PARKWAY BANK AND TRUST COMPANY, Plaintiff-Appellee, v. VICTOR KORZEN and TOMAS ZANZOLA, Defendants-Appellants (Unknown Owners and Nonrecord Claimants, Defendants).
No. 1-13-0380
Appellate Court of Illinois, First District, First Division
September 23, 2013
January 15, 2014
2013 IL App (1st) 130380
JUSTICE DELORT
Supplemental opinion filed December 16, 2013
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In a groundless appeal from a foreclosure proceeding involving frivolous and confusing pleadings and procedures by defendants with respect to their vacant lot, the appellate court affirmed the judgment for plaintiff, recognized plaintiff‘s right to petition for attorney fees, and directed defendants to show cause why a fine of $10,000 should not be imposed on them pursuant to Supreme Court Rule 375.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 10-CH-36958; the Hon. Robert Senechalle, Judge, presiding.
Judgment
Affirmed.
Counsel on Appeal
Victor Korzen and Tomas Zanzola, both of Chicago,
Scott & Kraus, of Chicago (Eugene S. Kraus and Sonia S. Kinra, of counsel), for appellee.
Panel
JUSTICE DELORT delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Cunningham concurred in the judgment and opinion.
OPINION
¶ 1 This appeal of a mortgage foreclosure case involving an empty lot is so groundless that we would normally dispose of it with a brief summary order. However, it provides us an opportunity to review a number of tactics a small number of debtors use both to delay the ultimate resolution of cases against them and to use
¶ 2 Because of the growing number of these cases, we issue this opinion to provide guidance to the many courts confronted with similar matters.1 We affirm the judgment below and retain jurisdiction to award additional attorney fees as provided by the underlying contract and to consider the imposition of sanctions under
¶ 3 BACKGROUND
¶ 4 Defendants-appellants, Victor Korzen and Tomas Zanzola, who are the owners of the subject property, raise no less than 15 points in their pro se appeal. Establishing a framework to properly analyze these contentions requires us to set out the chronology of the case in unusually excruciating detail, as follows.
¶ 5
| Date | Event |
|---|---|
| January 5, 2007 | Defendant Zanzola signs a promissory note to borrow $100,000 from Parkway Bank & Trust Company (Parkway). The note matures six months later, on July 5, 2007. The note provides that Zanzola will be responsible to pay Parkway‘s attorney fees, court costs, and expenses, including for appeals, if Zanzola fails to repay the note on time. The note states that it is secured by a January 5, 2007 mortgage, assignment of rents, and “commercial security agreement” between Zanzola and defendant Korzen for property located at 1527 East Thomas Street in Palatine (the property). The note was thereafter renewed in like form for six successive six-month terms, the last terminating on July 5, 2010. |
| January 5, 2007 | Zanzola and Korzen sign a mortgage on the Thomas Street property with Parkway. The mortgage contains a standard “due on sale” clause providing that Parkway may declare the note immediately due and payable if the mortgagors transfer any of their interest in the property. The mortgage also provides that if the note is not paid on time, Parkway may obtain a court order foreclosing the mortgagors’ interest in the property. Like the note, the mortgage provides that the mortgagors shall pay Parkway‘s “reasonable” attorney fees and court costs “at trial and upon any appeal.” In the mortgage, Zanzola and Korzen waived their rights of redemption and reinstatement in case of a foreclosure, a waiver which is only valid if the property is not “residential” as defined by the Illinois Mortgage Foreclosure Law (Foreclosure Law) ( |
| January 5, 2007 | Zanzola and Korzen sign an assignment of rents in favor of Parkway, another act which suggests that the property is not “residential” under |
| | Korzen signs and records a deed quitclaiming his interest in the property to himself and Zanzola as joint tenants. Korzen signs a certificate with the deed asserting that the transaction between Zanzola and him is exempt from real estate transfer taxes. |
| August 26, 2010 | Parkway files this mortgage foreclosure lawsuit, along with a civil cover sheet indicating that the property is “vacant land.” The lawsuit names both Korzen and Zanzola as defendants. The lawsuit contains two counts. Count I seeks a mortgage foreclosure and follows the standard statutory format. Parkway attached three exhibits to the complaint to support its allegations in count I: (a) a copy of the January 5, 2007 promissory note, whose most recent renewal matured on July 5, 2010; (b) a copy of the January 5, 2007 mortgage; and (c) a copy of the January 5, 2007 assignment of rents. Count I, paragraph 3, alleges that the default on the note and mortgage occurred through failure to pay amounts due under the note on and after March 8, 2010, and that the amount currently due is about $106,377.23 plus continuing per diem interest of $28.39. Count II is a claim for breach of the promissory note against Zanzola. |
| September 1, 2010 | The circuit court appoints a special process server to serve defendants. |
| September 12, 2010 | The special process server personally serves Zanzola at an address in Prairie Grоve, McHenry County, Illinois. |
| September 14, 2010 | The Cook County sheriff‘s deputy assigned to serve defendants reports that he could not serve Korzen at 410 South Warner in Palatine, because he moved from that address “five years ago.” |
| October 20, 2010 | Both defendants file motions in the circuit court to defend as poor persons without paying filing fees. The court grants the motions. |
| October 28, 2010 | Zanzola files an appearance, listing his Prairie Grove address; Korzen also files an appearance, listing an address in Chicago. The two defendants jointly file a fill-in-the-blank form answer, denying the allegations of count I, paragraph 3, of the complaint, and claiming that they have insufficient knowledge to admit or deny count I, paragraph 2. Under the portion of the answer labeled “Other affirmative matter,” defendants state the following: “Missing: 4.1 Proof of claim accompanied with the evidence of debt; 4.2 Original Wet Script ink Promissory Note; 4.3 Original Title; 4.4 Current complete copy of the Bank‘s Original Application and the CUSIP number of the Application.” |
| January 31, 2011 | The special process server personally serves Korzen at his address in Chicago. |
| February 22, 2011 | Defendants fail to appear for the case management conference. |
| August 16, 2011 | Parkway issues a request to admit facts to defendants, seeking admission of various basic facts regarding the transaction. These include genuineness of the documents signed by defendants and the default created by the missed payments. |
| August 31, 2011 | On Parkway‘s motion, the circuit court strikes the affirmative matter contained in paragraph 4 of defendants’ answer. Defendants never amended these statements, nor filed traditional affirmative defenses at any later date. |
| | Korzen recasts the “other affirmative matter” material which the circuit court struck from his answer and files it as a request for production of documents on Parkway. Included in the request is a demand for an “Original Wet Script ink Promissory Note [sic].” |
| October 12, 2011 | Parkway responds to defendants’ request for production of doсuments, acknowledging that Parkway will produce the original note for inspection. Parkway responds to the other requests by generally stating that they held no responsive documents or that the requests were vague. |
| December 7, 2011 | Parkway presents a motion for summary judgment which relies, in part, on defendants’ failure to respond to Parkway‘s request to admit facts. Defendants file a written motion for a continuance on Parkway‘s motion for summary judgment. |
| December 8, 2011 | The circuit court grants a briefing schedule on Parkway‘s motion for summary judgment, and sets hearing on the motion for February 9, 2012. The court also orders Parkway to produce the original note for inspection at its office by December 29, 2011. |
| December 15, 2011 | Parkway‘s attorneys send Zanzola and Korzen letters stating as follows: “This letter will serve to confirm our telephone conversation earlier today. You previously requested that Parkway Bank produce the original Note at issue in the above-captioned case for inspection by you at a Parkway Bank location. As discussed in our telephone conversation, Parkway Bank shall produce the Note for your inspection upon setting up an appointment with your loan officer. Your loan officer is Loukas Rogaris. Mr. Rogaris can be reached at [phone number]. The Order entered on December 8, 2011, requires that you inspect the original Note by December 29, 2011, so please be sure to contact Mr. Rogaris promptly. Please feel free to contact me should you have any questions.” |
| January 4, 2012 | Defendants file responses to Parkway‘s request to admit facts, about four months late. Defendants’ response includes a request to “toll the statute of limitations.” The response is laden with objections and nonsense legalistic jargon. The record does not indicate that defendants ever: (1) requested a conference pursuant to |
| January 12, 2012 | Defendants file a pleading objecting to Parkway‘s motion for summary judgment. In the objection, defendants refer to themselves as “alleged defendants.” The only point raised in the objection is that the alleged failure of Parkway to produce the original note for inspection creates a material issue of genuine fact preventing summary judgment. The objection is unverified. It contains no supporting affidavit, nor it is executed under |
| January 19, 2012 | Parkway files a reply in support of its motion for summary judgment. The reply asserts that Parkway‘s attorneys sent defendants a letter on December 15, 2011, offering defendants an opportunity for them to inspect the original notes by making an appointment to see them at Parkway‘s office (not its attorneys’ offices). It also states that defendants admitted all the relevant facts by failing to timely respond to plaintiff‘s request to admit facts. |
| February 7, 2012 | Defendants file a motion to dismiss the case with prejudice, based on Parkway‘s alleged failure to respond to the demand to produce the original note. The motion consists merely of fаct-based assertions, and is not accompanied by any affidavit. In the motion, defendants admit receiving the December 15, 2011 letter from Parkway, but state that they left messages to establish an appointment to which Parkway did not respond. In particular, defendants assert that when they did reach a representative of Parkway on January 19, 2012, he incorrectly claimed that Parkway had until February 9, 2012 to produce the note. The record does not show that defendants scheduled this motion for hearing on any particular date, nor that they ever visited Parkway to view the original note. |
| February 9, 2012 | The circuit court grants Parkway‘s motion for summary judgment of foreclosure and orders that the property be sold at auction to satisfy the debt. The order finds that defendants waived their rights to redeem the property pursuant to |
| February 16, 2012 | Defendants file a notice of appeal from the February 9, 2012 order of foreclosure, which is premature because such orders are interlocutory and not appealable until the court has confirmed the sale. EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11. The appeal is assigned docket number 1-12-0556 in this court. |
| February 22, 2012 | Parkway‘s attorneys send a letter to defendants, advising them that their notice of appeal is premature. The letter cites two precedential cases so holding, and requests that defendants dismiss the appeal. If they do not, the attorneys state that they will file an emergency motion to dismiss the appeal and seek sanctions against them under |
| February 22, 2012 | Defendants file a “motion and declaration” which asks the circuit court to vacate the order of foreclosure and sale, and various other orders, and to dismiss the case. The pleading is supported by no affidavits, and was filed both in the circuit court and in this court. It raises a first group of entirely new issues. The main arguments in, and elements of, this confusingly drafted document are: 1. Parkway improperly objected to defendants’ request for production of the “original title,” “Parkway Bank‘s original application and CUSIP number,” and “documents evidence Bank‘s Right to Ownership of Victor Korzen‘s property,” claiming these requests were “vague.” 2. A recitation of various telephone and other communications between the parties regarding inspection of the note. 4. The trial judge “blatantly” issued the foreclosure order “in clear violation and ignorance” of the allegedly nonproduced documents and that he “engaged himself in fraud *** possibly in conspiracy with” Parkway. |
| February 22, 2012 (continued) | 5. The foreclosure violated a laundry list of various statutes. This list is, like the 15 points in defendants’ brief now before us, presented in conclusory fashion without explaining what occurred that actually violated the particular statutes. In addition, many of the cited statutes are utterly inapplicable. The claims include: (a) Parkway failed to provide proof of debt as required by the federal Fair Debt Collection Practices Act ( |
| February 29, 2012 | Defendants file a “clarification letter” in both the appellate and circuit courts stating that Parkway‘s attorneys have sent them a “threat letter *** blackmailing them with ‘sanctions.’ ” The letter states that they have filed a “motion and declaration to vacate the order for summary judgment,” and that because the circuit court‘s failure to act on the motion within seven days renders the foreclosure order appealable, they request to amend the notice of appeal to be a notice of interlocutory appeal. |
| March 12, 2012 | A motion panel of this court denies Parkway‘s motion to dismiss the appeal in case No. 1-12-0556, without explanation.2 By separate order, the same panel construes the February 29, 2012 “clarification letter” as a motion to amend the notice of appeal, and then denies that motion. |
| March 16, 2012 | Korzen and Zanzola sign and record two documents with the Cook County Recorder of Deeds as document number 1207622015. The second, labeled “NOTICE OF ACKNOWLEDGMENT, DELIVERY AND ACCEPTANCE OF DEED,” states that Korzen and Zanzola accepted a copy of “our acknowledged deed” from the recorder of deeds, “thereby perfecting and correcting the deed, without any intent of granting or assigning *** to any person other than ourselves.” |
| March 23, 2012 | Korzen records his own affidavit with the recorder of deeds as document number 1208318023, stating that he is a “living, breathing, sentient being on the land, a Natural Person and therefore is not and cannot be any ARTIFICIAL PERSON and, therefore, is exempt from any and all identifications, treatments, and requirements as such pursuant to any process, law, code, or statute or any color thereof.” The affidavit proceeds to essentially disclaim the authority of the American court system. Zanzola records a similar affidavit with the recorder of deeds of McHenry County, apparently his home county, as document number 2012R0011749. Neither of these affidavits makes any specific reference to the subject property. |
| March 26, 2012 | Defendants file an “emergency motion for admission of public records” and to stay the foreclosure sale (“emergency motion“). The motion inconsistently asserts that only Korzen owns the property, but also claims that both Korzen and Zanzola do. In large part, it relies on the land patent and “artificial person” documents, claiming that the documents make them the “rightful owners” of the property. No facts in the motion are supported by any affidavit. The motion includes, as exhibits, the various documents defendants recorded on March 16 and 23, 2012. |
| March 29, 2012 | The circuit court enters an order finding it has no jurisdiction to consider defendants’ emergency motion because of the pending appeal. |
| March 30, 2012 | On its own motion, the cirсuit court vacates its March 29, 2012 order, and finds that it does have jurisdiction because the appeal was premature and an appeal of an unappealable order does not divest the court of jurisdiction. The order relies on King City Federal Savings & Loan Ass‘n v. Ison, 80 Ill. App. 3d 900, 902 (1980). The court sets a briefing schedule on the emergency motion and a hearing date for May 14, 2012, and stays the sale pending that hearing. |
| April 3, 2012 | The property is sold at auction, but the sale is later vacated because it was in violation of the March 30 stay order. |
| April 20, 2012 | Parkway responds to the emergency motion, and includes a voluminous 21-part assemblage of prior orders and pleadings illustrating the history of the case. |
| May 4, 2012 | Defendants reply in support of their emergency motion, and combine the reply with yet another motion to dismiss the case. The reply repeats 1. Parkway‘s attorneys are third-party debt collectors operating on their own behalf and interest. 2. Parkway‘s attorneys have no “corporate resolution or other lawfully recognizable notarized contract and/or a specific, detailed, and binding agreement between” Parkway and themselves. 3. The summary judgment was entered without consideration of the land patent. (Defendants do not explain how the land patent could have been so considered, since it was created a month after the court entered the foreclosure order.) 4. By asserting that defendants had admitted various facts by failing to timely respond to the request to admit facts, plaintiffs’ attorneys lied and engaged in misconduct. Similarly, the foreclosure judgment was “conspiratorial” and “done with prejudice and with bias.” 5. Because the subject property is a “рrivate section, a backyard, of the household located in a residential area, it is not commercial, and the provisions of the Fair Debt Collection Practices Act do, in fact, apply to it.” 6. One particular attorney for Parkway “undertook unlawful action *** with her intent to snatch Victor Korzen‘s property for her wanton personal monetary enrichment.” 7. Because Parkway did not “reveal” in the notes that it would “claim to be ‘the true owner’ ” of the property, the assignment of rents is invalid and the court itself is “constitutionally defective and without lawful jurisdiction.” 8. The land patent trumps all claims by Parkway with respect |
| to the property. | |
| May 14, 2012 | The court denies defendants‘: (1) emergency motion, which the order calls the “motion for admission of public records“; (2) motion to stay sale; and (3) motion to vacate the foreclosure. The court also vacates the April 3, 2012 sale. |
| June 6, 2012 | Defendants file a motion to reconsider the May 14, 2012 order. Again, the motion is not supported by any affidavit. The motion is more than merely a motion to reconsider, as it adds the following third group of new issues: 1. The complaint violates 2. Parkway violated the Truth in Lending Act ( 3. 5. The circuit court failed to act on its own motion to hold Parkway‘s attorney in contempt for only serving one of the two defendants. 6. Parkway‘s attorneys violated 7. Parkway violated various federal rules by not making certain disclosures at the closing. In the motion, defendants repeat two particular arguments on which we speciаlly remark below, because it is this motion upon which defendants rely in this court. These arguments are: |
| June 6, 2012 (continued) | 1. Because defendants hold a land patent, no one else can claim any ownership interest in the property. 2. Korzen was not named as a defendant in the original complaint. |
| July 3, 2012 | The circuit court sets a briefing schedule on the motion to reconsider, stays the sale pending the hearing, and sets the motion for hearing on August 22, 2012. |
| July 19, 2012 | Parkway files a motion for sanctions against defendants. |
| August 22, 2012 | The circuit court denies defendants’ motion to reconsider and enters and continues plaintiff‘s motion for sanctions “generally.” The record contains a transcript of the proceedings this day. The transcript shows that Zanzola confronted the judge with demands to show Zanzola his oath of office. Zanzola also confirmed that the property was a backyard with a shed, but otherwise vacant. After the judge ruled, Zanzola objected, stating that plaintiff, as a “corporation cannot otherwise contend with a living natural man or woman,” and mis-citing Rundle v. Delaware, 55 U.S. (14 How.) 80 (1852), for that proposition. Korzen requested leave of court to take depositions. |
| August 22, 2012 | Defendants file a motion for leave to take discovery depositions of Parkway‘s attorneys, requesting that they bring, among other things, a copy of the visas that allowed the attorneys to enter the United States. Defendants set the depositions, apparently without any permission from the presiding judge to do so, for the Third Municipal District courthouse in Rolling Meadows, Illinois. |
| September 10, 2012 | This court dismisses defendants’ appeal in case No. 1-12-0556 for want of prosecution. |
| October 23, 2012 | Defendants serve a subpoena directly on Parkway Bank requesting production of materials regarding the contract between Parkway and its attorneys. Included are demands that Parkway produce the “bona fide” written contract between it and its law firm; documentation that the person who signеd the contract for Parkway was authorized to do so by Parkway‘s board of directors, and law licenses, oaths of office, bonds, and malpractice insurance for the attorneys. |
| October 26, 2012 | Parkway files a motion to quash the subpoena, noting that discovery is inappropriate because the case is essentially over, the materials sought are irrelevant, and that it was inappropriate to subpoena documents |
| November 9, 2012 | The circuit court grants Parkway‘s motion to quash the subpoena. |
| November 9, 2012 | The circuit court sets a briefing schedule on plaintiff‘s motion to confirm the sale, with a hearing date of January 10, 2013. |
| November 30, 2012 | Defendants file a response to the motion to confirm sale, raising a host of the same issues they raised in their earlier pleadings. The response raises a fourth group of new issues, claiming that the sale should not be confirmed because the bank‘s attorneys failed “to prove they are attorneys licensed” in Illinois. It also claims that the attorneys’ letter asking them to withdraw their premature appeal was “pertinacious and frivolous.” The response does not, however, invoke any of the statutory bases applicable to judicial confirmation of foreclosure sales. See, e.g., NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, ¶¶ 8-21 (applying standards in |
| January 10, 2013 | The circuit court enters an order confirming the sale, finding that Parkway purchased the property for a credit bid of a sum less than what was owed, resulting in a deficiency of $50,958.09. The court awards Parkway an additional $17,058.15 in postforeclosure judgment attorney fees, but denies Parkway‘s motion for sanctions. |
| February 7, 2013 | Defendants file a notice of appeal from the foreclosure order and the order confirming sale. |
¶ 6 ANALYSIS
¶ 7 Violation of Appellate Rules
¶ 8 Before we discuss the merits of the appeal, we address Parkway‘s comрlaint regarding various errors and omissions in defendants’ brief, and defendants’ failure to file a docketing statement. It asks us to dismiss the appeal based on these errors and omissions.
¶ 9 Defendants’ brief contains: (1) a table of contents containing no citations to authority as required by
¶ 10 We agree that defendants’ brief fails to comply with virtually all of the requirements of
¶ 11 We turn to the merits of defendants’ appeal, so much as we can discern them from their brief. See Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001) (pro se briefs failed to clearly articulate the errors relied upon for reversal or present an organized and cohesive argument in compliance with supreme court rules, but reviewing court nevertheless addressed the merits); A.J. Maggio Co. v. Willis, 316 Ill. App. 3d 1043, 1048 (2000) (“the waiver rule is a limitation on the parties and not on the courts“); Village of Maywood v. Health, Inc., 104 Ill. App. 3d 948, 952 (1982) (in the interest of justice, reviewing court exercised its discretionary authority to consider portions of the defendants’
brief where the points cited were not argued).3
¶ 12 Standard of Review
¶ 13 Despite the numerous points of alleged error, the case hinges on the circuit court‘s approval of two key orders: the order granting Parkway‘s summary judgment motion, which resulted in an order of foreclosure and sale; and the order confirming the judicial sale of the subject property. The standards for our review of each of these orders is well established.
¶ 14 Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
¶ 15 With respect to the order confirming sale, we note that
¶ 16 With these standards in mind, we will review the 15 points of error, some of which we have aggregated due to relatedness.
¶ 17 Service of Process on Defendant Korzen
¶ 18 Defendants claim that Parkway violated “process service requirements” by mailing the complaint and summons to Zanzola but not to Korzen. Korzen asserts that the mailing of the summons to Zanzola and naming Zanzola as a defendant was particularly wrong because only he, not Zanzola, is the owner of the subject property. Korzen‘s sole ownership assertion is belied by the January 22, 2007 postmortgage deed in which Korzen quitclaimed his interest to himself and Zanzola as joint tenants. It is also refuted by the fact that both Korzen and Zanzola signed the underlying mortgage. Because they did so, both are proper defendants
in the case.
¶ 19 The record demonstrates that Korzen was personally served on January 31, 2011, and that Zanzola was personally served on September 12, 2010. This was all that was necessary; any additional copies that may have been mailed by virtue of a later request he made to Parkway‘s attorneys were superfluous. Korzen never filed a motion to quash the January 31 service. In fact, the January 31 service was itself unnecessary because Korzen had already appeared in the case and filed an answer on October 28, 2010. By doing so, he waived his right to contest service. Under
¶ 20 Parkway‘s Standing to Foreclose and the Sufficiency of Its Proof–
“Show Me the Note”
¶ 21 Defendants claim that Parkway did not demonstrate its standing to foreclose because it did not establish the fact that it was the true holder of its own loan. The linchpin of this argument is that defendants requested Parkway to produce the “original title” or original note(s) on numerous occasions but that Parkway did not do so.
¶ 22 The first part of this argument is easy to resolve. Defendants do not explain what an “original title” is. They also fail to cite any authority as to why such a document would either be a necessary element of proof in a foreclosure case, nor why it might be relevant here. Parkway
¶ 23 An “original title” is “[a] title that creates a right for the first time” such as the title held by a fisherman who catches a particular fish for the first time. Black‘s Law Dictionary 1623 (9th ed. 2009). The term is used only once in the entire
¶ 24 The second part of this argument, dealing with production of the original notes, is more complicated. Preliminarily, we note that Parkway was free to ignore the document request which defendants slid into their answer. Discovery requests do not belong in the middle of answers, and the court struck the request anyway. Defendants did renew the same request later, however. While defendants frame the lack of production under the rubric of standing, it is really a discovery dispute. We examine it under both characterizations. The standards applicable to standing in a foreclosure case are well settled. Standing is an affirmative defense and, as such, it is the defendant‘s burden to prove that the plaintiff does not have standing. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010). It is not the plaintiff‘s burden to prove it does have standing. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 22 (2004); Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 7 (2010) (foreclosure case). The mere fact that a copy of the note is attached to the complaint is itself prima facie evidence that the plaintiff owns the note. U.S. Bank, N.A. v. Dunn, No. 12 CV 1963, 2013 WL 1222054, at *3 (N.D. Ill. Mar. 25, 2013).
¶ 25 During the peak of the recent mortgage foreclosure crisis, a member of the United States House of Representatives, Marcy Kaptur, of Ohio, led the “show-me-the-note” charge, suggesting that borrowers could halt foreclosure cases and squat for free in their homes until the bank shows them the original note. Becky Yerak, Distressed Homeowners Fight Foreclosure By Taking Their Lenders To Court, Chi. Trib. Feb. 22, 2009, at C1. This tactic, however, does not work in Illinois.
¶ 26 For over 25 years, the Foreclosure Law has been interpreted as not requiring plaintiffs’ production of the original note, nor any specific documentation demonstrating that it owns the note or the right to foreclose on the mortgage, other than the copy of the mortgage and note attached to the complaint.4 First Federal Savings & Loan Ass‘n v. Chicago Title & Trust Co., 155 Ill. App. 3d 664, 665-67 (1987). First Federal interpreted former section 15-201 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201), a predecessor to the current section 15-1506(b) of the Foreclosure Law (
¶ 27 The primary aim of statutory construction is to determine the legislature‘s intent, beginning with the plain language of the statute. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 180 (2011). “Where the language is clear and unambiguous, the statute must be given effect as written without resort to further aids of statutory construction.” Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008).
¶ 28 Section 15-201 of the Code of Civil Procedure (then Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201), interpreted in First Federal, provided as follows:
“In the trial of a foreclosure action, the evidence shall be taken in open court.
Where any fact alleged in the complaint is not denied by the answer filed thereto, a sworn verification of the complaint or a separate affidavit filed in the case setting forth such fact, is sufficient evidence thereof and no further evidence of such fact shall be required.
Where none of the facts alleged in the complaint are denied, upon motion supported by an affidavit stating the amount which is due the plaintiff, the court shall enter a judgment for the relief prayed in the complaint.
In such cases the evidence of the indebtedness and security foreclosed shall be exhibited to the court and appropriately marked and such exhibits or copies thereof shall be filed in the case.” Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201.
¶ 29 Public Act 84-1462 (Pub. Act 84-1462, § 7 (eff. July 1, 1987)) was a major recodification of our state‘s foreclosure laws.5 It repealed section 15-201, but retained its basic principles and moved most of its original language into new Foreclosure Law sections 15-1506(a) and (b). Section 15-1506 has basically remained the same since the 1987 recodification, with the exception of some changes to subsections (f) and (i) made by Public Act 85-907 (Pub. Act 85-907, art. I, § 1 (eff. Nov. 23, 1987)), which are not relevant here.
¶ 30 Sections 15-1506(a) and (b) now provide as follows:
“(a) Evidence. In the trial of a foreclosure, the evidence to support the allegations of the complaint shall be taken in open court, except:
(1) wherе an allegation of fact in the complaint is not denied by a party‘s verified answer or verified counterclaim, or where a party pursuant to subsection (b) of Section 2-610 of the Code of Civil Procedure states, or is deemed to have stated, in its pleading that it has no knowledge of such allegation sufficient to form a belief and attaches the required affidavit, a sworn verification of the complaint or a separate affidavit setting forth such fact is sufficient evidence thereof against such party and no further
evidence of such fact shall be required; and (2) where all the allegations of fact in the complaint have been proved by verification of the complaint or affidavit, the court upon motion supported by an affidavit stating the amount which is due the mortgagee, shall enter a judgment of foreclosure as requested in the complaint.
(b) Instruments. In all cases the evidence of the indebtedness and the mortgage foreclosed shall be exhibited to the court and appropriately marked, and copies thereof shall be filed with the court.” (Emphasis added.)
735 ILCS 5/15-1506(a) , (b) (West 2010).
¶ 31 None of the versions of the statute use the word “original,” nor does any specifically provide that originals must be produced in open court. With respect to production of original loan documents, the former law interpreted in First Federal is substantially the same as the current law. Both laws provide: (a) that the evidence to support the allegations of the complaint shall be taken in open court; and (b) in cases of default or nondenial, the evidence of the indebtedness and security foreclosed shall be exhibited to the court and appropriately marked, and the exhibits or copies thereof shall be filed in the case. The only changes to the statute are merely stylistic, including one clarification that evidence of the indebtedness and security now must be exhibited in “all” cases. See
¶ 32 The First Federal court held that former section 15-201 of the Code of Civil Procedure, which provided that “[i]n such cases the evidence of the indebtedness and security foreclosed shall be exhibited to the court and appropriately marked, and such exhibits or copies thereof shall be filed in the case,” did not mandate production of an original mortgage or note. Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201. The portion of section 15-201 at issue in First Federal is substantially identical to the parallel provision of section 15-1506(b) at issue here. Accordingly, the First Federal decision governs, and we again hold that in Illinois, production of the original note in open court, rather than simply relying on the copy attached to the complaint, is not a required element of proof in a foreclosure case.
¶ 33 Defendants rely on
¶ 34 That still leaves the issue of defendants’ allegedly unsuccessful discovery request to view the original note. Given the amount of strife between the parties over this issue, Parkway should not have short-cutted the process by telling defendants to make an appointment to visit Parkway Bank to see the note. Defendants provide no explanation as to why the original note was so necessary when they had a copy of it. They do not contend that they even suspect that the note is a forgery, that its existencе is a mystery to them, or that the copy was altered from the original in some way. Nonetheless, the discovery request was fair game, as it sought disclosure of
¶ 35 Failure to Submit Want of Knowledge Affidavit
¶ 36 Unlike criminal defendants, who can remain mute and require the State to prove them guilty, civil defеndants must answer a complaint truthfully and in good faith, even if that means undermining their own interests. See
¶ 37 A proper answer to a complaint must contain an explicit admission or an explicit denial of each allegation in the complaint.
¶ 38 In this case, defendants stated that they lacked knowledge sufficient to answer
¶ 39 Failure to Deny Authenticity of Commercial Documents Under Oath
¶ 40 Modern banking practices, along with the inventions of the photocopier, fax machine, word processor, and computer, have made disputes regarding the authenticity of written contracts and business documents extraordinarily rare. This is particularly true in foreclosure cases. Mortgages are closed at title insurance company offices. Borrowers leave the closings with photocopies of their mortgage documents in large file folders, and they are admonished to securely keep the files with their most important papers and possessions. The title company immediately records a copy of the mortgage with the recorder of deeds, whose records forever memorialize the image of the mortgage as it existed on the day of the closing. See
¶ 41 Our legislature has enacted a special rule which discourages debtors from unduly prolonging collection lawsuits with obdurate denials. If a defendant truly wishes to deny the authenticity of a mortgage or note, he must do so under oath so as to subject himself to a criminal perjury charge if his denial is knowingly false. Defendants merely stated lack of knowledge regarding the mortgage and note. By doing so, they automatically admitted these allegations. See
¶ 42 Failure to Deny the “Deemed” Allegations Common to All Foreclosure Complaints
¶ 43 Section 15-1504 of the Foreclosure Law (
“(1) that, on the date indicated, the obligor of the indebtedness or other obligations secured by the mortgage was justly indebted in the amount of the indicated original indebtedness to the original mortgage or payee of the mortgage note;
(2) that the exhibits attached are true and correct copies of the mortgage and note ***[.]”
735 ILCS 5/15-1504(c) (West 2010).
By failing to deny these presumed allegations, defendants admitted the authenticity of the copy of the mortgage and note attached to the complaint.
¶ 44 Failure to Deny Authenticity of Signatures
¶ 45 As noted immediately above, defendants also did not specifically deny the
¶ 46 Failure to Submit Rule 191(b) Affidavit
¶ 47 Court rules provide an avenue of relief for defendants like Korzen and Zanzola, who contend that crucial evidence necessary to oppose the motion is in the hands of the movant or other adverse parties, who have not responded to a discovery request for evidence.
¶ 48 Illinois Supreme Court Rule 191(b) allows them to respond to the summary judgment motion with an affidavit explaining the situation. See
“If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtained, or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing papers or documents in the possession of those persons or furnishing sworn copies thereof.” Id.
Parties who fail to file Rule 191(b) affidavits cannot complain that the “discovery process was insufficient or limited.” Kane v. Motorola, Inc., 335 Ill. App. 3d 214, 225 (2002).
¶ 49 Somewhat related to the Rule 191(b) issue is the actual substance of defendants’ response to Parkway‘s summary judgment motion. This case is simply about whether a $100,000 note was paid on time. Even assuming that Parkway‘s efforts to produce the note were insufficient, Parkway did submit an affidavit establishing the basic facts regarding the loan, its documentation, and defendants’ default. Defendants presented nothing in opposition to create an issue of triable fact regarding the payment of the note. Denials in a defendant‘s answer do not create a material issue of genuine fact to prevent summary judgment. Epstein v. Yoder, 72 Ill. App. 3d 966, 972 (1979). When a party moving for summary judgment files supporting affidavits containing well-pleaded facts, and the party opposing the motion files no counteraffidavits, the material faсts set forth in the movant‘s affidavits stand as admitted. See Patrick Media Group, Inc. v. City of Chicago, 255 Ill. App. 3d 1, 6-7 (1993). The opposing party may not stand on his or her pleadings in order to create a genuine issue of material fact. Fitzpatrick v. Human Rights Comm‘n, 267 Ill. App. 3d 386, 391 (1994).
¶ 50 Request to Admit Facts
¶ 51 Parkway also argues that defendants’ failure to timely respond to its request to admit facts itself established the relevant facts and requires us to affirm the
¶ 52 After receiving defendants’ answer, Parkway served them with a request to admit facts. In summary, the facts included a request related to the authenticity of the copies of the note and mortgage attached to the complaint, the default on the note created by the failure to pay on time, and other basic facts related to the lawsuit. Under
¶ 53 Contempt Penalties Against Parkway‘s Attorneys
¶ 54 Defendants also complain that the circuit court should have held Parkway‘s attorneys “in civil contempt” because Parkway did not produce the original note for their inspection and because they consistently asserted, to the contrary, that they made appropriate efforts to do so. As noted above, there is a factual dispute regarding whether Parkway provided a valid opportunity for the inspection. “The use of discovery sanctions as a general deterrent ‘provides a strong incentive for all litigants to fully and accurately comply with discovery rules.’ ” Byrnes v. Fiscella, 217 Ill. App. 3d 831, 839 (1991) (quoting Mitchell v. Wayne Corp., 180 Ill. App. 3d 796, 802 (1989)). “A court of review must give considerable deference to the circuit court‘s decision to impose sanctions; its decision will not be reversed absent an abuse of discretion.” Cirrincione v. Westminster Gardens Ltd. Partnership, 352 Ill. App. 3d 755, 761 (2004); see also Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110 (2004); Sbarboro v. Vollala, 392 Ill. App. 3d 1040, 1053 (2009). More importantly, defendants forfeited their claim for discovery of the original note by failing to include a
¶ 55 Violation of the Federal Fair Debt Collection Practices Act
¶ 56 The argument in defendants’ brief on the next point is somewhat incomprehensible. We believe that defendants intend to assert as follows: by finding that the property was not residential, the circuit court created a false premise, which led it to incorrectly find that thе
¶ 57 The same issue under the Fair Debt Collection Practices Act is not as clear-cut as Parkway suggests. The Fair Debt Collection Practices Act applies to debt transactions where a consumer is obliged to pay money for something used “primarily for personal, family, or household purposes.”
¶ 59 Postjudgment Discovery
¶ 60 In Illinois, mortgage foreclosure cases are bifurcated. The main part of the case is resolved when the circuit court enters a judgment of foreclosure and sale. While that order is not appealable, it disposes of virtually every issue in this case. The only remaining tasks are for the sale to take place and the court to confirm the sale.
¶ 61 On appeal, defendants assert that the circuit court‘s decision to quash the subpoena was in error.7 They also contend that Parkway‘s attorneys “admitted” they were not licensed by failing to deny they were unlicensed. However, defendants did not issue their own request to admit facts, failure to respond to which
¶ 62 The use of subpoenas is a judicial process, and courts have broad and flexible powers to prevent abuses of their process. People v. Walley, 215 Ill. App. 3d 971, 974 (1991). “For good cause shown, the court on motion may quash or modify any subpoena or, in the case of a subpoena duces tecum, condition the denial of the motion upon payment in advance by the person in whose behalf the subpoena is issued of the reasonable expense of producing any item therein specified.”
¶ 63 Since the information sоught was manifestly irrelevant or related, if at all, to issues that had already been adjudicated, we find no abuse of discretion here. Nor do we find that the failure, if any, of the attorneys to respond to subpoenas requesting the production of documents created any error in the record. The case was essentially over and none of the information sought was relevant to the remaining issues in the case. Defendants’ issuance of the subpoenas was the legal equivalent of stepping back on the court to shoot free throws to increase their score after the game buzzer had sounded and the winning team had returned to the locker room. More importantly, the subpoenas were themselves quashed, relieving the recipients of any obligation to respond to them. We can discern no conceivable purposes for defendants’ postjudgment discovery, whether through subpoena or deposition, other than to harass Parkway and its attorneys and create additional work for the judiciary. Reda, 199 Ill. 2d at 54 (circuit court‘s rulings on discovery matters will not be disturbed on appeal absent a manifest abuse of discretion); Profesco Corp. v. Dehm, 196 Ill. App. 3d 127, 130 (1990) (the circuit court‘s exercise of discretion regarding discovery violations should be afforded considerable deference).
¶ 64 Truth in Lending Act
¶ 65 Like the Fair Debt Collection Practices Act, the
¶ 66 Homeowner Workout Options
¶ 67 Defendants argue that the circuit court failed to offer them “owner protection, modification, workout options, and/or Mediation Program” as required by sections 15-1502.5 and 15-1401 of the Foreclosure Law (
¶ 68 The second cited statute, section 15-1401 of the Foreclosure Law, establishes a procedure whereby a borrower can resolve his foreclosure lawsuit by granting a deed to the property in lieu of foreclosure.
¶ 69 Neither of the two cited statutes establishes any sort of program for loan modification or mediation of foreclosure disputes. Defendants were free to apply for such programs to the extent they existed in the general marketplace, or to file a motion asking the circuit court to refer the case for mediation under its own program. Those requests may have been futile, since most of the programs are limited to properties on which the mortgagor actually lives. However, having failed to do so, they cannot complain here that the court did not do so on its own.
¶ 70 Deficiency Judgment
¶ 71 Defendants also attack the deficiency judgment and claim, without citing authority, that Parkway should absorb the remaining amount due on the note as a cost of doing business because at least one of the defendants is, allegedly, receiving food stamps and depending on benefits from a healthcare and family services office. The deficiency judgment stems from the court‘s confirmation of the sale. Under section 15-1508(b) of the Foreclosure Law (
¶ 73 Defendants’ final argument, contained in a single sentence, is that the judgments below are void based on
¶ 74 Land Patent
¶ 75 The “argument” section of defendants’ appellate brief incorporates arguments by reference which they made to the circuit court. The section begins: “Arguments have been submitted to the Circuit Court of Cook County, Illinois, on August 14, 2012, in a format of DEFENDANTS’ REPLY TO PARKWAY BANK‘S RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER.” No such document with that filing date is in the record. The record does contain a document with a very similar name, filed on May 4, 2012, and we believe that is the document referred to in the argument. Although not separately listed among the 15 points for appeal, the argument incorporates a document in the record which contains a variety of arguments relating to the “land patent.” Additionally, defendants more specifically raise the land patent defense in their reply brief. For sake of completeness, and particularly because it relates to the sanctions we impose, we will briefly discuss defendants’ land patent argument.
¶ 76 In Wisconsin v. Glick, 782 F.2d 670, 671-72 (7th Cir. 1986), the court began its opinion with the following summary of its view on land patents:
“People saddled with mortgages may treаsure the idea of having clean title to their homes. The usual way to obtain clean title is to pay one‘s debts. Some have decided that it is cheaper to write a ‘land patent’ purporting to convey unassailable title, and to file that ‘patent’ in the recording system. For example, Samuel Misenko, one of the appellants, drafted a ‘declaration of land patent’ purporting to clear the title to an acre of land of all encumbrances. He recorded that ‘patent’ with the appropriate officials of Manitowoc, Wisconsin. He attached to his ‘patent’ a genuine patent, to a quarter section of land, signed by President Fillmore in 1851.
The theory of Misenko‘s new ‘patent’ is that because the original patent from the United States conveyed a clear title, no state may allow subsequent encumbrances on that title. The patent of 1851 grants title to ‘Christian Bond and to his heirs and assigns forever.’ Misenko apparently thinks that this standard conveyancers’ language for creating a fee simple ‘forever’ bars all other interests in the land. We have held to the contrary that federal patents do not prevent the creation of later interests and have nothing to do with claims subsequently arising under state law.” Id. (citing Hilgeford v. Peoples Bank, 776 F.2d 176 (7th Cir. 1985)).
The Glick court held that the land patent arguments were frivolous, and awarded damages as a sanction under
“It is, quite simply, an attempt to improve title by saying it is better. The court cannot conceive of a potentially more disruptive force in the world of property law than the ability of a person to get ‘superior’ title to land by simply filling out a document granting himself a ‘land patent’ and then filing it with the recorder of deeds. Such self-serving, gratuitous activity does not, cannot, and will not be sufficient by itself to create good title.” (Emphasis omitted.) Hilgeford v. Peoples Bank, 607 F. Supp. 536, 538 (N.D. Ind. 1985).
¶ 78 Authority from this court similarly holds that one сannot make a mortgage disappear by filing a land patent. Pathway Financial v. Beach, 162 Ill. App. 3d 1036, 1039-40 (1987) (rejecting land patent defense in foreclosure case). Needless to say, the tactic is never successful, as it is not based in American law. See generally Bernard J. Sussman, Idiot Legal Arguments: A Casebook for Dealing With Extremist Legal Arguments, The Militia Watchdog (Aug. 29, 1999), http://archive.adl.org/mwd/suss1.asp (last visited Aug. 27, 2013). Accordingly, the land patent does nothing to protect defendants’ interest in the subject real estate.
¶ 79 Sanctions
¶ 80 At the beginning of this opinion, we noted that we could have easily dismissed this appeal for multiple violations of court rules. However, we find the words of a distinguished presiding judge of the chancery division of the circuit court of Cook County, Judge Richard Curry, quite relevant here. Upon imposing sanctions in a frivolous lawsuit, Judge Curry said:
” ‘the proper response to malicious prosecution or careless lawyering is not to respond in kind with slovenly preparation or half-hearted advocacy; *** but rather to validate our profession‘s righteous outrage and indignation over such conduct with meticulous research, careful analysis, expansive writing and aggressive advocacy.’ ” (Emphasis in original.) Singer v. Brookman, 217 Ill. App. 3d 870, 882 (1991) (quoting Judge Curry from the record below).
¶ 81 Although defendants papered the record with voluminous pleadings, nowhere do they actually deny that they had a valid loan secured by property they own, which they failed to pay, and which requires the property to be sold to pay the debt. Above, we have explained why virtually every one of their arguments is abjectly frivolous and/or presented in such a confusing manner, perhaps deliberately so, to make it as laborious as possible to resolve them. These tactics often appear in courts hearing debt cases, generated by defendants engaging in an organized program of filing frivolous pleadings, lawsuits, and claims in an effort to harass judges, creditors, and even court staff.
¶ 82 An Illinois law adopted in response to some of these tactics makes it a crime to record documents that cloud the title to property knowing that the theory upon which the purported cloud on title is based is not recognized as a legitimate legal theory by the courts of this State or of the United States.
¶ 83 Attorney Fees for Appeal
¶ 84 The underlying mortgage and note contain standard fee-shifting provisions stating that the borrower must pay the lender‘s attorney fees in debt collection litigation. The court below awarded $6,373.90 in fees for work done up to and including the entry of the foreclosure order. When it confirmed the sale, the court awarded an additional $17,058.15 in attorney fees for work occasioned by the defendants’ postforeclosure efforts to tie the case into knots by proffering land patents, subpoenas and related material. We hold that Parkway is entitled to additional fees for its work on this appeal, and direct it to file a fee petition within 14 days of the date of issuance of this opinion.
¶ 85 In the pages above, we set forth the background in unusual detail so as to establish a framework for our imposition of sanctions under Supreme Court Rule 375(b) (
¶ 86 In addition to the facts above, we note the following additional facts which support our findings: (1) defendants obtained a fee waiver in the court below on the basis they had insufficient funds to pay filing fees, but spent money to record lengthy documents which they then used as the basis for motions below and arguments here; (2) after defendants had already filed their own brief and Parkway had also filed its brief in this court, defendants filed a motion asking us to appoint an attorney for them, a request which was truly bizarre since the appointed pro bono attorney would have had the sorry task of taking on a case that defendants had already done their level best to sabotage; (3) while Parkway was, and will be, awarded its attorney fees, the award may be merely a Pyrrhic victory for it since defendants apparently have insufficient funds to pay them and might discharge them through bankruptcy; (4) they apparently chose to ignore the ample free legal resources available for them through the Cook County circuit court in favor of pursuing tactics which disregarded the legal system and were clearly intended to harass
¶ 87
¶ 88 We find that this appeal, viewed as a whole, was frivolous, that it was taken for an improper purpose, and that it was filed specifically to harass аnd to cause unnecessary delay and needlessly increase the cost of litigation. We choose to impose sanctions for this conduct, finding that cases like this drain valuable resources intended to benefit those who accept the social contract of living under a law-based system of government.
¶ 89 We then turn to what sanction is appropriate.
¶ 90 The committee comments also note that Rule 375 is based on federal appellate rules which themselves have been interpreted as allowing federal courts to impose fines for frivolous appeals. See, e.g., Glick, 782 F.2d at 673-74 (imposing “damages” as sanction for sovereign citizen land patent appeal). The committee comments also note: “Moreover, appeals courts have been recognized to have inherеnt authority to impose sanctions for taking a frivolous appeal or for abusive tactics in the conduct of the appeal,” citing Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980), in support.
¶ 91 One court dealing with a similar problem noted that computing the penalty is an art, not a science, but that the penalty should reflect, among other things, the “indirect costs of this litigation–including the costs that befall serious litigants, who must wait longer for their cases to receive judicial attention. *** There should be no weeping over this imprecision, however. [Defendants] could have avoided the penalty, and other people should avoid it, by the most minimal concern for settled rules. They knew or should have known that their claims are frivolous, and they (rather than their adversary) must pay the cost of their self-indulgent litigation.” (Emphasis in original.) Coleman v. Commissioner of Internal Revenue, 791 F.2d 68, 73 (7th Cir. 1986).
¶ 92 The tactics employed by defendants in this case caused the expenditure of significant time and resources not only by the court below, but by the judges, law clerks, librarians, and clerk‘s office of this court. By imposing a fine in this case, we seek not only to deter similar conduct by future litigants, but to provide some measure of compensation for the public fisc for that needless expenditure. The complexity of our court system makes it impossible to assess the cost, down to the penny, of adjudicating this appeal. The court below determined the reasonable attorney fees for the case below were $23,432.05. The fees for the appeal may or may not be in the same range. Parkway‘s fees provide a valid starting point for the computation of a fine in this case. See, e.g., Szopa v. United States, 460 F.3d 884, 886-87 (7th Cir. 2006).10 Mindful that we should not assess fines so great that they would chill possibly meritorious litigation, we believe a fine of $10,000 is likely appropriate in this
¶ 93 The rule provides that: “If the reviewing court initiates the sanction, it shall require the party or attorney, or both, to show cause why such a sanction should not be imposed before imposing the sanction.”
¶ 94 If defendants have pressed some other issues upon us in their somewhat disorganized presentation, we have reviewed them and find them to be meritless.
¶ 95 CONCLUSION
¶ 96 We affirm the judgments of the circuit court of Cook County. The underlying documents provide that the lender is entitled to its attorney fees in case of a successful appeal. We also direct defendants to show cause why we should not impose a fine on them, jointly and severally, under Illinois Supreme Court Rule 375 in an amount of $10,000. We have issued a separate order setting a briefing schedule on any petition for attorney fees and on the rule to show cause. We will issue a supplement to this opinion upon review of the materials submitted regarding the fee petition and rule to show cause.
¶ 97 Affirmed.
¶ 98 SUPPLEMENT TO OPINION
¶ 99 This supplement resolves the two issues left open in our September 23, 2013 opinion: (1) the attorney fees for the appeal; and (2) the rule to show cause. Parkway Bank filed a petition for attorney fees in the amount of $23,432.05, and defendants have filed no response to it. We agree with the circuit court and find the fees to be reasonable. We grant the petition for attorney fees.
¶ 100 Defendants have retained counsel who has filed a response to the rule to show cause. The response, which contains no supporting affidavit, presents two basic arguments. First, defendants suggest that because the matter took no longer to resolve than is normally the case, thеy should not be penalized for causing undue delay. Second, they candidly acknowledge that: (1) their brief was “totally and completely not in compliance with
¶ 101 The court appreciates that defendants now understand that their actions before this court were improper. However, as the opinion makes clear, this is not a case where self-represented litigants were “in over their head” and were helpless to
¶ 102 Under the authority granted by
¶ 103 Defendants shall have 30 days from the deadline to file a petition for leave to appeal in the supreme court to pay thе $5,000 sanction. If defendants file a petition for leave to appeal in the supreme court, defendants shall have 30 days to pay the $5,000 sanction from the date the supreme court denies the petition for leave to appeal, if said petition is denied. If the supreme court grants defendants’ petition for leave to appeal, payment of the $5,000 sanction is stayed until resolution of the case by the supreme court. If the sanction remains unpaid, we will enter a judgment order against defendants, jointly and severally, in favor of the appellate court clerk, for deposit in the State of Illinois general revenue fund, in the amount of $5,000, and will direct the clerk, through the Attorney General, to record that judgment in Cook and McHenry Counties. The deadline to file a petition for rehearing is 21 days from the filing date of this supplemental opinion.