2 N.E.3d 1052 (Ill.App. 1 Dist. 2013), 1-13-0380, Parkway Bank & Trust Co. v. Korzen
Docket Nº: | 1-13-0380 |
Citation: | 2 N.E.3d 1052, 2013 IL App (1st) 130380, 377 Ill.Dec. 771 |
Opinion Judge: | DELORT, JUSTICE. |
Party Name: | PARKWAY BANK AND TRUST COMPANY, Plaintiff-Appellee, v. VICTOR KORZEN and TOMAS ZANZOLA, Defendants-Appellants (Unknown Owners and Nonrecord Claimaints, Defendants) |
Attorney: | Victor Korzen and Tomas Zanzola, both of Chicago, appellants pro se. Scott & Kraus, of Chicago (Eugene S. Kraus and Sonia S. Kinra, of counsel), for appellee. |
Judge Panel: | JUSTICE DELORT delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Cunningham concurred in the judgment and opinion. |
Case Date: | September 23, 2013 |
Court: | Court of Appeals of Illinois |
Page 1052
As Supplemented December 16, 2013.
As Corrected April 16, 2014.
Page 1053
On Appeal from the Circuit Court of Cook County. No. 10 CH 36958. Honorable Robert Senechalle, Judge Presiding.
SYLLABUS
In a groundless appeal from a foreclosure proceeding involving frivolous and confusing pleadings and procedures by defendants with respect to their vacant lot, the appellate court affirmed the judgment for plaintiff, recognized plaintiff's right to petition for attorney fees, and directed defendants to show cause why a fine of $10,000 should not be imposed on them pursuant to Supreme Court Rule 375.
OPINION
Page 1054
This appeal of a mortgage foreclosure case involving an empty lot is so groundless that we would normally dispose of it with a brief summary order. However, it provides us an opportunity to review a number of tactics a small number of debtors use both to delay the ultimate resolution of cases against them and to use
Page 1055
the legal system for improper purposes. Some people might classify those who engage in these tactics as " sovereign citizens," but regardless of the nomenclature, their methods are not only counterproductive, but detrimental to the efficient and fair administration of justice. A recent New York Times article noted the FBI has labeled the strategy as " 'paper terrorism.'" Erica Goode, In Paper War, Floor of Liens Is the Weapon, N.Y. Times, Aug. 23, 2013, at A1.
Because of the growing number of these cases, we issue this opinion to provide guidance to the many courts confronted with similar matters.1 We affirm the judgment below and retain jurisdiction to award additional attorney fees as provided by the underlying contract and to consider the imposition of sanctions under Illinois Supreme Court Rule 375 (Ill. S.Ct. R. 375 (eff. Feb. 1, 1994)).
BACKGROUND
Defendants-appellants, Victor Korzen and Tomas Zanzola, who are the owners of the subject property, raise no less than 15 points in their pro se appeal. Establishing a framework to properly analyze these contentions requires us to set out the chronology of the case in unusually excruciating detail, as follows.
Date | Event |
January 5, 2007 | Defendant Zanzola signs a promissory note to borrow |
$100,000 from Parkway Bank & Trust Company (Parkway). | |
The note matures six months later, on July 5, 2007. The note | |
provides that Zanzola will be responsible to pay Parkway's | |
attorney fees, court costs, and expenses, including for | |
appeals, if Zanzola fails to repay the note on time. The | |
note states that it is secured by a January 5, 2007 | |
mortgage, assignment of rents, and " commercial security | |
agreement" between Zanzola and defendant Korzen for property | |
located at 1527 East Thomas Street in Palatine (the | |
property). The note was thereafter renewed in like form for | |
six successive six-month terms, the last terminating on | |
July 5, 2010. | |
January 5, 2007 | Zanzola and Korzen sign a mortgage on the Thomas Street |
property with Parkway. The mortgage contains a standard | |
" due on sale" clause providing that Parkway may declare the | |
note immediately due and payable if the mortgagors transfer | |
any of their interest in the property. The mortgage also | |
provides that if the note is not paid on time, Parkway may | |
obtain a court order foreclosing the mortgagors' interest in | |
the property. Like the note, the mortgage provides that the | |
mortgagors shall pay Parkway's " reasonable" attorney fees | |
and court costs " at trial and upon any appeal." | |
In the mortgage, Zanzola and Korzen waived their rights of | |
redemption and reinstatement in case of a foreclosure, a | |
waiver which is only valid if the property is not | |
" residential" as defined by the Illinois Mortgage | |
Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et | |
seq . (West 2010)). Under the Foreclosure Law, the property | |
is only " residential" if the borrower actually lives in | |
a residence constructed on the property. 735 ILCS 5/15-1219 | |
(West 2010). | |
January 5, 2007 | Zanzola and Korzen sign an assignment of rents in favor of |
Parkway, another act which suggests that the property is not | |
" residential" under section 15-1219 of the Foreclosure Law. | |
January 22, 2007 | Korzen signs and records a deed quitclaiming his interest in |
the property to himself and Zanzola as joint tenants. Korzen | |
signs a certificate with the deed asserting that the | |
transaction between Zanzola and him is exempt from real | |
estate transfer taxes. | |
August 26, 2010 | Parkway files this mortgage foreclosure lawsuit, along with |
a civil cover sheet indicating that the property is " vacant | |
land." The lawsuit names both Korzen and Zanzola as | |
defendants. The lawsuit contains two counts. Count I seeks a | |
mortgage foreclosure and follows the standard statutory | |
format. Parkway attached three exhibits to the complaint to | |
support its allegations in count I: (a) a copy of the | |
January 5, 2007 promissory note, whose most recent renewal | |
matured on July 5, 2010; (b) a copy of the January 5, 2007 | |
mortgage; and (c) a copy of the January 5, 2007 assignment | |
of rents. Count I, paragraph 3, alleges that the default on | |
the note and mortgage occurred through failure to pay | |
amounts due under the note on and after March 8, 2010, and | |
that the amount currently due is about $106,377.23 plus | |
continuing per diem interest of $28.39. | |
Count II is a claim for breach of the promissory note | |
against Zanzola. | |
September 1, 2010 | The circuit court appoints a special process server to serve |
defendants. | |
September 12, 2010 | The special process server personally serves Zanzola at an |
address in Prairie Grove, McHenry County, Illinois. | |
September 14, 2010 | The Cook County sheriff's deputy assigned to serve |
defendants reports that he could not serve Korzen at 410 | |
South Warner in Palatine, because he moved from that | |
address " five years ago." | |
October 20, 2010 | Both defendants file motions in the circuit court to defend |
as poor persons without paying filing fees. The court | |
grants the motions. | |
October 28, 2010 | Zanzola files an appearance, listing his Prairie Grove |
address; Korzen also files an appearance, listing an address | |
in Chicago. The two defendants jointly file a fill-in-the- | |
blank form answer, denying the allegations of count I, | |
paragraph 3 of the complaint, and claiming that they have | |
insufficient knowledge to admit or deny count I, | |
paragraph 2. | |
Under the portion of the answer labeled " Other affirmative | |
matter," defendants state the following: | |
" Missing: | |
4.1 Proof of claim accompanied with the evidence of debt; | |
4.2 Original Wet Script ink Promissory Note; | |
4.3 Original Title; | |
4.4 Current complete copy of the Bank's Original | |
Application and the CUSIP number of the Application." | |
January 31, 2011 | The special process server personally serves Korzen at his |
address in Chicago. | |
February 22, 2011 | Defendants fail to appear for the case management |
conference. | |
August 16, 2011 | Parkway issues a request to admit facts to defendants, |
seeking admission of various basic facts regarding the | |
transaction. These include genuineness of the documents | |
signed by defendants and the default created by the missed | |
payments. | |
August 31, 2011 | On Parkway's motion, the circuit court strikes the |
affirmative matter contained in paragraph 4 of defendants' | |
answer. Defendants |
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...in order to create a genuine issue of material fact." Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 49, 377 Ill.Dec. 771, 2 N.E.3d 1052. [¶32] As stated, the affidavit of Armstrong conformed to Rule 191 and the business records related to the mortgage and note at ......
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...to the discretion of the reviewing court." Parkway Bank & Trust Co. v. Korzen, 2013 IL App. (1st) 130380, ¶ 87, 377 Ill.Dec. 771, 2 N.E.3d 1052 (citing Kheirkhahvash v. Baniassadi, 407 Ill.App.3d 171, 182, 347 Ill.Dec. 151, 941 N.E.2d 1020 ¶ 72 Althoug......
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39 N.E.3d 337 (Ill.App. 4 Dist. 2015), 4-14-0141, CNB Bank & Trust, N.A. v. Rosentreter
...unconscionable." 735 ILCS 5/15-1508(b) (West 2012); see Parkway Bank & Trust Co. v. Korzen, 2013 IL App. (1st) 130380, ¶ 15, 377 Ill.Dec. 771, 2 N.E.3d 1052; Deutsche Bank Nat'l Trust Co. v. Snick, 2011 IL App. (3d) 100436, ¶ 10, 957 N.E.2d 1273, 354 Ill.Dec. 480. One of " the......
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70 N.E.3d 210 (Ill.App. 1 Dist. 2016), 1-15-2670, The Village of Willow Springs v. The Village of Lemont
...facts establishing standing in the first instance. Parkway Bank & Trust Co. v. Korzen, 2013 IL App. (1st) 130380, ¶ 24, 377 Ill.Dec. 771, 2 N.E.3d 1052. However, where the defense is raised as an affirmative matter and is supported by affidavits or other evidentiary&......
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10 N.E.3d 339 (Ill.App. 1 Dist. 2014), 1-12-1759, U.S. Bank, NA v. Avdic
...in order to create a genuine issue of material fact." Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 49, 377 Ill.Dec. 771, 2 N.E.3d 1052. [¶32] As stated, the affidavit of Armstrong conformed to Rule 191 and the business records related to the mortgage and note at ......
-
148 N.E.3d 786 (Ill.App. 5 Dist. 2020), 5-16-0007, Enbridge Pipeline (illinois), L.L.C. v. Murfin
...to the discretion of the reviewing court." Parkway Bank & Trust Co. v. Korzen, 2013 IL App. (1st) 130380, ¶ 87, 377 Ill.Dec. 771, 2 N.E.3d 1052 (citing Kheirkhahvash v. Baniassadi, 407 Ill.App.3d 171, 182, 347 Ill.Dec. 151, 941 N.E.2d 1020 ¶ 72 Althoug......
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39 N.E.3d 337 (Ill.App. 4 Dist. 2015), 4-14-0141, CNB Bank & Trust, N.A. v. Rosentreter
...unconscionable." 735 ILCS 5/15-1508(b) (West 2012); see Parkway Bank & Trust Co. v. Korzen, 2013 IL App. (1st) 130380, ¶ 15, 377 Ill.Dec. 771, 2 N.E.3d 1052; Deutsche Bank Nat'l Trust Co. v. Snick, 2011 IL App. (3d) 100436, ¶ 10, 957 N.E.2d 1273, 354 Ill.Dec. 480. One of " the......
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70 N.E.3d 210 (Ill.App. 1 Dist. 2016), 1-15-2670, The Village of Willow Springs v. The Village of Lemont
...facts establishing standing in the first instance. Parkway Bank & Trust Co. v. Korzen, 2013 IL App. (1st) 130380, ¶ 24, 377 Ill.Dec. 771, 2 N.E.3d 1052. However, where the defense is raised as an affirmative matter and is supported by affidavits or other evidentiary&......