                                         2015 IL App (3d) 140412

                                Opinion filed August 26, 2015
     _____________________________________________________________________________

                                                  IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2015

     BAYVIEW LOAN SERVICING, LLC,                     )      Appeal from the Circuit Court
                                                      )      of the 12th Judicial Circuit,
            Plaintiff-Appellee,                       )      Will County, Illinois.
                                                      )
            v.                                        )      Appeal No. 3-14-0412
                                                      )      Circuit No. 11-CH-3635
     JOSE J. CORNEJO and ROCIO CORNEJO,               )
                                                      )      The Honorable
            Defendants-Appellants.                    )      Thomas A. Thanas,
                                                      )      Judge, presiding.
     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justices Lytton and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION


¶1          The defendants, Jose and Rocio Cornejo, appeal from an order of summary judgment

     entered in favor of the plaintiff, Bayview Loan Servicing LLC, in an action to foreclose a

     mortgage.

¶2                                                FACTS

¶3          On July 27, 2011, the former plaintiff, JPMorgan Chase Bank filed a complaint to

     foreclose a mortgage against the defendants, Jose and Rocio Cornejo. Attached as exhibits to the

     complaint were: (1) a mortgage listing the Cornejos as the borrowers for the purchase of a single
     family home and Washington Mutual Bank as the lender; and (2) a note wherein the borrowers

     agreed to repay $248,000 to Washington Mutual Bank. The copy of the note attached to the

     complaint did not contain any indorsements.

¶4          On July 26, 2013, JPMorgan Chase Bank filed a motion for a default judgment. On that

     same day, an attorney for the Cornejos filed an appearance. The Cornejos were granted leave to

     file an answer, and they filed an answer with affirmative defenses. One of the affirmative

     defenses alleged that JPMorgan Chase Bank lacked standing because it did not demonstrate that

     it held the debt. JPMorgan Chase filed a motion to strike the affirmative defenses.

¶5          In court on September 18, 2013, JPMorgan Chase’s counsel presented the Cornejos with

     the original note for inspection. The note contained an indorsement from Washington Mutual

     Bank to blank, signed by Cynthia Riley as vice president of Washington Mutual Bank. The

     Cornejos amended their answer and affirmative defenses to challenge the indorsement. In

     response, on November 13, 2013, JPMorgan Chase filed a second motion to strike the Cornejos’

     affirmative defenses. The trial court granted the motion, striking the affirmative defenses.

¶6          Thereafter, Bayview Loan Servicing, LLC, (Bayview) was substituted for JPMorgan

     Chase as the party plaintiff, over the Cornejos’ objection. The motion to substitute alleged that

     JPMorgan Chase, as the investor, had transferred the servicing rights on the loan to Bayview.

     The attached assignment indicated that the mortgage was assigned to Bayview on December 10,

     2013, and it was recorded on January 10, 2014. Bayview moved for summary judgment, arguing

     that the pleadings established that the Cornejos were in default and still owed on the account. In

     opposition, the Cornejos argued that there were genuine issues of material fact because: (1) the

     order striking their affirmative defenses was void because JPMorgan Chase had assigned the

     mortgage to Bayview before that date; (2) Bayview’s basis for foreclosure was unclear; (3) the


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       Affidavit of Amounts Due and Owing did not comply with Illinois Supreme Court Rule 191

       (eff. Jan. 4, 2013); and (4) Bayview failed to attach a Loss Mitigation affidavit to its motion for

       judgment.

¶7            The trial court granted Bayview’s motion for summary judgment, and entered judgment

       of foreclosure and sale in favor of Bayview and against the Cornejos. The trial court granted the

       Cornejos’ motion for a special finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb.

       26, 2010), and they appealed.

¶8                                                 ANALYSIS

¶9            The Cornejos contest the ability of JPMorgan Chase, and later Bayview, to bring this suit

       against them. They appeal from the orders granting the motion to strike their affirmative

       defenses, granting leave to substitute party plaintiffs, and granting summary judgment in favor of

       Bayview.

¶ 10          JPMorgan Chase brought its second motion to strike the Cornejos’ affirmative defenses

       pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 5/2-619.1 (West 2012)).

       A motion under section 2-619.1 of the Code allows a party to combine a section 2-615 (735 5/2-

       615 (West 2012)) motion to dismiss based upon insufficient pleadings with a section 2-619 (735

       5/2-619 (West 2012)) motion to dismiss based upon certain defects or defenses. 735 ILCS 5/2-

       619.1 (West 2012); Carr v. Koch, 2011 IL App (4th) 110117, ¶ 25 (quoting Edelman, Combs &

       Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003)). When the legal

       sufficiency of a complaint is challenged by a section 2-615 motion to dismiss, all well-pleaded

       facts in the complaint are taken as true and a reviewing court must determine whether the

       allegations of the complaint, construed in a light most favorable to the plaintiff, are sufficient to

       establish a cause of action upon which relief may be granted. King v. First Capital Financial


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       Services Corp., 215 Ill. 2d 1, 11-12 (2005). On the other hand, a motion to dismiss under section

       2-619 admits the legal sufficiency of the plaintiff's complaint, but asserts affirmative matter that

       defeats the claim. King, 215 Ill. 2d at 12. If a cause of action is dismissed due to the affirmative

       matter asserted in a section 2-619 motion to dismiss, the question on appeal is whether there is a

       genuine issue of material fact and whether the moving party is entitled to judgment as a matter of

       law. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 494 (1994). We review de novo an order

       striking affirmative defenses under section 2-619.1 of the Code. Carr, 2011 IL App (4th)

       110117, ¶ 25.

¶ 11          The Cornejos argue that JPMorgan Chase did not establish a claimed interest in the note

       at the time it filed its original complaint and thus lacked standing. Specifically, the Cornejos

       note that JPMorgan Chase filed the complaint as a mortgagee, but the Cornejos contend that

       JPMorgan Chase did not have possession of the indorsed note at the time of filing. It is

       undisputed that JPMorgan Chase was not the named mortgagee, and the note attached to the

       complaint did not contain any indorsement. However, JPMorgan Chase argues that it made a

       prima facie showing that it owned the note by attaching copies to the complaint. It argues that it

       then further established its standing by producing the original note, which was indorsed in blank,

       in open court.

¶ 12          The doctrine of standing requires that a party have real interest in the action and its

       outcome. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004). A party’s standing to sue must be

       determined as of the time the suit if filed. Deutsche Bank National Trust Co. v. Gilbert, 2012 IL

       App (2d) 120164, ¶ 24. An action to foreclose upon a mortgage may be filed by a mortgagee, or

       by an agent or successor of a mortgagee. Deutsche Bank National Trust Co., 2012 IL App (2d)

       120164, ¶ 15. The attachment of a copy of the note to a foreclosure complaint is prima facie


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       evidence that the plaintiff owns the note. Rosestone Investments, LLC v. Garner, 2013 IL App

       (1st) 123422, ¶ 24 (citing Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380,

       ¶ 24). Lack of standing to bring an action is an affirmative defense, and the burden of pleading

       and proving the defense is on the party asserting it. Lebron v. Gottlieb Memorial Hospital, 237

       Ill. 2d 217, 252 (2010).

¶ 13          The note attached to the original foreclosure complaint is prima facie evidence that

       JPMorgan Chase owned the note, even though it lacked the indorsement in blank. Since the

       burden was on the Cornejos to prove that JPMorgan Chase lacked standing at the time the

       complaint was filed, they needed to present some evidence that the transfer did not occur before

       the complaint was filed. See Rosestone Investments, LLC, 2013 IL App (1st) 123422, ¶ 28

       (written assignment of mortgage, dated 4 days after a mortgage complaint was filed, was not

       sufficient to prove that a plaintiff lacked standing on the date the foreclosure complaint was filed

       when the plaintiff attached a copy of the note to the complaint and later produced the original

       note with a blank indorsement); but see Deutsche Bank National Trust Co., 2012 IL App (2d)

       120164, ¶¶ 21, 24 (although a copy of the note was attached to the foreclosure complaint, an

       assignment of mortgage dated several months after the foreclosure complaint was filed was

       sufficient evidence that the plaintiff lacked standing at the time the foreclosure action was filed).

¶ 14          In this case, in an effort to meet their burden of showing that the assignment to JPMorgan

       Chase did not take place until after the foreclosure complaint was filed, the Cornejos point to:

       (1) the lack of an indorsement on the note attached to the foreclosure complaint; (2) the fact that

       JPMorgan Chase did not attach the indorsed note to its initial motion to strike affirmative

       defenses; and (3) alleged inconsistencies with the indorsement. The fact that JPMorgan Chase

       did not attach the note with the indorsement to its original complaint, nor attach it to the initial


                                                         5
       motion to strike, was not evidence that JPMorgan Chase did not hold the mortgage and note at

       the time the complaint was filed in 2011. See Parkway Bank & Trust Co. v. Korzen, 2013 IL

       App (1st) 130380, ¶ 26 n.4, as supplemented (Dec. 16, 2013) (Illinois Supreme Court Rule

       113(b) (eff. May 1, 2013) now requires that the copy of the note attached to a foreclosure

       complaint must be a copy of the note as it currently exists, together with indorsements and

       allonges.). The deposition of Cynthia Riley, taken in another proceeding in 2013, was also not

       sufficient to show that the indorsement, which is presumed authentic and authorized, (see 810

       ILCS 5/3-308(a) (West 2012)), was unauthorized in this case, nor later ratified. Absent some

       evidence, such as the document at issue in Gilbert, that showed that the assignment actually took

       place after the complaint was filed, the Cornejos have failed to meet their burden of showing that

       the indorsement was not made before the complaint was filed. See CitiMortgage, Inc. v.

       Sconyers, 2014 IL App (1st) 130023, ¶ 12 (“If defendants meant to contend that a party other

       than [the plaintiff] was the ‘rightful’ holder of the note, it was their obligation to present

       evidence that would support their contention.”). Thus, the trial court did not err in granting

       JPMorgan Chase’s motion to strike.

¶ 15          The Cornejos argue that the trial court erred in granting Bayview’s motion for summary

       judgment on the same basis: that a genuine issue of material fact exists as to Bayview’s basis for

       foreclosure. The Cornejos also argue that, on the date that JPMorgan Chase’s motion to strike

       was granted, JPMorgan Chase was no longer an interested party, so the order should be held to

       be void or vacated. They argue that the substitution should have been made prior to any

       substantive motion, and the trial court abused its discretion in allowing a substitution of plaintiff.

       We review a trial court’s decision to allow a substitution of plaintiff for an abuse of discretion.




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       Cincinnati Insurance Co. v. American Hardware Manufacturers Ass'n, 387 Ill. App. 3d 85, 99

       (2008).

¶ 16             Section 2-1008 of the Code allows for the substitution of a party, providing in

       subsection (a):

                 “If by reason of marriage, bankruptcy, assignment, or any other event occurring after

                 the commencement of a cause or proceeding, either before or after judgment, causing a

                 change or transmission of interest or liability, or by reason of any person interested

                 coming into existence after commencement of the action, it becomes necessary or

                 desirable that any person not already a party be before the court, or that any person

                 already a party be made party in another capacity, the action does not abate, but on

                 motion an order may be entered that the proper parties be substituted or added, and that

                 the cause or proceeding be carried on with the remaining parties and new parties, with or

                 without a change in the title of the cause.” 735 ILCS 5/2-1008(a) (West 2012).

¶ 17             For purposes of this section an assignment occurs when there is a transfer of some

       interest from the assignor to the assignee; no particular form of assignment is required.

       Cincinnati Insurance Co. v. American Hardware Manufacturers Ass'n, 387 Ill. App. 3d 85, 100

       (2008). JPMorgan Chase was the holder of the note when it filed its motion to strike in

       November 2013. The assignment to Bayview was executed after that date, on December 10,

       2013, and recorded on January 10, 2014. The order striking the affirmative defenses was entered

       on January 29, 2014, and the motion to substitute plaintiffs was filed on March 7, 2014. The trial

       court upheld the order striking the affirmative defenses, finding that it was a case of nonjoinder

       or misjoinder of parties under section 2-407 of the Code (735 ILCS 5/2-407 (West 2012)), and




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       finding that the Cornejos were not prejudiced by the error. We find no abuse of discretion in the

       decision allowing the substitution of plaintiff.

¶ 18             Other than the previously discussed issues regarding standing, the Cornejos argue that

       summary judgment should not have been granted because the affidavit of amounts due and

       owing submitted by an employee of Bayview, Leticia Sanchez, was not based on her personal

       knowledge because Bayview’s records included records from prior holders of the debt.

       Summary judgment is appropriate when the pleadings, depositions, and admissions on file, and

       any affidavits, show that there is no genuine issue of material fact and the moving party is

       entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012). We review de novo

       an order granting summary judgment. Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 93

       (2010).

¶ 19             Rule 191(a) affidavits must assert facts. Ill. Ct. R. 191(a) (eff. Jan. 4, 2013); Jaffe v.

       Fogelson, 137 Ill. App. 3d 961, 964 (1985). The Cornejos argued in their motion for summary

       judgment that Sanchez’s affidavit did not comply with Rule 191 because she reviewed business

       records, which were based on data compilations done by others. Bayview argues that the

       affidavit met the requirements for a business record affidavit pursuant to Illinois Supreme Court

       Rule 236 (eff. Aug. 1, 1992). Sanchez attested that she was familiar with the business process

       and the records were made in the regular course of business, so the affidavit was admissible and

       supported the judgment. See Bank of America, N.A. v. Land, 2013 IL App (5th) 120283, ¶ 14

       (affidavit by an employee of the current holder of the debt was admissible under Rule 236 in a

       foreclosure proceeding even though some of the business records were created by a prior entity).

       In light of our prior holdings, and the admissibility of Sanchez’s affidavit, we affirm the grant of

       summary judgment in favor of Bayview.


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¶ 20          The Cornejos filed an emergency motion to stay the sheriff’s sale pending appeal, which

       was taken with the case. The sheriff’s sale was scheduled for September 4, 2014. In light of the

       fact that the motion raised no new issues, it is denied.

¶ 21                                             CONCLUSION

¶ 22          The judgment of the circuit court of Will County is affirmed.

¶ 23          Affirmed.




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