Rosestone Investments, LLC v. Garner
2 N.E.3d 532
Ill. App. Ct.2014Background
- Rosestone Investments, LLC (assignee of Aurora Loan Services, LLC) filed a mortgage foreclosure complaint against James Garner for property at 5114 S. Damen Ave., Chicago; defendant was served by publication.
- Plaintiff attached the mortgage note (bearing Garner’s signature) and later produced the note with a blank endorsement and an affidavit that Rosestone was the holder; an Assignment of Mortgage dated four days after the complaint was also in the record.
- Garner delayed responding, filed multiple motions (including to substitute judge and to dismiss), repeatedly failed to appear at hearings, and filed numerous appeals in the trial and appellate courts.
- The trial court granted summary judgment for plaintiff after finding plaintiff had standing and Garner failed to prove lack of standing or any affirmative defenses; the property was sold and the sale was later confirmed by the trial court.
- Garner appealed pro se from the order confirming the sale, raising claims about standing, service, shortening of the redemption period, and alleged gaps in the record; appellate court reviewed despite numerous Rule 341 defects in Garner’s brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Rosestone produced the note with blank endorsement and affidavit showing it was holder; assignment and complaint support standing | Plaintiff lacked standing because the Assignment of Mortgage is dated after the complaint | Held for plaintiff: defendant bore burden to plead/prove lack of standing and failed to do so; evidence supported plaintiff’s interest |
| Service of process | Service by publication complied with due diligence affidavit; Garner filed answer and thus waived service objections | Service by publication was improper and violated due process | Held for plaintiff: record shows proper publication and Garner waived objections by filing a responsive pleading |
| Shortening of redemption period | Plaintiff’s motion to shorten was permissible if property abandoned; trial court denied the motion so redemption period remained intact | Motion to shorten was fraudulent and violated 735 ILCS 5/15-1603(b) | Held for plaintiff: motion to shorten was filed permissibly but was denied; no reversible error |
| Completeness/order of record | Record contains mortgage, assignment, note, pleadings, and orders sufficient for review | Record is incomplete and documents are out of order, preventing proper review | Held for plaintiff: appellant must supply adequate record; any gaps resolved against appellant and record was sufficient for decision |
Key Cases Cited
- First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128 (1976) (appellate court may decide on appellant’s brief only when appellee does not file brief)
- Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 (2010) (lack of standing is an affirmative defense that the defendant must plead and prove)
- Wexler v. Wirtz Corp., 211 Ill.2d 18 (2004) (standing ensures issues are raised only by parties with a real interest)
- Chicago Teachers Union, Local 1 v. Board of Education, 189 Ill.2d 200 (2000) (standing requires real interest in the controversy)
- Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App.3d 1 (2010) (defendant bears burden in foreclosure cases to plead and prove lack of standing)
- General Motors Corp. v. Pappas, 242 Ill.2d 163 (2011) (a notice of appeal limits appellate jurisdiction to the judgments specified therein)
- Foutch v. O'Bryant, 99 Ill.2d 389 (1984) (where the record on appeal is incomplete, doubts are resolved against the appellant)
- Kapsouris v. Rivera, 319 Ill. App.3d 844 (2001) (appellant bears duty to present a complete record on appeal)
- Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App.3d 472 (2006) (notice by publication requires honest, well-directed inquiry into defendant’s whereabouts)