Bank of America, N.A. v. Land
992 N.E.2d 1266
Ill. App. Ct.2013Background
- Bank of America (BOA) sued George and Eunice Land in July 2011 to foreclose a 2007 mortgage on 4715 Lick Creek Road for alleged default beginning August 2010. BOA alleged approximately $121,000 principal outstanding.
- Lands answered with affirmative defenses and counterclaims; BOA moved to strike. The court ultimately struck the defenses without prejudice and dismissed counterclaims without prejudice, then BOA moved for summary judgment.
- On the day of the summary-judgment hearing the Lands filed a late response and a motion for leave to amend; the court struck the response and denied leave to amend but allowed the Lands to file an affidavit about a $489.80 payment.
- BOA supported summary judgment with a business‑records affidavit by Jennifer Cherks showing payment history and an asserted default balance; Lands objected as hearsay and disputed the loan balance and application of modification payments and PMI effects.
- The court granted BOA summary judgment, entered a foreclosure and sale judgment, and awarded BOA $3,654 in attorney fees and costs; Lands appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BOA established entitlement to summary judgment | BOA relied on admissible business records affidavit under Ill. S. Ct. Rule 236 proving default and amount due | Cherks lacked personal knowledge and records include pre‑acquisition entries; balance calculation contested due to loan modification timing and PMI | Court: Cherks’ affidavit met Rule 236 foundation; no genuine factual dispute because Lands offered no counteraffidavit; summary judgment affirmed |
| Whether the trial court abused discretion by striking late response and denying leave to amend | BOA argued lateness and prior opportunities to plead justified denial | Lands argued procedural unfairness and that new defenses/counterclaims should be allowed | Court: No abuse of discretion—pleadings were untimely, previously addressed, no proposed amended pleading attached, and court still considered Lands’ affidavit and arguments |
| Whether the loan‑modification payments or PMI raised a material fact on balance owed | BOA: modification payments were properly applied within a reasonable time; PMI does not reduce borrower’s debt | Lands: delayed application of suspense‑account payments and PMI might reduce balance | Court: Modification agreement imposed no strict timeline; without counteraffidavit Lands’ speculation insufficient; Lands lack standing to assert PMI benefit; no fact issue |
| Whether awarding attorney fees and costs was improper due to lack of notice | BOA: prevailing-party draft and prove‑up were presented in court; local rule allows court to direct otherwise | Lands: were not served with draft/order and thus deprived of opportunity to object | Court: Lands waived objection by failing to object in court or request hearing; had constructive notice and five‑day local‑rule window; award not an abuse of discretion |
Key Cases Cited
- Sardiga v. Northern Trust Co., 409 Ill. App. 3d 56 (business‑records and summary judgment standard)
- Tannehill v. Costello, 401 Ill. App. 3d 39 (summary judgment reviewed de novo)
- Skipper Marine Electronics, Inc. v. United Parcel Service, Inc., 210 Ill. App. 3d 231 (affidavits for summary judgment must meet admissible evidence standards)
- Loveland v. City of Lewistown, 84 Ill. App. 3d 190 (inadmissible trial evidence cannot support summary judgment)
- In re Estate of Weiland, 338 Ill. App. 3d 585 (Rule 236: lack of personal knowledge affects weight, not admissibility)
- Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400 (business‑records rationale and third‑party records admissibility)
- Independent Trust Corp. v. Hurwick, 351 Ill. App. 3d 941 (business records admissible to support motion for summary judgment)
- Farm Credit Bank of St. Louis v. Biethman, 262 Ill. App. 3d 614 (trust deed and promissory note establish foreclosure prima facie case)
- Miller v. Swanson, 66 Ill. App. 2d 179 (proof of default and loan documents support foreclosure)
- Purtill v. Hess, 111 Ill. 2d 229 (unchallenged affidavit facts admitted for summary‑judgment purposes)
- Bloomingdale State Bank v. Woodland Sales Co., 186 Ill. App. 3d 227 (unsupported assertions do not create fact issues)
- In re Marriage of Palacios, 275 Ill. App. 3d 561 (mere suggestion of fact without support insufficient to avoid summary judgment)
- The Prime Group, Inc. v. Northern Trust Co., 215 Ill. App. 3d 1065 (where no timeline specified, payment application required within reasonable time)