Bank of Am., N.A. v. George M. Land

• Decision Date: 31 July 2013
• Docket Number: Docket No. 5–12–0283.
• Parties: BANK OF AMERICA, N.A., as Successor by Merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, Plaintiff–Appellee, v. George M. LAND, Eunice F. Land, and Unknown Owners and Nonrecord Claimants, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2013 IL App (5th) 120283

992 N.E.2d 1266

372 Ill.Dec. 865

BANK OF AMERICA, N.A., as Successor by Merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, Plaintiff–Appellee,

v.George M. LAND, Eunice F. Land, and Unknown Owners and Nonrecord Claimants, Defendants–Appellants.

Docket No. 5–12–0283.

Appellate Court of Illinois, Fifth District.

July 31, 2013.

Alfred E. Sanders, Jr., of Sanders & Associates, of Marion, for appellants.

Louis J. Manetti, Jr., of Codilis & Associates, P.C., of Burr Ridge, for appellee.

OPINION

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

¶ 1 FACTS

[372 Ill.Dec. 867]¶ 2 In July 2011, the plaintiff, Bank of America, N.A. (BOA), commenced a foreclosure action against the defendants, George and Eunice Land (the Lands), in the circuit court of Johnson County. BOA's complaint for foreclosure alleged that in June 2007, the Lands and one of its predecessors in interest had entered into a mortgage agreement through which the Lands had been loaned $125,000 to finance their purchase of real estate commonly known as 4715 Lick Creek Road, Buncombe, Illinois. The complaint further alleged that the Lands had not paid a monthly mortgage installment since August 2010 and that the outstanding principal on their loan was approximately $121,000.

¶ 3 In October 2011, after unsuccessfully moving to dismiss BOA's complaint for foreclosure, the Lands filed an answer with affirmative defenses and counterclaims. In November 2011, BOA filed a motion to strike the affirmative defenses and counterclaims. In March 2012, the circuit court entered a modified order striking the Lands' affirmative defenses without prejudice and dismissing their counterclaims without prejudice. Three weeks later, BOA filed a motion for summary judgment pursuant to section 2–1005 of the Code of Civil Procedure (735 ILCS 5/2–1005 (West 2010)). The cause proceeded to a hearing on BOA's motion for summary judgment in June 2012.

¶ 4 On the day of the hearing on BOA's motion for summary judgment, the Lands filed a response to the motion and a motion for leave to amend their answer with affirmative defenses and counterclaims. At the commencement of the hearing, BOA objected to the untimely filing of the Lands' response and motion for leave to amend, and the circuit court entertained arguments on the matter. Suggesting that the pleadings should have been filed “before walking in the courtroom” on the day of the scheduled hearing, the court ultimately struck the Lands' response to BOA's motion for summary judgment and denied their motion for leave to amend their answer with affirmative defenses and counterclaims. The court nevertheless allowed the Lands to file an affidavit in which they attested to having made a $489.80 payment on the loan in September 2009. See 735 ILCS 5/2–1005(c) (West 2010) (providing that a party in opposition to a motion for summary judgment “may prior to or at the time of the hearing on the motion file counteraffidavits”).

¶ 5 In support of its motion for summary judgment, BOA submitted an affidavit from Jennifer Lynn Cherks, an assistant vice president of BOA. The affidavit included a record of all payments that the Lands had made on the aforementioned mortgage and stated the total “amount of the default” as of December 23, 2011. In response, the Lands objected to the admission of Cherks' affidavit, arguing, inter alia, that it included information that preceded BOA's acquisition of the loan.

¶ 6 At the conclusion of the hearing, the circuit court granted BOA's motion for summary judgment. The court subsequently entered a written judgment for foreclosure and sale and awarded BOA $3,654 in attorney fees and costs. The judgment included an express written finding that it was a final and appealable order and that there was “no just cause for delaying the enforcement of [the] judgment or appeal therefrom.” See Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010). The Lands subsequently filed a notice of appeal, which noted that it was timely filed “pursuant to Supreme Court Rule[s] 303 and 304.”

¶ 7 DISCUSSION

¶ 8 On appeal, the Lands argue that the circuit court erred in (1) granting BOA's motion for summary judgment, (2) striking their response to the motion and denying their motion for leave to amend their answer,and (3) awarding BOA attorney fees and costs. We will address each contention in turn.

¶ 9 BOA's Motion for Summary Judgment

¶ 10 Because summary judgment is a drastic means of disposing of litigation, it should only be used where the pleadings and other evidentiary material in the record, when viewed in a light most favorable to the nonmoving party, demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Sardiga v. Northern Trust Co., 409 Ill.App.3d 56, 61, 350 Ill.Dec. 372, 948 N.E.2d 652 (2011). “The purpose of summary judgment is not to try a question of fact but to determine whether one exists.” Tannehill v. Costello, 401 Ill.App.3d 39, 42, 340 Ill.Dec. 785, 929 N.E.2d 89 (2010). We review the circuit court's granting of summary judgment de novo. Id. at 41, 340 Ill.Dec. 785, 929 N.E.2d 89.

¶ 11 The Lands maintain that Cherks' affidavit was insufficient to support BOA's motion for summary judgment. Noting that other entities had assumed their mortgage prior to BOA, the Lands suggest that Cherks' purported testimony “as to records kept by another company” would be inadmissible hearsay if offered at trial. The Lands thus suggest that Cherks' affidavit did not sufficiently demonstrate that BOA was entitled to judgment as a matter of law. See Skipper Marine Electronics, Inc. v. United Parcel Service, Inc., 210 Ill.App.3d 231, 236, 155 Ill.Dec. 55, 569 N.E.2d 55 (1991) (“An affidavit in support of a motion for summary judgment is actually a substitute for testimony taken in open court and should meet the same requirements as competent testimony.”); Loveland v. City of Lewistown, 84 Ill.App.3d 190, 192–93, 39 Ill.Dec. 700, 405 N.E.2d 453 (1980) (“It is true that if the evidence is not admissible at trial, it would not be admissible in an affidavit accompanying a motion for summary judgment.”). We disagree.

¶ 12 Illinois Supreme Court Rule 236, which codifies the business-records exception to the hearsay rule, provides as follows:

“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term ‘business,’ as used in this rule, includes business, profession, occupation, and calling of every kind.” Ill. S.Ct. R. 236(a) (eff. Aug. 1, 1992).

Notably, “Rule 236 expressly provides that lack of personal knowledge by the maker may affect the weight of the evidence but not its admissibility.” In re Estate of Weiland, 338 Ill.App.3d 585, 601, 273 Ill.Dec. 220, 788 N.E.2d 811 (2003).

¶ 13 “The theory upon which entries made in the regular course of business are admissible as an exception to the hearsay rule is that ‘since their purpose is to aid in the proper transaction of the business and they are useless for that purpose unless accurate, the motive for following a routine of accuracy is great and the motive to falsify nonexistent.’ ” Kimble v. Earle M. Jorgenson Co., 358 Ill.App.3d 400, 414, 294 Ill.Dec. 402, 830 N.E.2d 814 (2005) (quoting Michael H. Graham, Cleary and Graham's Handbook of Illinois Evidence § 803.10, at 817 (7th ed. 1999)).

“Thus, it makes no difference whether the records are those of a party or of a third person authorized by the business to generate the record on the business's behalf.” Id. A party may therefore establish a foundation for admitting business records through the testimony of a records custodian or “another person familiar with the business and its mode of operation.” In re Estate of Weiland, 338 Ill.App.3d at 600, 273 Ill.Dec. 220, 788 N.E.2d 811. The admission of business records is reviewed for an abuse of discretion. Id.

¶ 14 Here, in her affidavit, Cherks attested that she was personally familiar with BOA's procedures for creating and maintaining its business records and that its records pertaining to the Lands' mortgage were “made at or near the time of the occurrence of the matters set forth therein by persons with personal knowledge of the information in the business record.” She further attested that the records were kept in the course of BOA's regularly conducted business activities and that it was BOA's regular practice to make and keep such records. Cherks' affidavit was thus admissible pursuant to Rule 236 and provided a sufficient basis upon which to conclude that BOA was entitled to judgment as a matter of law. See Independent Trust Corp. v. Hurwick, 351 Ill.App.3d 941, 950, 286 Ill.Dec. 669, 814 N.E.2d 895 (2004) (business records offered in support of motion for summary judgment properly considered where affidavits established that the records were made in the regular course of business and that it was the regular course of business to prepare such records); Farm Credit Bank of St. Louis v. Biethman, 262 Ill.App.3d 614, 622, 199 Ill.Dec. 958, 634 N.E.2d 1312 (1994) (trust deed and promissory note established prima facie case of foreclosure); Miller v. Swanson, 66 Ill.App.2d 179, 185, 213 N.E.2d 294 (1965) (promissory notes, trust deed, and “proof of default in the performance of their terms” established right of recovery and foreclosure); see...