Banco Popular North America v. Gizynski
39 N.E.3d 205
Ill. App. Ct.2015Background
- Banco Popular filed a commercial mortgage foreclosure against Mark Gizynski for Chicago property described as four buildings with seven units (five residential, two offices).
- Court appointed a receiver and, in the appointment order, found the property was not "residential real estate" under 735 ILCS 5/15-1219. Gizynski later filed Chapter 7; stay lifted.
- Gizynski repeatedly argued the property met the Foreclosure Law definition of residential real estate (a multiple-dwelling structure with six or fewer single-family units, one occupied as the mortgagor’s principal residence) and that Banco Popular failed to give the 30-day "grace period" notice required by the Homeowner Protection Act (735 ILCS 5/15-1502.5) before filing suit.
- Trial court denied Gizynski’s motions to dismiss/vacate, granted Banco Popular’s summary judgment, entered a foreclosure decree, and approved a judicial sale; Gizynski appealed the grant of summary judgment and approval of sale.
- Appellate court considered whether (1) the property qualified as residential real estate under section 15-1219 and (2) failure to mail the section 15-1502.5 notice barred the foreclosure; it reversed summary judgment and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the subject property is "residential real estate" under 735 ILCS 5/15-1219 | Property is not residential because it contains commercial units and therefore is not a multiple-dwelling structure fitting the statute | Property contains five single-family dwelling units (and defendant lives in one), so it is residential real estate covered by the statute | Property qualifies as residential real estate: statute covers a structure that "contains" up to six single-family units even if portions are nonresidential; factual dispute exists whether defendant occupied a unit as his principal residence |
| Whether failure to mail the 30‑day grace period notice (Homeowner Protection Act) precludes foreclosure | The notice was unnecessary because defendant had notice after suit and had time to negotiate; any defect was not prejudicial or was only technical | The Act’s notice is mandatory and nonwaivable; Banco Popular conceded it never mailed the required notice | Because Banco Popular did not provide the statutorily required pre-suit notice and the property falls within the Act, summary judgment was improper and factual issues remain; the notice requirement is not excused |
| Whether defendant forfeited challenge to the receiver order finding property nonresidential by not pursuing interlocutory appeal | The April 2011 receiver order became law of the case and bars relitigation | Rule 307 interlocutory appeals are permissive; failure to appeal does not forfeit the issue | No forfeiture: Salsitz controls—Rule 307 is permissive, so issue not waived |
| Whether summary judgment was appropriate given the record | Movant met burden showing no triable issue and defendant offered insufficient evidence | There are affidavits, leases, and receiver reports creating a genuine issue about residential use and lack of notice | Summary judgment reversed; genuine factual disputes require further proceedings |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard; movant may show absence of evidence to support nonmoving party)
- Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (summary judgment is drastic; grant only when right is clear)
- Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307 (summary judgment: view evidence in light most favorable to nonmovant)
- Salsitz v. Kreiss, 198 Ill. 2d 1 (Rule 307 interlocutory appeals are permissive; failure to appeal does not automatically forfeit the issue)
- Nedzvekas v. Fung, 374 Ill. App. 3d 618 (movant’s burden and summary judgment principles)