American v. Gizynski
| Decision Date | 14 August 2015 |
| Docket Number | Docket No. 1-14-2871 |
| Citation | 2015 IL App (1st) 142871 |
| Parties | BANCO POPULAR NORTH AMERICA, Plaintiff-Appellee, v. MARK GIZYNSKI, Defendant-Appellant (First National Insurance Company of America; West Bend Mutual Insurance Company; Unknown Owners; and Nonrecord Claimants, Defendants). |
| Court | United States Appellate Court of Illinois |
Illinois Official Reports
Appellate Court
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 11-CH-3389; the Hon. Allen Walker, Judge, presiding.
JudgmentReversed and remanded.
Counsel on Appeal
Arthur C. Czaja, of Czaja Law Offices, of Niles, for appellant.
Adam K. Beattie, of Chuhak & Tecson, P.C., of Chicago, for appellee.
Panel
¶ 1 In this mortgage foreclosure action, defendant, Mark Gizynski, appeals the orders of the trial court (1) granting the motion of plaintiff, Banco Popular North America, for summary judgment; and (2) confirming the sale of the subject property. For the following reasons, we reverse and remand.
¶ 3 On January 26, 2011, plaintiff Banco Popular North America filed a complaint to foreclose on a commercial mortgage on property owned by defendant Mark Gizynski located on West Belmont Avenue in Chicago.
¶ 4 On March 21, 2011, plaintiff filed a motion to appoint a receiver for the property. Attached to the motion was an affidavit from William Bolsen, plaintiff's vice president, which describes the property as four buildings. The first building has office space on the first floor with a storage/warehouse area in the back, and the second and third floors were built as offices with kitchen areas, but are currently occupied as residences. The second building has a high one-story warehouse on the ground floor with a partial second floor built as an office/studio. The third building has a high one-story warehouse on the ground floor. The fourth building has office space on the first floor with a storage/warehouse area in the back and office space on the second floor with a storage area in the back.
¶ 5 On April 6, 2011, the trial court granted plaintiff's motion to appoint a receiver. The order was entered on an electronic form, apparently by filling in blanks and selecting options.1 In the court's order, the court specifically found that "[t]he property does not fall within the definition of 'Residential Real Estate' under the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1219[ ] [(West 2010)])."
¶ 6 Section 15-1502.5 of the Illinois Mortgage Foreclosure Law (Foreclosure Law), commonly known as the "Homeowner Protection Act" (Act), describes protections afforded to mortgagors of residential property (735 ILCS 5/15-1502.5 (West 2010)). The Act was written to provide owners of single-family, owner-occupied properties an additional last-minute escape valve to rescue their mortgages before the lender files a suit under the Foreclosure Law. The grace period notice required by the Act directs the borrower to various resources available for counseling and loan modification assistance. 735 ILCS 5/15-1502.5(c) (West 2010). If a counseling agency approved by the United States Department of Housing and Urban Development notifies the lender within the 30-day period that the borrower is seeking approved counseling services, the lender cannot file suit until an additional 30 days has passed. 735 ILCS 5/15-1502.5(c) (West 2010). A grace period notice is required before any foreclosure action may be instituted. Section 15-1502.5(c) of the Foreclosure Law provides that:
¶ 7 Section 15-1219 of the Foreclosure Law defines residential real estate:
735 ILCS 5/15-1219 (West 2010).
¶ 8 On April 14, 2011, defendant filed a Chapter 7 bankruptcy case, and the foreclosure proceedings were subject to an automatic stay. On October 17, 2011, the automatic stay was lifted.
¶ 9 On October 27, 2011, defendant filed a motion to dismiss the foreclosure complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). Attached to the motion as an exhibit was an affidavit of defendant, averring that he had lived at the subject property since 1986 as his residence.
¶ 10 On November 23, 2011, the court appointed receiver moved for approval of the receiver's initial report. Attached to the motion was a copy of the initial report, which contained copies of seven leases for units on the property. Five of those leases were on forms titled "Chicago Apartment Lease," while the other two leases were on forms titled "Office Lease."
¶ 11 On December 13, 2011, defendant filed an amended 2-615 motion to dismiss the complaint. The motion argued that the subject property met the definition of "Residential RealEstate" pursuant to section 15-1219 of the Foreclosure Law (735 ILCS 5/15-1219 (West 2010)) because the property was a "multiple dwelling structure containing single family dwelling units for six or fewer families." Defendant argued that, since plaintiff's complaint was captioned as a "Commercial Foreclosure," the complaint was erroneously filed, and that since plaintiff's motion to appoint a receiver described the property as commercial, the motion was incorrectly pled and insufficient as a matter of law.
¶ 12 On April 6, 2012, plaintiff filed a response to defendant's motion to dismiss, arguing: (a) that defendant's motion was legally deficient, (b) that even if part of the property was used as residential that is not a basis to dismiss the claim, and (c) that the property is not residential and that this issue was decided during the hearing on plaintiff's motion to appoint a receiver.2 On April 20, 2012, defendant filed a reply. He argued that he was unable to attend the hearing on plaintiff's motion to appoint a receiver because he was suffering from a debilitating gastrointestinal illness. He attached an ambulance bill, dated April 15, 2011, to his reply. He also attached a printout from the tax assessor's office, showing that a homeowner exemption had been applied to the subject property.3
¶ 13 On May 7, 2012, the motion was denied without prejudice.
¶ 14 On August 20, 2012, defendant filed a motion to vacate all orders and to dismiss plaintiff's complaint for lack of subject matter jurisdiction. Defendant claimed that the property met the section 15-1219 definition of residential property, and that, therefore, no foreclosure action could be instituted without the mortgagee mailing the notice described in section 15-1502.5 of the Foreclosure Law (735 ILCS 5/15-1502.5 (West 2010)). Section 15-1502.5, the Act, provides a non-waivable notice requirement and 30-day grace period that must be observed before a mortgagee institutes a foreclosure action (735 ILCS 5/15-1502.5 (West 2010)). Defendant argues that since plaintiff did not comply with the notice requirements of section 15-1502.5, the trial court lacked subject matter jurisdiction. Attached to the motion was an affidavit from defendant, in which he averred that he did not receive notice as required by section 15-1502.5, and that the subject property was his primary residence. Also attached to the motion was an affidavit from Alderman Ariel Reboyras, in which he averred that he personally knew defendant, and that defendant occupied one of the units on the subject property as his primary residence, and that the property consists of five residential units and two office spaces. Also attached to the motion were the affidavits of Zdieslaw Sieradz, Dominik & Justyna Podsiadlo, and Tomasz Plewa, each of whom averred that they lived at the subject property as lessees and that the property consists of five residential units and two office spaces.
¶ 15 On November 20, 2012, plaintiff filed a response to defendant's motion to vacate....
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