CitiMortgage v. Bukowski
26 N.E.3d 495
Ill. App. Ct.2015Background
- Mortgage foreclosure action on property at 1503 North Larch Dr, Mount Prospect; default in payments allegedly occurred starting October 2011; loan docs include 2007 note/mortgage and 2010 loan modification signed only by Anna; Katherine also signed the original mortgage.
- Anna filed pro se answer March 16, 2012 with no affirmative defenses; later, Katherine filed August 23, 2012 with two affirmative defenses (nonreceipt of acceleration notice and TILA-related escrow-notice issue); Anna later amended but defense content identical.
- CitiMortgage moved to dismiss defenses under 735 ILCS 5/2-619.1; trial court granted, dismissing the acceleration-notice defense with leave to amend and dismissing the TILA defense with prejudice.
- CitiMortgage then moved for summary judgment; defenses not supported by affidavits or facts; trial court granted summary judgment in CitiMortgage’s favor; judicial sale occurred November 26, 2013 and sale confirmed February 20, 2014.
- Defendants appealed challenging the trial court’s dismissal of defenses and the summary judgment; appellate court affirmed, holding TILA does not apply to loan modifications and acceleration notice defense insufficient to defeat foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal covers review of the trial court’s dismissal of defenses | CitiMortgage argues defense dismissals are part of the final judgment review. | Bukowskis contend only the sale-order is appealable. | Appellate review extends to interlocutory steps leading to the final judgment. |
| Whether nonreceipt of acceleration notice was a valid defense to foreclosure | CitiMortgage shows mailed acceleration notice; defense is not a valid affirmative defense. | Bukowskis claim they did not receive the notice. | Defense properly dismissed; no genuine issue of material fact. |
| Whether TILA governs loan modifications and defeats the defenses | TILA applies to original credit extension, not to modifications. | TILA should be extended to modifications. | TILA does not apply to loan modifications; defense fails. |
Key Cases Cited
- Fitch v. McDermott, Will & Emery, LLP, 401 Ill. App. 3d 1006 (2010) (review of interlocutory orders in final-judgment appeal)
- Neiman v. Economy Preferred Insurance Co., 357 Ill. App. 3d 786 (2005) (intermediate review standards and procedural steps)
- In re D.R., 354 Ill. App. 3d 468 (2004) (interpretation of review scope in appeal progression)
- Perry v. Minor, 319 Ill. App. 3d 703 (2001) (notice of appeal sufficiency and jurisdiction)
- Purtill v. Hess, 111 Ill. 2d 229 (1986) (summary judgment burden and controversion of evidence)
- Williams v. Manchester, 228 Ill. 2d 404 (2008) (de novo review of summary judgment)
- Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157 (1994) (affirmative defenses must defeat plaintiff's case to survive)
- Zieger v. Manhattan Coffee Co., 112 Ill. App. 3d 518 (1983) (claims must add new matter to defeat plaintiff)
- Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 437 (2007) (jurisdictional vs. waiver considerations in review)