Bank of America, N.A. v. Adeyiga
29 N.E.3d 60
Ill. App. Ct.2014Background
- In Jan. 2011 BAC Home Loans filed a verified foreclosure complaint against Olufemi and Bola Adeyiga on a residential mortgage; Bank of America (Bank) later substituted as plaintiff after merging with BAC.
- The complaint attached the note and mortgage and followed the statutory form in 735 ILCS 5/15-1504(a); it did not affirmatively allege mailing of the statutorily required "grace period notice" under 735 ILCS 5/15-1502.5.
- Defendants filed pro se and later retained counsel; they asserted among other defenses that the plaintiff lacked standing and that they never received the grace period notice.
- The trial court granted summary judgment for the Bank, entered foreclosure and sale, and later confirmed the sale; the court concluded the form complaint—by operation of section 15-1504(c)—deemed the grace-period allegation alleged and thus waived when not denied.
- On appeal the First District reversed in part: because the record contained no proof the grace period notice was mailed (or that the Bank waited 30 days), the appellate court remanded for an evidentiary hearing to determine (1) whether the notice was sent and (2) whether the Bank waited the statutorily required period; if not sent or not waited, the sale must be vacated and the case dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Bank: BAC (and successor Bank) had standing; summary-judgment affidavits established possession of the note/mortgage | Defendants: BAC/Bank lacked standing because assignment/endorsement issues, MERS lacked authority, and original lender dissolution voided transfers | Court: Defendants did not waive standing; but Bank presented sufficient evidence at summary judgment and defendants failed to produce admissible contrary proof — trial court did not err in rejecting standing challenge on summary judgment (no reversal on standing) |
| Fraud on the court (fabricated assignment) | Bank: impliedly denied fraud; no proof presented that assignment was forged or improperly created | Defendants: assignment prepared/signed by attorney for Bank’s counsel (potential conflict), so standing was fraudulently manufactured | Held: Defendants presented no admissible evidence of fraud; claim rejected at summary-judgment stage |
| Grace-period notice (735 ILCS 5/15-1502.5) — mailing prerequisite to suit | Bank: Form complaint and §15-1504(c) deem that "other notices required" (including grace notice) were alleged; defendants waived challenge by not denying | Defendants: No notice was sent and the complaint did not allege mailing; statutory mailing and 30-day wait are mandatory and non-waivable | Held: Statutory text and legislative history require actual mailing before suit; §15-1504(c) cannot be read to subsume the grace notice; remanded for evidentiary hearing to determine if notice mailed and whether 30 days elapsed; if not mailed or not waited, sale must be vacated and case dismissed |
| Confirmation/vacation of judicial sale | Bank: sale confirmation proper given trial-court rulings | Defendants: confirmation should be vacated if prerequisite notice/waiting not satisfied | Held: If evidentiary hearing shows no notice or inadequate waiting period, trial court abused discretion in confirming sale and must vacate under §15-1508(b); otherwise judgment affirmed |
Key Cases Cited
- Robidoux v. Oliphant, 201 Ill. 2d 324 (Ill. 2002) (summary-judgment standard and nonmoving party burden)
- Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill. 2d 90 (Ill. 1992) (summary judgment is drastic remedy)
- People v. Vincent, 226 Ill. 2d 1 (Ill. 2007) (de novo review of legal questions)
- Glisson v. City of Marion, 188 Ill. 2d 211 (Ill. 1999) (standing doctrine overview)
- Greer v. Illinois Housing Dev. Auth., 122 Ill. 2d 462 (Ill. 1988) (lack of standing is an affirmative defense that may be forfeited)
- Lebron v. Gottlieb Mem'l Hosp., 237 Ill. 2d 217 (Ill. 2010) (burden to plead and prove affirmative defenses)
- Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469 (Ill.) (scope of §15-1508(b) injustice clause and standards for vacating sales)
- People v. Caffey, 205 Ill. 2d 52 (Ill. 2001) (abuse of discretion standard explanation)