                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                   Bank of America, N.A. v. Land, 2013 IL App (5th) 120283




Appellate Court            BANK OF AMERICA, N.A., as Successor by Merger to BAC Home
Caption                    Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP,
                           Plaintiff-Appellee, v. GEORGE M. LAND, EUNICE F. LAND, and
                           Unknown Owners and Nonrecord Claimants, Defendants-Appellants.


District & No.             Fifth District
                           Docket No. 5-12-0283


Rule 23 Order filed        June 24, 2013
Motion to publish
granted                    July 31, 2013
Opinion filed              July 31, 2013


Held                       In a mortgage foreclosure action, the entry of summary judgment for
(Note: This syllabus       plaintiff mortgagee, including a judgment for foreclosure and sale and an
constitutes no part of     award of attorney fees and costs, was affirmed, notwithstanding
the opinion of the court   defendants’ contentions that a question of material fact existed as to the
but has been prepared      balance of their loan, that the denial of their last-minute pleadings was an
by the Reporter of         abuse of discretion and that the fees and costs were improperly awarded,
Decisions for the          since defendants did not present a counteraffidavit challenging plaintiff’s
convenience of the         affidavit as to the loan balance, there was no prejudice where the trial
reader.)
                           court considered arguments on defendants’ last-minute claims before
                           rejecting them, and defendants’ objection to the award of attorney fees
                           and costs was waived.


Decision Under             Appeal from the Circuit Court of Johnson County, No. 11-CH-21; the
Review                     Hon. James R. Williamson, Judge, presiding.
Judgment                  Affirmed.


Counsel on                Alfred E. Sanders, Jr., of Sanders & Associates, of Marion, for appellants.
Appeal
                          Louis J. Manetti, Jr., of Codilis & Associates, P.C., of Burr Ridge, for
                          appellee.


Panel                     JUSTICE WEXSTTEN delivered the judgment of the court, with
                          opinion.
                          Presiding Justice Spomer and Justice Stewart concurred in the judgment
                          and opinion.




                                            OPINION



¶1                                              FACTS
¶2          In July 2011, the plaintiff, Bank of America, N.A. (BOA), commenced a foreclosure
        action against the defendants, George and Eunice Land (the Lands), in the circuit court of
        Johnson County. BOA’s complaint for foreclosure alleged that in June 2007, the Lands and
        one of its predecessors in interest had entered into a mortgage agreement through which the
        Lands had been loaned $125,000 to finance their purchase of real estate commonly known
        as 4715 Lick Creek Road, Buncombe, Illinois. The complaint further alleged that the Lands
        had not paid a monthly mortgage installment since August 2010 and that the outstanding
        principal on their loan was approximately $121,000.
¶3          In October 2011, after unsuccessfully moving to dismiss BOA’s complaint for
        foreclosure, the Lands filed an answer with affirmative defenses and counterclaims. In
        November 2011, BOA filed a motion to strike the affirmative defenses and counterclaims.
        In March 2012, the circuit court entered a modified order striking the Lands’ affirmative
        defenses without prejudice and dismissing their counterclaims without prejudice. Three
        weeks later, BOA filed a motion for summary judgment pursuant to section 2-1005 of the
        Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). The cause proceeded to a
        hearing on BOA’s motion for summary judgment in June 2012.
¶4          On the day of the hearing on BOA’s motion for summary judgment, the Lands filed a
        response to the motion and a motion for leave to amend their answer with affirmative
        defenses and counterclaims. At the commencement of the hearing, BOA objected to the
        untimely filing of the Lands’ response and motion for leave to amend, and the circuit court
        entertained arguments on the matter. Suggesting that the pleadings should have been filed

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       “before walking in the courtroom” on the day of the scheduled hearing, the court ultimately
       struck the Lands’ response to BOA’s motion for summary judgment and denied their motion
       for leave to amend their answer with affirmative defenses and counterclaims. The court
       nevertheless allowed the Lands to file an affidavit in which they attested to having made a
       $489.80 payment on the loan in September 2009. See 735 ILCS 5/2-1005(c) (West 2010)
       (providing that a party in opposition to a motion for summary judgment “may prior to or at
       the time of the hearing on the motion file counteraffidavits”).
¶5         In support of its motion for summary judgment, BOA submitted an affidavit from
       Jennifer Lynn Cherks, an assistant vice president of BOA. The affidavit included a record
       of all payments that the Lands had made on the aforementioned mortgage and stated the total
       “amount of the default” as of December 23, 2011. In response, the Lands objected to the
       admission of Cherks’ affidavit, arguing, inter alia, that it included information that preceded
       BOA’s acquisition of the loan.
¶6         At the conclusion of the hearing, the circuit court granted BOA’s motion for summary
       judgment. The court subsequently entered a written judgment for foreclosure and sale and
       awarded BOA $3,654 in attorney fees and costs. The judgment included an express written
       finding that it was a final and appealable order and that there was “no just cause for delaying
       the enforcement of [the] judgment or appeal therefrom.” See Ill. S. Ct. R. 304(a) (eff. Feb.
       26, 2010). The Lands subsequently filed a notice of appeal, which noted that it was timely
       filed “pursuant to Supreme Court Rule[s] 303 and 304.”

¶7                                        DISCUSSION
¶8         On appeal, the Lands argue that the circuit court erred in (1) granting BOA’s motion for
       summary judgment, (2) striking their response to the motion and denying their motion for
       leave to amend their answer, and (3) awarding BOA attorney fees and costs. We will address
       each contention in turn.

¶9                            BOA’s Motion for Summary Judgment
¶ 10        Because summary judgment is a drastic means of disposing of litigation, it should only
       be used where the pleadings and other evidentiary material in the record, when viewed in a
       light most favorable to the nonmoving party, demonstrate that no genuine issue of material
       fact exists and that the moving party is entitled to judgment as a matter of law. Sardiga v.
       Northern Trust Co., 409 Ill. App. 3d 56, 61 (2011). “The purpose of summary judgment is
       not to try a question of fact but to determine whether one exists.” Tannehill v. Costello, 401
       Ill. App. 3d 39, 42 (2010). We review the circuit court’s granting of summary judgment de
       novo. Id. at 41.
¶ 11        The Lands maintain that Cherks’ affidavit was insufficient to support BOA’s motion for
       summary judgment. Noting that other entities had assumed their mortgage prior to BOA, the
       Lands suggest that Cherks’ purported testimony “as to records kept by another company”
       would be inadmissible hearsay if offered at trial. The Lands thus suggest that Cherks’
       affidavit did not sufficiently demonstrate that BOA was entitled to judgment as a matter of
       law. See Skipper Marine Electronics, Inc. v. United Parcel Service, Inc., 210 Ill. App. 3d

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       231, 236 (1991) (“An affidavit in support of a motion for summary judgment is actually a
       substitute for testimony taken in open court and should meet the same requirements as
       competent testimony.”); Loveland v. City of Lewistown, 84 Ill. App. 3d 190, 192-93 (1980)
       (“It is true that if the evidence is not admissible at trial, it would not be admissible in an
       affidavit accompanying a motion for summary judgment.”). We disagree.
¶ 12       Illinois Supreme Court Rule 236, which codifies the business-records exception to the
       hearsay rule, provides as follows:
           “Any writing or record, whether in the form of any entry in a book or otherwise, made
           as a memorandum or record of any act, transaction, occurrence, or event, shall be
           admissible as evidence of the act, transaction, occurrence, or event, if made in the regular
           course of any business, and if it was the regular course of the business to make such a
           memorandum or record at the time of such an act, transaction, occurrence, or event or
           within a reasonable time thereafter. All other circumstances of the making of the writing
           or record, including lack of personal knowledge by the entrant or maker, may be shown
           to affect its weight, but shall not affect its admissibility. The term ‘business,’ as used in
           this rule, includes business, profession, occupation, and calling of every kind.” Ill. S. Ct.
           R. 236(a) (eff. Aug. 1, 1992).
       Notably, “Rule 236 expressly provides that lack of personal knowledge by the maker may
       affect the weight of the evidence but not its admissibility.” In re Estate of Weiland, 338 Ill.
       App. 3d 585, 601 (2003).
¶ 13                “The theory upon which entries made in the regular course of business are
                    admissible as an exception to the hearsay rule is that ‘since their purpose is to aid
                    in the proper transaction of the business and they are useless for that purpose
                    unless accurate, the motive for following a routine of accuracy is great and the
                    motive to falsify nonexistent.’ ” Kimble v. Earle M. Jorgenson Co., 358 Ill. App.
                    3d 400, 414 (2005) (quoting Michael H. Graham, Cleary and Graham’s
                    Handbook of Illinois Evidence § 803.10, at 817 (7th ed. 1999)).
       “Thus, it makes no difference whether the records are those of a party or of a third person
       authorized by the business to generate the record on the business’s behalf.” Id. A party may
       therefore establish a foundation for admitting business records through the testimony of a
       records custodian or “another person familiar with the business and its mode of operation.”
       In re Estate of Weiland, 338 Ill. App. 3d at 600. The admission of business records is
       reviewed for an abuse of discretion. Id.
¶ 14       Here, in her affidavit, Cherks attested that she was personally familiar with BOA’s
       procedures for creating and maintaining its business records and that its records pertaining
       to the Lands’ mortgage were “made at or near the time of the occurrence of the matters set
       forth therein by persons with personal knowledge of the information in the business record.”
       She further attested that the records were kept in the course of BOA’s regularly conducted
       business activities and that it was BOA’s regular practice to make and keep such records.
       Cherks’ affidavit was thus admissible pursuant to Rule 236 and provided a sufficient basis
       upon which to conclude that BOA was entitled to judgment as a matter of law. See
       Independent Trust Corp. v. Hurwick, 351 Ill. App. 3d 941, 950 (2004) (business records


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       offered in support of motion for summary judgment properly considered where affidavits
       established that the records were made in the regular course of business and that it was the
       regular course of business to prepare such records); Farm Credit Bank of St. Louis v.
       Biethman, 262 Ill. App. 3d 614, 622 (1994) (trust deed and promissory note established
       prima facie case of foreclosure); Miller v. Swanson, 66 Ill. App. 2d 179, 185 (1965)
       (promissory notes, trust deed, and “proof of default in the performance of their terms”
       established right of recovery and foreclosure); see also 735 ILCS 5/15-1506(a)(2) (West
       2010) (“[W]here all the allegations of fact in the complaint have been proved by verification
       of the complaint or affidavit, the court upon motion supported by an affidavit stating the
       amount which is due the mortgagee, shall enter a judgment of foreclosure as requested in the
       complaint.”).
¶ 15       The Lands also argue that granting BOA’s motion for summary judgment was improper
       because there remains a question of material fact as to the balance of their loan, which
       Cherks’ affidavit stated was $139,620.95, as of December 23, 2011. Noting that in 2009 and
       2010, they made a series of $489.80 payments pursuant to a loan-modification agreement
       with BOA, the Lands maintain that the modified payments were not timely applied to the
       principal of their loan and that the accrued interest on the loan was thus improperly
       calculated. They further suggest that the private mortgage insurance (PMI) on the loan might
       have somehow “served to reduce” the total amount owed. At the hearing on BOA’s motion
       for summary judgment, these claims were addressed, and the circuit court implicitly rejected
       them.
¶ 16       The loan-modification agreement stated that the Lands’ $489.80 payments would be held
       “in a non-interest bearing account until they total an amount that is enough to pay [the] oldest
       delinquent monthly payment on [the] loan in full.” At the hearing on BOA’s motion for
       summary judgment, the Lands complained that when their modified payments totaled a
       delinquent payment amount, the payments had not been immediately applied to the principal,
       noting that it took 19 days in one instance and 15 days in another. As BOA notes, however,
       the modification agreement did not “place a timeline on when [the lender] needed to apply
       the payments from the suspense account,” and in all instances, the payments were applied
       to the loan as agreed. In the absence of a specific timeline, a reasonable time is implied (The
       Prime Group, Inc. v. Northern Trust Co., 215 Ill. App. 3d 1065, 1070 (1991)), and in any
       event, “facts contained in an affidavit in support of a motion for summary judgment which
       are not contradicted by counteraffidavit are admitted and must be taken as true for purposes
       of the motion” (Purtill v. Hess, 111 Ill. 2d 229, 241 (1986); see also Bloomingdale State
       Bank v. Woodland Sales Co., 186 Ill. App. 3d 227, 234 (1989) (defendant’s counterclaim
       properly dismissed where supporting affidavit did not contain “new evidence or facts” and
       “only purported to state that the [b]ank [had] breached the standard of care of the industry
       based on the other facts which were presented before the court”)).
¶ 17       Here, the Lands did not submit a counteraffidavit contradicting BOA’s affidavit
       regarding the balance of the loan, and under the circumstances, the circuit court rightfully
       relied on BOA’s calculations when entering summary judgment. See In re Marriage of
       Palacios, 275 Ill. App. 3d 561, 568 (1995) (“The mere suggestion that a genuine issue of
       material fact exists without supporting documentation does not create an issue of material

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       fact precluding summary judgment.”). With respect to the Lands’ claim that the PMI might
       have somehow reduced the balance of their loan, we agree with BOA’s assessment that this
       argument amounts to theoretical speculation that the Lands have no standing to make. “PMI
       protects the mortgage lender in the event the mortgage borrower defaults” (Perez v. Citicorp
       Mortgage, Inc., 301 Ill. App. 3d 413, 415 (1998)), and a third party cannot claim rights under
       a contract unless “the contract was entered into for the party’s direct benefit” (Alaniz v. Schal
       Associates, 175 Ill. App. 3d 310, 312 (1988)).
¶ 18       Here, the Lands’ mortgage agreement required them to pay the premiums for the PMI,
       but the agreement specifically stated that they were “not a party” to the insurance. The Lands
       therefore lack standing to raise a claim with respect to the PMI. We also note that at the
       hearing on BOA’s motion for summary judgment, BOA maintained that it could not even
       “make a claim on [the] PMI until there [was] actually a [j]udgment for [f]oreclosure and a
       sale [of the property].”

¶ 19                             The Lands’ Last-Minute Pleadings
¶ 20       As noted above, on the day of the hearing on BOA’s motion for summary judgment, the
       Lands filed a response to the motion and a motion for leave to amend their answer with
       affirmative defenses and counterclaims. Suggesting that the pleadings were untimely
       brought, the circuit court struck the former and denied the latter. The Lands assert that the
       circuit court abused its discretion in this regard. We disagree.
¶ 21       The right to amend pleadings is not absolute or unlimited, and the circuit court’s decision
       to grant or deny that right will not be disturbed absent an abuse of discretion. Resolution
       Trust Corp. v. Holtzman, 248 Ill. App. 3d 105, 110 (1993). When deciding whether to allow
       a party to amend its pleadings, the circuit court can consider the timeliness of the request, the
       party’s previous opportunities to assert its claims, and the ultimate efficacy of the claims. Id.
       at 111. “In determining whether the court’s discretion has been abused, the central concern
       is whether the court’s decision furthers the ends of justice.” Shaifer v. Folino, 272 Ill. App.
       3d 709, 720 (1995). Whether to allow a party to file a late response to a motion for summary
       judgment is also a matter within the circuit court’s discretion. Premier Electrical
       Construction Co. v. Morse/Diesel, Inc., 257 Ill. App. 3d 445, 454 (1993).
¶ 22       Here, the Lands filed their answer with affirmative defenses and counterclaims in
       October 2011, and their alleged defenses and counterclaims sounded in fraud, breach of
       contract, and lack of standing. In November 2011, BOA filed a motion to strike the
       defendant’s affirmative defenses and counterclaims, maintaining that they were either
       inapplicable or insufficiently pled. In January 2012, the circuit court entered an order striking
       the Lands’ affirmative defenses with prejudice and dismissing their counterclaims without
       prejudice. In March 2012, on the Lands’ motion, the circuit court entered a modified order
       striking the affirmative defenses without prejudice and dismissing the counterclaims without
       prejudice. Three weeks later, BOA filed its motion for summary judgment.
¶ 23       In June 2012, on the day of the hearing on BOA’s motion for summary judgment, the
       Lands tendered their motion for leave to amend their answer with affirmative defenses and
       counterclaims. The motion for leave suggested that BOA lacked standing to bring its

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       forfeiture action and that the Lands had been “misled” with respect to the application of their
       modified loan payments. Along with their motion for leave to amend, the Lands also filed
       their response to BOA’s motion for summary judgment. The Lands’ response alleged that
       Cherks’ affidavit was insufficient to support BOA’s motion for summary judgment and that
       the PMI payments and untimely application of their modified loan payments raised a
       question of material fact as to the balance of the loan. The response contained an affidavit
       in which the Lands attested to having made a $489.80 payment on the loan in September
       2009.
¶ 24        The circuit court has the discretion to manage its docket to ensure that there is no undue
       delay in the resolution of the proceedings before it (Scentura Creations, Inc. v. Long, 325 Ill.
       App. 3d 62, 73 (2001)), and here, the circuit court did not abuse its discretion in denying the
       Lands’ motion for leave to amend their answer and striking their response to BOA’s motion
       for summary judgment. The Lands’ contention that BOA lacked standing was previously
       resolved against them when the circuit court denied their motion to dismiss BOA’s complaint
       for foreclosure upon proof that BOA had assumed the Lands’ mortgage as a holder in due
       course. The Lands’ assertion that they were somehow “misled” was a mere conclusion, and
       their motion for leave to amend did not reference or reiterate the allegations of fraud and
       breach of contract that were alleged in their previously dismissed answer to BOA’s
       complaint. Moreover, the Lands did not submit a proposed amended answer. “Where the
       party seeking to amend does not attach a proposed amended pleading to its motion or
       otherwise specify the new allegations that it would include, a trial court has no basis on
       which to consider whether the amendment would cure the defects in the current pleading,”
       which is always a “primary” factor to consider. Hytel Group, Inc. v. Butler, 405 Ill. App. 3d
       113, 128 (2010). Although the circuit court struck the Lands’ response to BOA’s motion for
       summary judgment, the Lands were allowed to file their supporting affidavit, and the court
       entertained arguments on the underlying claims before rejecting them. The court thus
       considered the ultimate efficacy of the claims, notwithstanding their untimeliness and the
       Lands’ previous opportunities to assert them. We thus agree with BOA’s assertion that the
       circuit court “reviewed everything necessary” before determining that BOA was entitled to
       judgment as a matter of law. We further agree that the circuit court did not abuse its
       discretion with respect to the Lands’ last-minute pleadings and that there was no resulting
       prejudice. See Morse/Diesel, Inc., 257 Ill. App. 3d at 452-56 (concluding that the circuit
       court did not abuse its discretion in denying plaintiff’s requests to file untimely response to
       defendant’s motion for summary judgment where plaintiff was permitted to present oral
       arguments at the hearing on defendant’s motion and the court’s decision was not “unfair or
       unjust” under the circumstances); Holtzman, 248 Ill. App. 3d at 111, 113 (concluding that
       the circuit court did not abuse its discretion in denying defendants’ untimely request for leave
       to file amended defenses and counterclaim where the court “considered the ultimate efficacy
       of defendants’ claims and found that the tendered affirmative defenses did not advance a
       cognizable legal theory which would abate the foreclosure”).

¶ 25                                      Attorney Fees
¶ 26      The Lands lastly argue that the circuit court improperly awarded BOA attorney fees and

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       costs. BOA counters that the Lands’ “argument about attorney fees was not raised at the trial
       court level” and should thus be “disregarded.” BOA further maintains that the argument is
       without merit.
¶ 27        In its complaint for foreclosure, BOA’s request for relief included attorney fees and costs,
       “if sought.” In its motion for summary judgment, BOA specifically requested that the circuit
       court enter a judgment for foreclosure and sale. At the conclusion of the hearing on BOA’s
       motion for summary judgment, BOA’s attorney tendered a draft order that the circuit court
       adopted and entered as its written judgment order for foreclosure and sale. BOA’s attorney
       also submitted a certificate of prove-up of attorney fees and costs, which listed itemized
       expenses totaling $3,654. In its written judgment order, the circuit court referenced the
       certificate of prove-up and granted BOA the requested award. The court’s order noted that
       pursuant to the terms of the Lands’ mortgage agreement, BOA was entitled to both attorney
       fees and foreclosure costs. The judgment order for foreclosure and sale was filed the same
       day as the hearing. As indicated, the Lands challenge the circuit court’s judgment awarding
       BOA attorney fees and costs for the first time on appeal. They do not contest that BOA was
       entitled to recover its attorney fees and costs, however, nor do they claim that the fees were
       unreasonable.
¶ 28        To preserve an alleged error for purposes of appellate review, a party must raise an
       objection in the circuit court, or the issue is deemed waived on appeal. LaSalle Bank, N.A.
       v. C/HCA Development Corp., 384 Ill. App. 3d 806, 826 (2008). The Lands assert that their
       failure to object to the attorney fees award in the present case should be excused, however,
       because they were not served with proper notice that the award was being sought and
       granted. In support of their argument, the Lands cite First Judicial Circuit Court Rule 1.12,
       which states as follows:
            “Preparation of Judgments and Orders
                 Unless the court directs otherwise, whenever a written order or judgment is required,
            the attorney for the prevailing party shall promptly prepare and present a draft to the
            court, with proof of service on opposing counsel. The draft tendered may be entered
            forthwith unless objection is made within five working days after service of the draft.”
            1st Judicial Cir. Ct. R. 1.12 (Sept. 1, 2010).
¶ 29        Relatedly, Illinois Supreme Court Rule 272, which was adopted to resolve issues
       regarding the timeliness of an appeal by removing “any doubt” as to the date that a final
       judgment was entered (Stoermer v. Edgar, 104 Ill. 2d 287, 293 (1984)), states, in pertinent
       part:
                 “If at the time of announcing final judgment the judge requires the submission of a
            form of written judgment to be signed by the judge or if a circuit court rule requires the
            prevailing party to submit a draft order, the clerk shall make a notation to that effect and
            the judgment becomes final only when the signed judgment is filed.” Ill. S. Ct. R. 272
            (eff. Nov. 1, 1990).
¶ 30        Here, the record indicates that BOA’s attorney submitted her certificate of prove-up along
       with BOA’s draft order of the judgment for foreclosure and sale in open court at the
       conclusion of the hearing on BOA’s motion for summary judgment. On appeal, BOA does

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       not dispute that the Lands were not personally served with copies of these documents prior
       to their filing. Noting that circuit court rule 1.12 requires proof of service “[u]nless the court
       directs otherwise” (1st Judicial Cir. Ct. R. 1.12 (Sept. 1, 2010)), however, BOA argues that
       the circuit court “directed a procedure other than the one contemplated by the local rule.” We
       agree, and we note that the rule’s directive that the prevailing party “promptly prepare and
       present a draft to the court” seemingly envisions a period of time that is nonexistent where
       a draft is tendered instanter, as was done in the present case. See Morgan v. Department of
       Financial & Professional Regulation, 388 Ill. App. 3d 633, 673 (2009) (noting that the word
       “promptly” has “been defined as ‘without appreciable delay’ ” (quoting Barry v. Barchi, 443
       U.S. 55, 66 (1979)) and that “ ‘[t]o do something “promptly” is to do it without delay and
       with reasonable speed’ ” (quoting Black’s Law Dictionary 1214 (6th ed. 1990))); In re Estate
       of Davison, 21 Ill. App. 3d 1043, 1044 (1974) (noting that the word “instanter” means “ ‘at
       once, or immediately’ ” (quoting Hamilton v. People, 163 Ill. App. 541, 544 (1911))). We
       thus agree with BOA’s intimation that the Lands are unable to establish that circuit court rule
       1.12 was violated in the present case.
¶ 31        “Courts in Illinois have held that a party waives his right to a hearing on attorney fees
       where he did not request a hearing before the trial court and is thereby left with the judge’s
       ruling on the basis of the fee petition and affidavits alone.” In re Marriage of Jones, 187 Ill.
       App. 3d 206, 231 (1989). Here, in light of their mortgage agreement and BOA’s complaint
       for foreclosure, the Lands were on notice that the circuit court might award BOA attorney
       fees and costs as part of its final judgment, but they did not object. That alone supports a
       finding that the Lands’ instant objection has been waived. See Coldwell Banker Havens, Inc.
       v. Renfro, 288 Ill. App. 3d 442, 448 (1997) (holding that where defendants requested attorney
       fees in their counterclaim’s prayer for relief and plaintiff did not object to the request,
       plaintiff waived objection for purposes of appeal). The Lands were further aware that
       pursuant to Supreme Court Rule 272, they could not perfect an appeal until the circuit court’s
       written judgment for foreclosure and sale was signed and filed. See Ill. S. Ct. R. 272 (eff.
       Nov. 1, 1990). Lastly, as BOA observes, the Lands knew that by local rule, they had five
       days to review and challenge the judgment order while the circuit court still retained
       jurisdiction over the matter. See 1st Judicial Cir. Ct. R. 1.12 (Sept. 1, 2010). The Lands
       complain because they were not personally served with the judgment order, but it was
       presented in their presence in open court and was filed without objection. Under the
       circumstances, we conclude that at the very least, the Lands had constructive notice of the
       order’s contents (see La Salle National Bank v. Dubin Residential Communities Corp., 337
       Ill. App. 3d 345, 352 (2003) (“Constructive notice is defined as ‘[n]otice arising by
       presumption of law from the existence of facts and circumstances that a party had a duty to
       take notice of ***; notice presumed by law to have been acquired by a person and thus
       imputed to that person.’ ” (quoting Black’s Law Dictionary 1088 (7th ed. 1999)))), and we
       infer that the Lands waived their right to challenge BOA’s claimed attorney fees (see Hahn
       v. A.G. Becker Paribas, Inc., 164 Ill. App. 3d 660, 670 (1987) (“When a party intentionally
       relinquishes a known right, either expressly, as by objection, or by conduct such as silence,
       inconsistent with an intent to enforce that right, waiver may be inferred.”); see also
       Corporation of Harpers Ferry v. Taylor, 711 S.E.2d 571, 575 (W. Va. 2011) (“ ‘Even though


                                                  -9-
       a party against whom costs and attorney’s fees are to be assessed has a due process right to
       notice and an opportunity to be heard thereon prior to their imposition, it is imperative for
       a party to actively enforce his/her notice and hearing rights instead of sitting on his/her
       laurels and effectively waiving the process to which he/she is due.’ ” (quoting In re John T.,
       695 S.E.2d 868, 878 (W. Va. 2010) (Davis, C.J., concurring)))).
¶ 32       The circuit court “has broad discretionary powers in awarding attorney fees and its
       decision will not be reversed on appeal unless the court abused its discretion.” In re Estate
       of Callahan, 144 Ill. 2d 32, 43-44 (1991). Here, the Lands have waived their objection to the
       circuit court’s judgment awarding BOA attorney fees and costs, and the court did not
       otherwise abuse its discretion in determining that BOA was entitled to the same. See Sterling
       Homes, Ltd. v. Raspberry, 325 Ill. App. 3d 703, 708 (2001) (circuit court properly awarded
       attorney fees on submitted affidavit where the fees were reasonable and warranted).

¶ 33                                      CONCLUSION
¶ 34       For the foregoing reasons, the judgment of the circuit court of Johnson County is hereby
       affirmed.

¶ 35      Affirmed.




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