Opinion
NO. 03 C 50391
March 12, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff, Countrywide Home Loans, Inc., filed a mortgage foreclosure action, naming as defendants, Bobby Wilkerson, Karen Wilkerson, the City of DeKalb, and Citifinancial Services, Inc. On January 16, 2004, plaintiff filed a motion for default order against Citifinancial Services (served but no appearance or answer), and a motion for summary judgment as to both Wilkersons and the City of DeKalb. The Wilkersons filed a response to the summary judgment motion, objecting to the foreclosure based on plaintiff's purported failure to either conduct a face-to-face meeting or make reasonable efforts to arrange such a meeting in violation of section 203.604 of the Code of Federal Regulations, 24 C.F.R. § 203.604. Plaintiff, in turn, submitted an affidavit stating that on July 17, 2003, one of its field services representatives went to the Wilkersons' home in an attempt to conduct a face-to-face meeting, found no one home (presumably), and left a card on the door requesting the Wilkersons to contact plaintiff to arrange the meeting. According to the affiant, the Wilkersons failed to contact plaintiff thereafter to arrange a meeting.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hardy v. University of Illinois at Chicago, 328 F.3d 361, 363 (7th Cir. 2003). It is undisputed here that under Illinois law the failure to comply with HUD's mortgage services requirements is a complete defense to a mortgage foreclosure action. See Mellon Mortgage Co. v. Larios, 1998 WL 292387, * 2 (N.D. Ill. May 20, 1998), citing Bankers Life Co. v. Denton, 120 Ill. App.3d 576, 579, 458 N.E.2d 203, 205 (1983); Mortgage Assoc., Inc. v. Smith, 1986 WL 10384, * 2 (N.D. Ill. Sept. 16, 1986).
Under section 203.604 of the Code of Federal Regulations, a mortgagee must have a face-to-face meeting with the mortgagor, or make a reasonable effort to arrange such a meeting prior to proceeding with a foreclosure. 24 C.F.R. § 203.604(b). A face-to-face meeting is not required if a reasonable effort to arrange the meeting is unsuccessful. 24 C.F.R. § 203.604(c)(5). A reasonable effort to arrange such a meeting "shall consist at the minimum of one letter sent to the mortgagor certified by the Postal Service as having been dispatched." 24 C.F.R. § 203.604(d). Such a reasonable effort to arrange a face-to-face meeting "shall also include at least one trip to see the mortgagor at the mortgaged property" unless certain exceptions not applicable here exist. See 24 C.F.R. § 203.604(d). The court interprets this straightforward language to require both the sending of a certified letter and a personal visit to constitute a reasonable effort at arranging a face-to-face meeting.
In this case, plaintiff has established as a matter of fact that it made the personal visit to the mortgaged property, although the Wilkersons were apparently not home and a face-to-face meeting never took place. The Wilkersons' unsupported assertion that such a visit did not occur does not create a question of material fact in that regard in the face of plaintiff's affidavit.
Plaintiff has not offered at this point, however, any evidence that it also sent a certified letter in an effort to arrange such a meeting. The burden to offer such proof belongs to plaintiff as it is seeking to avail itself of the exception to the general requirement that a face-to-face meeting actually take place. Having failed to do so, plaintiff has not established that it is entitled to judgment as a matter of law. The court, therefore, denies plaintiff's summary judgment motion.
This is an attempt to collect a debt and any information obtained will be used for that purpose. DEFAULT ORDER
THIS CAUSE COMING ON TO BE HEARD ON motion of plaintiff for entry of an Order finding certain Defendant in default;
IT IS HEREBY ORDERED that the following defendant is in default: Citifinancial Services, Inc.