Taylor, Bean, & Whitaker Mortgage Corp. v. Cocroft
106 N.E.3d 379
Ill. App. Ct.2018Background
- Taylor, Bean & Whitaker (TBW) filed a foreclosure action originally captioned with Colonial Bank as plaintiff; TBW later sought leave to amend and substitute itself as plaintiff citing scrivener error and attached an assignment and the note.
- Defendant David Cocroft (pro se for much of the case) challenged standing, alleged rescission under TILA, claimed the grace-period notice was not received, and moved to strike the note as forged due to differing endorsements between complaints.
- TBW attached the mortgage, promissory note (with endorsements), a February 24, 2012 Grace Period Notice and envelope, and affidavits from RoundPoint servicers attesting mailing of the notice and TBW’s ownership/standing; TBW produced the original note in court.
- The trial court permitted amendment, denied defendant’s motion to strike the note, granted TBW’s motion for summary judgment (entering a foreclosure judgment and later confirming the judicial sale), and entered an in personam deficiency judgment against Cocroft.
- On appeal Cocroft argued (1) improper substitution/amendment of plaintiff, (2) error denying motion to strike the note, (3) erroneous grant of summary judgment because of lack of grace-period notice and lack of note-holder status, and (4) erroneous confirmation of sale because “justice was not done.” The appellate court affirmed in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court properly allowed amendment to substitute TBW as plaintiff | Amendment cures misnaming, was timely and not prejudicial; amendment furthers justice | Amendment altered party and prejudiced defendant; res judicata, lack of standing, rescission defenses bar amendment | Affirmed — amendment allowed under 2-616; Loyola factors satisfied and no res judicata or valid rescission/standing bar |
| Whether note attached to amended complaint should be struck as forged | Endorsements explained by a 2007 potential loan sale and original note was produced in court | Additional endorsements are forgeries; note differs from original complaint | Affirmed — defendant offered no evidentiary support; trial court properly denied motion to strike and found original note presented in court |
| Whether summary judgment was improper because grace-period notice not mailed or TBW lacked standing/possession of note | TBW produced the note, assignment, grace-period notice and envelope, and servicer affidavits showing mailing and TBW ownership/standing | No proof notice was mailed or received; TBW lacked standing due to bankruptcy/plan trust issues | Affirmed — record contains notice and affidavits; defendant submitted no counteraffidavit; TBW demonstrated standing and no genuine issue of material fact |
| Whether confirmation of sale should be vacated because sale was unfair or plaintiff was dissolved | TBW continued to own/monetize assets per bankruptcy settlement; dissolution would not bar relief under corporate-dissolution statute | TBW was liquidated/dissolved and purchase was deceptive/fraudulent so "justice was not done" | Affirmed — affidavits showed TBW retained enforcement rights; even dissolution would not bar civil remedies within statutory period; no abuse of discretion in confirming sale |
Key Cases Cited
- Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263 (IL 1992) (factors for allowing amendment to pleadings and primary focus on furthering the ends of justice)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (IL 1984) (presumption that trial court proceedings are regular in absence of a record)
- Hudson v. City of Chicago, 228 Ill. 2d 462 (IL 2008) (elements and effect of res judicata)
- Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518 (IL 2016) (need for a final judgment on the merits for res judicata to apply)
- Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (IL 1992) (summary judgment standard; de novo review)
- Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (IL 2008) (broad circuit-court discretion in confirming or rejecting judicial sales)