                                      2018 IL App (1st) 172535
                                           No. 1-17-2535
                                                                      Fourth Division
                                                                        June 28, 2018
     ______________________________________________________________________________

                                         IN THE

                             APPELLATE COURT OF ILLINOIS

                                     FIRST DISTRICT

     ______________________________________________________________________________

                                                    )

     CREDIT UNION 1,                                )

                                                    )

            Plaintiff-Appellee,                     )

                                                    )

     v.                                             )
                                                    )
     YOLANDA CARRASCO a/k/a Yolanda C. Carrasco     )   Appeal from the Circuit Court
     a/k/a Yolanda Martinez; ALEJANDRO MARTINEZ     )   of Cook County.
     a/k/a Alejandro C. Martinez; CITIBANK (SOUTH   )
     DAKOTA) N.A.; UNKNOWN HEIRS AND                )   No. 14 CH 3405
     LEGATEES OF YOLANDA CARRASCO a/k/a             )
     YOLANDA C. CARRASCO a/k/a YOLANDA              )   The Honorable
     MARTINEZ, IF ANY; and UNKNOWN OWNERS           )   John J. Curry, Jr.,
     AND NON-RECORD CLAIMANTS;                      )   Judge Presiding.
                                                    )

            Defendants                              )

                                                    )

     (Yolanda Carrasco,                             )

            Defendant-Appellant).                   )

                                                    )

     ______________________________________________________________________________

               JUSTICE GORDON delivered the judgment of the court, with opinion. 

               Presiding Justice Burke and Justice McBride concurred in the judgment and opinion.


                                             OPINION

¶1         The instant appeal arises from a foreclosure action filed by plaintiff Credit Union 1

        against defendant Yolanda Carrasco with respect to a single family home in Calumet City.

        The trial court granted summary judgment in plaintiff’s favor and, after the property was
     No. 1-17-2535


        sold, entered an order approving the report of sale and distribution. Defendant appeals,

        arguing that plaintiff never established that it sent an acceleration notice as required under the

        terms of the mortgage, meaning that plaintiff did not have the right to initiate the foreclosure

        action. For the reasons that follow, we reverse.

¶2                                          BACKGROUND

¶3          On February 26, 2014, plaintiff filed a complaint for foreclosure of a single family home

        in Calumet City, alleging that defendant had failed to make payments due under the

        mortgage and note beginning in February 2011, leaving a current unpaid principal balance of

        $132,961.37. Attached to the complaint was a copy of the mortgage. As relevant to the

        instant appeal, section 15 of the mortgage was entitled “Notices” and provided, in relevant

        part:

                “All notices given by Borrower or Lender in connection with this Security Instrument

                must be in writing. Any notice to Borrower in connection with this Security

                Instrument shall be deemed to have been given to Borrower when mailed by first

                class mail or when actually delivered to Borrower’s notice address if sent by other

                means.”

¶4          Additionally, section 22 was entitled “Acceleration; Remedies” and provided:

                “Lender shall give notice to Borrower prior to acceleration following Borrower’s

                breach of any covenant or agreement in this Security Instrument ***. The notice shall

                specify: (a) the default; (b) the action required to cure the default; (c) a date, not less

                than 30 days from the date the notice is given to Borrower, by which the default must

                be cured; and (d) that failure to cure the default on or before the date specified in the

                notice may result in acceleration of the sums secured by this Security Instrument,


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                 foreclosure by judicial proceeding and sale of the Property. The notice shall further

                 inform Borrower of the right to reinstate after acceleration and the right to assert in

                 the foreclosure proceeding the non-existence of a default or any other defense of

                 Borrower to acceleration and foreclosure. If the default is not cured on or before the

                 date specified in the notice, Lender at its option may require immediate payment in

                 full of all sums secured by this Security Instrument without further demand and may

                 foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to

                 collect all expenses incurred in pursuing the remedies provided in this Section 22,

                 including, but not limited to, reasonable attorneys’ fees and costs of title evidence.”

¶5         On February 23, 2015, defendant filed an appearance through counsel and, on August 28,

        2015, filed an answer and affirmative defenses; none of defendant’s defenses concerned the

        notice of acceleration. On October 16, 2015, plaintiff filed a motion to strike defendant’s

        affirmative defenses, which was denied on February 26, 2016, without prejudice. On March

        31, 2016, plaintiff filed another motion to strike defendant’s affirmative defenses and for

        partial summary judgment on the affirmative defenses. On April 25, 2016, the trial court

        granted plaintiff’s motion and dismissed defendant’s affirmative defenses without prejudice

        and granted defendant 21 days to file amended affirmative defenses; defendant did not do so.

¶6         On November 23, 2016, plaintiff filed a motion for default judgment against all other

        defendants, since no other defendants had filed an appearance, 1 and also filed a motion for

        summary judgment against defendant. The motion for summary judgment claimed that

        defendant’s answer did not present any facts to refute the allegations contained in plaintiff’s

        complaint and contained merely general denials of the allegations. An affidavit of proveup


           1
               The motion for default judgment against the other defendants was granted on March 7, 2017.
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        attached to the motion for summary judgment indicated that the total amount due from

        defendant was $239,923.13.

¶7         On February 3, 2017, defendant filed a response to the motion for summary judgment. As

        relevant to the instant appeal, the response claimed that defendant denied receiving an

        acceleration notice pursuant to section 22 of the mortgage. Attached to defendant’s response

        was a certification sworn by defendant pursuant to section 1-109 of the Code of Civil

        Procedure (Code) (735 ILCS 5/1-109 (West 2016)), which provided, in relevant part:

                     “I am the only person responsible for retrieving the mail at [the property address

               in Calumet City].

                     I retrieve my mail on a daily basis from the mailbox.

                     I have never had any problems receiving mail from the United States Post Office.

                     I have never received a letter of acceleration that was required to be sent to me in

               Paragraph 22 of my mortgage.

                     On information and belief, the Plaintiff never sent a letter of acceleration that was

               required to be sent to me pursuant to Paragraph 22 of the mortgage.”

¶8         On February 16, 2017, plaintiff filed a reply in support of its motion for summary

        judgment. With respect to the issue of notice, plaintiff argued that defendant claimed not to

        have received the acceleration notice but acknowledged receipt of plaintiff’s grace period

        notice, which had been sent to the same address. Additionally, plaintiff argued that the

        mortgage provided that notice was deemed given when plaintiff mailed the acceleration

        notice, not when defendant received it, making defendant’s claim that she never received it

        “completely irrelevant.” Plaintiff argued that “[t]he only relevant inquiry is whether the

        Acceleration Notice was mailed, which it was.”

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¶9               Attached to the reply were three documents, all under the heading “Exhibit A.” The first

          was a letter dated October 4, 2013, from defendant to plaintiff’s counsel, which provided, in

          relevant part:

                           “I received a grace period notice dated September 20, 2013 on September 26th,

                       2013.”

          The second document was a letter dated September 18, 2013, from plaintiff’s counsel to

          defendant, which was entitled “NOTICE OF INTENT TO ACCELERATE.” Above the

          address block of the letter were the words: “Via Certified U.S. Mail and via regular 1st class

          U.S. mail.” The third document was a letter dated September 20, 2013, from plaintiff’s

          counsel to defendant at the same address listed on the prior letter’s address block. The letter

          was entitled “GRACE PERIOD NOTICE” and above the address block were the words: “Via

          regular 1st class U.S. mail.”

¶ 10             On March 7, 2017, the trial court entered an order granting plaintiff’s motion for

          summary judgment, and also entered a judgment of foreclosure and sale. 2 The property was

          sold at a judicial sale on June 8, 2017, and on June 23, 2017, plaintiff filed a motion for an

          order approving the report of sale and distribution, for an in personam deficiency judgment,

          and for possession. On September 8, 2017, the trial court entered an order approving the

          report of sale, entered an in personam deficiency judgment against defendant in the amount

          of $174,656.91, and entered an order of possession.

¶ 11             Defendant filed a timely notice of appeal, and this appeal follows.




                 2
                     We note that only a portion of the judgment of foreclosure and sale is contained in the record on
       appeal.
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¶ 12                                            ANALYSIS

¶ 13         On appeal, defendant argues that summary judgment should not have been granted in

          plaintiff’s favor, and the sale should not have been approved, because plaintiff never

          established that it sent the acceleration notice required by the mortgage. A trial court is

          permitted to grant summary judgment only “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). The trial court must view these documents and exhibits in the light

          most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co.,

          213 Ill. 2d 307, 315 (2004). We review a trial court’s decision to grant a motion for summary

          judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,

          102 (1992). De novo consideration means we perform the same analysis that a trial judge

          would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 14         “Summary judgment is a drastic measure and should only be granted if the movant’s right

          to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.

          However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary

          judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party

          moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.

          App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively

          showing that some element of the case must be resolved in his favor or by establishing “ ‘that

          there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.

          App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose

          of summary judgment is not to try an issue of fact but *** to determine whether a triable


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           issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002)

           (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis

           appearing in the record, whether or not the trial court relied on that basis or its reasoning was

           correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).

¶ 15           In the case at bar, defendant claims that plaintiff was not entitled to summary judgment

           because there was a question of fact as to whether plaintiff had provided the acceleration

           notice required by the mortgage. We agree. The mortgage at issue required that “Lender shall

           give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or

           agreement in this Security Instrument,” and further imposed requirements as to the contents

           of that notice. 3 This type of acceleration notice has been held to be a condition precedent to

           the lender’s right to bring suit, meaning that “[i]f [the lender] had not sent an acceleration

           notice, it would not be entitled to foreclose.” CitiMortgage, Inc. v. Bukowski, 2015 IL App

           (1st) 140780, ¶ 16; Cathay Bank v. Accetturo, 2016 IL App (1st) 152783, ¶ 33 (“A notice of

           acceleration is a condition precedent to foreclosure under Illinois Mortgage Foreclosure

           Law.”). “A ‘condition precedent’ is an act that must be performed or an event that must occur

           before a contract becomes effective or before one party to an existing contract is obligated to

           perform.” Accetturo, 2016 IL App (1st) 152783, ¶ 32. “When a contract contains an express

           condition precedent, strict compliance with such a condition is required [citation], and the

           contract does not become enforceable or effective until the contract is performed or the

           contingency occurs. [Citation.]” Accetturo, 2016 IL App (1st) 152783, ¶ 32. Thus, as the

           Accetturo court found when considering an identical acceleration clause, “[b]ecause the

           mortgage contained an acceleration clause that provided ‘[plaintiff] shall give notice to

               3
                Defendant does not argue on appeal that the substance of the purported notice was deficient, but
       only argues that proper notice was not given.
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       No. 1-17-2535


           [defendant] prior to acceleration,’ we find that paragraph [22] is a contractual condition

           precedent and that [plaintiff] had a mandatory duty to send a notice of acceleration to

           [defendant] prior to accelerating the mortgage.” Accetturo, 2016 IL App (1st) 152783, ¶ 37.

           Plaintiff does not dispute on appeal that the sending of the notice of acceleration was a

           condition precedent to its right to maintain a foreclosure action. 4

¶ 16           In the case at bar, then, we must determine whether the record establishes that the notice

           was properly sent or whether there is a question of fact concerning this issue. Defendant

           points to the certification she attached to her response to the motion for summary judgment,

           in which she certified that she had not received a notice of acceleration. However, all that this

           certification establishes is that defendant did not receive the notice. As plaintiff notes, under

           the terms of the mortgage, “[a]ny notice to Borrower in connection with this Security

           Instrument shall be deemed to have been given to Borrower when mailed by first class mail

           or when actually delivered to Borrower’s notice address if sent by other means.” Thus, if the

           facts established that plaintiff mailed the notice, summary judgment would be appropriate.

¶ 17           Plaintiff relies on a presumption of receipt, as set forth in Tabor & Co. v. Gorenz, 43 Ill.

           App. 3d 124 (1976). In that case, the court found: “A letter properly addressed, stamped and

           mailed is presumed to have been duly received based upon the probability of delivery and the

           difficulty of proving receipt in any other way.” Tabor & Co., 43 Ill. App. 3d at 129.

           However, plaintiff does not address the sentences that immediately follow: “To be entitled to

           the benefit of the presumption there must be proof that the item was contained in the properly

           addressed envelope with adequate postage affixed and that it was deposited in the mail.”

           Tabor & Co., 43 Ill. App. 3d at 129. Additionally, “[t]he presumption *** is a rebuttable one;

               4
               Indeed, we must note that plaintiff’s brief on appeal is certainly “brief,” spanning fewer than
       two pages and with no citations to authority or to the record on appeal.
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          and if rebutted, receipt becomes a question to be resolved by the trier of fact.” Tabor & Co.,

          43 Ill. App. 3d at 129.

¶ 18         In the case at bar, defendant claimed in her response to the motion for summary judgment

          that she never received the acceleration notice, and attached a certification in support. In

          response, plaintiff submitted three documents: (1) a letter from defendant acknowledging

          receipt of the grace period notice; (2) a letter purporting to be the acceleration notice; and (3)

          a letter purporting to be the grace period notice. There was no affidavit attached to any of

          these documents, nor was there a copy of an envelope or receipt of mailing. In short,

          nowhere was there “proof that the item was contained in the properly addressed envelope

          with adequate postage affixed and that it was deposited in the mail.” Tabor & Co., 43 Ill.

          App. 3d at 129. Thus, we fail to see how plaintiff can argue that it is entitled to a presumption

          that the notice was properly mailed when plaintiff has wholly failed to comply with the

          requirements for such a presumption. We note that there is evidence in the record that

          plaintiff was well able to provide such proof with respect to other mailings—for instance, in

          support of its claims that it had served the defendants, plaintiff attached certified mail

          receipts and “Certificate[s] of Mailing” from the postal service bearing the amount of postage

          paid. However, this type of proof is completely absent with respect to the notice of

          acceleration.

¶ 19         We also fail to see the significance of defendant’s acknowledgement that she received the

          grace period notice. At most, that demonstrates that her mailing address was accurate.

          However, there is no claim that the two documents were sent at the same time and, in fact,

          the two documents bear different dates, suggesting that they were sent separately.




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          Consequently, the fact that defendant received one notice has absolutely no bearing on the

          question of whether she received the other notice.

¶ 20         We are similarly unpersuaded by plaintiff’s attempt to suggest that defendant had failed

          in some way because she “made no effort to depose the affiant or the author of the letter.”

          However, as noted, there was no affidavit concerning the matter of the acceleration notice.

          The only affidavits contained in the record on appeal concern other matters, such as

          defendant’s payment history, service, and loss mitigation. Furthermore, there was no

          requirement that defendant depose “the author of the letter,” as the letter itself was produced

          for the first time in the reply in support of the motion for summary judgment.

¶ 21         In summary, the parties do not dispute that an acceleration notice was required.

          Defendant has produced a certification stating that she did not receive such a notice. Plaintiff

          did not submit a counteraffidavit but submitted only a copy of the purported acceleration

          notice, without any proof that the notice had been mailed. Accordingly, there is a question of

          fact as to whether this notice was, in fact, provided to defendant as required by the terms of

          the mortgage. This question of fact means that summary judgment should not have been

          granted, and we must reverse the trial court’s order granting summary judgment.

¶ 22         Additionally, the order approving the report of sale and distribution must likewise be

          reversed. “The provisions of section 15-1508 [of the Mortgage Foreclosure Law (735 ILCS

          5/15-1508(b) (West 2016))] have been construed as conferring on circuit courts broad

          discretion in approving or disapproving judicial sales.” Household Bank, FSB v. Lewis, 229

          Ill. 2d 173, 178 (2008). Accordingly, “[a] court’s decision to confirm or reject a judicial sale

          under the statute will not be disturbed absent an abuse of that discretion.” Lewis, 229 Ill. 2d

          at 178. “When a bank fails to comply with its servicing requirements and does not give


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       No. 1-17-2535


          notice to the borrower mandated by a provision in its mortgage, and the circuit court ignores

          the banks’ failure to comply with the mortgage’s servicing requirements, the circuit court

          abuses its discretion.” Accetturo, 2016 IL App (1st) 152783, ¶ 54. In the case at bar, there is a

          question of fact as to whether notice was properly provided. Until that question of fact is

          resolved, the trial court cannot properly approve a judicial sale of the property in question.

¶ 23                                          CONCLUSION

¶ 24         Since plaintiff failed to provide any evidence that would entitle it to a presumption that it

          had mailed an acceleration notice to defendant, there is a question of fact as to whether

          plaintiff properly provided notice as required under the mortgage. Consequently, neither

          summary judgment nor the order approving sale, which was based on the summary judgment

          order, should have been granted.

¶ 25         Reversed.




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