                               Illinois Official Reports                           Digitally signed by
                                                                                   Reporter of Decisions
                                                                                   Reason: I attest to the
                                                                                   accuracy and integrity of
                                                                                   this document
                                       Appellate Court                             Date: 2016.02.17 15:27:50
                                                                                   -06'00'




                 Bayview Loan Servicing, LLC v. Szpara, 2015 IL App (2d) 140331



Appellate Court           BAYVIEW       LOAN      SERVICING,      LLC,   Plaintiff  and
Caption                   Counterdefendant-Appellee, v. DOMINIK SZPARA and LIDIA
                          SZAREK, Defendants and Counterplaintiffs-Appellants (Unknown
                          Owners and Nonrecord Claimants, Defendants).



District & No.            Second District
                          Docket No. 2-14-0331



Rule 23 order filed       November 12, 2014
Rule 23 order
withdrawn                 December 30, 2015
Opinion filed             December 30, 2015



Decision Under            Appeal from the Circuit Court of Du Page County, No. 11-CH-3939;
Review                    the Hon. Robert G. Gibson, Judge, presiding.



Judgment                  Affirmed.



Counsel on                Charles A. Silverman, of Charles Aaron Silverman, P.C., of Chicago,
Appeal                    for appellants.

                          Louis J. Manetti Jr., of Codilis & Associates, P.C., of Burr Ridge, for
                          appellees.
     Panel                       JUSTICE SPENCE delivered the judgment of the court, with opinion.
                                 Justices Zenoff and Burke concurred in the judgment and opinion.


                                                    OPINION

¶1         Plaintiff, JPMorgan Chase Bank, NA,1 filed a complaint to foreclose the mortgage on the
       property of defendants, Dominik Szpara and Lidia Szarek, at 122 East Lincoln Avenue,
       Glendale Heights, Illinois (Property). Defendants answered the complaint and raised four
       affirmative defenses and one counterclaim. Plaintiff moved to strike three of the affirmative
       defenses and the counterclaim; one affirmative defense and the counterclaim were struck with
       prejudice, and two affirmative defenses were struck without prejudice. Defendants amended
       those two affirmative defenses. The two amended affirmative defenses were subsequently
       struck with prejudice.
¶2         Plaintiff moved for summary judgment, and defendants responded by attacking the
       sufficiency of plaintiff’s prove-up affidavit for the amounts due. The court granted summary
       judgment for plaintiffs. Defendants now appeal the entry of summary judgment, the order
       approving the sale, and the order striking their amended affirmative defenses. For the reasons
       stated herein, we affirm.

¶3                                           I. BACKGROUND
¶4         Defendants obtained a mortgage on the Property on June 22, 2006, from Washington
       Mutual Bank, FA. On March 29, 2011, defendants filed a chapter 7 bankruptcy petition in the
       Northern District of Illinois, case No. 11-12966. On April 15, 2011, the district court granted
       plaintiff relief from the automatic stay.
¶5         On August 17, 2011, plaintiff filed a complaint to foreclose the mortgage on the Property.
       The complaint alleged that defendants had failed to pay monthly installments due since July 1,
       2010.
¶6         Defendants filed their answer on June 7, 2012. The answer contained four affirmative
       defenses: (1) plaintiff failed to send defendants an acceleration letter prior to filing its
       complaint, a condition precedent to foreclosure; (2) plaintiff violated section 15-1502.5 of the
       Code of Civil Procedure (Code) (735 ILCS 5/15-1502.5 (West 2010)) by failing to send a
       grace-period notice prior to filing its complaint, which voided the foreclosure and the sale; (3)
       the broker, who was also the appraiser, committed fraud in the inducement by inflating the
       appraisal price in order to obtain a larger commission as well as by inflating defendants’ assets,
       thereby voiding the mortgage lien; and (4) alternatively, in light of the broker’s conduct, the
       action was barred by equitable estoppel. Defendants also included a counterclaim to quiet title,
       alleging again that the broker inflated the appraisal for personal gain and inflated defendants’
       assets. They further alleged that they were not fluent in English and therefore could not
       understand that the broker was acting dishonestly.

             1
            Bayview Loan Servicing, LLC, was substituted for JPMorgan Chase Bank, NA, as plaintiff in this
       action in a March 11, 2014, order. For simplicity’s sake, we shall refer to the two entities collectively as
       plaintiff.

                                                        -2-
¶7          On August 31, 2012, plaintiff replied to defendants’ first affirmative defense, denying that
       it failed to send an acceleration letter. It also filed a motion to strike defendants’ second, third,
       and fourth affirmative defenses and their counterclaim to quiet title. After the matter was
       briefed, the trial court entered a November 7, 2012, order striking defendants’ second
       affirmative defense and their counterclaim with prejudice and striking defendants’ third and
       fourth affirmative defenses without prejudice.
¶8          On December 6, 2012, defendants filed amended third and fourth affirmative defenses. In
       defendants’ amended third affirmative defense, they alleged the following to support fraud in
       the inducement: the broker was also the appraiser of the Property, creating a conflict of
       interest; defendants never received a copy of the appraisal; the broker inflated defendants’
       assets; defendants did not speak fluent English; and therefore plaintiff was estopped from
       enforcing their lien. The amended fourth affirmative defense, equitable estoppel, contained
       allegations identical to those in the amended third affirmative defense.
¶9          On December 26, 2012, plaintiff filed a motion to strike defendants’ amended affirmative
       defenses. Plaintiff argued that the amended affirmative defenses were not well pleaded,
       containing conclusory allegations insufficient to support fraud in the inducement or equitable
       estoppel. Furthermore, plaintiff argued that, under the terms of the purchase and assumption
       agreement (PAA), which it entered into with the Federal Deposit Insurance Corporation
       (FDIC), as receiver for Washington Mutual Bank, on September 25, 2008, plaintiff explicitly
       disclaimed liability to defendants arising from Washington Mutual Bank’s prior conduct, even
       if defendants raised their claims affirmatively or defensively.
¶ 10        On January 8, 2013, the trial court entered an order stating that it took judicial notice of the
       PAA. The court therein also granted plaintiff’s motion to strike, striking the amended third and
       fourth affirmative defenses with prejudice.
¶ 11        On August 30, 2013, plaintiff filed its motion for summary judgment. Defendants
       responded, arguing primarily that plaintiff’s prove-up affidavit for the amounts due and owing
       on the mortgage loan was insufficient. They argued that the affidavit, of plaintiff’s vice
       president Rosalva Cardenas, lacked a foundation as a business record because she lacked
       personal knowledge of the pertinent records and that the affidavit thus relied on inadmissible
       hearsay. Plaintiff replied that there was a proper foundation for the affidavit and that
       defendants did not challenge anything else in the affidavit, such as the actual amounts owing.
¶ 12        On November 6, 2013, the trial court granted a summary judgment of foreclosure and sale
       in plaintiff’s favor.
¶ 13        The judicial sale of the property occurred on February 11, 2014. Plaintiff filed a motion for
       confirmation of the sale on February 19, 2014. On March 11, 2014, the trial court granted the
       motion and confirmed the sale.
¶ 14        Defendants timely appealed.2




           2
            The notice of appeal stated that the appeal was being taken from “the following Order or
       Judgment: 1/8/13 Order Striking Affirmative Defenses, 11/6/13 Order granting Summary Judgment for
       Plaintiff, and 3/11/14 Order Approving Sale.”

                                                     -3-
¶ 15                                          II. ANALYSIS
¶ 16                                      A. Standard of Review
¶ 17       Defendants’ affirmative defenses and counterclaim were struck pursuant to sections 2-615
       and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2012)). We review de novo dismissals
       under these sections of the Code. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009).
¶ 18       We also review de novo an order granting summary judgment. Chatham Foot Specialists,
       P.C. v. Health Care Service Corp., 216 Ill. 2d 366, 376 (2005). Plaintiff argues, however, that
       because the trial court’s determination of whether the prove-up affidavit was based on
       admissible evidence was within its sound discretion, we should review the grant of summary
       judgment for an abuse of discretion. We reject this argument because, although “[i]n general,
       this court reviews a circuit court’s decision on a motion to strike an affidavit for an abuse of
       discretion, *** when the motion ‘was made in conjunction with the court’s ruling on a motion
       for summary judgment,’ we employ a de novo standard of review with respect to the motion to
       strike.” US Bank, National Ass’n v. Avdic, 2014 IL App (1st) 121759, ¶ 18 (quoting Jackson v.
       Graham, 323 Ill. App. 3d 766, 773 (2001)). Here, there was no specific motion to strike the
       affidavit, but in substance the argument was that the affidavit could not support summary
       judgment because it failed to comply with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013)
       and thus should not be considered. Accordingly, we review de novo the grant of summary
       judgment in conjunction with the consideration of the prove-up affidavit. See Jackson, 323 Ill.
       App. 3d at 774 (“[W]hen the trial court rules on a motion to strike a Rule 191 affidavit in
       conjunction with a summary judgment motion, we review de novo the trial court’s ruling on
       the motion to strike.”).

¶ 19                                       B. Motions to Strike
¶ 20      Defendants argue that the trial court erred in striking their second affirmative defense, their
       amended third and fourth affirmative defenses, and their counterclaim to quiet title. We
       address the affirmative defenses and the counterclaim in turn.

¶ 21                                   1. Second Affirmative Defense
¶ 22        Defendants first argue that the trial court improperly struck their second affirmative
       defense, that plaintiff violated section 15-1502.5 of the Code by failing to send a grace-period
       notice to them prior to filing its complaint.
¶ 23        Section 15-1502.5 requires a mortgagee to send notice via United States mail advising the
       mortgagor to seek approved housing counseling if the mortgage becomes more than 30 days
       delinquent, “[e]xcept for mortgages secured by residential real estate in which any mortgagor
       has filed for relief under the United States Bankruptcy Code.” 735 ILCS 5/15-1502.5(c) (West
       2010).
¶ 24        Here, defendants claim that they filed for bankruptcy on March 29, 2011, after plaintiff
       initiated its foreclosure action on March 23, 2011. Therefore, they claim, the exception in
       section 15-1502.5(c) quoted above did not apply, and plaintiff was required to send them the
       notice.
¶ 25        Plaintiff responds as follows. First, this court does not have jurisdiction to entertain an
       appeal of the striking of defendants’ second affirmative defense (and, for the same reasons, the
       striking of their counterclaim). Defendants’ notice of appeal lists three specific orders from

                                                   -4-
       which they appeal: the January 8, 2013, order, in which the court struck their amended third
       and fourth affirmative defenses with prejudice; the November 6, 2013, order granting
       summary judgment3; and the March 11, 2014, order confirming the sale of the Property. Under
       Illinois Supreme Court Rule 303(b)(2) (eff. May 30, 2008), we lack jurisdiction to review
       judgments or parts of judgments not specified in or inferred from the notice of appeal. See
       Fitch v. McDermott, Will & Emery, LLP, 401 Ill. App. 3d 1006, 1014 (2010). Moreover, the
       striking of the second affirmative defense and the counterclaim was not a step in the procedural
       progression leading to the judgments specified in the notice of appeal. See Illinois Central Gulf
       R.R. Co. v. Sankey Brothers, Inc., 78 Ill. 2d 56, 61 (1979) (holding that appellate court properly
       ruled that dismissal of defendant’s counterclaim in December 1977 was not before it when
       defendant’s notice of appeal sought review only of summary judgment in April 1978 and did
       not mention the earlier dismissal order).
¶ 26        We agree with plaintiff that defendants’ second affirmative defense is not properly before
       us on appeal. The order striking defendants’ second affirmative defense (and counterclaim)
       with prejudice was entered on November 7, 2012. That order is not specified in defendants’
       notice of appeal. While an unspecified judgment is reviewable if it is a step in the procedural
       progression leading to the judgment specified in the notice of appeal (Village of Lisle v. Village
       of Woodridge, 192 Ill. App. 3d 568, 572 (1989)), the striking of the second affirmative defense
       was not part of the procedural progression here (see Edward E. Gillen Co. v. City of Lake
       Forest, 221 Ill. App. 3d 5, 11 (1991) (dismissal of earlier counts of a complaint is not a step in
       “procedural progression” (internal quotation marks omitted)); see also Dalen v. Ozite Corp.,
       230 Ill. App. 3d 18, 24 (1992) (matters outside the scope of the cause at issue are not part of the
       procedural progression)). The second affirmative defense alleged that plaintiff violated section
       15-1502.5 of the Code by failing to send a grace-period notice. This was an isolated issue
       outside of the procedural progression to any judgment specified in the notice of appeal.
¶ 27        Regardless, the dispute over the striking of the second affirmative defense comes down to a
       disagreement over when plaintiff instituted its action for foreclosure. Defendants argue that
       plaintiff filed its action on March 23, 2011, before they filed for bankruptcy on March 29,
       2011. As plaintiff argues, and as the record supports, it filed its action on August 17, 2011,
       almost five months after defendants filed for bankruptcy. Accordingly, even if the issue were
       properly before us, plaintiff had no obligation to send defendants notice under section
       15-1502.5 of the Code (735 ILCS 5/15-1502.5 (West 2010)).

¶ 28                       2. Amended Third and Fourth Affirmative Defenses
¶ 29       Defendants argue that they pled their amended third and fourth affirmative defenses–fraud
       in the inducement and equitable estoppel, respectively–with sufficient specificity and
       particularity. Regarding fraud in the inducement, defendants argue that they properly pled the
       defense by stating: they were led to believe that the appraiser of the Property was an
       independent contractor, not an employee of the mortgage broker’s office; plaintiff knew of this
       misrepresentation; plaintiff failed to disclose this conflict of interest; defendants trusted
       plaintiff despite not receiving a copy of the appraisal; and defendants were injured when they
       found out that the Property was worth less than its appraised value. Regarding equitable

           3
            In defendants’ response to the motion for summary judgment, they did not argue that their second
       affirmative defense or counterclaim should preclude summary judgment.

                                                     -5-
       estoppel, defendants reiterate the aforementioned allegations and additionally cite First
       Mortgage Co. v. Dina, 2014 IL App (2d) 130567, ¶ 25, to say that, where a public-policy
       reason supports voiding a mortgage, a technical flaw in the way a defendant raised a defense
       does not result in forfeiture of the defense.
¶ 30       Plaintiff responds that defendants’ amended third and fourth affirmative defenses, as well
       as their counterclaim, were barred by the PAA. Moreover, plaintiff argues that the amended
       defenses were properly stricken for failure to meet the appropriate pleading standard.
¶ 31       We agree with plaintiff with respect to both the PAA and the sufficiency of defendants’
       pleadings. The trial court took judicial notice of the PAA, which is a public document, and we
       do so as well. See Country Cos. v. Universal Underwriters Insurance Co., 343 Ill. App. 3d 224,
       229 (2003) (the appellate court may take judicial notice of public records regardless of whether
       the records were before the trial court). Article II, section 2.5, of the PAA reads:
               “Borrower Claims. Notwithstanding anything to the contrary in this Agreement, any
               liability associated with borrower claims for payment of or liability to any borrower for
               monetary relief, or that provide for any other form of relief to any borrower ***
               whether asserted affirmatively or defensively, related in any way to any loan or
               commitment to lend made by the Failed Bank prior to failure *** or otherwise arising
               in connection with the Failed Bank’s lending or loan purchase activities are specifically
               not assumed by the Assuming Bank.”
       The “Failed Bank” here was Washington Mutual Bank, and the “Assuming Bank” was
       plaintiff.
¶ 32       The plain language of the PAA states that plaintiff did not assume any liability to
       defendants arising from their original loan with Washington Mutual Bank, including claims
       asserted defensively or affirmatively, and other courts have found that such language in a
       purchase and assumption agreement bars borrower claims against the purchasing bank. See
       Baginski v. JP Morgan Chase Bank N.A., No. 11 C 6999, 2012 WL 5989295, at *5 (N.D. Ill.
       Nov. 29, 2012) (section 2.5 of the purchase and assumption agreement between Chase and the
       FDIC broadly excluded borrower claims from the liabilities assumed by Chase, and thus
       borrower could not pursue a fraud claim against Chase that arose before Chase assumed the
       loan); see also Yeomalakis v. Federal Deposit Insurance Corp., 562 F.3d 56, 60 (1st Cir. 2009)
       (plaintiff-borrower’s motion to substitute Chase as a party failed because the agreement Chase
       signed with the FDIC when it acquired the relevant assets excluded assumption of liability for
       borrower claims). Defendants acquired their mortgage loan in June 2006, and plaintiff
       purchased Washington Mutual Bank’s assets in September 2008. Defendants’ original third
       and fourth affirmative defenses were based on allegations of wrongdoing at the origination of
       the mortgage loan, and the amended affirmative defenses did not specify a time but instead
       referenced an unspecified “refinancing.” Given defendants’ sparse allegations, the record does
       not support that their claim for fraud or equitable estoppel arose, if at all, after the PAA.
       Accordingly, the PAA bars defendants’ amended affirmative defenses from being asserted
       against plaintiff.
¶ 33       Moreover, we agree with plaintiff that the amended third and fourth affirmative defenses
       were properly stricken because their allegations were conclusory. The amended third defense,
       fraud in the inducement, alleged:
                   “1. Defendants were current on their previous loan.


                                                   -6-
                    2. Defendants were approached by a mortgage broker to re-finance their home loan.
                    3. Another lender agreed to use said mortgage broker to lend money to Defendants
               pursuant to a refinancing of their home.
                    4. Before closing, it became apparent to lender that the broker was also the
               appraiser of the new home loan.
                    5. Therefore there was a conflict of interest with this loan.
                    6. Defendants were never given a copy of their appraisal.
                    7. Broker also inflated Defendants’ assets.
                    8. Defendants are not fluent in English.
                    9. Due to said broker’s actions in creating this bogus lien, Plaintiff is estopped from
               enforcing their bogus lien.
                    10. Defendants specifically deny the deemed allegations of 735 ILCS
               5/15-1504(c)(1) and 735 ILCS 5/15-1504(c)(7).”
¶ 34       Fraud in the inducement is a form of common-law fraud. Lagen v. Balcor Co., 274 Ill. App.
       3d 11, 17 (1995). The elements of fraud are: (1) a false statement of material fact; (2)
       knowledge or belief of the statement’s falsity; (3) intent to induce the plaintiff to act or refrain
       from action on the falsity of the statement; (4) the plaintiff reasonably relied on the false
       statement; and (5) damage from such reliance. Id. Moreover, there is “a high standard of
       specificity for pleading claims of fraud.” Janowiak v. Tiesi, 402 Ill. App. 3d 997, 1006 (2010).
       “A complaint for common-law fraud ‘must allege, with specificity and particularity, facts from
       which fraud is the necessary or probable inference, including what misrepresentations were
       made, when they were made, who made the misrepresentations and to whom they were
       made.’ ” Aasonn, LLC v. Delaney, 2011 IL App (2d) 101125, ¶ 28 (quoting Connick v. Suzuki
       Motor Co., 174 Ill. 2d 482, 496-97 (1996)). “Conclusory allegations are insufficient.” Id.
¶ 35       Here, the allegations in the amended third affirmative defense were conclusory and thus
       properly stricken. Defendants did not specify what misrepresentations plaintiff made but stated
       only that the broker “inflated Defendants’ assets.” They did not specify what the appraised
       value of the Property or their assets was or what it should have been. They failed to name the
       broker and failed to state when the alleged misrepresentations took place. They hinted that they
       relied on the broker’s representations because they were not fluent in English, but such
       intimations do not comport with fraud’s heightened pleading standards. They finally failed to
       allege that the broker knew or believed that the alleged misrepresentations were false when she
       made them.
¶ 36       Turning to the amended fourth affirmative defense, equitable estoppel, its allegations were
       identical to those in the fraud in the inducement defense. Equitable estoppel is an equitable
       doctrine “invoked to prevent fraud and injustice” (Carey v. City of Rockford, 134 Ill. App. 3d
       217, 218 (1985)) “by precluding a party from benefiting from its own wrongdoing” (Tegeler v.
       Industrial Comm’n, 173 Ill. 2d 498, 505 (1996)). The elements of equitable estoppel are:
               “(1) the other person misrepresented or concealed material facts; (2) the other person
               knew at the time he or she made the representations that they were untrue; (3) the party
               claiming estoppel did not know that the representations were untrue when they were
               made and when they were acted upon; (4) the other person intended or reasonably
               expected that the party claiming estoppel would act upon the representations; (5) the
               party claiming estoppel reasonably relied upon the representations in good faith to his

                                                    -7-
               or her detriment; and (6) the party claiming estoppel would be prejudiced by his or her
               reliance on the representations if the other person is permitted to deny the truth
               thereof.” Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 313-14 (2001).
       For the same reasons that defendants failed to properly plead fraud, defendants failed to plead
       sufficient facts to demonstrate all the elements of equitable estoppel, including facts to
       demonstrate that the broker knew that the representations were untrue when they were made
       and that defendants did not. Moreover, defendants argue that, where a public-policy reason
       exists to void a mortgage, technical flaws in raising a defense should not forfeit the defense,
       but defendants have not identified any public-policy reason for voiding the mortgage, and we
       do not further consider this argument.

¶ 37                                         3. Counterclaim
¶ 38       We have already decided that defendants’ second affirmative defense is not properly
       before us because the notice of appeal did not specify the order striking it and the order was not
       a step in the procedural progression leading to a specified order. Likewise, defendants’
       counterclaim is not properly before us. The trial court disposed of the counterclaim with
       prejudice in the same order that struck the second affirmative defense. The counterclaim also
       raised an isolated issue outside of the procedural progression to any specified order. The
       counterclaim, while based on allegations similar to those in the amended third and fourth
       affirmative defenses (primarily, the allegation that the broker was also the appraiser), was
       likewise unrelated to the ruling striking the amended affirmative defenses or to either of the
       other specified orders.4
¶ 39       Because the counterclaim is not properly before us, we need not consider whether
       defendants had standing to bring their counterclaim after filing for bankruptcy.

¶ 40                                C. Motion for Summary Judgment
¶ 41       Defendants next argue that the entry of summary judgment was inappropriate because
       plaintiff’s prove-up affidavit was insufficient pursuant to Rule 191 and thus there was an issue
       of material fact. Defendants attack the sufficiency of the prove-up affidavit as follows.
       Cardenas stated that she “had access” to the business records related to defendants’ loan and
       had personal knowledge of how the records were created and maintained. The affidavit did not
       mention how the records were created or maintained or by whom. Under Illinois Supreme
       Court Rule 236 (eff. Aug. 1, 1992), a business record may be admitted into evidence as an
       exception to hearsay if the record was made in the regular course of business, but a foundation
       must be laid to establish an affiant’s personal knowledge of the record. See In re Estate of
       Teall, 329 Ill. App. 3d 83, 92 (2002). An affidavit must not state facts on information and belief
       (see Fooden v. Board of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587
       (1971)), and an affidavit must contain facts stated with particularity to support its conclusions

           4
            Even if the counterclaim were properly before us, we have already decided that the amended third
       and fourth affirmative defenses, based on the allegations that the broker inflated the value of the
       Property and defendants’ assets, were properly stricken for failing to allege sufficient facts and were
       barred by the PAA. Likewise, the counterclaim, based on the same sparse allegations, was both
       properly stricken as conclusory and barred by the PAA.


                                                      -8-
       (Steiner Electric Co. v. NuLine Technologies, Inc., 364 Ill. App. 3d 876, 881 (2006)). Here,
       defendants argue, because plaintiff’s affidavit failed to establish a proper foundation with
       specific facts but rather contained “bald assumptions” and conclusions, the business-records
       exception did not apply and the motion for summary judgment should have been denied.
¶ 42       Plaintiff responds as follows. Rule 2365 states:
                    “(a) 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.” (Emphasis
               added.) Ill. S. Ct. R. 236 (eff. Aug. 1, 1992).
       The foundation necessary under Rule 236 is only that the party tendering the record
       demonstrates that the record was made in the regular course of business and at or near the time
       of the transaction. In re Estate of Weiland, 338 Ill. App. 3d 585, 600 (2003). An affiant need
       not have personally made the record; rather, the affiant must be familiar with the record and
       acquainted with the business and procedure at issue. Lecroy v. Miller, 272 Ill. App. 3d 925, 936
       (1995). Here, the affidavit was sufficient because Cardenas averred that the loan records were
       kept and maintained by plaintiff in the regular course of business and were made at or near the
       time of the event, by a person with knowledge. She further averred that it was regular practice
       to keep the loan records, that she personally reviewed the records, and that she had personal
       knowledge of how the records were kept and maintained.
¶ 43       We agree with plaintiff. Cardenas’s affidavit averred the following pertinent information:
       she was a vice president with plaintiff; in her capacity as vice president, she had access to
       plaintiff’s business records relating to the loan; she reviewed the loan records and had personal
       knowledge of how they were kept and maintained; the loan records were maintained by
       plaintiff in the course of its regularly conducted business activities and were made at or near
       the time of the event, by a person with knowledge; and it was regular practice to keep records
       such as the loan records in the ordinary course of plaintiff’s business activities. She also
       provided the specific amounts owing on the loan.
¶ 44       In Bank of America, N.A. v. Land, 2013 IL App (5th) 120283, ¶ 14, we held that the
       affidavit provided by the plaintiff-bank’s assistant vice president, used to prove the balance
       due on the defendants’ mortgage loan, was sufficient under Rule 236 where the affiant attested
       that: she was familiar with the bank’s procedures for creating and maintaining business

           5
            We note that as of January 1, 2011, the Illinois Rules of Evidence became effective, and they
       contain a hearsay exception for “Records of Regularly Conducted Activity.” Ill. R. Evid. 803(6) (eff.
       Apr. 26, 2012). Nonetheless, the adoption of the rules of evidence relating to the admission of business
       records did not make any substantive changes to the requirements of Rule 236, and the case law
       developed under Rule 236 is still applicable to the admission of business records. JPMorgan Chase
       Bank, N.A. v. East-West Logistics, L.L.C., 2014 IL App (1st) 121111, ¶ 99; see also Illinois Rules of
       Evidence, Committee Commentary (noting that Rule 803(6) retains the hearsay exception for business
       records under Rule 236 but removes the distinction between civil and criminal business records).

                                                      -9-
       records; the loan records were made at or near the time of the relevant occurrence by persons
       with personal knowledge of the information in the records; the records were kept in the course
       of the bank’s regularly conducted business activities; and it was the bank’s regular practice to
       keep such records. Accordingly, the affidavit provided a sufficient basis upon which to
       conclude that the bank was entitled to judgment as a matter of law. Id.
¶ 45       In Avdic, 2014 IL App (1st) 121759, ¶ 26, the affidavit of a bank employee was sufficient
       to support summary judgment where she averred that: she had duties reviewing and analyzing
       loan records for the bank; she maintained records for each loan serviced; she was familiar with
       the defendant’s loan; she had personal knowledge that it was within the regular course of
       business to record the information at issue at or near the time of the occurrence; and she
       identified the specific amounts owing on the loan. The foundational requirements for the
       records were twofold: (1) that the records were made in the regular course of business and (2)
       that the records were made at or near the time of the event or occurrence. Id. ¶ 23. These
       averments were sufficient to satisfy these foundational requirements, and the records were thus
       properly considered by the trial court in the entry of summary judgment in favor of the bank.
       Id. ¶ 30.
¶ 46       Here, Cardenas made averments virtually identical to those of the affiants in Land and
       Avdic. Her averments clearly satisfied the two foundational requirements under Rule 236. See,
       e.g., Gulino v. Economy Fire & Casualty Co., 2012 IL App (1st) 102429, ¶ 27 (Rule 236
       requires the proponent of a business record to establish that the record was: (1) made in the
       regular course of business and (2) made at or near the time of the event or occurrence.).
       Because plaintiff’s prove-up affidavit contained averments satisfying the foundational
       requirements of Rule 236, the trial court properly considered the affidavit and the attached loan
       documents and thus did not face an issue of material fact regarding the amounts owing on the
       loan. Accordingly, we affirm the trial court’s entry of summary judgment for plaintiff.

¶ 47                                   III. CONCLUSION
¶ 48      For the aforementioned reasons, we affirm the judgment of the Du Page County circuit
       court.

¶ 49      Affirmed.




                                                  - 10 -
