Opinion
No. 1-17-0621
03-28-2018
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff-Appellee v. AMARA I. AKOGU; PAMELA M. AKOGU; UNKNOWN OWNERS AND NON-RECORD CLAIMANTS, Defendants- Appellants.
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 Cook County.
No. 12 CH 3724
Honorable Bridget Mitchell, Judge, presiding
PRESIDING JUSTICE COBBS delivered the judgment of the court.
Justices Howse and Lavin concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err in granting summary judgment in favor of plaintiff where defendant failed to raise a genuine issue of material fact. The trial court did not err when it approved the judicial sale and awarded plaintiff post-judgment advances.
¶ 2 In this mortgage foreclosure action, defendants, Amara and Pamela Akogu, appeal the trial court's grant of summary judgment in favor of plaintiff, Federal National Mortgage Association (Fannie Mae). On appeal, defendants contend that there remained a genuine issue of material fact that the parties entered into a permanent loan modification agreement;
and the trial court erred when it approved the judicial sale and awarded the plaintiff post-judgment advances. We affirm.
¶ 3 BACKGROUND
¶ 4 In 1996, defendants entered into a mortgage agreement with Preferred Mortgage Associates, LTD., for a property located at 1024 Tiverton Court, Schaumburg, IL. Sometime thereafter the mortgage was assigned to Bank of America, N. A. (Bank).
¶ 5 In February 2012, the Bank filed a complaint in the circuit court of Cook County seeking to foreclose on the mortgaged property. Attached to the complaint were the mortgage, the note, and a loan modification agreement entered into by the parties in October 2010. In its complaint, the Bank alleged that defendants had not paid the required monthly installments from October 2011 to the time of the complaint. In July 2012, the Bank filed a motion for an order of default and judgment of foreclosure and sale. In August 2012, the trial court entered an order instructing defendants to "file an appearance and answer or otherwise plead to the complaint by September 2012." Despite the trial court's order, defendants did not respond to the Bank's complaint until October 2012.
¶ 6 On September 22, 2012, while the complaint was pending, the parties entered into a trial payment plan (Plan). The plan required that defendants make equal payments of $1,307.21 for a three-month period commencing November 1, 2012. In a correspondence between the Bank and defendants, the Bank advised defendants that entering into the Plan was the first step towards permanently modifying defendants' loan. Defendants made three timely payments between the months of November and January in compliance with the Plan.
¶ 7 On April 9, 2013, the Bank informed defendants that they had been approved for a permanent loan modification. In order for the modification to become effective, defendants
were required to sign and return two copies of the permanent loan modification agreement and remit the new payment amount of $1368.97 by May 1, 2013. Defendants made a payment to the Bank in the amount of $1244.16 in May 2013 and $1427.64 in June 2013.The Bank rejected defendants' payments for the months of July, August and September.
¶ 8 In May 2014, the Bank filed, inter alia, a motion for summary judgment, and a motion for judgment of foreclosure and related relief. In its motion for summary judgment, the Bank argued that defendants were in default on the mortgage. It further asserted that defendants' answer to the complaint failed to sufficiently allege any facts that would indicate that a genuine issue of material fact existed. Attached to its motion, the Bank included an affidavit signed by an assistant vice-president averring that defendants defaulted on their loan by failing to make required payments, a loss mitigation affidavit, a copy of defendants' account information statement, and bank records tracking defendants' mortgage payments.
¶ 9 In response to the Bank's motion for summary judgment, defendants filed a counter-affidavit signed by Amara Akogu. Akogu averred that defendants entered into a permanent loan modification agreement with the bank by signing and returning the agreement, as instructed; that at the time of the response they could not locate the signature pages of the permanent modification; and despite not having the ability to present the court with the signature pages, the Bank accepted payments for the months of May and June. Akogu also noted that the Bank rejected payments for July through September.
¶ 10 The circuit court entered an order instructing the Bank to make available the signed trial period plan offer, and the signed permanent mortgage modification agreement, if they existed. At a status hearing on the Bank's motion for summary judgment, the trial court certified that the Bank tendered a copy of the copy of the September 2012 trial period plan
offer, an unsigned copy of the April 2013 permanent modification document, and a "modification rejection (signed documents not returned)" in open court. In March 2015, the court granted the Bank's motion for summary judgment and entered a judgment of foreclosure and sale.
¶ 11 Defendants subsequently filed a motion for reconsideration and a motion to dismiss the complaint. The circuit court denied defendants' motions. Shortly thereafter, the Bank filed a motion to substitute Fannie Mae as plaintiff, and a motion for an assignment of judgment of foreclosure and sale. The circuit court granted the Bank's motions.
¶ 12 In November 2015, plaintiff moved for an order approving the report of sale. In response defendants argued, inter alia, that the report of sale was inadmissible hearsay, and that plaintiff's efforts to collect over $15,000 of post judgment costs for the property taxes and insurance were improper. In pertinent part, plaintiff replied that it was not required to prove-up its costs and advances, and the report of sale sufficiently met the requirements of the judgment of foreclosure and sale, and the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1508 (West 2016)) (Act).
¶ 13 On September 8, 2016, the circuit court entered an order approving the report of sale and distribution, confirming the sale and granted plaintiff possession of the property. Defendants filed a motion to reconsider the court's order approving the sale, and the circuit court denied the motion.
¶ 14 ANALYSIS
¶ 15 Defendants first contends that the circuit court erred in granting summary judgment in favor of plaintiff because a genuine issue of material fact existed as to whether the parties entered into a permanent modified mortgage agreement. Defendants argue that their affidavit
served as unrebutted evidence that they accepted the Banks' offer to modify the loan by making monthly payment pursuant to the new agreement. Plaintiff counters that the pleadings and affidavit considered by the court show defendants' failure to establish the existence of a loan modification agreement and, as such, raised no genuine issue of material fact.
¶ 16 In reviewing the circuit court's grant of summary judgment, we review the judgment de novo, and we may affirm on any grounds found present in the record. Coughlan v. Beck, 2013 IL App (1st) 120891, ¶ 24. Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmoving party, demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. West Bend Mutual Insurance v. Norton, 406 Ill. App. 3d 741, 744 (2010). A genuine issue of fact exists where the material, relevant facts in the case are disputed, or where reasonable persons could draw different inferences and conclusions from undisputed facts. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
¶ 17 If an affidavit is filed in support of or opposition to a motion for summary judgment, it must strictly comply with Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013). The Rule provides,
"affidavits in support of and in opposition to a motion for summary judgment under section 2-1005 of the Code of Civil Procedure, *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all documents upon which the affiant relies; shall not consist of
conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." Ill. S. Ct. Rule 191.
Thus, to survive a motion for summary judgment, the nonmoving party need not prove his or her case at this preliminary stage of litigation; but, the nonmovant must present some evidentiary facts that would arguably entitle him or her to judgment. Horwitz v. Holabird & Root, 212 Ill. 2d 1, 8 (2004).
¶ 18 Here, defendants failed to demonstrate that a genuine issue of material fact existed. In its motion, the Bank alleged that defendants were in default on their mortgage, and it provided an affidavit demonstrating defendants default. In response, defendants presented a counter-affidavit signed by Amara, asserting, inter alia, that they complied with the Banks' instructions of signing and returning copies of the permanent modification agreement but he could not locate the signature pages. Included with the affidavit defendants attached an unsigned copy of the trial period plan, copies of payment receipts during the trial period, an unsigned copy of the loan modification agreement and a bank statement for the month of May. Our supreme court rules require that affidavits in opposition to a motion for summary judgment provide evidentiary proof to support rebuttal and defendant failed to do so. See Ill. S. Ct. Rule 191(a) (eff. Jan. 4, 2013). Defendants' assertion that they could not locate the signature pages at the time of the response does not absolve them of the requirement. See Robidoux v. Oliphant, 201 Ill. 2d 324, 336 (2002) ("it is necessary that there be strict compliance with Rule 191(a) to insure that trial judges are presented with valid evidentiary facts upon which to base a decision"). Absent proof that the modification was signed, defendants did not adequately rebut the Banks' proofs that they were in default; and therefore, the trial court did not err in granting plaintiff's motion for summary judgment.
¶ 19 Defendants also argue that they accepted the loan by making monthly payments consistent with the terms of the permanent loan modification agreement. We disagree. Our review of defendants' counter-affidavit and supporting evidence showed that defendants did not make payments in accordance with the proposed modification agreement. Defendants payment for the months of May and June and those payments rejected by plaintiff were not consistent with the payment amount identified in the permanent modification agreement. Furthermore, plaintiff's acceptance of the payments does not create a modification where the agreement stipulated that acceptance of the modification required both the return of the signature pages and tender of a specific payment amount by the specified date. Calo, Inc. v. AMF Pinspotters, Inc., 31 Ill. App. 2d 2, 8-9 (1961) ("where the parties make the reduction of the agreement to writing and its signature by them a condition precedent to its completion, it will not be a contract until this is done"). As we have discussed, the failure by defendants to provide the court with evidence of an agreement to permanently modify its loan did not present a genuine issue of material fact.
¶ 20 Defendants next argue that the circuit court erred when it awarded plaintiff over $17,000 in post-judgment advances. Specifically, defendants contend that plaintiff should not have been awarded post-judgment advances without providing a sufficient basis for those costs and attorneys' fees outlined in the report of sale. In response, plaintiff contends that defendants' claims are without merit because it complied with the Act's requirements for requesting post-judgment costs and fees.
¶ 21 Section 1504 provides that in its complaint a mortgagee may request a judgment for attorney's fees, costs and expenses. 735 ILCS 5/15-1504 (a)(1)(v) (west 2016). This request shall be construed to include allegations that "the plaintiff has been compelled to advance or
will be compelled to advance, various sums of money in payment of costs, fees, expenses and disbursements incurred in connection with the foreclosure[.]" 735 ILCS 5/15-1504 (d)(2). At a confirmation of the sale, the court in its order may approve the mortgagee's fees and costs arising between the entry of the judgment of foreclosure and the confirmation hearing, those costs and fees to be allowable to the same extent as provided in the note and mortgage and in Section 15-1504. See 735 ILCS 5/15-1508 (b)(1).
¶ 22 We note defendants' reliance on BMO Harris Bank, N.A. v. Wolverine Properties, LLC, 2015 IL App (2d) 140921, in making the argument that the circuit court erred when it had no evidence to reasonably conclude that the alleged post-judgment advances were made after the judgment of foreclosure was entered. However, that reliance is misplaced. In BMO Harris, following a judicial sale, the plaintiff sought to recover a pre-judgment tax payment not specified in its request for judgment of foreclosure and sale. 2015 IL App (2d) 140921, ¶ 11. The trial court confirmed the sale but denied the request. Id. at ¶ 13. In so doing, the court stated that because the judgment of foreclosure dictated the terms of the sale, a failure to include a tax payment in the judgment precluded the plaintiff from subsequently collecting the payment as a deficiency against the sale proceeds. Id. On appeal, the plaintiff argued that seeking to recover a deficiency judgment had no effect on the foreclosure. The second district upheld the trial court's decision reasoning that the plaintiff's failure to include the pre-judgment tax had an adverse effect on the judgment amount and sale. Id. at ¶ 28. The court further noted that in instances of a deficiency judgment, the party seeking payment has the burden of proving that it is entitled to such judgment. Id. at ¶ 25. However, where the judgment influences the sale, recovery must be governed by the amount sought in the foreclosure judgment and the costs incurred between judgment and sale. Id. at ¶ 29.
¶ 23 Here, unlike the plaintiff in BMO Harris, plaintiff included all costs and fees incurred prior to the entry of the order for judgment of foreclosure and sale and the court subsequently included those amounts in the judgment. Further, we believe that under the facts of this case, reimbursement of plaintiff's post-judgment advances was appropriate. In its complaint, the Bank sought reimbursement for attorney fees and expenses. Section 1504 construes such a request to include those costs and fees advanced by plaintiff in connection with the foreclosure. See 735 ILCS 5/15-1504. Further, pursuant to section 15-1508 and in the order for judgment for foreclosure and sale, plaintiff was allowed to be reimbursed for any post judgment costs and fees incurred. See 735 ILCS 5/15-1508. In its report of sale, plaintiff proffered to the court a breakdown of those post-judgment advances made between the foreclosure judgment and the confirmation of sale. Defendants presented nothing in rebuttal. Thus, we find that the trial court's approval of plaintiff's post-judgment advances was proper. See Citimortgage, Inc. v. Sharlow, 2014 IL App (3d) 130107, ¶ 22.
¶ 24 Defendants next argue that the report of sale was not sufficient evidence to support plaintiff's request for confirmation of sale. Specifically, they assert that the report does not qualify as an affidavit in support of a motion to confirm the foreclosure sale. Plaintiff responds by arguing that the court's confirmation of sale was valid absent any proper objection by defendants.
¶ 25 We note briefly that defendants' argument is incohesive and convoluted, and they do not cite to any case law or supreme court rule that requires a party to support his or her motion for entry of an order of sale with an affidavit. See Hall v. Naper Gold Hosp. LLC, 2012 IL App (2d) 111151, ¶ 7(our supreme court rules require parties before a reviewing court to present clear and orderly arguments so that the court can properly ascertain and dispose of
the issues involved). Despite defendants approach to their argument, we are guided by the plain language of the Act in deciding defendants' contention on appeal.
¶ 26 Following the sale, the Act requires the person conducting the sale to "promptly make a report to the court, which report shall include a copy of all receipts and, if any, certificate of sale." 735 ILCS 15-1508(a). Upon motion, the court shall conduct a hearing and will confirm the sale unless it finds that (1) proper notice was not given, (2) terms of the sale were unconscionable, (3) the sale was conducted fraudulently, or (4) justice was otherwise not done. Id. As such, when an interested party seeks to oppose the judicial sale, he or she bears the burden of proving that sufficient grounds exist to disapprove of a judicial sale. Bayview Loan Servicing, LLC v. 2010 Real Estate Foreclosure, LLC, 2013 IL App (1st) 120711, ¶ 32.
¶ 27 We review a circuit court's confirmation of sale for an abuse of discretion. Household Bank, 229 Ill. 2d at 178. Absent an abuse of that discretion, we will not disturb the circuit court's decision to confirm the sale. Id. An abuse of discretion occurs when the circuit court's ruling is unreasonable, fanciful or arbitrary, or where no reasonable person would agree with the view of the circuit court. Bayview Loan Servicing, LLC v. 2010 Real Estate Foreclosure, LLC, 2013 IL App (1st) 120711, ¶ 32.
¶ 28 Here, other than defendants' bare assertion, they offer nothing to support their claim.Our review of the record indicates that defendants received adequate notice of the foreclosure and sale. Defendants failed to demonstrate that the terms of sale were unconscionable, the sale was conducted fraudulently, or that justice was otherwise not done as a result of plaintiff only submitting a report of sale in support of a confirmation of sale. In compliance with the statute, plaintiff proffered to the circuit court a report of sale that included a receipt of sale and certificate of sale. In its report, plaintiff outlined all costs incurred as a result of the sale
and each document was certified by an officer of the Judicial Sale Corporation. The statute does not require that a party seeking to have a sale confirmed provide more. Defendants have failed to provide any grounds upon which a confirmation of foreclosure sale should have been denied. Thus we do not find that the trial court abused its discretion.
¶ 29 CONCLUSION
¶ 30 For the foregoing reasons, we affirm that trial court's decision.
¶ 31 Affirmed.