Bank of America, N.A. v. Adeyiga
2014 IL App (1st) 131252
Ill. App. Ct.2014Background
- Plaintiff Bank of America, N.A. (successor to BAC) filed a residential mortgage foreclosure in Cook County against Olufemi A. Adeyiga and Bola E. Adeyiga.
- Mortgage involved MERS as mortgagee and Aegis Wholesale Corporation as original lender; note and mortgage attached to complaint.
- Bank filed to foreclose on January 24, 2011; BAC merged with Bank of America after filing, becoming successor plaintiff.
- Defendants answered pro se; Olufemi asserted standing-related defenses referencing lacking endorsements/assignments.
- Bank sought summary judgment; trial court granted against Olufemi and default against Bola and foreclosed the mortgage.
- Court on appeal remanded to determine via evidentiary hearing whether a grace period notice was sent before filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bank had standing to sue for foreclosure | Bank held note/mortgage through BAC/BAC merger evidence | Defendants lacked standing due to Aegis dissolution and MERS authority | Remanded to determine grace period issue; standing not dispositive here |
| Fraud on the court regarding the assignment to BAC | No fraud; evidence showed BAC held note | Potential improper assignment evidenced by Hernandez affidavit | Remanded; no ruling on fraud absent evidentiary hearing |
| Whether grace period notice was required and properly considered under 15-1504(c) | Notice presumed under form of complaint; no denial waives | Notice not shown; defendants claim not received | Remanded to determine if grace period notice was sent and if 30-day waiting period complied |
Key Cases Cited
- Pajor v. Aurora Loan Servs., LLC, 2012 IL App (2d) 110899 (Ill. App. 2d 2012) (grace period purpose to encourage workouts; need not be flawless to foreclose (surrounding cases))
- Luca v. Bank of America, N.A., 2013 IL App (3d) 120601 (Ill. App. 3d 2013) (grace period notice defect without prejudice where no prejudice shown)
- McCluskey v. Wells Fargo Bank, N.A., 2013 IL 115469 (Ill. 2013) (equitable power to vacate sale under 15-1508(b) when justice not done)
- In re Palacios, 275 Ill. App. 3d 561 (Ill. App. 1995) (burden on movant on summary judgment; personal knowledge standard)
- Glisson v. City of Marion, 188 Ill. 2d 211 (Ill. 1999) (standing requires injury in fact; affirmative defense rules)