                            Illinois Official Reports

                                    Appellate Court



             HSBC Bank USA, National Ass’n v. Rowe, 2015 IL App (3d) 140553



Appellate Court        HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for
Caption                Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-3,
                       Plaintiff-Appellee, v. SCOTT ROWE; NANCI ROWE, a/k/a Nanci L.
                       Rowe; BENEFICIAL ILLINOIS INC.; PORTFOLIO RECOVERY
                       ASSOCIATES           LLC;    WHEATLAND      HOMEOWNERS
                       ASSOCIATION; CITY OF AURORA; UNKNOWN OWNERS and
                       NONRECORD CLAIMANTS, Defendants-Appellants.


District & No.         Third District
                       Docket No. 3-14-0553


Rule 23 Order filed    May 21, 2015
Motion to publish
allowed                June 23, 2015
Opinion filed          June 23, 2015


Decision Under         Appeal from the Circuit Court of Will County, No. 2010-CH-7142;
Review                 the Hon. Thomas A. Thanas, Judge, presiding.



Judgment               Affirmed.



Counsel on             Joseph M. Williams, of Winfield, and Nanci Rowe and Scott Rowe,
Appeal                 both of Aurora, pro se, for appellants.

                       Jena M. Valdetero and Katharine Lessaris, both of Bryan Cave LLP,
                       of Chicago, and Louis J. Manetti, Jr., of Codilis & Associates, P.C., of
                       Burr Ridge, for appellee.
     Panel                    JUSTICE LYTTON delivered the judgment of the court, with opinion.
                              Justices Carter and Schmidt concurred in the judgment and opinion.



                                               OPINION

¶1         Plaintiff, HSBC Bank USA, filed a complaint to foreclose the mortgage against
       defendants, Scott and Nanci Rowe. Pursuant to plaintiff’s motion, the trial court struck
       defendants’ affirmative defense of lack of standing. The court also denied defendants’
       motion to deem their requests for admissions admitted. After granting summary judgment on
       the complaint, the court entered a judgment for foreclosure and sale. Defendants appeal,
       arguing that the court: (1) erred in granting summary judgment; and (2) abused its discretion
       in denying defendants’ motion to deem requests admitted. We affirm.

¶2                                              FACTS
¶3         On November 18, 2010, plaintiff filed a complaint to foreclose the mortgage against
       defendants. In section D of the complaint, “Mortgage Electronic Registration Systems, Inc.
       [(MERS),] as nominee for Mortgage[I]t, Inc.,” was named as the original mortgagee. Section
       N of the complaint read: “Capacity in which Plaintiff brings this foreclosure: Plaintiff is the
       Mortgagee under 735 ILCS 5/15-1208.”
¶4         Plaintiff attached copies of the promissory note and mortgage as exhibits to the
       complaint. The promissory note was executed by Scott Rowe in favor of MortgageIt, Inc.,
       and was in the amount of $335,250. The first page of the copy of the note was signed and
       stamped by MortgageIt, certifying that it was a “true and correct copy of the original.” Only
       Scott Rowe’s signature appeared on the note, with no other markings on the signature page.
       To secure repayment of the note, the mortgage was executed the same day in favor of MERS,
       the mortgagee and nominee for MortgageIt.
¶5         On December 12, 2012, defendants filed an amended answer and an affirmative defense
       of lack of standing. Defendants alleged plaintiff lacked standing to pursue the foreclosure
       because: (1) plaintiff had not attached an assignment of mortgage to the complaint; (2) the
       assignment for the mortgage from MERS to plaintiff was invalid; and (3) plaintiff had no
       valid interest in the note.
¶6         Plaintiff filed a motion to strike defendants’ affirmative defense of lack of standing.
       Plaintiff argued that the note and mortgage were legally inseparable. Plaintiff attached to its
       motion a second copy of the note. This copy of the note did not contain the “true and correct”
       stamp on the first page, but did include an indorsement in blank below Scott Rowe’s
       signature. At a March 13, 2013, hearing, plaintiff produced the original note and mortgage in
       open court. Defendants withdrew their affirmative defense of lack of standing, and plaintiff’s
       motion to strike the affirmative defense was declared moot, with defendants given 21 days to
       replead affirmative defenses.
¶7         On April 3, 2013, defendants filed their third affirmative defense, alleging again that
       plaintiff lacked standing to foreclose. Defendants posited, inter alia, that “[t]he Trojan
       Assignment surreptitiously inserted at Par. ‘Q’ of the Mortgage is void ab initio and confers

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       no interest in the Legal Title to the property or the Note to M.E.R.S., Inc.” Paragraph Q of
       the mortgage defines “Successor in Interest of Borrower” as “any party that has taken title to
       the Property, whether or not that party has assumed Borrower’s obligations under the Note
       and/or this Security Instrument.” Defendants also alleged that the memorialized assignment
       of the note to plaintiff was a “made-to-order fraud on the [trial] Court and exists as a criminal
       cloud on title.” Defendants claimed that the assignment of the mortgage by MERS, which it
       attached as exhibit No. 1, was invalid because it did not include plaintiff’s name. Plaintiff
       again responded with a motion to strike the affirmative defense, this time attaching the note
       and the written assignment of the note to plaintiff. The trial court granted the motion to
       strike.
¶8          On July 30, 2013, defendants served plaintiff with requests for admission of facts and of
       genuineness of documents pursuant to Illinois Supreme Court Rule 216 (eff. May 1, 2013).
       Plaintiff, having been granted a 28-day extension, filed its response to defendants’ requests
       on September 27. In its response, plaintiff, through its attorneys, objected generally to the
       request on the grounds that defendants had not complied with Supreme Court Rule 216.
       Specifically, plaintiff asserted that defendants had not sent the requests as a separate
       document, as required by the rule.
¶9          Plaintiff also objected individually to each request to admit the genuineness of documents
       and all but 2 of 22 requests for admission of fact. Plaintiff objected to each request to admit
       the genuineness of documents as vague, confusing, or not reasonably calculated to lead to the
       discovery of relevant evidence. Plaintiff objected to the requests for admissions of facts on
       the same grounds. Many objections found in plaintiff’s response are followed by the phrase,
       “[w]ithout waiving said objection, Plaintiff,” followed by plaintiff’s response to the request
       in the form of a denial or admission. Plaintiff’s responses were not sworn.
¶ 10        On February 24, 2014, defendants filed a motion to deem the requests admitted.
       Defendants argued that because plaintiff’s responses were not sworn and were otherwise
       nonresponsive, Supreme Court Rule 216 dictated that the requests be deemed admitted. The
       trial court denied the motion, as well as the subsequent motion to reconsider.
¶ 11        On January 24, 2014, plaintiff filed a motion for summary judgment, as well as a motion
       for entry of a judgment for foreclosure and sale. In their response, defendants again asserted
       that plaintiff lacked standing, thus rendering summary judgment improper. In particular,
       defendants claimed that the complaint was insufficient for failure to contain a statement as to
       the current mortgage and that MERS could not validly assign the mortgage. At oral argument
       on the motion for summary judgment, plaintiff produced the original note in open court for
       the second time. The court granted summary judgment and entered a separate judgment for
       foreclosure and sale.

¶ 12                                          ANALYSIS
¶ 13       On appeal, defendants argue that plaintiff’s complaint was statutorily insufficient.
       Defendants contend that by this failure to properly plead the complaint, plaintiff failed to
       establish standing, a justiciable matter, and, in turn, subject matter jurisdiction. Relatedly,
       defendants’ claim that the entry of summary judgment was improper where genuine
       questions of material fact regarding ownership of the note had been raised. Finally,
       defendants argue that the trial court abused its discretion in denying defendants’ motion to


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       treat their requests for admissions as admitted. We find each of these arguments without
       merit.

¶ 14                                   I. Summary Judgment
¶ 15       Summary judgment is appropriate where, when viewed in the light most favorable to the
       nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that
       there is no genuine issue as to any material fact and that the moving party is entitled to
       judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010). We review the grant of
       summary judgment de novo. Bruns v. City of Centralia, 2014 IL 116998, ¶ 13.

¶ 16                                            A. Complaint
¶ 17       The Illinois Mortgage Foreclosure Law establishes the formal requirements of a
       foreclosure complaint. 735 ILCS 5/15-1504 (West 2010). The statute requires that a
       complaint include, inter alia, the name of the mortgagee (735 ILCS 5/15-1504(a)(3)(D)
       (West 2010)) and the capacity in which the plaintiff brings the complaint (735 ILCS
       5/15-1504(a)(3)(N) (West 2010)). Defendants contend that plaintiff “failed to plead who was
       current Mortgagee at the time of filing of the Complaint” (emphasis in original), as required
       by statute, and thus failed “to set out any interest in the cause in the interest of HSBC.”
¶ 18       Plaintiff’s complaint sets forth MERS, as nominee for MortgageIt, as the “Name of the
       original mortgagee.” A subsequent section of the complaint read: “Capacity in which
       Plaintiff brings this foreclosure: Plaintiff is the Mortgagee under 735 ILCS 5/15-1208.”
       Plaintiff’s complaint complies with the statutory requirements.

¶ 19                                       B. Copies of the Note
¶ 20       Defendants also maintain that a genuine issue existed as to the holder of the note where
       two copies of the note introduced by plaintiff at separate times during the litigation contained
       different markings. Defendants point out that the copy of the note attached to the original
       complaint was signed only by Scott Rowe. The first page of that copy of the note was signed
       and stamped by MortgageIt, certifying that it was a “true and correct” copy of the original.
       The copy of the note later attached to plaintiff’s motion to strike affirmative defenses,
       however, did not contain that certification stamp. Instead, that note was indorsed in blank on
       the final page–beneath Scott Rowe’s signature–via stamp and signature from MortgageIt.
       Defendants maintain that this discrepancy between the two copies created a genuine issue of
       material fact as to who owned the note.
¶ 21       A note is a negotiable instrument as defined by section 3-104 of the Uniform Commercial
       Code (Code), as adopted by Illinois. 810 ILCS 5/3-104 (West 2010). A negotiable instrument
       is an unconditional promise to pay a fixed amount of money; it is “payable to bearer or to
       order at the time it is issued or first comes into possession of a holder.” 810 ILCS
       5/3-104(a)(1) (West 2010). Section 3-205 of the Code states that “[w]hen indorsed in blank,
       an instrument becomes payable to bearer and may be negotiated by transfer of possession
       alone until specifically indorsed.” 810 ILCS 5/3-205(b) (West 2010). Further, it is a
       long-standing rule that “possession of bearer paper is prima facie evidence of title thereto,
       [citation] and sufficient to entitle the plaintiff to a decree of foreclosure.” Joslyn v. Joslyn,
       386 Ill. 387, 395 (1944). Attachment of the note to the complaint is prima facie evidence that

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       the plaintiff owns the note. Rosestone Investments, LLC v. Garner, 2013 IL App (1st)
       123422, ¶ 26.
¶ 22       Plaintiff here plainly established a prima facie case that it held title to the note by
       attaching it to the complaint. Despite defendants’ contentions, the second copy of the
       note–attached to plaintiff’s motion to strike–does not raise any questions as to who holds title
       to the note. The possession of a note indorsed in blank remains payable to the bearer. 810
       ILCS 5/3-205 (West 2010). In other words, under both versions of the note, plaintiff held title
       as a result of its possession of the instrument. While the nonidentical copies do raise some
       questions–such as, at what point in time the note attached to the complaint was copied 1–these
       questions are immaterial to the issue of ownership and standing.
¶ 23       We find that no genuine issues of material fact existed as relating to plaintiff’s
       satisfaction of the statutory pleading requirements or to the issue of ownership of the note.
       The trial court’s grant of summary judgment was proper.

¶ 24                                     II. Requests for Admission
¶ 25       Defendants also argue that the trial court abused its discretion in denying their motion to
       deem their requests for admissions admitted. Defendants contend that plaintiff’s response to
       the requests did not comply with Illinois Supreme Court Rule 216(g) (eff. May 1, 2013) and
       were otherwise nonresponsive and made in bad faith. Defendants maintain that these
       infirmities required the trial court to deem the requests admitted.
¶ 26       Supreme Court Rule 216 governs requests for admissions of fact or of the genuineness of
       documents. Subsection (c) of that rule, entitled “Admission in the Absence of Denial,” holds:
               “Each of the matters of fact and the genuineness of each document of which
               admission is requested is admitted unless, within 28 days after service thereof, the
               party to whom the request is directed serves upon the party requesting the admission
               either (1) a sworn statement denying specifically the matters of which admission is
               requested or setting forth in detail the reasons why the party cannot truthfully admit
               or deny those matters or (2) written objections on the ground that some or all of the
               requested admissions are privileged or irrelevant or that the request is otherwise
               improper in whole or in part. If written objections to a part of the request are made,
               the remainder of the request shall be answered within the period designated in the
               request. A denial shall fairly meet the substance of the requested admission. If good
               faith requires that a party deny only a part, or requires qualification, of a matter of
               which an admission is requested, the party shall specify so much of it as is true and
               deny only the remainder. Any objection to a request or to an answer shall be heard by
               the court upon prompt notice and motion of the party making the request. The
               response to the request, sworn statement of denial, or written objection, shall be
               served on all parties entitled to notice.” Ill. S. Ct. R. 216(c) (eff. May 1, 2013).

           1
            We also note that Illinois Supreme Court Rule 113(b) (eff. May 1, 2013) requires that “a copy of
       the note, as it currently exists, including all indorsements and allonges” must be attached to the
       complaint at the time of filing. However, this rule became effective on May 1, 2013, well after the 2010
       complaint in the present case. The failure to attach to the complaint a copy of the note bearing
       MortgageIt’s indorsement in blank, therefore, did not cause plaintiff to run afoul of any pleading
       standards.

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¶ 27        Initially, defendants contend that plaintiff’s response to their request for admissions was
       noncompliant in that they were not sworn to. Rule 216(c) only requires a sworn statement
       where a party denies the matters for which admission is requested. Written objections need
       not be sworn to by the responding party. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334,
       355 (2007) (“[T]he plain language of the rule states that the party to whom the requests to
       admit are directed must serve upon the requesting party either a sworn statement denying the
       matters of which admission is requested or written objections which need not be sworn.”
       (Internal quotation marks omitted.)).
¶ 28        More broadly, defendants contend that plaintiff’s response was not made in good faith.
       Defendants maintain that plaintiff’s blanket objections rendered the response wholly
       nonresponsive, and argue that the requests for admission should thus be deemed admitted
       pursuant to Supreme Court Rule 216(c).
¶ 29        “[A] party has a good-faith obligation to make a reasonable effort to secure answers to
       requests to admit from persons and documents within the responding party’s reasonable
       control.” Szczeblewski v. Gossett, 342 Ill. App. 3d 344, 349 (2003). Where a party responds
       to requests for admissions in the form of objections to those requests, it is the duty of the
       requesting party to raise the issue of the objection in a motion before the trial court. La Salle
       National Bank of Chicago v. Akande, 235 Ill. App. 3d 53, 67 (1992). Indeed, Supreme Court
       Rule 216 itself states that “[a]ny objection to a request or to an answer shall be heard by the
       court upon prompt notice and motion of the party making the request.” Ill. S. Ct. R. 216(c)
       (eff. May 1, 2013).
¶ 30        In the case at hand, defendants’ claims that plaintiff’s responses were nonresponsive and
       made in bad faith have substantial merit. Defendants requested that plaintiff admit the
       genuineness of five documents, attaching each of those five documents to their request.
       Plaintiff objected to two of these requests as vague, and objected to the remaining three
       requests as both vague and confusing. This court fails to see how such simple requests could
       be categorized as either. However, any insufficiency in plaintiff’s objections would not be
       cause to treat defendants’ requests as admitted.
¶ 31        Given the shortfalls of plaintiff’s responses, defendants’ proper remedy would have been
       to promptly bring a motion in the trial court challenging the propriety of the objections. See
       Ill. S. Ct. R. 216(c) (eff. May 1, 2013). Instead, defendants sought to have the requests
       deemed admitted, despite the outstanding objections. This court is aware of no case law–and
       defendants have cited none–that supports the contention that a trial court may forego ruling
       on objections and simply deem the matters objected to admitted. Indeed, such a position
       would run counter to our supreme court’s stated policy goal of adjudicating cases on their
       merits rather than on technicalities. Haas, 226 Ill. 2d at 352. Accordingly, we find that the
       trial court did not abuse its discretion in denying defendants’ motion to deem requests for
       admission admitted.

¶ 32                                       CONCLUSION
¶ 33      The judgment of the circuit court of Will County is affirmed.

¶ 34      Affirmed.



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