PNC Bank, Nat'l Ass'n v. Zubel

• Decision Date: 23 December 2014
• Docket Number: No. 1–13–0976.,1–13–0976.
• Citation: PNC Bank, Nat'l Ass'n v. Zubel, 24 N.E.3d 869 (Ill. App. 2014)
• Parties: PNC BANK, NATIONAL ASSOCIATION, Successor by merger to National City Bank, Plaintiff–Appellee, v. Monika ZUBEL, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

24 N.E.3d 869

PNC BANK, NATIONAL ASSOCIATION, Successor by merger to National City Bank, Plaintiff–Appellee

v.Monika ZUBEL, Defendant–Appellant.

No. 1–13–0976.

Appellate Court of Illinois, First District, Third Division.

Dec. 23, 2014.

Leading Legal, LLC, of Chicago (Stephen D. Richek, of counsel), for appellant.

Crowley & Lamb, PC, of Chicago (James M. Crowley and Jennifer E. Frick, of counsel), for appellee.

OPINION

Presiding Justice PUCINSKIdelivered the judgment of the court, with opinion.

¶ 1Defendant mortgagor Monika Zubel appeals an order of the circuit court granting plaintiff mortgagee PNC Bank's (PNC)motion for summary judgment in this mortgage foreclosure action brought in accordance with provisions of the Illinois Mortgage Foreclosure Law (Foreclosure Law)(735 ILCS 5/15–1501 et seq.(West 2010)).Zubel also contests the propriety of the court's subsequent order approving the judicial sale of the mortgaged property and granting PNC an order of possession against her.She seeks reversal of the circuit court's orders, arguing that PNC's filings failed to comply with the requirements of the Foreclosure Law and that genuine issues of material fact exist that preclude summary judgment.For the reasons set forth herein, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 On October 2, 2009, PNC filed a complaint to foreclose mortgage against mortgagor Zubel regarding the mortgage and note executed with respect to property located at 6724 North Kenton Avenue in Lincolnwood, Illinois.In the complaint, PNC alleged that Zubel had not met any of her monthly mortgage payment obligations that year and was thus in default of her mortgage.

¶ 4 Zubel filed an answer in response to PNC's foreclosure action in which she admitted that she was the mortgagor of the property identified in PNC's complaint; however, she neither admitted nor denied that she had failed to fulfill her mortgage obligations and had defaulted on her mortgage.¹

¶ 5 Thereafter, PNC filed a motion for summary judgment on its foreclosure action.In pertinent part, PNC argued that none of Zubel's filings created any genuine issue of material fact as to the default on her mortgage and that it was thus entitled to judgment as a matter of law.PNC's motion was supported by affidavits completed by two of its employees: Laura Cauper and Jason Cogar.In Cauper's affidavit, she averred that she was the authorized servicing agent with respect to Zubel's mortgage and was familiar with the business records that PNC had made in the regular course of its business with respect to Zubel's mortgage.Based on those documents, Cauper averred that PNC had not received all of the payments that it was due pursuant to the terms of Zubel's mortgage agreement.

¶ 6Jason Cogar, in turn, submitted an “affidavit of amount due,” in which he averred that “Monika Zubel failed to pay amounts due under the Note,” and identified $511,744.04 as the total amount “due and owing” to PNC.He explained that the calculation was based on his “review of books and records with respect to Defendant's loan.”He further explained that “[i]n the ordinary and regular course of its business, PNC Bank, National Association, utilizes the Lender Processing Service, Inc., to process and store its customer information and to calculate the amount due and owing on any note at any given time.PNC Bank, National Association, utilizes the Program in the ordinary and regular course of its business to track and maintain the amounts due and owing from the Borrower on the mortgage loan at issue in this case.Based on * * * PNC Bank, National Association's business practices, recording such information is a regular practice of the PNC Bank, National Association's regularly conducted business activities for the purpose of referring to the information at a later date, and the entries in those records were made at the time of the events and conditions they describe, either by people with firsthand knowledge of those events and conditions or from practices [that] are standard in the mortgage servicing industry.”

¶ 7 In addition to Cauper's and Cogar's affidavits, PNC submitted a copy of the demand letter that it sent to Zubel as well as business records reflecting payments that had been made and applied to the mortgage balance as well as the amounts due and owing.

¶ 8 Zubel, in turn, filed a written response.In that filing, she argued that PNC was not entitled to summary judgment because it “failed to submit an affidavit containing true and admissible evidence, which would warrant entry of summary judgment in [its] favor.”Zubel's response was supported by her own affidavit, in which she averred: “from July 17, 2008 till [sic ]January 27, 2009 I have made mortgage payments to PNC Bank to be credited to my mortgage balance.”She further averred that she made payments of $2860.71 “on or about 8/12/2008, * * * 9/17/2008, * * * 10/17/2008, * * * [and] 11/18/2008.”In addition, Zubel stated that she made a payment in the amount of “$4010.00 on or about 01/17/2009.”Zubel further averred that each of these payments was made via a check that was mailed to, and subsequently cashed by, PNC.No accompanying records reflecting those payments were included with Zubel's affidavit.

¶ 9 On October 31, 2011, the circuit court entered a brief written order granting PNC's motion for summary judgment, finding that “no material issue of fact has been raised.”The court also entered a judgment of foreclosure and sale.At the judicial sale that followed, PNC was the successful bidder and filed a motion in the circuit court for an “Order Approving Report of Sale and Distribution and for Possession” of the premises, which the circuit court granted.This appeal followed.

¶ 10 ANALYSIS

¶ 11 On appeal, Zubel disputes the propriety of the circuit court's order granting PNC's motion for summary judgment and its subsequent order granting PNC possession of the property following the judicially approved sale of the property.She first argues that PNC was not entitled to a judgment of any kind because its complaint failed to comply with the requirements set forth in section 15–504 of the Foreclosure Law (735 ILCS 5/15–1504(West 2010) ).²

¶ 12 PNC, in turn, responds it satisfied the pleading requirements of the Foreclosure Law and maintains that the circuit court's orders were properly entered.Specifically, PNC argues that it “substantially complied with the suggested form complaint,” set forth in subsection 15–1504(a) of the Foreclosure Law and maintains that the minor variances between the complaint it filed in the circuit court and the form complaint contained in the Foreclosure Law exist only because its complaint against Zubel was specifically tailored to the facts and circumstances pertaining to her mortgage and the default thereof.

¶ 13 Summary judgment is proper when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”735 ILCS 5/2–1005(c)(West 2010).In reviewing a motion for summary judgment, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party to determine whether a genuine issue of material fact exists.Williams v. Manchester,228 Ill.2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1(2008).A genuine issue of fact exists where the material relevant facts in the case are disputed, or where reasonable persons could draw different inferences and conclusions from undisputed facts.Adams v. Northern Illinois Gas Co.,211 Ill.2d 32, 43, 284 Ill.Dec. 302, 809 N.E.2d 1248(2004).To survive a motion for summary judgment, the nonmoving party need not prove her case at this preliminary stage of litigation; however, the nonmovant must present some evidentiary facts that would arguably entitle her to judgment.Horwitz v. Holabird & Root,212 Ill.2d 1, 8, 287 Ill.Dec. 510, 816 N.E.2d 272(2004);Garcia v. Nelson,326 Ill.App.3d 33, 38, 259 Ill.Dec. 821, 759 N.E.2d 601(2001).Although courts have deemed summary judgment a “ drastic means of disposing of litigation”(Purtill v. Hess,111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867(1986)), it is nonetheless an appropriate mechanism to employ to expeditiously dispose of a lawsuit when the moving party's right to a judgment in its favor is clear and free from doubt (Morris v. Margulis,197 Ill.2d 28, 35, 257 Ill.Dec. 656, 754 N.E.2d 314(2001)).Ultimately, a trial court's ruling on a motion for summary judgment is subject to de novo review and the judgment may be affirmed based on any basis found in the record.Weather–Tite, Inc. v. University of St. Francis,233 Ill.2d 385, 389, 330 Ill.Dec. 808, 909 N.E.2d 830(2009);Rosestone Investments, LLC. v. Garner,2013 IL App (1st) 123422, ¶ 23, 377 Ill.Dec. 616, 2 N.E.3d 532.

¶ 14 In Illinois, foreclosure proceedings are governed by the Foreclosure Law (735 ILCS 5/15–1501 et seq.(West 2010)).Section 15–1504 of the Foreclosure Law sets forth the pleading and service requirements to initiate mortgage foreclosure actions.735 ILCS 5/15–1504(West 2010).Subsection (a) provides that a “foreclosure complaint may be in substantially the following form” and identifies various types of relevant information that may be included in the complaint, if appropriate, including: a copy of the mortgage and the mortgage note, “[i]nformation concerning [the] mortgage,” such as the date of the mortgage, the names of the mortgagor and mortgagee, the amount of indebtedness, and a statement as to defaults, and also requests for relief.(Emphasis added.)735 ILCS 5/15–1504(a)(West 2010).Although subsection (a) lists various types of information that may be included in a foreclosure complaint, subsection (b) explicitly provides that “[a] foreclosure complaint need contain only such statements and requests called for by the form set forth...