                               Illinois Official Reports

                                       Appellate Court



                  PNC Bank, National Ass’n v. Zubel, 2014 IL App (1st) 130976



Appellate Court           PNC BANK, NATIONAL ASSOCIATION, Successor by merger to
Caption                   NATIONAL CITY BANK, Plaintiff-Appellee, v. MONIKA ZUBEL,
                          Defendant-Appellant.



District & No.            First District Third Division
                          Docket No. 1-13-0976




Filed                     December 23, 2014




Decision Under            Appeal from the Circuit Court of Cook County, No. 09-CH-36988; the
Review                    Hon. Anthony C. Kyriakopoulos, Judge, presiding.




Judgment                  Affirmed.




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

                          Crowley & Lamb, PC, of Chicago (James M. Crowley and Jennifer E.
                          Frick, of counsel), for appellee.
     Panel                      PRESIDING JUSTICE PUCINSKI delivered the judgment of the
                                court, with opinion.
                                Justices Hyman and Mason concurred in the judgment and opinion.

                                                  OPINION

¶1         Defendant 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.
¶6         Jason 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

             1
            We note that Zubel also advanced an affirmative defense in her answer; however, she
       acknowledges on appeal that the defense lacked merit. Accordingly, we will not detail the nature of that
       defense in our disposition.

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       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 $2,860.71 “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 15-1504 of the Foreclosure Law (735 ILCS 5/15-1504 (West 2010)).2

           2
            Although Zubel’s appellate brief sets forth the basic standards for summary judgment, it contains
       no citations to any substantive relevant legal authority to support her claims in contravention of the
       requirements of Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008). Although we do not condone
       a party’s failure to abide by such requirements, we note that Rule 341 does not limit this court’s
       jurisdiction, and we will thus nonetheless consider the arguments that Zubel raises on appeal in order to
       ensure a just result. See, e.g., Chicago Title Insurance Co. v. Aurora Loan Services, LLC, 2013 IL App
       (1st) 123510, ¶ 25.

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¶ 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 a 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 (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 (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
       (2004); Garcia v. Nelson, 326 Ill. App. 3d 33, 38 (2001). Although courts have deemed
       summary judgment a “drastic means of disposing of litigation” (Purtill v. Hess, 111 Ill. 2d 229,
       240 (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 (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 (2009); Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 23.
¶ 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 in subsection (a) of Section
       15-504 as may be appropriate for the relief sought. Such complaint may be filed as a
       counterclaim, may be joined with other counts or may include in the same count additional
       matters or a request for any additional relief permitted by Article II of the Code of Civil
       Procedure.” (Emphasis added.) 735 ILCS 5/15-1504(b) (West 2010).
¶ 15       Here, PNC’s complaint contained all pertinent information concerning the mortgage at
       issue, including the date of the mortgage, the identification of the parties to the mortgage, a


                                                    -4-
       legal description of the mortgaged premises, and statements as to Zubel’s default. Moreover,
       PNC identified itself as the current legal holder of the mortgage and requested a judgment of
       foreclosure and sale of the property as well as any “further relief as the Court deems just.”
       “[T]rue cop[ies]” of the mortgage and note at issue were attached to its complaint. Although
       Zubel correctly observes that PNC’s complaint did not contain facts in support of a request for
       a shorter redemption period or facts in support of a request for the appointment of a receiver,
       which are additional suggested clauses set forth in subsection (a), PNC was seeking neither a
       shorter redemption period nor the appointment of a receiver, and was thus not required to
       include those facts.3 As subsection (b) makes clear, to satisfy the pleadings required by the
       Foreclosure Law, a complaint “need contain only such statements and requests *** as may be
       appropriate for the relief sought.” 735 ILCS 5/15-1504(b) (West 2010). Here, PNC’s
       complaint was tailored to the specific facts and circumstances of Zubel’s mortgage and default
       and the specific relief it sought, and accordingly, we find that it satisfied the pleading
       requirements of the Foreclosure Law. See, e.g., US Bank, National Ass’n v. Avdic, 2014 IL
       App (1st) 121759, ¶¶ 35-37 (recognizing that “[a] foreclosure complaint is deemed sufficient if
       it contains the statements and requests called for by the form set forth in section 15-1504(a),”
       and holding that a bank satisfied the pleading requirements where it pled that it was the
       mortgagee, asserted facts pertaining to the default of the mortgage and attached copies of the
       mortgage and note (internal quotation marks omitted)); Mortgage Electronic Registration
       Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6 (2010) (finding that complaint complied with
       section 15-1504(a) where the plaintiff pled that it was the mortgagee and legal holder of
       indebtedness and attached a copy of the note and mortgage to the complaint).
¶ 16       Zubel next argues that based on the pleadings before the circuit court, genuine issues of
       material facts exist and, thus, the court erred in granting PNC’s motion for summary judgment.
       Specifically, she observes that in her answer to PNC’s complaint, she neither admitted nor
       denied certain allegations advanced by PNC, including her failure to meet her mortgage
       obligations, and argues that “based on the Complaint and Answer there [a]re material issue
       [sic] of fact.” Zubel also argues that PNC was not entitled to summary judgment because the
       affidavits that it submitted in support of its motion did not comply with statutory requirements
       and should not have been considered. Similarly, she argues PNC failed to establish a proper
       foundation for the business records that it also submitted in support of its motion for summary
       judgment and that those records should not have been considered by the circuit court. Absent
       supporting material, Zubel argues that PNC failed to establish that it was entitled to summary
       judgment.
¶ 17       PNC responds that, based on pertinent filings, there is no genuine issue of material fact that
       Zubel defaulted on her mortgage obligations and that it was entitled to summary judgment.
       Specifically, PNC maintains that the affidavits and documentary evidence that it submitted in
       support of its motion for summary judgment met the requirements of Illinois Supreme Court
       rules and conclusively established that Zubel had not satisfied her mortgage payment
       obligations. Moreover, because Zubel failed to contradict the information contained in its

           3
             We note that section 15-1504’s references to facts in support of a shortened redemption period and
       facts in support of a request for appointment of a receiver are contained in subsections (a)(3)(O) and
       (a)(3)(R), respectively. 735 ILCS 5/15-1504(a)(3)(O), (a)(3)(R) (West 2010). Both provisions specify
       that such facts must be pled only if that specific relief is “sought.”

                                                      -5-
       filings with any competent evidence to the contrary, PNC argues that the circuit court properly
       entered summary judgment in its favor.
¶ 18        Pursuant to Illinois law, a mortgagee may foreclose its interest in real property upon “either
       the debt’s maturity or a default of a condition in the instrument.” Heritage Pullman Bank v.
       American National Bank & Trust Co. of Chicago, 164 Ill. App. 3d 680, 685 (1987). A
       mortgagee establishes a prima facie case for foreclosure with the introduction of the mortgage
       and note, after which the burden of proof shifts to the mortgagee to prove any applicable
       affirmative defense. Farm Credit Bank of St. Louis v. Biethman, 262 Ill. App. 3d 614, 622
       (1994); Rago v. Cosmopolitan National Bank, 89 Ill. App. 2d 12, 19 (1967).
¶ 19        Here, PNC sought foreclosure of the mortgaged property based on Zubel’s default on her
       mortgage obligations. To substantiate its claim of Zubel’s default and its entitlement to
       judgment, PNC submitted copies of the mortgage and note at issue to the circuit court. PNC
       also submitted affidavits completed by several of its employees who provided specific details
       regarding Zubel’s default on her mortgage. Although Zubel suggests that these affidavits did
       not comply with the requirements set forth in Supreme Court Rule 191 and should not have
       been considered, we disagree.
¶ 20        Affidavits submitted in connection with summary judgment proceedings are governed by
       Illinois Supreme Court Rule 191 (eff. July 1, 2008). Avdic, 2014 IL App (1st) 121759, ¶ 21;
       U.S. Bank National Ass’n v. Sauer, 392 Ill. App. 3d 942, 946-47 (2009). Rule 191(a), in
       pertinent part, provides:
                “Affidavits in support of and in opposition to a motion for summary judgment under
                section 2-1005 of the Code of Civil Procedure *** shall be made on the personal
                knowledge of the affiants; shall set forth with particularity the facts upon which the
                claim, counterclaim, or defense is based; shall have attached thereto sworn or certified
                copies of all documents upon which the affiant relies; shall not consist of conclusions
                but of facts admissible in evidence; and shall affirmatively show that the affiant, if
                sworn as a witness, can testify competently thereto.” Ill. S. Ct. R. 191(a) (eff. July 1,
                2008).
¶ 21        Here, the affidavits completed by Laura Cauper and Jason Cogar provided details
       pertaining to Zubel’s mortgage default. Both affiants indicated that they were familiar with the
       terms of Zubel’s mortgage and the records PNC completed with respect to that mortgage.
       Cauper and Cogar both confirmed that Zubel had not complied with her mortgage obligations
       and Cogar identified $511,744.04 as the amount “due and owing” to PNC. The affidavits
       establish that the statements of Cauper and Cogar were based on their personal knowledge of
       PNC business procedures as well as their review of records relevant to Zubel’s mortgage.
       Cogar’s affidavit confirmed that those records were maintained in the ordinary course of
       PNC’s business and satisfied the foundational requirements for the admission of those
       business records. See Ill. S. Ct. R. 236(a) (eff. Aug. 1, 1992) (“Any writing or record *** shall
       be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular
       course of any business ***.”). The specific business records on which Cauper and Cogar relied
       in their affidavits were also submitted by PNC in support of its motion for summary judgment.
       Based on our review of the record, we conclude that the affidavits that PNC submitted in
       connection with its motion for summary judgment satisfied the requirements set forth in Rule
       191(a) as the statements contained in the affidavits were based upon the personal knowledge of
       the affiants and the affidavits were accompanied by the documents on which the affiants relied

                                                    -6-
       in making their statements. See, e.g., Avdic, 2014 IL App (1st) 121759, ¶¶ 26-27 (affidavit
       submitted in foreclosure action satisfied the requirements of Rule 191 where it was based on
       the personal knowledge of the affiant, contained facts rather than conclusions, and was
       accompanied by the documents on which the affiant relied); Sauer, 392 Ill. App. 3d at 946-47
       (affidavit submitted in mortgage foreclosure action was sufficient where it was based on the
       personal knowledge of the affiant).
¶ 22       Zubel’s affidavit, in contrast, was not supported by relevant documentation. In her
       affidavit, Zubel stated that she made mortgage payments from July 17, 2008, until January 27,
       2009, and identified the payment dates as follows: “August 12, 2008, September 17, 2008,
       October 17, 2008, November 18, 2008, and January 27, 2009.” Zubel, however, did not offer
       any documentary proof that full and timely payments of her mortgage obligations were made.
       See Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013) (“Affidavits in support of and in opposition to a
       motion for summary judgment *** shall have attached thereto sworn or certified copies of all
       documents upon which the affiant relies ***.”). Her affidavit is thus insufficient to create a
       genuine issue of material fact that is necessary to defeat PNC’s motion for summary judgment.
       See Bank of America, N.A. v. Land, 2013 IL App (5th) 120283, ¶ 17 (“ ‘The mere suggestion
       that a genuine issue of material fact exists without supporting documentation does not create
       an issue of material fact precluding summary judgment.’ ” (quoting In re Marriage of
       Palacios, 275 Ill. App. 3d 561, 568 (1995))). Moreover, based on the purported payments that
       Zubel lists in her affidavit, she made no mortgage payment in December 2008, and thus there is
       no genuine issue of material fact that she defaulted on her mortgage obligations. We similarly
       find that the responses contained in Zubel’s answer to PNC’s foreclosure complaint are also
       insufficient to preclude the entry of summary judgment. In her answer, Zubel claimed to have
       no knowledge as to whether she failed to make certain payments and defaulted on her
       mortgage obligations; however, it is well established that “[i]n order to prevent the entry of a
       summary judgment, the nonmoving party must present a bona fide factual defense and not hide
       behind equivocations and general denials.” Koukoulomatis v. Disco Wheels, Inc., 127 Ill. App.
       3d 95, 101 (1984).
¶ 23       Ultimately, based on PNC’s filings, which were supported by both affidavits and
       documentary evidence, we find that PNC presented sufficient evidence to establish a
       prima facie case that Zubel defaulted on her mortgage obligations and that foreclosure was
       warranted. We further find that Zubel’s filings did not give rise to any genuine issues of
       material fact regarding her default and therefore conclude that the circuit court properly
       granted PNC’s motion for summary judgment. See Avdic, 2014 IL App (1st) 121759, ¶ 32
       (upholding a circuit court order awarding summary judgment to a bank in foreclosure action
       where the bank’s filings contained sufficient evidence to establish its case that the mortgagor
       had defaulted on his mortgage obligations and the mortgagor failed to file any competent
       evidence to rebut the bank’s claims).
¶ 24       We further find that the additional orders entered by the circuit court after granting PNC’s
       motion for summary judgment, including the judgment of foreclosure and sale of the property
       and an order of possession, were also proper. Section 15-1508(b) of the Foreclosure Law
       provides that a circuit court “shall” enter a judicial order approving the judicial sale of
       foreclosed property unless it finds that: (i) proper notice of the sale was not provided; (ii) “the
       terms of sale were unconscionable”; “the sale was conducted fraudulently”; or “justice was
       otherwise not done.” 735 ILCS 5/15-1508(b) (West 2010). Here, Zubel does not dispute the


                                                    -7-
       propriety of the sale and our review of the record confirms there are no grounds that exist that
       require reversal of the court’s order. Despite failing to challenge the order approving the
       judicial sale, Zubel argues that the court erred in granting PNC’s request for an order of
       possession against her once PNC purchased the property at the sale. Her argument is
       unavailing. Section 15-1701(d) of the Foreclosure Law provides that the purchaser “shall be
       entitled to possession of the mortgaged real estate, as of the date 30 days after the order
       confirming the sale is entered, against those parties to the foreclosure whose interests the court
       has ordered terminated, without further notice to any party, further order of the court, or resort
       to proceedings under any other statute other than this Article.” 735 ILCS 5/15-1701(d) (West
       2010). Although Zubel suggests that she was not properly named in a certain provision in
       PNC’s complaint, there is no dispute that Zubel was identified by PNC as the mortgagor and
       party liable on the note and that the court terminated her interests when it entered the judgment
       of foreclosure and sale on the mortgaged property. PNC’s complaint contained a request for
       possession, and it was statutorily entitled to possession of the premises once the judicial sale,
       in which it was the prevailing bidder, was confirmed. 735 ILCS 5/15-1701(d) (West 2010).
       Accordingly, the circuit court did not err in entering an order of possession against Zubel.

¶ 25                                       CONCLUSION
¶ 26      The judgment of the circuit court is affirmed.

¶ 27      Affirmed.




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