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                                 Appellate Court                             Date: 2018.12.28
                                                                             09:30:56 -06'00'




                  MidFirst Bank v. Riley, 2018 IL App (1st) 171986



Appellate Court     MIDFIRST BANK,            Plaintiff-Appellee,   v.   DENISE    RILEY,
Caption             Defendant-Appellant.



District & No.      First District, First Division
                    Docket No. 1-17-1986



Filed               August 20, 2018



Decision Under      Appeal from the Circuit Court of Cook County, No. 13-CH-16791; the
Review              Hon. Allen Price Walker, Judge, presiding.



Judgment            Affirmed.


Counsel on          LOGIK Legal LLC, of Chicago (Sabrina Herrell, of counsel), for
Appeal              appellant.

                    Shapiro Kreisman & Associates, LLC, of Bannockburn (Joseph M.
                    Herbas, of counsel), for appellee.



Panel               JUSTICE HARRIS delivered the judgment of the court, with opinion.
                    Presiding Justice Pierce and Justice Mikva concurred in the judgment
                    and opinion.
                                               OPINION

¶1       Plaintiff-appellee, MidFirst Bank, initiated a foreclosure action on a piece of property
     located at 14451 Arthur Court, Dolton, Illinois, after defendant-appellant, Denise Riley, failed
     to make the required mortgage payments. After suit had been filed, defendant filed several
     affirmative defenses and counterclaims. Defendant argued plaintiff lacked standing to bring
     the foreclosure action, while also alleging violations of the Consumer Fraud and Deceptive
     Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2016)), common
     law fraud, and promissory estoppel. Plaintiff eventually filed for summary judgment. After
     briefing from the parties, the circuit court entered judgment in favor of plaintiff and against
     defendant. The court also entered judgment in favor of plaintiff on all of defendant’s
     counterclaims. The subject property was sold at auction, which the circuit court then approved.
¶2       Defendant timely appealed and raises several issues before this court: (1) the circuit court
     erred in denying her motion to dismiss and the subsequent motion to reconsider, (2) the circuit
     court erred in finding no genuine issue of material fact as to defendant’s first affirmative
     defense (lack of standing), (3) the circuit court erred in granting summary judgment in favor of
     plaintiff, (4) the circuit court erred in entering judgment in favor of plaintiff on the Consumer
     Fraud Act claim and common law fraud claim, and (5) the circuit court erred in confirming the
     judicial sale.
¶3       For the reasons stated more fully below, we find no error with the proceedings below and
     affirm the circuit court’s orders.

¶4                                          JURISDICTION
¶5        This foreclosure action commenced on July 15, 2013. On June 30, 2016, plaintiff moved
     for summary judgment. On October 11, 2016, the circuit court granted the motion. On July 10,
     2017, the circuit court approved the sale and order of possession. On August 9, 2017,
     defendant filed her notice of appeal. Accordingly, this court has jurisdiction over this matter
     pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and
     Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. Jan. 1, 2015).

¶6                                       BACKGROUND
¶7       This appeal involves a loan given on March 5, 1999, from Anchor Mortgage Corporation
     (Anchor) to defendant, Denise Riley, in the amount of $114,824. Defendant executed a note
     promising to repay the loan, plus interest. The note was secured by a mortgage executed by
     defendant against the property located at 14451 Arthur Court, Dolton, Illinois. Anchor
     subsequently indorsed the note to Fleet Mortgage Corporation (Fleet). The transfer of the note
     from Anchor to Fleet was memorialized by an assignment of the mortgage that was recorded
     with the Cook County Recorder of Deeds Office on March 16, 1999.
¶8       Fleet later merged with Washington Mutual Home Loans, Inc., who then merged into
     Washington Mutual Bank, F.A. Before the merger, an indorsement was placed on the note by
     Lynn McLeon, a document executing officer at Fleet. The word “VOID” appears over this
     indorsement. On April 28, 2006, defendant and Washington Mutual Bank, F.A., entered into a
     loan modification agreement that modified the payment terms on defendant’s loan. The loan



                                                  -2-
       modification agreement was executed by defendant and Washington Mutual Bank, F.A., and
       recorded with the Cook County Recorder of Deeds Office on June 8, 2006.
¶9         Washington Mutual Bank, F.A., changed names to Washington Mutual Bank (Washington
       Mutual). Washington Mutual executed an allonge that was affixed to the note. The allonge is
       executed by “WASHINGTON MUTUAL BANK (fka Washington Mutual Bank, FA),
       successor to Washington Mutual Home Loans, Inc., successor by merger to Fleet Mortgage
       Corp.” The allonge is indorsed in blank. Washington Mutual transferred the note to plaintiff by
       executing an assignment on October 26, 2006. This assignment was recorded with the Cook
       County Recorder of Deeds Office on May 15, 2007. The assignment of the mortgage is
       executed by “WASHINGTON MUTUAL BANK (fka Washington Mutual Bank, FA),
       successor to Washington Mutual Home Loans, Inc., successor by merger to Fleet Mortgage
       Corp.”
¶ 10       On April 27, 2007, plaintiff and defendant entered into a second loan modification
       agreement that modified the payment terms of the loan. This loan modification agreement
       identifies defendant as the “Borrower” and plaintiff as the “Lender.” It was executed by both
       defendant and plaintiff and recorded with the Cook County Recorder of Deeds Office on June
       20, 2007. After plaintiff and defendant agreed to a second loan modification, the record shows
       an assignment by Washington Mutual, f/k/a Washington Mutual Bank, FA, to Mortgage
       Electronic Registration Systems, Inc. This assignment was recorded with the Cook County
       Recorder of Deeds Office on June 27, 2007.
¶ 11       On February 23, 2010, plaintiff and defendant entered into a third loan modification
       agreement that again modified the payment terms. The loan modification agreement identifies
       defendant as the “Borrower” and plaintiff as the “Lender.” The third loan modification
       agreement was executed by defendant and plaintiff and recorded with the Cook County
       Recorder of Deeds Office on April 8, 2010.
¶ 12       Defendant failed to pay the October 2012 installment on the third loan modification
       agreement and subsequently went into default. After the default, plaintiff initiated this
       mortgage foreclosure action. In response to the complaint, defendant filed a “Motion to
       Dismiss Complaint to Foreclose Mortgage or in the Alternative Motion for More Definite
       Statement.” The motion to dismiss was denied by the circuit court on October 6, 2014. On
       November 3, 2014, defendant filed a motion to reconsider the denial of her motion to dismiss.
       On January 26, 2015, the circuit court denied the motion to reconsider.
¶ 13       On February 17, 2015, defendant filed an answer to the complaint along with affirmative
       defenses and counterclaims. Several of defendant’s counterclaims and affirmative defenses
       were struck with prejudice, but she was given leave to replead others. Defendant refiled her
       standing affirmative defense. On December 30, 2015, she refiled her counterclaims alleging
       violations of the Consumer Fraud Act, common law fraud, and promissory estoppel. Plaintiff
       filed its response to the counterclaims on February 29, 2016.
¶ 14       Plaintiff filed its motion for summary judgment on June 30, 2016. After briefing from the
       parties, the circuit court entered judgment of foreclosure in favor of plaintiff on October 11,
       2016. At the same time, the circuit court also entered judgment in favor of plaintiff on
       defendant’s counterclaims and affirmative defenses. Defendant filed a motion to reconsider on
       January 5, 2017. This was denied by the circuit court on March 22, 2017. A foreclosure sale
       was held on March 23, 2017. The circuit court approved the foreclosure sale on July 10, 2017.
       Defendant timely filed her notice of appeal on August 9, 2017.

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¶ 15                                            ANALYSIS
¶ 16       In her first issue, defendant argues the circuit court erred when it denied her motion to
       dismiss and the subsequent motion to reconsider. Defendant’s motion to dismiss states that it is
       brought pursuant to section 2-619.1 (735 ILCS 5/2-619.1 (West 2016)), but it only raises an
       argument that plaintiff lacks standing to bring the foreclosure action. We confine our review
       accordingly.
¶ 17       The doctrine of standing is intended to prevent persons who have no interest in a
       controversy from bringing suit and “assures that issues are raised only by those parties with a
       real interest in the outcome of the controversy.” Glisson v. City of Marion, 188 Ill. 2d 211, 221
       (1999). Lack of standing is an “affirmative matter” that is properly raised under section
       2-619(a)(9). See Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494 (1988)
       (holding that lack of standing is an “affirmative” defense). Section 2-619(a)(9) permits
       involuntary dismissal where “the claim asserted *** is barred by other affirmative matter
       avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2016). The
       phrase “affirmative matter” refers to something in the nature of a defense that negates the cause
       of action completely or refutes a crucial conclusion of law or conclusions of material fact
       contained in or inferred from the complaint. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469,
       486 (1994). An order granting or denying a motion to dismiss is given de novo review on
       appeal. Glisson, 188 Ill. 2d at 220.
¶ 18       Under the Illinois Mortgage Foreclosure Law (Foreclosure Law), a foreclosure action may
       be brought by (1) the legal holder of an indebtedness secured by a mortgage, (2) any person
       designated or authorized to act on behalf of such holder, or (3) an agent or successor of a
       mortgagee. 735 ILCS 5/15-1208, 15-1501 (West 2016); Mortgage Electronic Registration
       Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 7 (2010). A prima facie case for foreclosure is
       established if the complaint conforms to the requirements set forth in section 15-1504(a) of the
       Foreclosure Law (735 ILCS 5/15-1504(a) (West 2016)) and the note and mortgage are
       attached. Barnes, 406 Ill. App. 3d at 6. If this is done, the burden shifts to the mortgagor to
       prove lack of standing. Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 24.
¶ 19       Under the Uniform Commercial Code, persons entitled to enforce a note include its holder
       or a nonholder in possession of the instrument who has the rights of the holder. See 810 ILCS
       5/3-301 (West 2016). A negotiable instrument may be transferred by delivery to another entity
       for the purpose of giving that entity the right to enforce the instrument. Id. § 3-203(a). If a note
       is “indorsed in blank,” it becomes payable to the bearer and may be negotiated by transfer of
       possession alone until it is specially indorsed. Id. § 3-205(b).
¶ 20       After reviewing the complaint, we agree with the circuit court that plaintiff’s complaint
       establishes a prima facie case that plaintiff has standing to bring the foreclosure action. In
       bringing this foreclosure action, the plaintiff produced the original note between Anchor and
       defendant. Another document shows an assignment of the note from Anchor to Fleet. Fleet did
       indorse the assignment in blank, but the word “VOID” is written across it. An allonge is
       affixed to the note executed by “WASHINGTON MUTUAL BANK (fka Washington Mutual
       Bank, FA), successor to Washington Mutual Home Loans, Inc. successor by merger to Fleet
       Mortgage Corp.” and contains an indorsement in blank. The presentation of documentation
       showing a chain from Anchor to Fleet to Washington Mutual, coupled with the allonge with a
       blank indorsement, is sufficient to make a prima facie showing of standing.


                                                    -4-
¶ 21       The complaint also complied with Illinois Supreme Court Rule 113. Rule 113(b) provides,
       “[i]n addition to the documents listed in section 15-1504 of the Illinois Mortgage Foreclosure
       Law (735 ILCS 5/15-1504), a copy of the note, as it currently exists, including all
       indorsements and allonges, shall be attached to the mortgage foreclosure complaint at the time
       of filing.” Ill. S. Ct. R. 113(b) (eff. May 1, 2013). Plaintiff attached to the complaint the note,
       mortgage, assignments, and allonge containing the blank indorsement in order to demonstrate
       how Washington Mutual became a holder. Plaintiff also attached the assignment from
       Washington Mutual to plaintiff, MidFirst Bank. This assignment, which occurred in October
       2006, demonstrated how plaintiff became the current holder. Plaintiff also attached the three
       loan modifications. The first loan modification is between defendant and Washington Mutual.
       The second and third loan modifications are between plaintiff and defendant. Both the second
       and third modifications postdate the assignment from Washington Mutual to plaintiff. Taken
       together, all the attached exhibits establish plaintiff did not violate Rule 113(b) when it filed
       the foreclosure action.
¶ 22       Defendant’s attacks on the complaint are unpersuasive. Defendant argues “a dispute exists
       regarding the validity of the allonge itself because the complaint exhibits are awash with
       inconsistencies.” Defendant specifically points to the fact that plaintiff failed to attach any
       merger documents demonstrating Fleet’s merger into Washington Mutual Home Loans, Inc.
       She also argues that the blank indorsement by Fleet containing the word “VOID” written
       across it demonstrates an intent by Fleet to negotiate the instrument to a person named Void.
¶ 23       These are procedurally improper arguments to make when bringing a motion to dismiss.
       When ruling on the section 2-619(a)(9) motion, the court construes the pleadings “in the light
       most favorable to the nonmoving party” and should only grant the motion “if the plaintiff can
       prove no set of facts that would support a cause of action.” (Internal quotation marks omitted.)
       Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31. The documents
       indicate that Fleet merged with Washington Mutual, and for the purposes of a motion to
       dismiss, we must accept that this is true. Moreover, for purposes of a motion to dismiss we
       accept as true that the note and mortgage were transferred from Washington Mutual to plaintiff
       and not an individual named Void.
¶ 24       Plaintiff’s complaint made an initial showing that it had standing to bring the foreclosure
       action and complied with Rule 113(b). Accordingly, the circuit court did not err in denying
       defendant’s motion to dismiss.1
¶ 25       In her next issue, defendant argues the circuit court erred in entering judgment in favor of
       plaintiff on defendant’s first affirmative defense—lack of standing. The order of October 11,
       2016, entered summary judgment in favor of plaintiff. While not explicitly stated in the order,
       the parties acknowledge that this order also resulted in judgment for plaintiff on defendant’s
       affirmative defenses and counterclaims.
¶ 26       Section 2-1005 allows parties to receive judgment in their favor “if 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 a judgment as a
       matter of law.” 735 ILCS 5/2-1005(c) (West 2016). If a reasonable person could draw

           1
              Defendant does not raise a separate argument as to her motion to reconsider the denial of her
       motion to dismiss. Accordingly, the issue is forfeited, and we do not review the circuit court’s denial of
       it. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).

                                                       -5-
       divergent inferences from undisputed facts, summary judgment should be denied. Adams v.
       Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). To survive this motion, the nonmoving
       party need not prove its case, but must present some evidentiary facts that would arguably
       entitle it to judgment. Horwitz v. Holabird & Root, 212 Ill. 2d 1, 8 (2004). In an appeal from a
       grant of summary judgment, our review is de novo. Outboard Marine Corp. v. Liberty Mutual
       Insurance Co., 154 Ill. 2d 90, 102 (1992).
¶ 27        Defendant takes issues with the assignment from Washington Mutual to plaintiff.
       Defendant argues there is no indorsement from Fleet to Washington Mutual that would later
       allow Washington Mutual to execute a blank indorsement on the allonge. While defendant is
       correct that for the purposes of summary judgment the existence of a merger is a question of
       fact, defendant completely ignores that plaintiff attached the merger document from the South
       Carolina Secretary of State demonstrating a merger between Fleet and Washington Mutual on
       June 1, 2001. This is sufficient to show Washington Mutual could attach the allonge and
       indorse it in blank. See Standard Bank & Trust Co. v. Madonia, 2011 IL App (1st) 103516,
       ¶ 20.
¶ 28        At the time of summary judgment, plaintiff produced documents demonstrating it had
       standing to foreclose. Plaintiff attached (1) the original note with Anchor, (2) Anchor’s
       assignment of the note to Fleet, (3) Fleet’s merger with Washington Mutual on June 1, 2001,
       (4) Washington Mutual’s allonge indorsed in blank, and (5) the assignment from Washington
       Mutual to plaintiff, MidFirst Bank, on October 26, 2006.
¶ 29        Defendant argues the blank indorsement from Fleet with the word “VOID” written across
       it indicates Fleet meant to transfer the note to an individual named Void. This argument has
       zero merit as defendant presents no evidence other than her own assertion that Void is a person
       and Fleet meant to transfer the note to him or her. In opposing summary judgment a party must
       present some evidentiary facts that would arguably entitle it to judgment. Horwitz, 212 Ill. 2d
       at 8. Defendant presented no evidence to support her assertion, and the circuit court did not err
       in rejecting it.
¶ 30        Defendant also points out that there is an assignment in the record from Washington
       Mutual to Mortgage Electronic Registration Systems, Inc. (MERS). This argument is
       unpersuasive as well. The record shows Washington Mutual assigned the mortgage and note to
       plaintiff on October 26, 2006. The assignment to MERS allegedly occurred on May 11, 2007.
       At this time, Washington Mutual no longer had the right to transfer the note and mortgage. Its
       transfer to MERS was outside the chain of title and ineffective. This assignment has no effect
       on plaintiff’s standing.
¶ 31        Based on the above, defendant’s arguments in opposing summary judgment lack any
       evidentiary support. Accordingly, the circuit court did not err in finding no genuine issue of
       material fact and granting summary judgment in favor of plaintiff.2
¶ 32        In the next issue, defendant argues the circuit court erred in granting summary judgment in
       favor of plaintiff on her counterclaims for violations of the Consumer Fraud Act and common
       law fraud.


          2
           Defendant does not raise a separate argument concerning her motion to reconsider the grant of
       summary judgment. Accordingly, the argument related to the motion to reconsider has been forfeited,
       and we do not review the circuit court’s denial of it. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).

                                                    -6-
¶ 33       The Consumer Fraud Act is a regulatory and remedial statute intended to protect
       consumers, borrowers, and business people against fraud, unfair methods of competition, and
       other unfair and deceptive business practices. Robinson v. Toyota Motor Credit Corp., 201 Ill.
       2d 403, 416-17 (2002). In order to state a claim under the Consumer Fraud Act, a party must
       allege and prove “(1) a deceptive act or practice by the defendant; (2) the defendant’s intent
       that the plaintiff rely on the deception; and (3) the occurrence of the deception during a course
       of conduct involving trade or commerce.” Id. at 417. Defendant’s consumer fraud claim
       revolves around plaintiff’s failure to comply with Home Affordable Modification Program
       (HAMP) guidelines.
¶ 34       After reviewing the record, we agree with the circuit court that there were no genuine
       issues of material fact related to defendant’s consumer fraud claim and plaintiff was entitled to
       summary judgment on this count as a matter of law. “[F]acts contained in an affidavit in
       support of a motion for summary judgment which are not contradicted by counteraffidavit are
       admitted and must be taken as true for purposes of the motion.” Purtill v. Hess, 111 Ill. 2d 229,
       241 (1986). Attached to plaintiff’s motion for summary judgment was the affidavit of Brian
       Corgan, plaintiff’s vice president. The affidavit avers that plaintiff reviewed defendant’s loan
       for a possible HAMP modification in October 2009, January 2011, and April 2012. On each
       occasion defendant failed to meet the requisite qualifications. It also avers that she declined to
       enter into a different loss mitigation option. Defendant filed no counteraffidavit to dispute the
       claims made by Corgan. While defendant claims she “was eligible for loss mitigation through
       the HAMP because [she] met the HAMP eligibility guidelines,” she fails to point to any
       evidence in the record to support her contention that she qualified for a modification under
       HAMP at any point in time. Based on the Corgan affidavit and the lack of contrary evidence in
       the record, defendant’s claim that plaintiff committed a deceptive act by failing to consider her
       for HAMP must fail.
¶ 35       Defendant’s brief does not contain a separate section for her common law fraud count.
       Instead, the second to last paragraph of her consumer fraud section argues plaintiff committed
       common law fraud for the same reasons it committed consumer fraud under the Consumer
       Fraud Act. The same reasoning above applies, and the circuit court correctly entered summary
       judgment on this claim as well.
¶ 36       In her last issue, defendant claims the circuit court erred in confirming the judicial sale. She
       argues the sale should not have been confirmed because plaintiff violated section
       15-1508(b)(iv) of the Foreclosure Law (735 ILCS 5/15-1508(b)(iv) (West 2016)) when it
       failed to consider her “loss mitigation requests and failed to abide by HAMP.” Next, she argues
       that plaintiff did review and offer her a HAMP loan modification, but the offer did not comply
       with HAMP terms. Because the offer did not comply with HAMP, she argues, pursuant to
       section 15-1508(d-5) (id. § 5-1508(d-5)), the foreclosure sale must be set aside.
¶ 37       A circuit court’s decision to confirm or reject a judicial sale under section 15-1508 of the
       Foreclosure Law will not be disturbed absent an abuse of discretion. Household Bank, FSB v.
       Lewis, 229 Ill. 2d 173, 178 (2008). A court abuses its discretion when it acts arbitrarily without
       the employment of conscientious judgment or if its decision exceeds the bounds of reason and
       ignores principles of law such that substantial prejudice has resulted. Wells Fargo Bank, N.A.
       v. Hansen, 2016 IL App (1st) 143720, ¶ 14.
¶ 38       Our supreme court has noted that “[w]hat constitutes an injustice under section
       15-1508(b)(iv) is not expressly defined in the statute. *** [I]t appears to merely codify the

                                                    -7-
       long-standing discretion of the courts of equity to refuse to confirm a judicial sale.” Wells
       Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶ 19. The court went on to state that “[a]fter
       a motion to confirm the sale has been filed, it is not sufficient under section 15-1508(b)(iv) to
       merely raise a meritorious defense to the complaint.” Id. ¶ 26. Based on McCluskey, the circuit
       court’s rejection of defendant’s contention that the foreclosure sale could not be approved
       because plaintiff failed to consider loss mitigation requests and abide by HAMP was not an
       abuse of discretion. These arguments were already rejected as part of her defense to the
       foreclosure action and, pursuant to McCluskey, cannot be raised again under section
       15-1508(b)(iv) as a reason for not confirming the sale.
¶ 39       Like section 15-1508(b), section 15-1508(d-5) provides a statutory remedy under which a
       court must set aside a judicial sale if all statutory requirements are met. CitiMortgage, Inc. v.
       Johnson, 2013 IL App (2d) 120719, ¶ 33. In order to obtain relief under this section, a
       defendant must file a motion before confirmation of the sale and prove, by a preponderance of
       the evidence, that “the defendant applied for assistance under the [Make Home Affordable
       Program (MHAP)] and that the sale took place in material violation of the [MHAP’s]
       requirements, i.e., the HAMP guidelines, for proceeding to a judicial sale.” (Emphasis in
       original). Id. “[I]n order to ‘apply for assistance under MHAP’ pursuant to section
       15-1508(d-5) of the Foreclosure Law the borrower must submit the documentation required by
       the servicer to determine the borrower’s eligibility and verify his or her income.”
       CitiMortgage, Inc. v. Bermudez, 2014 IL App (1st) 122824, ¶ 66.
¶ 40       In this case, defendant did not attach any documentation demonstrating what she submitted
       to plaintiff. Even before this court, defendant does not cite to anything in the record to
       substantiate her claim or otherwise demonstrate she applied for assistance under
       MHAP/HAMP. Pursuant to section 15-1508(d-5), defendant must prove by a preponderance
       of the evidence she applied for assistance under MHAP/HAMP. She has failed to make such a
       showing.
¶ 41       Based on this record, we cannot say the circuit court abused its discretion in granting
       plaintiff’s motion to confirm the judicial sale.

¶ 42                                        CONCLUSION
¶ 43      For the reasons stated above, the orders appealed are affirmed.

¶ 44      Affirmed.




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