                             2016 IL App (2d) 150712
                                  No. 2-15-0712
                         Opinion filed September 27, 2016
______________________________________________________________________________

                                             IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE BANK OF NEW YORK MELLON,             ) Appeal from the Circuit Court
f/k/a The Bank of New York, as Trustee for
                                         ) of De Kalb County.
RBSGC Mortgage Loan Trust Mortgage       )
Pass-Through Certificates, Series 205-RPI,
                                         )
                                         )
       Plaintiff-Appellee,               )
                                         )
v.                                       ) No. 11-CH-448
                                         )
STEVEN SCOTT ROGERS, a/k/a Steven S. )
Rogers; DANA M.ROGERS; DAVID M.          )
MEIXNER; PAMELA S. MEIXNER; THE          )
KANE COUNTY TEACHERS CREDIT              )
UNION; CATALYST INTERVENTIONS,           )
LLC; JON HOFFMAN LUMBER;                 )
THE DEPARTMENT OF HEALTHCARE             )
AND FAMILY SERVICES; UNKNOWN             )
OWNERS; and NONRECORD CLAIMANTS, )
                                         )
       Defendants                        )
                                         ) Honorable
(David M. Meixner and Pamela S. Meixner, ) Bradley J. Waller,
Defendants-Appellants).                  ) Judge, Presiding.
_____________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices Burke and Hudson concurred in the judgment and opinion.

                                         OPINION

¶1     Defendants David and Pamela Meixner (the Borrowers) appeal from the trial court’s

grant of a summary judgment, a judgment of foreclosure, and a confirmation of sale in favor of
2016 IL App (2d) 150712


plaintiff, the Bank of New York Mellon (BNY Mellon). On appeal, the Borrowers argue that the

trial court erred: (1) when, during the hearing on BNY Mellon’s motion for summary judgment,

the court admitted an affidavit and business records that lacked proper foundation and

authentication under Illinois law; and (2) when it determined that BNY Mellon had standing to

institute this lawsuit, because it was a holder in due course of the original note and because the

loan modification agreement (Modification Agreement) was not a negotiable instrument and thus

did not have to be indorsed or otherwise negotiated. For the following reasons, we affirm.

¶2                                       I. BACKGROUND

¶3     The record reflects that in 2003 the Borrowers, along with Steven Scott Rogers and Dana

M. Rogers, 1 obtained from Old Second Mortgage Company (Old Second) a mortgage for

$164,714, secured by their property. Mortgage Electronic Registration Systems, Incorporated

(MERS), was the original mortgagee and nominee of Old Second. After originating the loan,

Old Second specially indorsed the note to Washington Mutual.             Washington Mutual later

converted the note into bearer paper by attaching an allonge with a blank indorsement. The

language of the allonge indicated that it was “attached to and made a part of that certain Note or

Bond, or Lost Note Affidavit in lieu of that certain Note or Bond.”

¶4     In 2005, Washington Mutual agreed to modify the Borrowers’ mortgage and note after

they fell behind on their mortgage payments. The Modification Agreement began by explicitly

stating that it “amends and supplements (1) the Mortgage, Deed of Trust or Security Deed (the

‘Security Instrument’)” and “(2) the Note, *** as secured by the Security Instrument.” The

agreement provided, among other things, that “[t]he Borrower also will comply with all other

       1
           Steven and Dana Rogers did not file a notice of appeal and therefore they are not parties

to this proceeding.



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2016 IL App (2d) 150712


covenants, agreements, and requirements of the Security Instrument (the mortgage) including

without limitation the Borrower’s covenants and agreement to make all payments of taxes,

insurance premiums, assessments, escrow items [and] impounds.”             Under the terms of the

Modification Agreement, the total indebtedness was increased to $171,987.05. After the parties

entered into the Modification Agreement, the Borrowers’ mortgage and note were transferred to

BNY Mellon.

¶5        Five years later, the Borrowers stopped making their mortgage payments. On August 9,

2011, BNY Mellon filed a foreclosure complaint, attaching copies of the mortgage, the blank-

indorsed note, and the Modification Agreement. The Borrowers and the Rogerses were all

served.

¶6        On February 2, 2012, the Borrowers and Dana Rogers filed a combined motion to dismiss

under sections 2-615, 2-619, and 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-615,

619, 619.1 (West 2010)). In the motion, they claimed that BNY Mellon lacked standing because

the mortgage and the Modification Agreement were not indorsed. After a hearing, the trial court

denied the motion to dismiss without prejudice.

¶7        On July 10, 2012, the Borrowers filed a verified answer. The answer included the

affirmative defense that BNY Mellon lacked standing, stating that there was “no written

instrument presented by [BNY Mellon] to show [that BNY Mellon was the] holder in due course

of the second mortgage note, refinancing the property, from Washington Mutual Bank.” BNY

Mellon filed a reply to the affirmative defense and denied that it lacked standing. It stated that it

held “the note which is endorsed to bearer” and that a copy of that note was attached to the

complaint.




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2016 IL App (2d) 150712


¶8     BNY Mellon moved for summary judgment and a judgment of foreclosure. In support of

its motion, it filed an “Affidavit of Amounts Due and Owing.” The affidavit was executed by

Tonya Feaster, a vice president of loan documentation at Wells Fargo Bank, as servicing agent to

BNY Mellon. The affidavit included copies of two computerized business records from Wells

Fargo, a “Judgment Quote” and an “Account History” for the Borrowers’ loan. In the affidavit,

Feaster attested to her personal knowledge of the matters in the affidavit, based on her

experience at Wells Fargo and her review of the Borrowers’ file. She said that BNY Mellon held

the blank-indorsed note and that Wells Fargo acquired the loan servicing rights from Washington

Mutual on December 1, 2006, at which time the loan was current. She stated that the “Judgment

Quote” and the “Account History” were generated and maintained in the ordinary course of

Wells Fargo’s business, using industry-standard software, Mortgage Servicing Platform. Based

upon these business records, Feaster stated that as of March 7, 2014, the Borrowers owed

$212,319.87, which included interest accrued from October 1, 2010.

¶9     The Borrowers filed a response to the motion for summary judgment. In their response

they argued that, although BNY Mellon had claimed that it possessed the original note, that note

had been refinanced and BNY Mellon had never shown the Borrowers a copy of the original

refinanced note indorsed in blank.

¶ 10   BNY Mellon replied and said that it had proven its standing, based upon the original

blank-indorsed note. It also noted that the Borrowers’ liability was uncontested, given certain

admissions in their answer as well as Feaster’s uncontroverted affidavit as to the amounts due

and owing.

¶ 11   At the hearing on the motion for summary judgment, BNY Mellon argued that it had

standing because it possessed the original note that was indorsed in blank. Counsel for BNY



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2016 IL App (2d) 150712


Mellon then handed the trial court the original note and mortgage. It also claimed that the

Borrowers had not submitted any counteraffidavits to disprove any allegations of their default.

The only matter the Borrowers raised was standing, and, based upon BNY Mellon’s possession

of the original note, it had standing.

¶ 12    The Borrowers argued that they had not stipulated to a default and that in their answer to

the complaint they had specifically denied that they were in default. Also, BNY Mellon’s

argument that summary judgment should be granted because the Borrowers had not produced

proof of payment erroneously placed the burden of proof on them. The Borrowers claimed that

BNY Mellon admitted that the refinanced note governed the terms of this transaction and that the

refinanced note amended the original note.         The refinanced note was the Modification

Agreement, and the first page of that agreement said that it amended the original note from

September 2003. However, the Modification Agreement included no indorsement, let alone an

indorsement in blank. The Modification Agreement was a negotiable instrument within the

meaning of the Uniform Commercial Code (UCC) (810 ILCS 5/1-101 et seq. (West 2010)).

Specifically, it was payable to a definite party at a definite time for a specific amount, and it

included no other consideration. Therefore, the refinanced note had no indorsement and mere

possession of it, as a negotiable instrument not indorsed by a payee, was not evidence of legal or

equitable title.

¶ 13    The Borrowers also argued that there were still issues as to default and the business

records. Feaster’s affidavit was from Wells Fargo, but there was no affidavit from Washington

Mutual showing when and how much the Borrowers had defaulted. The burden is on the

possessor of a note to prove equitable title. Also, only a mortgagee can foreclose on property,

and, pursuant to Illinois law, a mortgagee is defined as the holder of indebtedness secured by a



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2016 IL App (2d) 150712


mortgage or a successor. Since BNY Mellon had not shown proof that the Borrowers had

defaulted to Washington Mutual, and because the Modification Agreement, according to its own

language, amended and supplemented the original note, BNY Mellon had not established a

default or that it had standing in this matter.

¶ 14    With regard to whether the Borrowers were in default, BNY Mellon argued that its

complaint alleged that the Borrowers had been in default since November 2010. Also, the

Borrowers did not submit a counteraffidavit to show that they were not in default.          The

Borrowers responded and again said that it was not their burden at the hearing on summary

judgment to prove that they were not in default. Specifically, the Borrowers argued:

                “MS. ADAMS [(the Borrowers’ counsel)]: [Counsel for BNY Mellon is] saying

        that my clients have a burden on summary judgment to come forward with proof of

        payment, and our position is that based on Illinois case law interpreting summary

        judgment, it is the burden of the movant to prove that there is no triable issue as to

        payment.

                And if the plaintiffs have business records to show with a foundation under Rule

        902.11 that my clients have not paid specifically when they defaulted, then they’re

        entitled to judgment, but that’s the purpose of a trial. The purpose of summary judgment

        is to show that there’s no issue as a matter of fact and a matter of law.”

¶ 15    The trial court then asked the Borrowers whether it was their position that every

defendant in a foreclosure action who was facing a summary judgment motion simply had to

deny default in order to defeat the motion. Counsel for the Borrowers then said:

                “No. But right now we do not have any business records from Washington

        Mutual Bank where the payments are supposed to go, according to the note that currently



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2016 IL App (2d) 150712


       governs, showing that my clients did not mail payment in. And the exhibit they attach is

       something from Wells Fargo saying that it’s transmitted by third parties with knowledge,

       and I really can’t tell what those records mean or if there’s a default.”

¶ 16   On September 16, 2014, the trial court entered summary judgment in favor of BNY

Mellon. On October 9, 2014, the trial court entered a judgment of foreclosure. The property was

sold at a judicial sale on February 12, 2015. BNY Mellon moved to confirm the sale, and the

Borrowers moved to deny the motion. In their motion opposing the confirmation of the sale, the

Borrowers contended that the entry of summary judgment should be reconsidered because: (1)

“records of non-payments should have come from Washington Mutual *** not Wells Fargo”;

and (2) BNY Mellon lacked standing because “the amended note, the Modification Agreement,

governing this transaction was never indorsed in blank.”

¶ 17   On May 22, 2015, the trial court confirmed the judicial sale. A week later, the Borrowers

moved to reconsider the confirmation.       In their motion to reconsider, they reiterated their

arguments that the Modification Agreement was a negotiable instrument that should have been

indorsed and that Wells Fargo’s records could not be used to establish default, because

Washington Mutual was the lender named in the Modification Agreement.

¶ 18   On June 19, 2015, a hearing was held on the Borrowers’ motion to reconsider. At the

hearing, the Borrowers’ counsel suggested for the first time that Feaster had failed to lay an

adequate foundation for the issue of “whether the computer software program was working

properly at the dates and times in question.” Specifically, counsel argued:

       “MS. ADAMS: Well, the Wells Fargo affidavit was based on computer records and

       there’s nothing in the affidavit that establishes that how the—whether the computer was

       working properly, whether the software was accurately recording that sort of thing. ***



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2016 IL App (2d) 150712


                                                   ***

                 “*** I think it’s a legal conclusion that those records were regularly kept in the

       course of business because of the fact that they are computer records and the—there is no

       testimony about the computer software and that sort of thing. We believe that it was

       regularly kept in the course of business, et cetera, begs the question and fails to establish

       a proper foundation as far as that goes ***.”

¶ 19   In denying the Borrowers’ motion, the trial court said that it would address the substance

of their arguments for the benefit of this court, but that it thought a strong argument could be

made that the motion was not timely filed, because a number of their arguments were not raised

before the summary judgment and judgment of foreclosure were entered. The court then said

that Feaster had established Wells Fargo’s relationship to BNY Mellon and that the affidavit set

forth the appropriate provisions that were required under Illinois Supreme Court Rule 236 (eff.

Aug. 1, 1992).

¶ 20   The trial court also said, “based upon my review of the four corners of the document it

essentially incorporates the terms of the underlying mortgage and the note and modifies those

terms but only to the extent set forth in the Modification Agreement, so I don’t believe [that the

Borrowers’ counsel’s] argument comports with applicable case law as—well, let me say this. I

don’t think it comports with the definition of a negotiable instrument so, therefore, the Court

rejects that argument.” The Borrowers timely appealed.

¶ 21                                      II. ANALYSIS

¶ 22   On appeal, the Borrowers first argue that the trial court erred in admitting Feaster’s

affidavit with computerized business records attached to prove that they were in default on their

loan, when those documents lacked proper foundation and authentication.            In their second



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2016 IL App (2d) 150712


argument, the Borrowers argue that the trial court erred “in its determination that the

Modification Agreement failed to constitute a negotiable instrument that needed to be

specifically indorsed to [BNY Mellon] or indorsed in blank as the basis for [BNY Mellon’s]

request for foreclosure and to demonstrate its standing to bring the action.” Since the Borrowers’

second argument implicates standing, which would call for a dismissal of this case if proven, we

will address their second argument first.

¶ 23                                   A. Standard of Review

¶ 24   Summary judgment is proper where “the pleadings, depositions, and admissions on file,

together with the affidavits, if any, 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.” 735 ILCS 5/2-1005(c) (West

2010). The trial court’s ruling on a motion for summary judgment is subject to de novo review.

Argonaut Midwest Insurance Co. v. Morales, 2014 IL App (1st) 130745, ¶ 14.

¶ 25   However, the issue of whether documents are admissible as business records is within the

sound discretion of the trial court, and therefore this court reviews that decision for an abuse of

discretion. US Bank, National Ass’n v. Avdic, 2014 IL App (1st) 121759, ¶ 25. A trial court

abuses its discretion if it commits an error of law or where no reasonable person would take the

view adopted by the court. Id. ¶ 18.

¶ 26                         B. BNY Mellon’s Standing to Foreclose

¶ 27   The Borrowers argue that the Modification Agreement is a negotiable instrument

pursuant to section 3-104(a) of the UCC. 810 ILCS 5/3-104(a) (West 2010). Thus, they argue,

because in Illinois a plaintiff seeking to enforce a mortgage must demonstrate that it holds the

mortgage or note that is the subject of the foreclosure action, BNY Mellon failed to demonstrate

a prima facie case for standing in its complaint and motion for summary judgment when it did



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not demonstrate its status as the holder of the Modification Agreement. The Borrowers concede

that no Illinois case directly addresses this issue, but they note that a case from New Mexico,

Bank of New York v. Romero, 2014-NMSC-007, 320 P. 3d 1, supports their position.

¶ 28   In response, BNY Mellon argues that there is no doubt that it has physical possession of

the Borrowers’ blank-indorsed note because, in its uncontradicted affidavit in support of

summary judgment, Feaster swore that BNY Mellon had possession of the note, which had been

duly indorsed. Also, BNY Mellon produced the original note for the trial court at an earlier

proceeding, and it submitted the original note and the mortgage before the court entered

summary judgment in its favor. With regard to the Modification Agreement, BNY Mellon

argues that the note is not a negotiable instrument, so it does not need to be indorsed or otherwise

negotiated. It contends that neither the UCC nor the decision from New Mexico, the Borrowers’

sole supporting authority, supports the Borrowers’ argument that the Modification Agreement is

a negotiable instrument.

¶ 29   In their reply brief the Borrowers cite a Texas case, Burns v. Resolution Trust Corp., 880

S.W.2d 149 (Tex. App. 1994), to support their argument that the Modification Agreement is a

negotiable instrument.

¶ 30   A plaintiff’s standing to sue must be determined as of when the suit is filed. Bayview

Loan Servicing LLC v. Cornejo, 2015 IL App (3d) 140412, ¶ 12. A plaintiff’s lack of standing

negates his cause of action and requires dismissal of the proceedings. See Wexler v. Wirtz,

Corp., 211 Ill. 2d 18, 22 (2004). However, a plaintiff is not required to prove standing in its

pleadings or allege facts in support of standing in its pleadings. In re Estate of Schlenker, 209

Ill. 2d 456, 461 (2004). Once a plaintiff has filed a complaint, a defendant may raise the

plaintiff’s lack of standing as an affirmative defense. Rosestone Investments, LLC v. Garner,



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2013 IL App (1st) 123422, ¶ 24. The defendant has the burden of pleading and proving the

plaintiff’s lack of standing. Id. In a foreclosure action, attaching the note to the complaint is

prima facie evidence that the plaintiff owns the note. Parkway Bank & Trust Co. v. Korzen,

2013 IL App (1st) 130380, ¶ 24.

¶ 31   We initially note that, in their opening brief, the Borrowers say that they “direct the thrust

of their challenge here only to the Modification Agreement which Plaintiff never received

endorsed in blank nor received it specifically endorsed.” However, they then argue that they find

it necessary to address the original note and its “problematical alleged endorsement in blank.”

They state that the note itself is not indorsed in blank but that an allonge has been attached to the

note, “purportedly signed by an agent of Washington Mutual, which claims to endorse it in

blank.” They also refer to the language in the allonge and allege that the allonge was not

permanently affixed to the note.

¶ 32   In response, BNY Mellon argues that the Borrowers have forfeited this argument because

they did not raise this issue before the trial court. We agree with BNY Mellon. Fauley v.

Metropolitan Life Insurance Co., 2016 IL App (2d) 150236, ¶ 55 (issues not raised in the trial

court are forfeited and may not be raised for the first time on appeal). Even if we chose to

overlook the Borrowers’ failure to raise this issue below, it would still be forfeited because they

do not cite any authority to support their argument, in violation of Illinois Supreme Court Rule

341(h)(7) (eff. Jan. 1, 2016) (appellant’s brief shall contain the contentions of the appellant and

the reasons therefor, with citation of the authorities and the pages of the record relied on). For

these reasons, we will not consider this issue on appeal.

¶ 33   The Borrowers next argue that the original note was amended and superseded by the

Modification Agreement, another negotiable instrument, but that the Modification Agreement



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was not indorsed in blank or indorsed to BNY Mellon. Because the mortgage follows the note,

they claim, BNY Mellon failed to prove its prima facie case that it owned the mortgage

obligation as amended and superseded by the Modification Agreement.

¶ 34                       1. Article 3 of the Uniform Commercial Code

¶ 35   The Borrowers contend that the trial court erred in holding that the Modification

Agreement was not a negotiable instrument, when the plain language of section 3-104 of the

UCC demonstrates otherwise. 810 ILCS 5/3-104 (West 2010).

¶ 36   A note is a negotiable instrument as defined by section 3-104 of the UCC. Id. A

negotiable instrument is an unconditional promise to pay a fixed amount of money, if 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 UCC states that, “[w]hen indorsed in

blank, an instrument becomes payable to the bearer and may be negotiated by transfer of

possession alone until specially indorsed.” 810 ILCS 5/3-205(b) (West 2010). It is well settled

that possession of bearer paper is prima facie evidence of title thereto, and is sufficient to entitle

the plaintiff to a judgment of foreclosure. HSBC Bank, USA, National Ass’n v. Rowe, 2015 IL

App (3d) 140553, ¶ 21. Again, attaching the note to the complaint is prima facie evidence that

the plaintiff owns the note. Id.

¶ 37   As support for their argument that the Modification Agreement is a negotiable

instrument, the Borrowers argue that “[t]he construction of this statutory language is consistent

with the longstanding rules of statutory construction approved by our Supreme Court. See e.g.,

Solon v. Midwest Medical Records Association, Inc., 236 Ill. 2d 443, 440-441 (2010).” They

then reiterate their argument that the language of the indorsement provisions on the new note

supersedes the alleged indorsement in blank as to the original note.             Finally, they state,



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“[a]ccordingly, plaintiff failed to demonstrate a prima facie case in its original complaint and

Motion for Summary Judgment since it makes no reference to show its status as a holder or

entitlement interest to enforce the Modification Agreement, and the trial court erred when it

found that Plaintiff had standing as well as its entry of summary judgment in Plaintiff’s favor.”

¶ 38   In response, BNY Mellon contends that the Modification Agreement fails the first

requirement under section 3-104(a) of the UCC (810 ILCS 5/3-104(a) (West 2010)), because the

Modification Agreement is not an unconditional promise. Specifically, it cites section 3-106 of

the UCC, which provides that, in order to be unconditional, the promise cannot, among other

things, provide that it is subject to, or governed by, another writing. 810 ILCS 5/3-106(a)(ii)

(West 2010) (“(a) [e]xcept as provided in this Section, for the purposes of Section 3-104(a), a

promise or order is unconditional unless it states (i) an express condition to payment, (ii) that the

promise or order is subject to or governed by another writing, or (iii) that rights or obligations

with respect to the promise or order are stated in another writing. A reference to another writing

does not of itself make the promise or order conditional.” (Emphasis added.)).

¶ 39   BNY Mellon argues that the Modification Agreement begins by explicitly stating that it

“amends and supplements (1) the Mortgage, Deed of Trust or Security Deed (the ‘Security

Instrument’)” and “(2) the Note, *** as secured by the Security Instrument.” It contends that,

although merely referencing another writing does not make a promise conditional (see 810 ILCS

5/3-106(a) (West 2010)), amending another writing goes far beyond a mere reference.

¶ 40   BNY Mellon also contends that the Modification Agreement is not a negotiable

instrument because it requires the borrower to comply with covenants under the mortgage and

expressly modifies the mortgage.




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¶ 41   First, the Borrowers’ argument that the plain language of section 3-104 of the UCC

indicates that the Modification Agreement is a negotiable instrument is forfeited because the

Borrowers make only conclusory statements and do not support their argument with any

reasoning. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (appellant’s brief shall contain the

contentions of the appellant and the reasons therefor). Other than their reference to Solon for the

proposition that the construction of the language in section 3-104 is “consistent with the

longstanding rules of statutory construction approved by our Supreme Court,” the Borrowers do

not give any reasons in support of their argument. The principles referred to in Solon are simply

that a court will avoid rendering any part of a statute meaningless or superfluous, and that we

will not depart from the plain statutory language by reading into it exceptions, limitations, or

conditions that conflict with the expressed intent. Solon, 236 Ill. 2d at 440-41. These references

do not aid this court in determining how the Modification Agreement might meet the

requirements of section 3-104. 810 ILCS 5/3-104 (West 2010).

¶ 42   Forfeiture aside, however, we agree with BNY Mellon, although for a different reason,

that the Modification Agreement does not appear to be a negotiable instrument because it does

not contain an unconditional promise as required by section 3-106 of the UCC. 810 ILCS 5/3-

106(a)(ii) (West 2010).

¶ 43   The Modification Agreement explicitly states that it “amends and supplements (1) the

Mortgage, Deed of Trust or Security Deed (the ‘Security Instrument’)” and “(2) the Note, *** as

secured by the Security Instrument.” (Emphasis added.) BNY Mellon argues that the word

“amends” goes well beyond a simple reference to another document. We note that the dictionary

definition of the word “amend” is: “1: to put right; especially: to make emendations in (as a

text)[;] 2(a): to change or modify for the better ***[;] 2(b): to alter especially in phraseology;



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2016 IL App (2d) 150712


especially: to alter formally by modification, deletion, or addition.”         (Emphasis omitted.)

Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/amend (last

visited Aug. 8, 2016).

¶ 44   Although we agree that an amendment to a document goes beyond a mere reference to it,

that does not mean that an amended document cannot stand alone and be unconditional.

However, the Modification Agreement also states that it supplements the mortgage and the note,

which is more problematic for the Borrowers.

¶ 45   The dictionary definition of the word “supplement” is “something that is added to

something else in order to make it complete.” Merriam-Webster Online Dictionary, http://www.

merriam-webster.com/dictionary/supplement (last visited Aug. 8, 2016).               Therefore, by

definition, something that is supplemented completes something else, and makes the supplement

conditional upon the referenced document.

¶ 46   In their reply brief, the Borrowers dissect several parts of the Modification Agreement in

an attempt to show that it is a negotiable instrument pursuant to section 3-104 of the UCC. 810

ILCS 5/3-104 (West 2010). These arguments are forfeited because they are raised for the first

time in the reply brief. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (“Points not argued [in the

opening brief] are waived and shall not be raised in the reply brief ***.”). However, in their

reply brief the Borrowers also respond to some of BNY Mellon’s arguments that the

Modification Agreement is not a negotiable instrument.          Therefore, we will address those

responses. See Ill. S. Ct. R. 341(j) (eff. Jan. 1, 2016) (“The reply brief, if any, shall be confined

strictly to replying to arguments presented in the brief of the appellee and need contain only

Argument.”).




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¶ 47   The Borrowers refer to BNY Mellon’s argument that the Modification Agreement’s

requirement that the borrower comply with covenants under the mortgage destroys the

Modification Agreement’s negotiability. The Borrowers argue that the case BNY Mellon cites

for this proposition, Sturgis National Bank v. Harris Trust & Savings Bank, 351 Ill. 465, 482-83

(1933), “confirms that a reference to a security instrument in an otherwise negotiable instrument

is presumed to merely refer the holder to its rights regarding security and not modifying the

obligations to pay or making the obligation to pay uncertain.” (Emphasis in original.) The

Borrowers acknowledge that the instrument in Sturgis was a bond rather than a mortgage note,

but they observe that the Sturgis court held that, when a reference in such an instrument presents

a “questionable problem,” a court will be inclined to interpret the reference as one not qualifying

the promise to pay. Id. at 483.

¶ 48   We are not persuaded. First, the language in the Modification Agreement is much more

than a reference to the mortgage; instead, it explicitly lists the obligations in the mortgage that

are now carried over to the Modification Agreement: “[t]he Borrower also will comply with all

other covenants, agreements, and requirements of the Security Instrument (the mortgage)

including without limitation the Borrower’s covenants and agreement to make all payments of

taxes, insurance premiums, assessments, escrow items [and] impounds.” Second, unlike in the

Sturgis case, here, the Modification Agreement does not present a “questionable problem”

regarding its negotiability. The terms of that agreement specifically state that it supplements the

original note and mortgage, which destroys its negotiability.

¶ 49   The Borrowers also address BNY Mellon’s argument that the Modification Agreement

modifies the requirements of the mortgage, and therefore contains undertakings other than a

promise to pay, which destroys the agreement’s negotiability. The Borrowers contend that



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2016 IL App (2d) 150712


nothing in the Modification Agreement changes the requirements concerning payment or

anything else in the mortgage, and, they again note, mere references to a security instrument do

not destroy an instrument’s negotiability.

¶ 50   We need not address the issue of whether the Modification Agreement modifies the

requirements in the mortgage, because we have already found that the Modification Agreement

supplements the mortgage and the note and is burdened by the covenants contained in the

mortgage, both of which destroy its negotiability.

¶ 51                                   2. Foreign Authority

¶ 52   Next, the Borrowers assert that, although no Illinois court has directly addressed this

issue, Romero will persuade us that the Modification Agreement is in fact a negotiable

instrument. The Borrowers allege that in Romero the New Mexico Supreme Court held that a

plaintiff-bank that possessed two notes—one specifically indorsed to someone other than the

bank and the other with two indorsements, one in blank and the other a special indorsement to a

third party who was not the bank—failed to adequately demonstrate standing to enforce the

notes. The court reasoned that the bank failed to prove its status as a holder in due course and

lacked a title interest, because neither note contained a special indorsement payable to the bank

or a proper indorsement in blank, which would make the note bearer paper. The court held:

               “Possession of an unendorsed note made payable to a third party does not

       establish the right of enforcement, just as finding a lost check made payable to a

       particular party does not allow the finder to cash it. [Citations.] The Bank’s possession

       of the Romeros’ unendorsed note made payable to Equity One does not establish the

       Bank’s entitlement to enforcement.” Romero, 2014-NMSC-007, ¶ 23, 320 P.3d 1.




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¶ 53   The Borrowers argue that, just like in Romero, in this case, BNY Mellon has produced

two notes with several indorsements. The first original note contained an indorsement in blank

on an affixed allonge. The Modification Agreement, by its own terms, “amended the original

note and constituted commercial paper and was a negotiable instrument, but was payable to

someone other than the plaintiff—Washington Mutual.” (Emphases in original.) The Borrowers

reiterate that no one at Washington Mutual specially indorsed the Modification Agreement.

Since BNY Mellon did not show that the Modification Agreement was specially indorsed to it, or

was properly indorsed in blank, the trial court erred as a matter of law in granting BNY Mellon’s

motion for summary judgment, the judgment of foreclosure, and the confirmation of sale.

¶ 54   In response, BNY Mellon argues that there are two problems with the Borrowers’

reliance on Romero as persuasive authority: (1) as the Borrowers have described the holding in

Romero, it does not support their argument; and (2) they have misstated the actual facts of the

case, which also do not support their argument.

¶ 55    BNY Mellon contends that the Borrowers describe Romero as involving two distinct

promissory notes, both of which were specially indorsed to third parties. Under these alleged

circumstances (the absence of a properly indorsed note), BNY Mellon argues, it is not surprising

that the New Mexico Supreme Court would hold that the bank lacked standing to enforce either

negotiable instrument. However, BNY Mellon argues, the court’s rejection of the bank’s attempt

to enforce two distinct negotiable instruments, neither of which was properly indorsed, does not

suggest anything about whether a loan modification agreement is a negotiable instrument or

whether a mortgagee has standing to foreclose a modified mortgage when the underlying

promissory note is properly indorsed.




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¶ 56   With regard to the actual facts of the case, BNY Mellon claims that Romero involved a

foreclosure action in which there was only one note, rather than two separate notes. Id. ¶ 2. The

copy of the note attached to the foreclosure complaint bore no indorsements, but the original note

admitted at trial had two indorsements: a blank indorsement by the original obligee and a special

indorsement to a third party by the original obligee. Id. ¶ 10. The Romero court found that the

two indorsements were placed on the note in the only possible order:                 first, the blank

indorsement converting the note to bearer paper, followed by the special indorsement by the

original obligee, who still had possession of the bearer paper.              Id. ¶ 26.   Given these

circumstances, as well as other evidence that the note and mortgage had not been transferred

until the commencement of the foreclosure action, the court held that the bank had not proven

that it was the holder of the note when the complaint was filed. Id. ¶ 28.

¶ 57   In their reply brief, the Borrowers did not respond to BNY Mellon’s arguments regarding

Romero.

¶ 58   We agree with both of BNY Mellon’s arguments with regard to Romero. First, we agree

that the Borrowers misinterpret Romero’s facts. In Romero, the bank did not produce two

notes—it attached a copy of the note to the complaint, and it produced the original note at trial.

Id. ¶ 10. Under the Borrowers’ interpretation of the facts, there were two notes that were both

specially indorsed, but neither one to the bank. Therefore, as BNY Mellon suggests, based upon

those (incorrect) facts, the New Mexico Supreme Court’s finding that the bank did not have

standing to bring a foreclosure action would not be surprising and does not support the

Borrowers’ argument that Romero helps their case.

¶ 59   However, instead, the New Mexico Supreme Court stated that the note introduced at trial

differed significantly from the note attached to the foreclosure complaint and that there was no



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explanation for that discrepancy. Id. ¶ 22. Clearly, then, the court was referring to one note.

The fact that the court found that the bank did not have standing because it was not a holder in

due course of the note, when the last indorsement was a special indorsement to a third party, also

does not aid the Borrowers’ case.

¶ 60   BNY Mellon then argues that other foreign jurisdictions, using effectively identical

versions of section 3 of the UCC, have consistently held that loan modification agreements are

not negotiable instruments. It cites Guniganti, Dasma Investments, LLC v. Realty Associates

Fund III, L.P., 459 F. Supp. 2d 1294, 1302 (S.D. Fla. 2006), and Federal Deposit Insurance

Corp. v. Parkway Executive Office Center, No. CIV. A. 96-121, 1997 WL 535164 (E.D. Pa.

Aug. 18, 1997).

¶ 61   In Guniganti, the parties were limited partners who executed a note secured by a deed of

trust to some property. After defaulting on the note, the partnership executed a modification of

the note and deed of trust. The modification provided, “except as to such changes made herein,

the terms and provisions of the Note as modified shall be brought forward and remain in all

aspects unchanged.” (Emphasis added and internal quotation marks omitted.) Guniganti, 346

S.W.3d at 245. The note also provided, “NOT ALL of the principal amount of this Note has

been advanced on the date hereof. Additional advances will be made in accordance with the

terms and conditions of the Loan Agreement, reference to same being here made for all

purposes.” (Internal quotation marks omitted.) Id. The note again went into default, and

Guniganti and the appellees then purchased the note and deed of trust from the bank. By the

terms of the transfer, Guniganti obtained a 40% undivided interest in the note and deed of trust

and the appellees each obtained a 20% undivided interest. Over four years later, Guniganti sued

the partnership, seeking 40% of the unpaid balance due on the note and the modification,



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foreclosure of the deed of trust, and an order of sale. In their plea in intervention, the appellees

argued, among other things, that the four-year limitations period for contractual debts applied,

rather than the six-year period for negotiable instruments, and that the four-year period had

expired. Id. at 247. The trial court granted partial summary judgment and held that neither the

note or the modification alone, nor the note as amended by the modification, was a negotiable

instrument.

¶ 62     On appeal, the court first cited the UCC’s definition of an unconditional promise and then

held that the note was not a negotiable instrument. Specifically, it held that the note did not

contain an unconditional promise to pay, when it referred to the loan agreement and burdened the

note with the conditions of that agreement. Id. at 249-50. With regard to the loan modification,

the court held that it also did not constitute an unconditional promise, when its language

indicated that the terms and provisions of the note as modified shall be brought forward and

remain in all respects unchanged and that it reaffirmed the obligors’ respective liability under the

note. Since the modification could not stand alone, it was not a negotiable instrument. Id. at

250.

¶ 63     In their reply brief, the Borrowers argue that Guniganti is distinguishable because, in the

instant case, neither the original note nor the Modification Agreement references or incorporates

any other contract, except the mortgage, which does not destroy its negotiability. We fail to

understand how the Borrowers can make this argument when it is quite clear from the face of the

Modification Agreement that it supplements the mortgage and the note. That is not a mere

reference to the note; instead, as we have held, the Modification Agreement supplements the note

to     make   it   complete.     See    Merriam-Webster     Online    Dictionary,   http://merriam-

webster.com/dictionary/supplement (last visited Aug. 8, 2016).



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¶ 64   We also agree with the reasoning of the other cases that BNY Mellon cites as support for

the proposition that the wording of the Modification Agreement destroys its negotiability. See

Dasma Investments, LLC, 459 F. Supp. 2d at 1302 (“the ‘Addendums’ cannot stand alone as a

negotiable instrument, as it incorporates and maintains in full force and effect all of the non-

modified provisions of the original promissory note”); Federal Deposit Insurance Corp., No.

CIV. A. 96-121, 1997 WL 535164, at *17 (“the Modification cannot be negotiable because it is

subject to the other loan documents which contain additional rights and obligations with respect

to the promise, making it conditional”). In their reply brief, the Borrowers do not respond to

BNY Mellon’s references to these cases.

¶ 65   Instead, the Borrowers cite Burns for the proposition that, under the proper

circumstances, a mortgage loan modification may stand alone and qualify as a negotiable

instrument. However, although the Borrowers note that the Burns court (the same court as in

Guniganti) relied upon a very similar definition of a “negotiable instrument” as that in section 3-

104 of the UCC, and that the Burns court held that the modification agreements in that case

satisfied the requirements of a negotiable instrument, the Borrowers do not state the terms of

those modification agreements so that we can compare them to the terms of the instant

Modification Agreement. Nevertheless, since this issue is one of first impression in Illinois, we

will review Burns to determine under what circumstances that court found that the modification

agreements were negotiable instruments.

¶ 66   In Burns, loan modification agreements were executed that reduced the interest rate on

the loans. For reasons not pertinent to this appeal, the borrower argued on appeal that the holder-

in-due-course doctrine did not apply to the loan modification agreements, because they were not

negotiable instruments. Burns, 880 S.W.2d at 153. Specifically, he contended that they were not



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negotiable because, by adding an obligation to pay taxes, which amount was estimated in a

separate assumption agreement and might vary each year, they no longer contained an obligation

to pay a certain sum. Id. The court disagreed with the borrower and held that the obligation to

pay taxes was not a new promise and that the notes underlying the assumption and modification

agreements were negotiable instruments. Therefore, it held, the modification agreements were

separate agreements that did not affect the negotiability of the notes. Id. The court then made an

important statement.    It said, “[m]oreover, it is to the terms of the note that we look for

satisfaction of the negotiability requirements.” (Emphasis in original.) Id. Accordingly, Burns

supports BNY Mellon’s contention that it is the note, and not the Modification Agreement, that

determines whether BNY Mellon is a holder in due course.           In addition, the fact that the

modification agreements in Burns were considered negotiable instruments does not support the

Borrowers’ contention that the Modification Agreement in this case is a negotiable instrument.

We do not disagree with the Borrowers’ proposition that, under the proper circumstances, a

mortgage loan modification may stand alone and qualify as a negotiable instrument. However,

under the facts of this case, the Modification Agreement is not a separate agreement, and

therefore it does not constitute a negotiable instrument.

¶ 67   For all these reasons, we hold that BNY Mellon had standing to bring this foreclosure

action, because it was a holder in due course of the original note and because the terms of the

Modification Agreement destroyed its negotiability, so it is irrelevant that the Modification

Agreement was not indorsed in blank or specially indorsed to BNY Mellon.

¶ 68             C. Admission of Affidavit and Computerized Business Records

¶ 69   We now turn to the Borrowers’ claim that the trial court erred in admitting Feaster’s

affidavit with the computerized business records attached to prove that the Borrowers were in



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default on their mortgage, when those records lacked a proper foundation and authentication

under Illinois law.

¶ 70    In response, BNY Mellon asserts that the Borrowers forfeited this issue on appeal by

failing to object to the admission of the affidavit and records prior to the entry of summary

judgment.

¶ 71    In their reply brief, the Borrowers argue that they did not forfeit this argument, because,

at the hearing on BNY Mellon’s motion for summary judgment, their counsel argued, “if the

Plaintiffs have business records that show with a foundation under Rule 902.11 that my clients

have not paid and specifically what they defaulted, then they’re entitled to judgment ***” and

later said, “[a]nd the exhibit [BNY Mellon] attach[es] is something from Wells Fargo saying that

it’s transmitted by third parties with knowledge, and I really can’t tell what those records mean

or if there’s a default.”

¶ 72    It is well settled that issues not raised in the trial court are forfeited and may not be raised

for the first time on appeal. Haudrich v. Howmedica, 169 Ill. 2d 525, 536 (1996).

¶ 73    Motions for reconsideration are designed to bring to the court’s attention newly

discovered evidence that was unavailable at the time of the original hearing, changes in existing

law, or errors in the court’s application of the law. Continental Casualty Co. v. Security

Insurance Co. of Hartford, 279 Ill. App. 3d 815, 821 (1996) (citing Korogluyan v. Chicago Title

& Trust Co., 213 Ill. App. 3d 622, 627 (1991)). A trial court is correct in declining to address an

issue raised in a motion to reconsider that could and should have been raised at the hearing on

the motion for summary judgment. Id.

¶ 74    We agree with BNY Mellon that the Borrowers have forfeited this argument. It is clear

from the record that, at the hearing on the motion for summary judgment, the Borrowers were



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not objecting to the admission of the Wells Fargo affidavit and business records on foundational

grounds. Instead, when they argued, “if the Plaintiffs have business records that show with a

foundation under Rule 902.11 that [the Borrowers] have not paid and specifically what they

defaulted,” they were arguing that BNY Mellon should have provided records from Washington

Mutual, and not Wells Fargo, to prove that they had defaulted on the note and mortgage. Also,

the Borrowers’ counsel’s alleged confusion when she argued that she couldn’t “tell what [the

Wells Fargo] records [meant] or if there [was] a default” does not rise to the level of an objection

to those records on foundational grounds. Although counsel finally did object to the admission

of the affidavit and business records, at the hearing on the motion to reconsider, it was too late.

This argument could and should have been raised at the hearing on the motion for summary

judgment. Therefore, the Borrowers have forfeited our review of this issue.

¶ 75                                   III. CONCLUSION

¶ 76   In sum, BNY Mellon had standing to bring this foreclosure action, because it was a

proper holder in due course when it possessed the original note that was indorsed in blank. Also,

it was immaterial that the Modification Agreement was not indorsed in blank and that it was

specially indorsed to Washington Mutual, because by its terms the agreement was not a

negotiable instrument.    Finally, the Borrowers forfeited the issue of the alleged lack of

foundation for the Wells Fargo affidavit and computerized business records when they failed to

object on foundational grounds until the hearing on their motion to reconsider.

¶ 77   For all these reasons, the judgment of the circuit court of De Kalb County is affirmed.

¶ 78   Affirmed.




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