Bayview Loan Servicing, LLC v. Cornejo
39 N.E.3d 68
Ill. App. Ct.2015Background
- In July 2011 JPMorgan Chase filed a mortgage-foreclosure complaint against Jose and Rocio Cornejo, attaching a copy of the mortgage and a copy of the promissory note (the attached copy lacked indorsements).
- The Cornejos answered and raised affirmative defenses including lack of standing because plaintiff had not shown it held the note.
- In September 2013 JPMorgan produced the original note in court, which contained a blank indorsement signed by a Washington Mutual vice president; JPMorgan later moved to strike the Cornejos’ affirmative defenses under section 2-619.1.
- JPMorgan’s motion to strike the affirmative defenses was granted. After an assignment of servicing to Bayview Loan Servicing, LLC (executed December 10, 2013), Bayview was substituted as plaintiff over the Cornejos’ objection.
- Bayview moved for summary judgment, supported by an affidavit of amounts due from a Bayview employee; the trial court granted summary judgment and entered a foreclosure judgment. The Cornejos appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / ownership of the note when complaint filed | JPMorgan’s attachment of a copy of the note to the complaint is prima facie proof of ownership; JPMorgan later produced the original indorsed note in court | Cornejos: lack of indorsement on attached copy and other circumstances show JPMorgan lacked standing when complaint filed | Court: copy attached is prima facie evidence; Cornejos failed to produce evidence assignment occurred after filing; motion to strike affirmed |
| Motion to strike affirmative defenses under §2-619.1 | Motion properly asserted affirmative matter; JPMorgan entitled to strike defenses | Cornejos argued defenses should not be struck because plaintiff lacked standing when filing and thus order was void | Court reviewed de novo and upheld the strike; defendants bore burden to prove lack of standing |
| Substitution of plaintiff (to Bayview) | Assignment/transfer after some filings justified substitution under §2-1008; no prejudice to defendants | Cornejos: substitution should have occurred before substantive rulings; order striking defenses was void once assignment occurred | Court: substitution within discretion; assignment occurred after JPMorgan still had interest; no abuse of discretion in substituting Bayview |
| Sufficiency of Bayview’s Rule 191 affidavit / business records | Affidavit by Bayview employee satisfied Rule 191 / Rule 236 for business records, despite reliance on prior servicer records | Cornejos: affidavit lacked personal knowledge because it relied on records created by prior holders | Court: affidavit admissible as business-records affidavit; summary judgment appropriately supported |
Key Cases Cited
- King v. First Capital Financial Services Corp., 215 Ill. 2d 1 (Ill. 2005) (standards for section 2-615 and 2-619 motions)
- Wexler v. Wirtz Corp., 211 Ill. 2d 18 (Ill. 2004) (standing requires a real interest determined at filing)
- Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469 (Ill. 1994) (standard when affirmative matter defeats a claim under section 2-619)
- Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217 (Ill. 2010) (party asserting lack of standing bears burden to plead and prove it)
- Lazenby v. Mark's Construction, Inc., 236 Ill. 2d 83 (Ill. 2010) (appellate standard of review for summary judgment)
- Cincinnati Insurance Co. v. American Hardware Manufacturers Ass’n, 387 Ill. App. 3d 85 (Ill. App. 2008) (assignment definition and substitution of parties under section 2-1008)