U.S. Bank v. Avdic

Decision Date02 May 2014
Docket NumberNo. 1–12–1759.,1–12–1759.
Citation381 Ill.Dec. 254,2014 IL App (1st) 121759,10 N.E.3d 339
PartiesUS BANK, NATIONAL ASSOCIATION, Plaintiff–Appellee, v. Asim AVDIC, Defendant–Appellant (Hidajeta Avdic; Bank of America, N.A., Successor by Merger to LaSalle Bank, N.A.; United Survey Service, LLC; Unknown Owners and Nonrecord Claimants, Defendants).
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Law Offices of Andjelko Galic, of Chicago (Andjelko Galic, of counsel), for appellant.

Codilis & Associates, P.C., of Chicago (Louis Manetti, Jr., and Margaret Manetti, of counsel), for appellee.

OPINION

Justice PALMER delivered the judgment of the court, with opinion.

¶ 1 In this mortgage foreclosure action, defendant, Asim Avdic, appeals following the circuit court of Cook County's entry of an order approving the sale of his property. Avdic challenges the court's orders granting summary judgment for plaintiff, U.S. Bank, N.A., denying his motion to strike U.S. Bank's affidavit, denying his motion to reconsider, and approving the sale of the property.

¶ 2 I. BACKGROUND

¶ 3 On July 1, 2010, U.S. Bank filed a foreclosure complaint against Asim Avdic, Hidajeta Avdic,1 Bank of America, N.A., and United Survey Service, LLC,2 regarding the mortgage and note executed by Asim and Hidajeta Avdic for property located at 3707 W. North Shore Avenue in Lincolnwood, Illinois. The complaint alleged that U.S. Bank was the mortgagee pursuant to section 15–1208 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) ( 735 ILCS 5/15–1208 (West 2010)). The complaint also alleged that Asim and Hidajeta Avdic, as mortgagors, executed a mortgage in the amount of $417,000 on February 22, 2008, and the mortgage was recorded on April 15, 2008, in Cook County. Further, the original mortgagee was Mortgage Electronic Registration Systems, Inc. (MERS), “as Nominee for LaSalle Bank N.A. The complaint alleged that defendants had not paid the monthly installments of principal, interest, taxes, and insurance from September 2009 through the time of filing the complaint, and the principal balance was $409,821.19 at that time.

¶ 4 U.S. Bank attached a copy of the mortgage and note to the complaint. The mortgage was dated February 22, 2008, and provided that MERS was the beneficiary, LaSalle Bank was the lender, and Asim Avdic was the borrower. It was signed by both Asim and Hidajeta Avdic, and it was also notarized. The accompanying note was for the amount of $417,000, with an interest rate of 6.125%, and monthly payments of $2,533.74. The first payment was due on April 1, 2008. It was signed by Asim Avdic. The note was also endorsed “PAY TO THE ORDER OF U.S. Bank NA WITHOUT RECOURSE” and signed by officers of LaSalle Bank and U.S. Bank.

¶ 5 On July 21, 2010, Asim and Hidajeta Avdic filed a verified answer to the complaint and entered an appearance as pro se defendants. They admitted to nearly all the paragraphs in the complaint. In relevant part, they admitted that: February 22, 2008, was the date of the mortgage; that Asim and Hidajeta Avdic were the mortgagors; MERS was the original mortgagee; the mortgage was recorded on April 15, 2008; the original amount of the mortgage was $417,000; Asim Avdic was the owner of the property and executed the note; and U.S. Bank brought the foreclosure action as the mortgagee under section 15–1208 of the Foreclosure Law. The only paragraph to which the Avdics responded that they had insufficient information to admit or deny was paragraph 3(J), which provided, “Mortgagors have not paid the monthly installments of principal, taxes, interest and insurance for 09/01/2009, through the present; the principal balance due of the Note and the Mortgage is $409,821.19, plus interest, costs, advances and fees. Interest accrues pursuant to the note.” Thereafter, attorney Andjelko Galic filed a notice of substitute appearance on October 12, 2010.

¶ 6 The record reflects that U.S. Bank subsequently moved for summary judgment and for entry of judgment of foreclosure on two or three occasions in late 2010 and early 2011, but the motions were either withdrawn without prejudice or never proceeded upon. The motion for summary judgment filed in November 2010 included the affidavit of Maria Lawrence, who indicated that she was assistant vice president of U.S. Bank.

¶ 7 On August 31, 2011, U.S. Bank again moved for summary judgment and for entry of an order of default and judgment of foreclosure and sale. US Bank argued that summary judgment was appropriate because, pursuant to section 2–1005 of the Code of Civil Procedure (735 ILCS 5/2–1005 (West 2010)), defendants failed to establish that any genuine issue of material fact existed and failed to submit a counteraffidavit. In support of its motion, U.S. Bank attached the signed and notarized affidavit of Rebecca Armstrong, who averred that she had “personal knowledge of the facts stated herein.” Attached to the affidavit were copies of the mortgage, note, and several computer printouts containing the payment history of the mortgage. In summary, Armstrong averred that she had been employed by U.S. Bank since 2002 and her duties included reviewing and analyzing U.S. Bank's business and loan records, which included computer-generated payment histories and copies of origination documents. Armstrong also averred that she was familiar with, had been trained on, and was qualified to use the computer software system that maintained the records. She averred that she had reviewed the business records and loan file for Avdic's loan, that the monthly payment was due for September 1, 2009, and each month thereafter, and that U.S. Bank elected to declare the entire balance due, and thus, the total amount due through July 25, 2011, was $478,460.87, which included the principal balance of $409,821.19, accrued interest of $49,761.91, late charges, and other expenses incurred by U.S. Bank.

¶ 8 On September 26, 2011, the circuit court entered an order granting U.S. Bank's motion for summary judgment and for a judgment of foreclosure and sale pursuant to section 15–1506 (735 ILCS 5/15–1506 (West 2010)), and also entered an order of default against Bank of America and United Survey Service for failing to appear or plead and an order dismissing the “unknown owners and nonrecord claimants as defendants. However, later on that same day, the court entered an order vacating all of these orders “pursuant to the agreement of the parties.” 3 The court entered an order setting a briefing schedule and hearing date for U.S. Bank's motions. The response to the motion was due October 24, 2011, the reply was due November 7, 2011, and the hearing was set for November 22, 2011.

¶ 9 On October 24, 2011, Avdic filed a motion to strike Armstrong's affidavit on grounds that it did not comply with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013). Avdic argued that Armstrong did not have sufficient personal knowledge of his file, she did not work with his file on a regular basis or before litigation arose, she did not know about the storage and retrieval methods used by U.S. Bank in maintaining and processing records, and she did not personally receive or observe the receipt of the payments or have personal knowledge of how they were applied. Avdic asserted that the authenticity of the attached records could not be determined, Armstrong failed to explain the computer software program that was used to generate the payment history or provide the name of the software program, and she failed to show how she arrived at the amounts due. Avdic also argued that the amount that Armstrong averred was paid into escrow ($0) was incorrect, as the attached payment history showed a balance of $5,582 in escrow in October 2008. Avdic contended that the attached records were incomplete and were not sworn or certified copies of all documents used to prepare the affidavit, and they were thus hearsay without proper foundation.

¶ 10 On November 22, 2011, the circuit court entered an order resetting the due date for U.S. Bank's reply and rescheduling the date of the hearing on the motions. The order also indicated that “the parties agreeing that defendant's motion to strike is deemed a response & plaintiff shall reply to said motion.”

¶ 11 In U.S. Bank's December 2, 2011, reply, it asserted that pursuant to sections 15–1107(a) and 15–1506(a)(2) (735 ILCS 5/15–1107(a), 15–1506(a)(2) (West 2010)), the court should enter a judgment of foreclosure because its motion was supported by Armstrong's affidavit stating the amount due on the mortgage. It argued that it was entitled to summary judgment under the Foreclosure Law, and to the extent it was inconsistent with Illinois Supreme Court Rule 191, the Foreclosure Law prevailed. Further, because Avdic failed to submit a counteraffidavit or offer other evidence to rebut the accuracy of the amount due set forth in Armstrong's affidavit, Armstrong's affidavit must be taken as true. US Bank asserted that the attached documents were admissible as business records and therefore the affiant's personal knowledge was irrelevant. US Bank argued that the affidavit complied with both Rule 191 and Illinois Supreme Court Rule 236 (eff. Aug. 1, 1992).

¶ 12 On December 15, 2011, the circuit court granted U.S. Bank's motion for summary judgment and denied Avdic's motion to strike the affidavit. It also held that Avdic's notice of deposition of Armstrong was “rendered moot.” 4 It's order indicated that oral arguments were heard regarding the motions. In the separate order granting summary judgment, the court held that Avdic's answer “as pleaded without sufficient supporting documentation, does not raise a genuine issue of material fact sufficient to preclude the entry of Summary Judgment in favor of Plaintiff.” The court entered a judgment of foreclosure and sale pursuant to section 15–1506 ( 735 ILCS 5/15–1506 (West 2010)), which provided that the total amount due, including principal, accrued interest,...

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