                                      2019 IL App (1st) 172963
                                           No. 1-17-2963
                                           March 4, 2019

                                                                                  FIRST DIVISION



                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT


     WELLS FARGO BANK, N.A.,                      )        Appeal from the Circuit Court
                                                  )        Of Cook County.
            Plaintiff-Appellee,                   )
                                                  )        No. 15 CH 6352
            v.                                    )
                                                  )        The Honorable
     TYRONE SMITH; BRIGETTE SMITH;                )        Fredrenna Lyle,
     PORTFOLIO RECOVERY ASSOCIATES,               )        Judge Presiding.
     LLC; THE STATE OF ILLINOIS; THE              )
     ILLINOIS HOUSING DEVELOPMENT                 )
      AUTHORITY; and UNKNOWN OWNERS               )
     AND NONRECORD CLAIMANTS                      )
                                                  )
            Defendants                            )
     (Tyrone Smith and Bridget Smith, Defendants- )
     Appellants).                                 )



                  JUSTICE WALKER delivered the judgment of the court, with opinion.
                  Justice Pierce and Justice Griffin concurred in the judgment and opinion.


                                            OPINION

¶1         Plaintiff Wells Fargo Bank, N.A. (Wells Fargo), filed a motion for summary judgment

        and requested the trial court enter a judgment of foreclosure and sale against defendant

        Tyrone Smith (Smith) on September 30, 2015. Wells Fargo attached a loss mitigation
     No. 1-17-2963


        affidavit sworn to on September 3, 2015, specifying a loss mitigation program applicable to

        Smith’s mortgage, the steps taken to offer the loss mitigation program to Smith, and the

        status of those mitigation efforts as required by Illinois Supreme Court Rule 114 (eff. May 1,

        2013). The trial court denied Wells Fargo’s motion. On December 2, 2016, Wells Fargo filed

        a new motion for summary judgment and requested the court enter a judgment of foreclosure

        and sale and attached the same September 3, 2015, loss mitigation affidavit. The trial court

        granted the motion and entered a judgment of foreclosure and sale against Smith. Smith

        appealed and argues that Wells Fargo failed to comply with Rule 114 because the September

        3, 2015, loss mitigation affidavit was sworn to over one year before Wells Fargo filed its

        motions for summary judgment and judgment of foreclosure and sale; therefore, the affidavit

        did not indicate the current status of mitigation efforts embarked upon by Wells Fargo at the

        time of its December 2, 2016, motion for judgment of foreclosure.

¶2                                           I. BACKGROUND

¶3          On July 3, 2012, Smith executed a mortgage loan for $158,272 with Wintrust Mortgage,

        a division of Barrington Bank and Trust Company (Wintrust), secured by real property

        located at 1026 31st Avenue, Bellwood, Illinois. On October 30, 2012, Wintrust assigned the

        mortgage to Wells Fargo.

¶4          On April 16, 2015, Wells Fargo filed a foreclosure complaint against Smith. Wells Fargo

        also named Brigette Smith (Brigette) as defendant on the belief that she is Smith’s spouse

        and may have some interest on the property. 1


            1
            Wells Fargo also named as defendants (i) Portfolio Recovery Associates, LLC, who secured a
     judgment against Smith, (ii) the State of Illinois, who recorded a lien against Smith for nonpayment of
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¶5          On September 30, 2015, Well Fargo filed a motion for entry of an order of default and

        judgment of foreclosure and sale. In support of the motion, Wells Fargo attached two

        affidavits: (1) an affidavit of amounts due and owing and (ii) a loss mitigation affidavit.

¶6          The affidavit of amounts due and owing was sworn to by Bridget A. Noble, vice

        president of loan documentation for Wells Fargo on September 21, 2015. Noble averred that

        Wells Fargo uses a “Mortgage Servicing Platform” to record and track mortgage payments

        and that based on the platform entries, Smith had failed to make payments. The affidavit

        indicated that as of September 15, 2015, the amount due and owing under the note was

        $160,242.22.

¶7          The loss mitigation affidavit was sworn to by Jasmin McLean, vice president of loan

        documentation for Wells Fargo on September 3, 2015. McLean averred that, after reviewing

        Wells Fargo’s business records relating to Smith’s mortgage, she found Smith’s loan eligible

        for a loss mitigation program called “FHA foreclosure avoidance options.” McLean further

        averred that “the following steps have been taken by [Wells Fargo] to comply with its

        obligations under such programs” including “Solicitation Letters,” “Outbound Calls,”

        “Denial/Appeal Period Letters,” and “Additional Information Required Letters.” McLean

        further averred the current status of the loss mitigation effort under the foreclosure avoidance

        program was “denied.”

¶8          On November 30, 2015, Smith filed his answer to Wells Fargo’s foreclosure complaint.

        Smith generally denied many of the allegations in the complaint or asserted a lack of



     Illinois individual income tax, and (iii) the Illinois Housing Development Authority, to whom Smith and
     Brigette executed a recapture agreement to secure a note in the principal sum of $35,000.
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          sufficient knowledge to answer the allegation. On December 24, 2015, Wells Fargo filed a

          second motion for entry of an order of default and judgment of foreclosure and sale and

          attached the same affidavit of amounts due and owing and the loss mitigation affidavit. Wells

          Fargo also filed a motion for summary judgment arguing that Smith’s general denials in his

          answer did not create a genuine issue of material fact.

¶9           On March 16, 2016, Smith filed his response to Wells Fargo’s motion for summary

          judgment. Smith argued both the amounts due affidavit and the mitigation affidavit failed to

          comply with Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) because Wells Fargo

          failed to attach copies of the documents the affiants relied on. On April 15, 2016, Wells

          Fargo filed its reply in support of its motion for summary judgment. Wells Fargo argued that

          its complaint and affidavits complied with the Illinois Mortgage Foreclosure Law (735 ILCS

          5/15-1101 et seq. (West 2016)) which governs mortgage foreclosure proceedings in Illinois.

          Wells Fargo contended that it established a prima facie case of foreclosure when it submitted

          into evidence the note, mortgage, and the amounts due affidavit, and that it was Smith’s

          burden to prove payment, which he failed to do. On May 4, 2016, the trial court denied Wells

          Fargo’s motion for summary judgment without prejudice.

¶ 10         On December 2, 2016, Wells Fargo filed a new motion for summary judgment and a new

          motion for entry of an order of default and judgment of foreclosure. The motion for summary

          judgment again argued that Smith’s general denials in his answer did not create a genuine

          issue of material fact and, therefore, Wells Fargo was entitled an entry of judgment. In

          support of these motions, Wells Fargo attached the same September 3, 2015, loss mitigation

          affidavit but a new affidavit of amounts due and owing. The new affidavit of amounts due

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          and owning was sworn to by Matthew Joseph Julian, another vice president of loan

          documentation for Wells Fargo on October 31, 2016. The affidavit indicated that as of

          October 28, 2016, the amount due and owing on the note was $174,678.50.

¶ 11          On February 22, 2017, Smith filed his answer to Wells Fargo’s motion for summary

          judgment. Smith argued the September 3, 2015, mitigation affidavit was “outdated and

          cannot provide the ‘current status of loss mitigation’ ” where Wells Fargo moved for

          foreclosure on December 2, 2016. Accordingly, Smith requested the court order Wells Fargo

          to file an updated loss mitigation affidavit that was current as of the filing of the December 2,

          2016, motion for summary judgment and motion for entry of an order of default and

          judgment of foreclosure and sale. On March 2, 2017, Wells Fargo filed its reply in support of

          its motion for summary judgment. Wells Fargo argued that at the time the mitigation

          affidavit was executed, it indicated the current status of its loss mitigation efforts and that

          there was no requirement to file a current loss mitigation affidavit.

¶ 12          On March 13, 2017, the trial court found that Smith’s answer, “as pleaded without

          sufficient documentation,” did not raise a genuine issue of material fact and granted Wells

          Fargo’s motion for summary judgment. The trial court also entered a judgment of foreclosure

          and sale against Smith. 2 On September 21, 2017, the property was sold at a judicial sale and

          the trial court entered an order approving the sale on November 1, 2017. Smith and Brigette

          filed their notice of appeal on November 30, 2017, and filed an amended notice of appeal on

          December 11, 2017.

              2
                The trial court also entered an order of default against named defendants Brigette, Portfolio
       Recovery Associates, LLC, the State of Illinois, and the Illinois Housing Development authority after
       finding that they failed to appear or plead.
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¶ 13                                           II. ANALYSIS

¶ 14                                       A. Standard of Review

¶ 15         Smith argues the trial court erred when it granted Wells Fargo’s motion for summary

          judgment and entered a judgment of foreclosure and sale against Smith. Smith contends there

          remained a genuine issue of material fact as to whether Wells Fargo’s loss mitigation

          affidavit sufficiently complied with Rule 114. When interpreting a supreme court rule, we

          ascertain and give effect to the intent of the supreme court for promulgating the rule. Wells

          Fargo Bank, N.A. v. Simpson, 2015 IL App (1st) 142925, ¶ 35. The most reliable indicator of

          the court’s intent is the actual language of the rule, giving the words of the rule their plain

          and ordinary meaning. Id. We review the construction of a court rule de novo. Id.

          Furthermore, when reviewing a trial court’s ruling on a motion to strike an affidavit, which

          motion was made in conjunction with the court’s ruling on a motion for summary judgment,

          the appropriate standard of review is de novo. Jackson v. Graham, 323 Ill. App. 3d 766, 773

          (2001).

¶ 16                                B. Illinois Supreme Court Rule 114

¶ 17         Smith argues Wells Fargo did not comply with Rule 114 because it simply recycled the

          September 3, 2015, loss mitigation affidavit when Wells Fargo attached it to its December 2,

          2016, motions for entry of an order of default and judgment of foreclosure and sale, and

          summary judgment. Smith contends that, because the loss mitigation affidavit was sworn to

          over one year before Wells Fargo filed its December 2, 2016, motions, it did not indicate the

          current status of mitigation efforts embarked by Wells Fargo at the time of its December 2,

          2016, motion for judgment of foreclosure.

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¶ 18         Our supreme court adopted Rule 114 in response to a “huge increase” in foreclosures and

          found it is in the best interest of the public to work out possible mortgage refinancing rather

          than foreclose. Ill. S. Ct. R. 114(a), Committee Comments (adopted Apr. 8, 2013); Simpson,

          2015 IL App (1st) 142925, ¶ 36. Rule 114 (a) provides that “[f]or all actions filed under the

          Illinois Mortgage Foreclosure Law, and where a mortgagor has appeared or filed an answer

          or other responsive pleading, Plaintiff must, prior to moving for a judgment of foreclosure,

          comply with the requirements of any loss mitigation program which applies to the subject

          mortgage loan.” (Emphasis added.) Ill. S. Ct. R. 114(a) (eff. May 1, 2013). Rule 114(b)

          provides that, in order to comply with subsection (a),

             “Plaintiff, prior to or at the time of moving for a judgment of foreclosure, must file an

             affidavit specifying:

                       (1) Any type of loss mitigation which applies to the subject mortgage;

                       (2) What steps were taken to offer said type of loss mitigation to the mortgagor(s);

                 and

                       (3) The status of any such loss mitigation efforts.” (Emphasis added.) Ill. S. Ct. R.

          114(b) (eff. May 1, 2013).

¶ 19         In this case, Wells Fargo prepared its loss mitigation affidavit on September 3, 2015.

          Wells Fargo filed the affidavit, together with its motion for entry of an order of default and

          judgment of foreclosure and sale on September 30, 2015. Wells Fargo then filed the same

          affidavit along with its new motions for entry of an order of default and judgment of

          foreclosure and sale, and summary judgment on December 2, 2016. The affidavit specified a

          loss mitigation program called “FHA foreclosure avoidance options” (foreclosure avoidance
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          program) as the type of loss mitigation that applied to Smith. The mitigation affidavit also

          outlined the steps Wells Fargo took to offer the foreclosure avoidance program to Smith,

          namely “Solicitation Letters,” “Outbound Calls,” “Denial/Appeal Period Letters,” and

          “Additional Information Required Letters.” Finally, the affidavit indicated the status of the

          mitigation efforts as “denied.”

¶ 20         The plain language of Rule 114(a) requires a mortgagee to comply with any loss

          mitigation program prior to moving for a judgment of foreclosure. Ill. S. Ct. R. 114(a) (eff.

          May 1, 2013). The plain language of Rule 114(b) requires a mortgagee to file a loss

          mitigation affidavit prior to or at the time of moving for a judgment of foreclosure. Ill. S. Ct.

          R. 114(b) (eff. May 1, 2013). Wells Fargo complied with the loss mitigation requirement

          prior to moving for a judgment of foreclosure by specifying in an affidavit the type of loss

          mitigation applicable to Smith’s mortgage, the steps taken to offer the loss mitigation

          program to Smith, and the status of those mitigation efforts. Wells Fargo then filed the

          affidavit at the time it moved for a judgment of foreclosure on December 2, 2016.

          Accordingly, we find that because Wells Fargo complied with the requirements of a loss

          mitigation program prior to moving for a judgment of foreclosure and filed its loss mitigation

          affidavit at the time it filed its motion for judgment of foreclosure on December 2, 2016,

          Wells Fargo’s loss mitigation affidavit complied in both substance and form with the

          requirements of Rule 114.

¶ 21         Furthermore, Rule 114(d) provides that “[t]he court may, either sua sponte or upon

          motion of a mortgagor, stay the proceedings or deny entry of a foreclosure judgment if

          Plaintiff fails to comply with the requirements of this rule.” Ill. S. Ct. R. 114(d) (eff. May 1,

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          2013). This court has held that, because subsection (d) uses the word “may” rather than

          “shall,” Rule 114 is not mandatory and leaves “some room for judicial discretion regarding

          the level of strictness of its enforcement.” Simpson, 2015 IL App (1st) 142925, ¶ 37.

          Accordingly, even if Wells Fargo failed to comply with Rule 114, the trial court had

          discretion to still grant Wells Fargo’s motion for judgment of foreclosure and sale. We hold

          the trial court did not err in granting Wells Fargo’s motion for summary judgment and

          entering a judgment of foreclosure and sale.



¶ 22                                        III. CONCLUSION

¶ 23         The trial court did not err by granting summary judgment and entering a judgment of

          foreclosure and sale where the loss mitigation affidavit submitted with Wells Fargo’s earlier

          motion for summary judgment was relied upon by the trial court for entry of judgments

          because defendant failed to raise a genuine issue of material fact regarding Wells Fargo’s

          loss mitigation affidavit. The affidavit complied in both substance and form with the

          requirements of Rule 114.

¶ 24         Affirmed.




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