Wells Fargo Bank v. Watson
972 N.E.2d 1234
Ill. App. Ct.2012Background
- Wells Fargo Bank, N.A. sued for possession in a forcible entry and detainer action concerning a single-family residence in Bolingbrook, Illinois.
- In the related foreclosure action (case No. 09-CH-3901), Coburn was the defendant and plaintiff asserted it held the mortgage and note; MERS, as Franklin’s nominee, had allegedly assigned the mortgage to Wells Fargo prior to 08/24/2009, though the recorded assignment occurred 10/14/2009.
- A foreclosure judgment was entered in July 2010 granting Wells Fargo rights to possession; the property was sold at a public sale on 12/8/2010; final foreclosure judgment was entered on 3/11/2011.
- In the instant FE&D case filed 9/19/2011, Wells Fargo attached an unsigned, undated copy of the foreclosure judgment and served a demand for possession with accompanying service and posting proofs.
- Coburn moved to vacate the foreclosure judgment in the foreclosure action, arguing lack of standing and fraud; the present motion for summary judgment granted Wells Fargo possession; Coburn appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose | Wells Fargo had the mortgage and note and a prior assignment to it. | Lack of proper assignment and standing to foreclose; fraud on the court. | Summary judgment proper; standing not shown defeats possession only; collateral attack rejected. |
| Effect of an unsigned foreclosure judgment on FE&D | Judgment entitled Wells Fargo to possession regardless of signing date. | Unsigned, undated copy cannot support possession or foreclose rights. | Unsigned foreclosure judgment suffices to establish possession entitlement in FE&D. |
| Germane vs. collateral matters in FE&D | Only possession-related issues are germane; foreclosure defenses are collateral. | Affirmative defenses to foreclosure undermine possession entitlement. | Issues challenging mortgage foreclosure judgment were not germane and properly rejected. |
Key Cases Cited
- First Illinois Bank & Trust v. Galuska, 255 Ill. App. 3d 86 (1993) (summary judgment standard applied to FE&D actions)
- Rosewood Corp. v. Fisher, 46 Ill. 2d 249 (1970) (purpose of FE&D is speedy possession restoration)
- Avenaim v. Lubecke, 347 Ill. App. 3d 855 (2004) (forcible entry and detainer is limited to possession; serious title disputes not decided)
- Norwest Mortgage, Inc. v. Ozuna, 302 Ill. App. 3d 674 (1998) (separate actions for mortgage foreclosure and FE&D; collateral estoppel concerns)
- Walliser v. Department of Transportation, 258 Ill. App. 3d 782 (1994) (germane matters demarcation in FE&D; limited scope)
- Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32 (2004) (summary judgment standard; de novo review on appeal)
- Rosewood Corp. v. Fisher, 46 Ill. 2d 249 (1970) (see above (duplicate due to emphasis))