note (note) originally executed in favor of Heritage Community Bank (Heritage). Defendant argues that the circuit court erred in finding that the 10-year statute of limitations for actions on promissory notes applied to this suit (735 ILCS 5/13-206 (West 2016)) rather than the 5-year statute for actions on unwritten contracts (Id. § 13-205). For the following reasons, we affirm.[1]

         ¶ 2 I. BACKGROUND

         ¶ 3 On November 22, 2004, Heritage and defendant entered into an original $100, 000 loan agreement, evidenced by the note and secured by a mortgage. The note identified defendant as the borrower and Heritage as the lender and set forth the terms of the loan, including defendant's obligation to pay principal and interest. Defendant promised to pay to Heritage, "or order, " the principal and interest and was required to make monthly payments of accrued, unpaid interest. The note also provided that defendant was to pay the loan on demand, or by November 22, 2006, if no prior demand was made.

         ¶ 4 The terms of the original note were modified in writing on three separate occasions, with the first modification increasing the loan amount to $150, 000. The maturity date was also extended with each modification, with the final modification extending the maturity date to February 22, 2008. The original note specifically provided: "The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender [Heritage] and its successors and assigns." Each of the subsequent modifications provided: "this Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns."

         ¶ 5 On February 27, 2009, the Illinois Department of Financial and Professional Regulation, Division of Banking, took control of Heritage and appointed the Federal Deposit Insurance Corporation (FDIC) as receiver. On that same date, a "Whole Bank Purchase and Assumption Agreement" (Purchase Agreement) was executed by and among the FDIC, the FDIC as receiver, and MB Financial Bank, N.A. (MB). Thereby, MB acquired its interest in the note and defendant's mortgage.

         ¶ 6 On February 23, 2015, MB filed a mortgage foreclosure action against defendant and others. Defendant's motion to dismiss the complaint as being time-barred, pursuant to the five-year statute of limitations contained in section 13-205 of the Code of Civil Procedure (Code) (735 ILCS 5/13-205 (West 2014)), was denied. Defendant thereafter answered the foreclosure complaint. As an affirmative defense, defendant asserted that the action was time-barred under the five-year statute of limitations contained in section 13-205 of the Code. In answers to requests for admission, MB admitted that the only parties specifically identified in the note are defendant and Heritage and further admitted that the foreclosure case was filed "seven years and one day after the loan" became due and payable.

         ¶ 7 Defendant then moved for summary judgment, arguing that the foreclosure action was time-barred. Specifically, defendant contended that, because MB was not identified in the original note or any of the modifications thereto and only obtained its interest in the note after the final modification was executed, the note was an unwritten contract subject to the five-year statute of limitations contained in section 13-205 of the Code. In response, MB argued for the application of the 10-year statute of limitations for written contracts, and in particular for promissory notes, contained in section 13-206 of the Code. MB pointed out that the mortgage and note, although not specifically naming MB, specifically granted rights to Heritage its "successors and assigns." The circuit court denied defendant's summary judgment motion, stating "[t]here clearly is a genuine issue of material fact at a minimum as to the question of statute of limitations."

         ¶ 8 On August 7, 2017, MB obtained leave to file an amended complaint. Two days later, MB, as successor in interest to Heritage, filed an amended complaint containing a single count against defendant only alleging defendant's breach of the note and the subsequent modifications. MB alleged that defendant's loan matured on February 22, 2008, with an unpaid principal balance of $141, 738.51, and an unsuccessful demand for payment was made upon defendant upon maturity. Defendant answered the amended complaint on September 5, 2017, and asserted as an affirmative defense that the action was time-barred because it was not filed within five years of the note becoming due and payable, as required by section 13-205.

         ¶ 9 On November 20, 2017, MB moved for summary judgment on its amended complaint, arguing in part that the 10-year statute of limitations contained in section 13-206 applied rather than the 5-year statute of limitations contained in section 13-205. During the hearing on the motion, defendant reminded the circuit court that when denying his motion for summary judgment on the original mortgage foreclosure complaint, the court found the existence of "a genuine issue of material fact at a minimum." The court responded that its finding of a genuine issue of material fact "was with regard to your [defendant's] motion only. I haven't made that ruling with regard to this [MB's] motion." The circuit court granted MB's ...


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