PNC Bank v. Zubel
24 N.E.3d 869
Ill. App. Ct.2015Background
- PNC Bank filed a foreclosure complaint (Oct 2, 2009) against mortgagor Monika Zubel for default on a mortgage for property in Lincolnwood, Illinois; copies of the note and mortgage were attached.
- Zubel answered, admitting ownership of the property but neither admitting nor denying default; she asserted an affirmative defense she later conceded lacked merit.
- PNC moved for summary judgment, supporting its motion with employee affidavits (service/records and amount-due affidavit) and business records processed via Lender Processing Services showing a $511,744.04 balance due.
- Zubel opposed with her own affidavit claiming several payments between Aug 2008 and Jan 2009 but submitted no supporting documentary proof of those payments.
- The circuit court granted PNC’s summary judgment motion, entered judgment of foreclosure and sale; PNC was the successful bidder and obtained an order approving sale and possession. Zubel appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PNC’s complaint complied with §15-1504 pleading requirements | Complaint substantially followed the form and contained required facts and attachments (note, mortgage, parties, default, relief sought) | Complaint failed to meet statutory form requirements | Court held complaint complied with §15-1504 (substantial compliance) |
| Whether PNC’s affidavits and business records satisfied Rule 191 and foundational requirements | Affidavits were based on personal knowledge, identified business records kept in ordinary course, and attached supporting documents | Affidavits lacked statutory compliance and were inadmissible | Court held affidavits and records satisfied Rule 191 and business-record foundations; admissible |
| Whether genuine issues of material fact existed to defeat summary judgment | Bank argued record established prima facie default and mortgagor offered no competent contradictory evidence | Zubel claimed payments and raised equivocal denials in her pleadings and affidavit without documentary proof | Court held no genuine issue of material fact; Zubel’s affidavit and equivocal denials were insufficient to defeat summary judgment |
| Whether post-sale orders (approval of sale and possession) were proper | PNC contended sale was proper and, as purchaser, was statutorily entitled to possession 30 days after confirmation | Zubel disputed naming/other procedural aspects but did not contest notice/sale fairness | Court affirmed sale approval and order of possession under the Foreclosure Law provisions |
Key Cases Cited
- Williams v. Manchester, 228 Ill. 2d 404 (discusses strict construction of pleadings against the moving party in summary judgment review)
- Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32 (defines when genuine factual disputes exist for summary judgment)
- Purtill v. Hess, 111 Ill. 2d 229 (characterizes summary judgment as a drastic remedy)
- Morris v. Margulis, 197 Ill. 2d 28 (supports use of summary judgment when the moving party’s right is clear)
- Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385 (trial court’s summary judgment ruling reviewed de novo; may be affirmed on any record basis)
- U.S. Bank Nat'l Ass'n v. Sauer, 392 Ill. App. 3d 942 (affidavit in foreclosure sufficient where based on personal knowledge and accompanied by relied-upon documents)
- Farm Credit Bank of St. Louis v. Biethman, 262 Ill. App. 3d 614 (mortgagee establishes prima facie foreclosure case by producing mortgage and note)
- Rago v. Cosmopolitan Nat'l Bank, 89 Ill. App. 2d 12 (discusses burden-shifting after introduction of mortgage and note)
- Koukoulomatis v. Disco Wheels, Inc., 127 Ill. App. 3d 95 (nonmoving party must present a bona fide factual defense, not equivocations, to avoid summary judgment)