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                                     Appellate Court                           Date: 2017.06.21
                                                                               08:58:45 -05'00'




             Deutsche Bank National Trust Co. v. Payton, 2017 IL App (1st) 160305



Appellate Court          DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff-
Caption                  Appellee, v. GARY LEIGH PAYTON, CARLA WATKINS and
                         MARVIN WATKINS, Defendants-Appellants.



District & No.           First District, Second Division
                         Docket No. 1-16-0305



Rule 23 order filed      February 21, 2017
Motion to publish
allowed                  April 7, 2017
Opinion filed            April 11, 2017



Decision Under           Appeal from the Circuit Court of Cook County, No. 07-CH-05861; the
Review                   Hon. Robert E. Senechalle, Judge, presiding.



Judgment                 Affirmed.


Counsel on               Voelker Litigation Group, of Chicago (Daniel J. Voelker and Olga S.
Appeal                   Dmytriyeva, of counsel), for appellants.

                         Stahl Cowen Crowley Addis, LLC, of Chicago (Ronald A. Damashek
                         and Jeremy Kreger, of counsel), for appellee.
     Panel                        JUSTICE NEVILLE delivered the judgment of the court, with
                                  opinion.
                                  Presiding Justice Hyman and Justice Pierce concurred in the judgment
                                  and opinion.


                                                     OPINION

¶1          When Carla and Marvin Watkins, the defendants, did not pay their mortgages, they became
       concerned that Citimortgage, Inc. (Citimortgage), and Countrywide Home Loans
       (Countrywide) would commence foreclosure proceedings against them. On November 11,
       2005, a warranty deed containing the Watkinses’ signatures conveyed the subject property to
       Gary Leigh Payton and Tammy Marie Payton.1 The Paytons obtained a mortgage from Long
       Beach Mortgage Company (Long Beach) in the amount of $450,000, and some of the loan
       proceeds were used to extinguish the Watkinses’ mortgages on the subject property with
       Citimortgage and Countrywide. On February 28, 2007, Long Beach assigned and transferred
       its interest in the Paytons’ mortgage to the plaintiff, Deutsche Bank National Trust Company
       (Deutsche Bank), as trustee for Long Beach. On March 2, 2007, Deutsche Bank initiated
       foreclosure proceedings against the Paytons when they failed to make their mortgage
       payments and later named the Watkinses. On July 13, 2010, Deutsche Bank filed a motion for
       summary judgment against the Watkinses and the Paytons, predicated on the doctrine of
       equitable subrogation. The motion was granted.
¶2          We find that once Long Beach, Deutsche Bank’s assignor, paid off the Watkinses’
       mortgages with Citimortgage and Countrywide, Long Beach was subrogated, by operation of
       law, and Long Beach stepped into the shoes of Citimortgage and Countrywide. Therefore,
       Long Beach acquired Citimortgage’s and Countrywide’s priority interest in the subject
       property. We also find that the circuit court correctly granted Deutsche Bank’s motion for
       summary judgment, predicated on the doctrine of equitable subrogation, in order to avoid an
       unjust result and to prevent the Watkinses from being unjustly enriched when they invoked
       their forged deed defense. Therefore, we hold that the circuit court did not err when it granted
       Deutsche Bank’s motion for summary judgment predicated on the doctrine of equitable
       subrogation.

¶3                                        BACKGROUND
¶4         On November 18, 1996, a quitclaim deed conveyed the subject property located at 6437
       North Kimball, Lincolnwood, Illinois, to Carla Watkins. She later married Marvin Watkins.
       On April 29, 2003, the Watkinses obtained a mortgage from Magnus Financial Corporation for
       $321,000. On May 17, 2004, they obtained a second mortgage from Greenlight Financial
       Services for $45,000. Magnus Financial Corporation later assigned its interest in the
       Watkinses’ mortgage to Citimortgage, and Greenlight Financial Services assigned its interest
       in the Watkinses’ second mortgage to Countrywide.
¶5         The Watkinses stopped making payments on their mortgages in 2005. Agents from an
       entity known as FundingForeclosures.com contacted the Watkinses and promised to save their
             1
              The Paytons are not parties to this appeal.

                                                            -2-
       home from foreclosure by providing financial assistance. Fundingforeclosures.com had the
       Watkinses (i) execute an Equity Purchase Agreement on July 14, 2005, in which the Watkinses
       sold the subject property to Fundingforeclosures.com; (ii) re-purchase the property at a set
       price pursuant to Addendum A attached to the Agreement; (iii) execute a Residential Lease
       After Sale Agreement on July 17, 2005, which allowed the Watkinses to continue to occupy
       the subject property but obligated them to pay $1600 each month in rent; and (iv) execute a
       grant deed2 on July 17, 2005, transferring title to the subject property from the Watkinses to
       Fundingforeclosures.com.
¶6          On November 11, 2005, a warranty deed3 containing the Watkinses’ signatures transferred
       title to the subject property to Gary Leigh Payton and Tammy Marie Payton. The Paytons
       obtained a mortgage from Long Beach in the amount of $450,000. The settlement statement
       for this transaction indicates (i) that Long Beach paid off the Watkinses’ mortgages with
       Citimortgage and Countrywide and (ii) that the Watkinses received a payout of $119,583.92.
       The record also includes releases from Citimortgage and Countrywide.
¶7          On February 28, 2007, Long Beach assigned the Paytons’ mortgage to Deutsche Bank.
       When the Paytons did not make payments on their loan, Deutsche Bank filed a “Complaint to
       Foreclose Mortgage” on March 2, 2007, against the Paytons, two subordinate lenders,
       unknown owners, and non-record claimants. On June 13, 2007, James Smith filed an
       appearance on behalf of Carla Watkins as an unknown owner and non-record claimant. On
       July 18, 2007, Carla Watkins filed an answer and affirmative defenses, asserting that she and
       her husband were victims of a “foreclosure rescue fraud,” and she maintained that the
       Watkinses had never met the Paytons, that the Watkinses did not sell the Paytons any property,
       and that FundingForeclosures.com forged their signatures on the deed transferring title of the
       subject property to the Paytons.
¶8          On September 28, 2007, Deutsche Bank filed an “Amended Complaint to Foreclose
       Mortgage,” named Carla and Marvin Watkins as additional defendants, and claimed that any
       interest the Watkinses had in the subject property was inferior to that of the bank’s. On June 9,
       2009, James Smith filed an appearance on behalf of Marvin Watkins in the instant lawsuit.
¶9          On July 13, 2010, Deutsche Bank filed “Plaintiff’s Amendment to Complaint to Foreclose
       Mortgage,” added count II, named the Watkinses and the Paytons as defendants, and prayed,
       pursuant to the doctrine of equitable subrogation, for a judgment of foreclosure. Specifically,
       count II sought foreclosure on Deutsche Bank’s assignor’s liens that were equitably
       subrogated to the liens of the Watkinses’ prior mortgagees, Citimortgage and Countrywide.
¶ 10        On October 7, 2010, the Watkinses filed an answer and affirmative defenses to “Plaintiff’s
       Amendment to Complaint to Foreclose Mortgage” and admitted that Long Beach made a loan
       to the Paytons that paid off the Watkinses’ prior mortgages with Citimortgage and
       Countrywide in full.

           2
             A grant deed has some but not all of the usual covenants of title. The grantor warrants that he or
       she (i) has not previously conveyed the estate being granted, (ii) has not encumbered the property
       except as noted in the deed, and (iii) will convey to the grantee any title to the property acquired after
       the date of the deed. Black’s Law Dictionary 424 (7th ed. 1999).
           3
             A warranty deed is a stipulation by the grantor in which he guarantees to the grantee that title to the
       property at issue will be good and that the grantor’s possession will be undisturbed. Midfirst Bank v.
       Abney, 365 Ill. App. 3d 636, 644 (2006).

                                                        -3-
¶ 11       On March 22, 2011, Deutsche Bank filed a motion for partial summary judgment,
       requesting the entry of a judgment on count II, its equitable subrogation claim, and prayed only
       for a partial judgment that the Watkinses’ interest in the subject property would be
       subordinated to Long Beach’s interest to the extent of $371,833.90. On May 24, 2011, the
       circuit court found (i) that the Watkinses admitted that their delinquent mortgages to
       Citimortgage and Countrywide in the amount of $371,833.90 were paid off, (ii) that proceeds
       from the Paytons’ mortgage that was being foreclosed on by Long Beach were used to pay off
       the Watkinses’ mortgage, and (iii) that Long Beach intended for its mortgage to be a first lien
       on the property. The circuit court granted Deutsche Bank’s motion for partial summary
       judgment on count II of their complaint and held that the Watkinses’ interests were subordinate
       to the interest of Long Beach mortgage to the extent of $371,833.90.
¶ 12       On September 28, 2012, Deutsche Bank filed a motion for entry of a default judgment
       against the Paytons and a motion requesting the entry of a judgment of foreclosure and sale
       against all defendants who had not answered or appeared.
¶ 13       On April 1, 2013, Deutsche Bank filed a second motion for summary judgment on count II
       of the complaint and requested the relief it had not previously obtained: “summary judgment
       pursuant to 735 ILCS 5/2-1005, or, in alternative, for judgment of foreclosure pursuant to 735
       ILCS 5/15-1506.” In response, the Watkinses did not challenge the circuit court’s previous
       order granting partial summary judgment based on Deutsche Bank’s superior interest in the
       property. Instead, the Watkinses challenged the bank’s standing to foreclose on the Paytons’
       mortgage (i) because FundingForeclosures.com’s agents forged the Watkinses’ signatures on
       the deed that conveyed the property to the Paytons and (ii) because Deutsche Bank and its
       assignor did not have a written mortgage on the Watkinses’ property.
¶ 14       On May 28, 2013, Deutsche Bank filed a reply in support of its motion for summary
       judgment on count II of the complaint and attached pages from Carla Watkins’s deposition in
       which she testified that she recognized her signature on the warranty deed transferring title of
       the subject property from the Watkinses to the Paytons, but she also testified that she did not
       sign the deed. Deutsche Bank also attached pages from Marvin Watkins’s deposition, in which
       he testified that he signed the warranty deed transferring title to the subject property from the
       Watkinses to the Paytons.
¶ 15       On June 11, 2013, the circuit court found that the Watkinses failed to file evidentiary
       materials that created material issues of fact and granted the bank’s motion for summary
       judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code). 735 ILCS
       5/2-1005 (West 2012). On July 12, 2013, the court entered a judgment of foreclosure and sale
       pursuant to section 15-1506 of the Illinois Mortgage Foreclosure Law (Foreclosure Law). 735
       ILCS 5/15-1506 (West 2012). On October 15, 2013, the property was sold by judicial sale, and
       the bank was the successful bidder. The court confirmed the sale on November 7, 2013,
       without written objection. On December 22, 2015, the court granted Deutsche Bank’s motion
       to voluntarily dismiss count I. Finally, the appellate court granted the Watkinses’ leave to file a
       late notice of appeal on February 10, 2016.

¶ 16                                          ANALYSIS
¶ 17       The Watkinses seek review of the circuit court’s June 11, 2013, order, which granted
       Deutsche Bank’s motion for summary judgment on count II of Deutsche Bank’s complaint. A
       circuit court may grant a motion for summary judgment only if the pleadings, depositions, and

                                                    -4-
       admissions on file, together with any affidavits, 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. Thompson
       v. Gordon, 241 Ill. 2d 428, 438 (2011). We review a circuit court’s order that grants a motion
       for summary judgment de novo. Thompson, 241 Ill. 2d at 438.
¶ 18       The Watkinses do not challenge the circuit court’s order, granting Deutsche Bank’s motion
       for partial summary judgment on its equitable subrogation claim, but argue, instead, that the
       circuit court erred when it granted Deutsche Bank’s motion for summary judgment because
       there was a genuine issue of material fact as to whether Deutsche Bank had standing to
       foreclose on the subject property. Specifically, the Watkinses argue that
       FundingForeclosures.com’s agents forged the deed transferring title to the subject property
       from the Watkinses to the Paytons and that Deutsche Bank and its assignor did not have a
       written mortgage with the Watkinses. Therefore, according to the Watkinses, Deutsche Bank’s
       assignor acquired no interest in the subject property from the Paytons’ mortgage, Deutsche
       Bank and its assignor did not have a written mortgage with the Watkinses, and Deutsche bank
       had no standing to foreclose on the subject property. We disagree.

¶ 19                                       Equitable Subrogation
¶ 20       We note that the circuit court granted Deutsche Bank’s motion for partial summary
       judgment based on the doctrine of equitable subrogation. The supreme court examined the
       doctrine of subrogation and explained it as follows:
                   “The doctrine of subrogation is a creature of chancery. It is a method whereby one
               who has involuntarily paid a debt or claim of another succeeds to the rights of the other
               with respect to the claim or debt so paid. [Citation.] The right of subrogation is an
               equitable right and remedy which rests on the principle that substantial justice should
               be attained by placing ultimate responsibility for the loss upon the one against whom in
               good conscience it ought to fall. [Citation.] Subrogation is allowed to prevent injustice
               and unjust enrichment but will not be allowed where it would be inequitable to do so.
               [Citation.] There is no general rule which can be laid down to determine whether a right
               of subrogation exists since this right depends upon the equities of each particular case.
               [Citation.]
                   One who asserts a right of subrogation must step into the shoes of, or be substituted
               for, the one whose claim or debt he has paid and can only enforce those rights which the
               latter could enforce. [Citation.]” Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d
               314, 319 (1992).
¶ 21       We find that the Watkinses had mortgages on the subject property from Citimortgage and
       Countrywide of approximately $371,833.90. Long Beach, Deutsche Bank’s assignor, loaned
       the Paytons $450,000, and the Paytons executed a note and gave Long Beach a mortgage on
       the subject property they acquired from the Watkinses. Deutsche Bank’s assignor used some of
       the Paytons’ loan proceeds to extinguish the Watkinses’ prior mortgages on the subject
       property with Citimortgage and Countrywide. By paying off the Watkinses’ two mortgages,
       Deutsche Bank’s assignor (i) was subrogated by operation of law and stepped into the shoes of
       the Watkinses’ mortgagees, Citimortgage and Countrywide (LaFramboise, 149 Ill. 2d at 319),
       and (ii) acquired Citimortgage's and Countrywide’s priority interest in the subject property.
       Ames Capital Corp. v. Interstate Bank of Oak Forest, 315 Ill. App. 3d 700, 705 (2000)
       (subrogation has been applied to subrogate one party to the lien priority of another).

                                                   -5-
¶ 22       We find that the circuit court properly found that Deutsche Bank’s assignor, after paying
       off the Watkinses’ mortgages to Citimortgage and Countrywide, was subrogated to
       Citimortgage's and Countrywide’s interest in the subject property. Therefore, the circuit court
       correctly found that the Watkinses’ interest in the subject property was subordinate to
       Deutsche Bank or its assignor’s interest in the property (Interstate Bank, 315 Ill. App. 3d at
       705) and correctly granted the bank’s motion for partial summary judgment.

¶ 23                                            Forged Deed
¶ 24       Next, we must determine if the circuit court erred when it granted Deutsche Bank’s motion
       for summary judgment based on the doctrine of equitable subrogation when the Watkinses
       claimed that the Paytons’ deed was forged, the bank’s assignor had no written mortgage with
       the Watkinses, and Deutsche Bank lacked standing because its assignor had no interest in the
       subject property. The doctrine of standing is designed to preclude persons who have no interest
       in a controversy from bringing suit and assures that issues are raised only by those parties that
       have a real interest in the controversy. Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999).
¶ 25       Under Illinois law, a lack of standing is an affirmative defense, which is the defendant’s
       burden to plead and prove. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010).
       The burden was on the Watkinses to prove (i) that the Paytons had a forged deed and that the
       bank and its assignor did not have a written mortgage and (ii) that because of the forged deed
       and lack of a written mortgage, Deutsche Bank and its assignor lacked standing to file a
       foreclosure complaint against the Paytons. Lebron, 237 Ill. 2d at 252; U.S. Bank National
       Ass’n v. Sauer, 392 Ill. App. 3d 942, 946 (2009).
¶ 26       The Watkinses invoked section 2-619(a)(2) of the Code and asserted a legal defense: (i)
       that Deutsche Bank lacked standing or the legal capacity to file a foreclosure action against
       them because the Paytons obtained their mortgage with a forged deed or (ii) that Deutsche
       Bank’s assignor did not have a written mortgage with the Watkinses and therefore, without a
       contractual nexus, the bank and its assignor had no standing to sue the Watkinses. See 735
       ILCS 5/2-619(a)(2) (West 2012) (the plaintiff does not have legal capacity to sue or the
       defendant does not have legal capacity to be sued).
¶ 27       We note, however, that the whole system of equity jurisprudence proceeds upon the ground
       that a party having a legal right shall not be permitted to avail himself of it for the purpose of
       injustice or fraud. Weaver v. Poyer, 79 Ill. 417, 421 (1875). We must determine whether the
       circuit court properly restrained the Watkinses from invoking their standing defense because it
       would be inequitable to assert the legal defense once Deutsche Bank’s assignor extinguished
       the Watkinses’ indebtedness. Poyer, 79 Ill. at 421.
¶ 28       The Foreclosure Law defines a mortgagee as the holder of an indebtedness and any person
       claiming through a mortgagee as successor (735 ILCS 5/15-1208 (West 2006)) and includes
       the mortgagee’s assignee. Klehm v. Grecian Chalet, Ltd., 164 Ill. App. 3d 610, 617 (1987). By
       extinguishing the Watkinses’ mortgages with Citimortgage and Countrywide, Long Beach
       acquired a legally cognizable interest in the subject property that gave its successor, Deutsche
       Bank, the trustee and the legal holder of the Watkinses’ indebtedness, standing to commence a
       foreclosure action against the Watkinses. Glisson, 188 Ill. 2d at 221; 735 ILCS
       5/15-1504(a)(3)(N) (West 2006) (the Foreclosure Law indicates that the legal holder of the
       indebtedness—a pledgee, an agent, a trustee under a trust deed, or otherwise—may file the
       case).

                                                   -6-
¶ 29       While a complaint, answer, and responsive pleadings may purport to raise issues of
       material fact, if such issues are not further supported by evidentiary facts in affidavits,
       admissions, or depositions, summary judgment is inappropriate. Carruthers v. B.C.
       Christopher & Co., 57 Ill. 2d 376, 380 (1974). We find, after reviewing the record, that the
       Watkinses failed to present evidentiary materials—admissions, affidavits, or depositions—that
       created a material issue of fact and established that the Paytons’ deed was forged.
¶ 30       We also find that the Watkinses would be unjustly enriched if Deutsche Bank’s assignor’s
       paid off the Watkinses’ two mortgages and paid the Watkinses $119,583.92, but the Watkinses
       were permitted to invoke a legal defense that divested the bank of its interest in the property.
       The doctrine of equitable subrogation is the remedial device designed to prevent an unjust
       enrichment. State Farm Mutual Insurance Co. v. Du Page County, 2011 IL App (2d) 100580,
       ¶ 32. Therefore, even if the Paytons acquired the subject property through a forged deed and
       even if the bank and its assignor had no written mortgage with the Watkinses, Deutsche Bank’s
       assignor acquired standing when it paid off the Watkinses’ mortgages and its successor,
       Deutsche Bank, as trustee, had a right to predicate its foreclosure action against the Watkinses
       on the fact that it was the legal holder of the Watkinses’ indebtedness. Glisson, 188 Ill. 2d at
       221; 735 ILCS 5/15-1504(a)(3)(N) (West 2006). Accordingly, we find that the circuit court
       properly granted Deutsche Bank’s motion for summary judgment because even if the Paytons’
       deed was forged and there was no written mortgage, the doctrine of equitable subrogation
       prevented the circuit court from permitting the Watkinses’ to be unjustly enriched.
¶ 31       Illinois case law notes that the right to equitable subrogation depends upon the equities of
       each case. Interstate Bank of Oak Forest, 315 Ill. App. 3d at 706. Here, given Deutsche Bank’s
       assignor’s payoff of the Watkinses’ two mortgages and payout of $119,583.92 to the
       Watkinses, and given our need to avoid an unjust result, we find the equities are with Deutsche
       Bank. Accordingly, we hold that the circuit court did not err when it granted Deutsche Bank’s
       motion for summary judgment based on the doctrine of equitable subrogation.

¶ 32                                         CONCLUSION
¶ 33       The circuit court correctly applied the doctrine of equitable subrogation, given the equities
       in this case. Accordingly, we affirm the circuit court’s order that granted Deutsche Bank’s
       motion for summary judgment.

¶ 34      Affirmed.




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