Opinion
No. 2-16-0644
09-29-2017
THE BANK OF NEW YORK MELLON, f/k/a the Bank of New York, as Successor-in-Interest to JPMorgan Chase Bank, N.A., as Trustee for Bear Stearns Asset Backed Securities, Bear Stearns Alt-A Trust, Mortgage Pass-through Certificates, Series 2006-2, Plaintiff-Appellee, v. ANTHONY ANTINE and UNKNOWN OCCUPANTS, Defendants (Anthony Antine, Defendant-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Du Page County. No. 16-LM-305 Honorable Brian J. Diamond, Judge, Presiding. JUSTICE SPENCE delivered the judgment of the court.
Presiding Justice Hudson and Justice Hutchinson concurred in the judgment.
ORDER
¶ 1 Held: Defendant forfeited his assertion that plaintiff lacked standing; the question of whether the trial court erred by striking his initial pleadings was moot; the underlying foreclosure judgment would not be void even if the plaintiff in that action had lacked standing; and the doctrine of res judicata did not apply. Therefore, we affirmed. ¶ 2 In this forcible entry and detainer action, defendant, Anthony Intini, appeals from the trial court's grant of summary judgment and order of possession entered in favor of plaintiff, the Bank of New York Mellon, f/k/a the Bank of New York, as successor-in-interest to JPMorgan Chase Bank, N.A., as trustee for Bear Stearns asset backed securities, Bear Stearns alt-A trust, mortgage pass-through certificates, series 2006-2. On appeal, defendant argues that: the plaintiff in the underlying mortgage foreclosure case lacked standing, causing plaintiff to lack standing in the instant case; the trial court erred by striking his initial pleadings; the foreclosure judgment is void and subject to collateral attack; and, based on the doctrine of res judicata, he cannot be dispossessed of the property. We affirm.
Although the case is captioned "Anthony Antine," defendant asserted in his pleadings that his name is spelled Anthony Intini.
¶ 3 I. BACKGROUND
¶ 4 A. Underlying Foreclosure Action
¶ 5 Both the underlying foreclosure action and the current forcible entry and detainer action involve a house located at 1240 Hamilton Lane in Naperville. ¶ 6 On November 23, 2005, Barbara Kemp executed a promissory note in the amount of $863,200 in favor of Maribella Mortgage LLC (Maribella). EMC Mortgage Corp. v. Kemp, 2015 IL App (2d) 140400, ¶ 5. The note was secured by a mortgage on the property in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Maribella. Id. EMC Mortgage Corp. (EMC) filed a foreclosure complaint against Kemp, defendant, and others in July 2006; defendant was later dismissed as a party to the litigation. Id. ¶¶ 5-6. Kemp filed a series of counterclaims which were eventually dismissed. Id. ¶¶ 7-8. The trial court granted summary judgment for EMC in March 2009, and it entered a judgment for foreclosure and sale in June 2009. Id. ¶ 9. Proceedings were delayed after Kemp filed for bankruptcy. Id. ¶¶ 9-10. Kemp then filed a motion to vacate and a motion to dismiss the foreclosure complaint. Id. ¶ 11. The trial court denied the motions and Kemp's subsequent motion to reconsider, and Kemp appealed. Id. ¶¶ 12-15. We dismissed the appeal for lack of jurisdiction (EMC Mortgage Corp. v. Kemp, 2011 IL App (2d) 101175-U), and the supreme court affirmed (EMC Mortgage Corp. v. Kemp, 2012 IL 113419). Id. ¶ 19. ¶ 7 A judicial sale of the property took place on October 31, 2013, with EMC as the highest bidder, and EMC moved to confirm the sale. Kemp, 2015 IL App (2d) 140400, ¶ 16. Kemp filed an objection, arguing, among other things, that EMC lacked standing at the time it filed the complaint. Id. On February 6, 2014, the trial court granted EMC's motion to confirm the sale over Kemp's objection. Id. ¶ 17. Kemp appealed, and we affirmed, concluding, in relevant part, that Kemp had forfeited the question of standing by failing to raise the issue in a timely manner. Id. ¶ 29. We further stated that EMC had sold its interest to plaintiff. Id. ¶ 19.
Defendant was dismissed as a party on June 16, 2009. --------
¶ 8 B. Instant Case
¶ 9 On February 2, 2016, plaintiff filed a forcible entry and detainer action against defendant. Plaintiff alleged that it was the holder of the certificate of sale and/or judicial deed issued pursuant to the foreclosure sale on the property, and that it was entitled to exclusive possession. ¶ 10 Plaintiff filed a motion for summary judgment on February 29, 2016. On the same day, defendant filed a verified pro se answer to the complaint without leave of court, in which he denied all allegations. He also alleged two affirmative defenses. The first was that "Anthony Antine" was not a real person, as his name was Anthony Intini III. The second was that because he was dismissed with prejudice from the foreclosure action, his right to possession had not been extinguished. ¶ 11 On March 16, 2016, plaintiff moved to dismiss the affirmative defenses. It argued that nothing in the first affirmative defense negated the forcible complaint or established that it did not have a superior right to possession. Plaintiff argued that the second affirmative defense failed to allege any facts or evidence that would defeat the complaint, because the foreclosure was a separate proceeding and not germane to the current proceeding. ¶ 12 On April 20, 2016, the trial court struck defendant's appearance and pleadings and granted summary judgment and an order of possession for plaintiff. The trial court's ruling was based in part on defendant's failure to pay his appearance fee, and the trial court also noted that defendant was not given leave to file his answer. Defendant then sought to vacate the rulings, and the trial court vacated the grant of summary judgment and order of possession on July 20, 2016. ¶ 13 On July 25, 2016, defendant moved for leave to file a verified answer and affirmative defenses. Three days later, the trial court granted defendant leave to file his verified answer but denied his request for leave to file affirmative defenses. The trial court granted plaintiff's motion for summary judgment on August 9, 2016, and entered an order for possession. Defendant timely appealed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, defendant challenges the trial court's grant of summary judgment for plaintiff. Summary judgment is appropriate only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Hertz Corp. v. City of Chicago, 2017 IL 119945, ¶ 12. We review de novo an order granting summary judgment. Id. ¶ 16 A forcible entry and detainer action is a limited proceeding, and the only issues are which party is entitled to immediate possession and whether a defense germane to the purpose of the action defeats the plaintiff's alleged right to possession. Campana Redevelopment, LLC v. Ashland Group, LLC, 2013 IL App (2d) 120988, ¶ 13. ¶ 17 Defendant begins by arguing that the trial court "erred in holding that EMC *** had standing to file the forcible complaint." However, EMC did not file the forcible entry and detainer action, but rather plaintiff did. ¶ 18 Defendant then argues that EMC lacked standing in the foreclosure action, so it had no interest to pass to plaintiff, and therefore plaintiff lacks standing to evict any party pursuant to the order of possession. In a civil case, lack of standing is an affirmative defense which will be forfeited if not timely raised. Deutsche Bank National Trust Co. v. Iordanov, 2016 IL App (1st) 152656, ¶ 34. Defendant raised the issue of plaintiff's standing as an affirmative defense prior to having been given leave to file an answer, but the trial court struck defendant's pleadings on April 20, 2016. On July 25, 2016, defendant moved for leave to file a verified answer and affirmative defenses. On July 28, 2016, the trial court granted defendant leave to file his verified answer but denied his request for leave to file affirmative defenses. Accordingly, the pertinent issue at this point is whether the trial court erred in denying defendant leave to file the affirmative defense of lack of standing. This is an issue that defendant has not briefed, thereby forfeiting it for review. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (points not argued are forfeited); see also CE Design, Ltd. v. Speedway Crane, LLC, 2015 IL App (1st) 132572, ¶ 18 (a reviewing court is not a repository into which an appellant may dump the burden of argument and research, and the failure to clearly define issues and support them with authority results in forfeiture of the argument). Correspondingly, defendant has forfeited the question of plaintiff's standing. ¶ 19 Defendant somewhat relatedly argues that the trial court erred in striking his pleadings because his initial check for his filing fees bounced; defendant later paid the fee to the clerk. However, this issue is moot because the trial court subsequently vacated the grant of summary judgment and order of possession, and it granted defendant leave to file a verified answer. See City of Chicago v. Janssen Pharmaceuticals, Inc., 20176 IL App (1st) 150870, ¶ 36 (an issue is moot where events occurred making it impossible for the court to grant effectual relief). Although defendant's initial answer also included affirmative defenses, they were filed without leave of the court. The trial court subsequently denied defendant leave to file the affirmative defenses, and defendant could have chosen to challenge that denial on appeal but did not do so. In sum, defendant fails to adequately explain how the trial court's initial striking of his pleadings ultimately prejudiced him, rendering the issue moot. ¶ 20 Defendant also argues that the underlying foreclosure judgment is void due to EMC's lack of standing, and therefore the judgment may be attacked in any forum. A void judgment is one in which the court lacked personal or subject matter jurisdiction, or the inherent power to make or enter the judgment involved; a void judgment is subject to collateral attack. Dovalina v. Conley, 2013 IL App (1st) 103127, ¶ 30. However, even if a plaintiff lacks standing, it does not deprive the trial court of subject matter jurisdiction. Nationstar Mortgage, LLC v. Canale, 2014 IL App (2d) 130676, ¶ 18. Accordingly, even if EMC lacked standing in the underlying foreclosure action, it would not make the foreclosure judgment void and subject to collateral attack. As defendant cannot challenge EMC's standing, it follows that there is no basis to assert that plaintiff lacks standing (in addition to defendant's forfeiture of that issue discussed supra ¶ 18). See also Wells Fargo Bank, N.A. v. Watson, 2012 IL App (3d) 110930, ¶¶ 8, 16 (the defendant's collateral attack on a mortgage foreclosure judgment, which included an assertion of lack of standing, was not germane to the issue of possession in a forcible entry and detainer action). ¶ 21 Last, defendant argues that because he was dismissed as a party from the foreclosure action, he cannot be dispossessed by an order of possession based on the foreclosure complaint. Defendant relies on res judicata. Under the doctrine of res judicata, a final judgment on the merits by a court of competent jurisdiction bars a subsequent suit between the parties involving the same cause of action. Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 49. Res judicata does not apply here, as the parties are not the same in both actions. Defendant argues that the case's caption "demonstrably proves the same parties represented by the same lawyers." Defendant does not elaborate. Even if the parties were the same, though, res judicata also requires that the same cause of action be involved. Id. "An action for mortgage foreclosure and an action for forcible entry and detainer are separate and distinct." Norwest Mortgage, Inc. v. Ozuna, 302 Ill. App. 3d 674 (1999). Accordingly, defendant's argument is without merit.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we affirm the judgment of the Du Page County circuit court. ¶ 24 Affirmed.