                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                  Wells Fargo Bank, N.A. v. Watson, 2012 IL App (3d) 110930




Appellate Court            WELLS FARGO BANK, N.A., Plaintiff-Appellee, v. CECIL W.
Caption                    WATSON, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-11-0930


Filed                      July 9, 2012


Held                       Plaintiff bank’s presentation of a judgment of foreclosure in its forcible
(Note: This syllabus       entry and detainer action justified the entry of summary judgment for the
constitutes no part of     bank, regardless of the fact that the judgment was neither signed nor
the opinion of the court   dated, because there was no objection concerning the judgment’s entry or
but has been prepared      accuracy, the judgment entitled the bank to possession of the property,
by the Reporter of         and there was no evidence defendant had any legal interest in the property
Decisions for the          or was entitled to possession.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Will County, No. 11-LM-2802; the
Review                     Hon. Mark Thomas Carney, Judge, presiding.



Judgment                   Affirmed.
Counsel on                   Cecil W. Watson, of Bolingbrook, for appellant.
Appeal
                             Michelle V. Dohra and Lucia Nale, both of Mayer Brown LLP, and
                             Shaun Callahan, of Pierce & Associates, both of Chicago, for appellee.


Panel                        JUSTICE CARTER delivered the judgment of the court, with opinion.
                             Presiding Justice Schmidt and Justice Holdridge concurred in the
                             judgment and opinion.




                                                OPINION

¶1          Plaintiff, Wells Fargo Bank, N.A., brought suit pursuant to the Forcible Entry and
        Detainer Act (735 ILCS 5/9-101 et seq. (West 2010)) against defendant, Cecil W. Watson,
        for possession of a single-family residence located in Bolingbrook, Illinois. During the
        course of the trial court proceedings, plaintiff filed a motion for summary judgment. After
        a hearing, the trial court granted the motion. Defendant appeals the trial court’s grant of
        summary judgment for plaintiff. We affirm the trial court’s ruling.

¶2                                            FACTS
¶3          Defendant owned the residence in question and sold it to his cousin, Darrell Coburn, in
        May 2008. In order to finance the purchase, Coburn executed a note of approximately
        $177,000 and secured that debt with a mortgage from Franklin American Mortgage Company
        (Franklin), naming Mortgage Electronic Registration System, Inc. (MERS), as nominee for
        Franklin with the power to foreclose on the property in the event of a default by Coburn.1
        After the sale, defendant continued to reside at the residence with Coburn.
¶4          On September 1, 2009, plaintiff filed a mortgage foreclosure complaint in Will County
        case No. 09-CH-3901 (the foreclosure action), alleging that it was the holder of the mortgage

                1
                  To the extent permissible under the law and for the purpose of providing a thorough review
        of this case, we have taken judicial notice of the record and procedural facts set forth in appellate
        case No. 3-11-0847, a related appeal which is also before this court. See Ill. R. Evid. 201 (eff. Jan.
        1, 2011) (when appropriate, a court may take judicial notice, whether requested or not, at any stage
        of the proceedings); 735 ILCS 5/8-1002 (West 2010) (the appellate court shall take judicial notice
        of all matters of which the circuit court was required to take judicial notice); Walsh v. Union Oil Co.
        of California, 53 Ill. 2d 295, 299 (1972) (a court may take judicial notice of other proceedings in
        other courts under certain circumstances); People v. Davis, 65 Ill. 2d 157, 161-65 (1976) (a court
        may take judicial notice of matters of record in other cases in the same court under certain
        circumstances).

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     and note for the property. Coburn was the only named defendant in that suit. On November
     4, 2009, plaintiff filed motion for summary judgment in the foreclosure action and attached
     an undated supplemental document indicating that MERS, as nominee for Franklin, assigned
     the mortgage to plaintiff “prior to 08/24/2009.” The document was signed by Jill Rein, a
     “Certifying Officer” for MERS, and was notarized on September 25, 2009. Records from the
     Will County recorder’s office indicate that the assignment of mortgage in favor of plaintiff
     was not recorded until October 14, 2009, more than a month after the foreclosure action
     began on September 1, 2009.
¶5        On December 31, 2009, Coburn filed his response to the motion for summary judgment.
     Coburn claimed that he was procuring the necessary funds to cure his default before the next
     court date but did not challenge plaintiff’s standing to bring the foreclosure action.
¶6        In July 2010, the trial court granted summary judgment for plaintiff in the foreclosure
     action. The property was sold at a public sale on December 8, 2010. On March 11, 2011, the
     trial court approved the foreclosure sale and entered the final foreclosure judgment. The
     foreclosure judgment was signed by the Honorable Richard J. Siegel and provided that
     plaintiff was entitled to possession of the property and that the sheriff was to evict Coburn
     from the property. Coburn did not appeal the foreclosure judgment.
¶7        On September 19, 2011, plaintiff filed the instant forcible entry and detainer action
     against defendant in Will County case No. 11-LM-2802, seeking an order of possession to
     the property. An unsigned and undated copy of the foreclosure judgment from case No. 09-
     CH-3901 was attached to the complaint. The instant case was assigned to the Honorable
     Mark Thomas Carney. On October 21, 2011, plaintiff filed a motion for summary judgment
     in the instant case. Attached to the motion for summary judgment were copies of the
     foreclosure judgment (unsigned and undated); a written demand for possession addressed to
     Coburn and unknown occupants; proofs of service showing that the demand had been
     personally served on defendant and served by substitute service on Coburn (by delivery to
     defendant) at the residence on June 2, 2011; and an affidavit of posting showing that the
     demand for possession had also been posted on the front door of the residence on June 2,
     2011.
¶8        On November 4, 2011, Coburn filed a motion to vacate the foreclosure judgment in the
     foreclosure action. Coburn alleged in the motion to vacate that plaintiff lacked legal standing
     to file the mortgage foreclosure complaint. On that same date, defendant filed a response
     opposing summary judgment in the instant case. In his response, defendant made essentially
     the same allegation against plaintiff regarding lack of standing to file the mortgage
     foreclosure complaint in the mortgage foreclosure action. More specifically, defendant
     claimed that plaintiff filed the mortgage foreclosure complaint before the mortgage had been
     assigned to it and in so doing, obtained the mortgage foreclosure judgment by committing
     a fraud upon the court. Defendant attached to his response copies of the recorded deed
     transferring the property from defendant to Coburn in May 2008; the assignment of mortgage
     from MERS to plaintiff, which was notarized on September 25, 2009, and recorded on
     October 14, 2009; and the recorded notice of foreclosure.
¶9        On November 15, 2011, a hearing was held on Coburn’s motion to vacate in the


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       foreclosure action. At the conclusion of the hearing, Coburn’s motion was denied. No
       explanation for the denial was provided in the written order. Coburn appealed that denial,
       and that appeal is currently before this court in appeal No. 3-11-0847.
¶ 10       On November 16, 2011, a hearing was held on the motion for summary judgment in the
       instant case. At the conclusion of the hearing, the trial court granted plaintiff’s motion for
       summary judgment. No explanation for the trial court’s ruling was provided in the written
       order. Defendant appealed in the instant case to challenge the trial court’s ruling and filed
       an emergency motion in this court to stay the eviction pending appeal. We denied the motion
       to stay. A similar motion was denied in the trial court.

¶ 11                                         ANALYSIS
¶ 12       On appeal, defendant argues that the trial court erred in granting summary judgment for
       plaintiff. Defendant asserts that summary judgment should not have been granted because
       genuine issues of material fact remain as to whether plaintiff had legal standing to file the
       mortgage foreclosure complaint in the foreclosure action and whether plaintiff obtained the
       mortgage foreclosure judgment by committing fraud on the court. Plaintiff disputes
       defendant’s assertions and argues that the trial court’s ruling was proper and should be
       affirmed.
¶ 13       “The parties to a forcible entry and detainer action, like other civil litigants, may avail
       themselves of a motion for summary judgment where the procedural device is appropriate.”
       First Illinois Bank & Trust v. Galuska, 255 Ill. App. 3d 86, 90 (1993). The purpose of
       summary judgment is not to try a question of fact, but to determine if one exists. Adams v.
       Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment should be
       granted only where the pleadings, depositions, admissions, and affidavits on file, when
       viewed in the light most favorable to the nonmoving party, show that there is no genuine
       issue as to any material fact and that the moving party is clearly entitled to a judgment as a
       matter of law. 735 ILCS 5/2-1005(c) (West 2010); Adams, 211 Ill. 2d at 43. Summary
       judgment should not be granted if the material facts are in dispute or if the material facts are
       not in dispute but reasonable persons might draw different inferences from the undisputed
       facts. Adams, 211 Ill. 2d at 43. Although summary judgment is to be encouraged as an
       expeditious manner of disposing of a lawsuit, it is a drastic measure and should be allowed
       only where the right of the moving party is clear and free from doubt. Adams, 211 Ill. 2d at
       43. In appeals from summary judgment rulings, the standard of review is de novo. Adams,
       211 Ill. 2d at 43.
¶ 14       The purpose of the Forcible Entry and Detainer Act (Act) is to provide a speedy remedy
       to allow a person who is entitled to the possession of certain real property to be restored to
       possession. Rosewood Corp. v. Fisher, 46 Ill. 2d 249, 251 (1970) (per curiam). A forcible
       entry and detainer action, therefore, is a limited and distinct proceeding that determines who
       is entitled to immediate possession of real property. Avenaim v. Lubecke, 347 Ill. App. 3d
       855, 861 (2004). Because forcible entry and detainer actions are summary in nature, matters
       that are not germane to the issue of possession may not be raised. See Avenaim, 347 Ill. App.
       3d at 861; 735 ILCS 5/9-106 (West 2010) (except as otherwise provided, matters not


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       germane to the issue of possession may not be introduced into a forcible entry and detainer
       action by joinder, counterclaim or otherwise). Thus, “the only factual questions which need
       be answered in such a proceeding are which party is entitled to immediate possession and
       whether a defense which is germane to the distinctive purpose of the action defeats plaintiff’s
       asserted right to possession.” Galuska, 255 Ill. App. 3d at 90.
¶ 15       “Germane matters” are those that are closely connected with, and relevant to, the issue
       of possession (see Rosewood Corp., 46 Ill. 2d at 256) and generally fall into one of four
       categories: “(1) claims asserting a paramount right of possession; (2) claims denying the
       breach of the agreement vesting possession in the plaintiff; (3) claims challenging the
       validity or enforceability of the agreement on which the plaintiff bases the right to
       possession; or (4) claims questioning the plaintiff’s motivation for bringing the action.”
       People ex rel. Department of Transportation v. Walliser, 258 Ill. App. 3d 782, 788 (1994).
       Serious title disputes, however, may not be determined in a forcible entry and detainer action.
       Avenaim, 347 Ill. App. 3d at 862.
¶ 16       In the present case, at the summary judgment hearing in November 2011, the trial court
       had before it a judgment of foreclosure that clearly entitled plaintiff to possession. Although
       the judgment order was not dated or signed, defendant did not dispute that the order had been
       entered or that the copy presented was accurate. In addition, defendant presented no evidence
       to establish by way of a defense that he had any legal interest in the property or that he was
       rightfully entitled to possession. Based upon the evidence that was presented, it was proper
       for the trial court to grant summary judgment for plaintiff on its forcible entry and detainer
       complaint. See 735 ILCS 5/2-1005(c) (West 2010); Adams, 211 Ill. 2d at 43. The matters
       asserted by defendant in opposition to plaintiff’s motion for summary judgment were not
       germane to the issue of possession but, rather, constituted a collateral attack on the mortgage
       foreclosure judgment. See Norwest Mortgage, Inc. v. Ozuna, 302 Ill. App. 3d 674, 680
       (1998) (actions for mortgage foreclosure and forcible entry and detainer were separate and
       distinct actions); Lady v. Montgomery Ward & Co., 80 Ill. App. 3d 69, 72-73 (1980) (tenant
       who was named defendant in mortgage foreclosure proceeding could not contest mortgage
       foreclosure judgment in forcible entry and detainer action because of application of collateral
       estoppel). Defendant’s assertions, therefore, were properly rejected by the trial court. See 735
       ILCS 5/9-106 (West 2010); Rosewood Corp., 46 Ill. 2d at 255-56; Avenaim, 347 Ill. App. 3d
       at 861; Galuska, 255 Ill. App. 3d at 90; Walliser, 258 Ill. App. 3d at 788.
¶ 17       For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 18      Affirmed.




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