BMO Harris Bank, N.A. v. Porter
Decision Date | 01 June 2018 |
Docket Number | No. 1–17–1308,1–17–1308 |
Citation | 2018 IL App (1st) 171308,106 N.E.3d 411 |
Parties | BMO HARRIS BANK, N.A., f/k/a Harris Trust and Savings Bank, Plaintiff and Counterdefendant–Appellee, v. Arleta A. PORTER, Brian R. Porter, Urban Partnership Bank, Unknown Owners, and Non–Record Claimants, Defendants (Arleta A. Porter and Brian R. Porter, Defendants and Counterplaintiffs–Appellants). |
Court | United States Appellate Court of Illinois |
Brian R. Porter, of Chicago, for appellants.
Margaret A. Manetti, of Codilis & Associates, P.C., of Burr Ridge, for appellee.
¶ 1 Defendants, Arleta A. and Brian R. Porter, appeal an order of the circuit court of Cook County that granted plaintiff BMO Harris Bank, N.A.'s1 (BMO Harris) motion to strike and dismiss defendants' third amended counterclaim with prejudice in a mortgage foreclosure action. For the reasons that follow, we affirm.
¶ 4 Defendants executed a mortgage and equity line of credit agreement with Harris Trust and Savings Bank on October 29, 2001. The initial credit limit was $100,000, although the mortgage indicated that the maximum lien amount for the line of credit was $125,000. According to its terms, the mortgage secured not only the amount then presently advanced under the credit agreement but also
¶ 5 The credit agreement indicated that the term of the credit line began as of the date of the Agreement and continued until October 29, 2011 (maturity date), and that all indebtedness would be due and payable upon maturity. The agreement further stated that the lender may renew or extend the period during which defendants could obtain credit advances or make payments as well as renew or extend the credit line account itself. Additionally, the credit agreement indicated, within the "Change in Terms" section, that "[w]e may make changes to the terms of this Agreement if you agree to the change in writing at that time, if the change will unequivocally benefit you throughout the remainder of your Credit Line Account, or if the change is insignificant (such as changes relating to our data processing systems)."
¶ 6 The mortgage was in turn secured by real property located at 4505 South Oakenwald in Chicago, Illinois.
¶ 7 Plaintiff filed a foreclosure complaint against defendants in the circuit court on July 1, 2014, based on defendants' failure to pay the loan in full on October 29, 2011. Defendants filed their answer to the complaint on October 1, 2014, in which they only specifically denied paragraphs 3(J) and 4 of the complaint, which state:
¶ 8 Defendants also filed affirmative defenses, alleging laches and lack of default due to the creation of a contract implied in law. Plaintiff filed a motion to dismiss the affirmative defenses, and in response, defendants amended their affirmative defenses and filed a counterclaim.
¶ 9 Defendants' counterclaim, filed on February 13, 2015, alleged breach of an implied-in-fact contract and breach of an implied-in-law contract. Plaintiff moved to dismiss the amended affirmative defenses and the counterclaim. The trial court set a briefing schedule, and after briefing by the parties, the trial court struck the count alleging breach of an implied-in-fact contract claim with leave to replead and struck the count alleging breach of an implied-in-law contract claim with prejudice.
¶ 10 Defendants subsequently filed an amended counterclaim alleging breach of an implied-in-fact contract, which plaintiff moved to dismiss. Following briefing by the parties, the trial court struck the amended counterclaim with leave to replead.
¶ 11 Defendants filed a second amended counterclaim on their breach of an implied-in-fact contract claim, and plaintiff again moved to dismiss. Following briefing by the parties, including supplemental briefs, the trial court struck the second amended counterclaim with leave to replead.
¶ 13 On June 16, 2016, defendants filed their third amended counterclaim, which is the subject of this appeal. The third amended counterclaim alleged breach of the extension of their credit agreement and breach of an implied-in-fact contract.
¶ 14 Paragraphs 1 through 35 of defendants' third amended counterclaim relate to defendants' count I, titled "Breach of Extension of Credit Agreement."
¶ 15 In paragraph 3, defendants alleged "[t]hat on October 29, 2011, [defendants] and [plaintiff] executed a 12–page Mortgage which secured a revolving line of credit of up to $125,000 with [defendants] as the grantor, and [plaintiff] as the lender."
¶ 17 In paragraph 5, defendants alleged "[t]hat the above-referenced Credit Agreement, secured by the Mortgage at issue, was also executed on October 29, 2001, with a maximum credit amount of $100,000 payable upon maturity on October 29, 2011."
¶ 18 In paragraph 6, defendants alleged "[t]hat the time period of the Mortgage at issue is unequivocally for a 20 year term or until October 29, 2021." (Emphasis added.)
¶ 23 Paragraphs 12 and 13 made similar allegations as in paragraph 10 related to payments made by defendants from November 2011 through January 2012.
¶ 24...
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