REVERSE MORTGAGE FUNDING, LLC, Plаintiff-Appellee, v. LAMAR T. CATCHINS; DENISE CHRISTOPHER; TYRONE CHRISTOPHER; STEPHEN TOLIVER; IRA D. WOODY III; EDWARD TEYSHAWN WOODY; ERMETIA A. WOODY-OWEN; TYRONE LOGAN, Independent Administrator of the Estate of Ida Christopher, a/k/a Ida M. Christopher, Deceased; THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT; UNKNOWN HEIRS AND LEGATEES OF IDA CHRISTOPHER, a/k/a Ida M. Christopher, Deceased; UNKNOWN OWNERS; and NONRECORD CLAIMANTS, Defendants (Tyrone Christopher and Tyrone Logan, Defendants-Appellants).
No. 1-22-1197
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
May 5, 2023
2023 IL App (1st) 221197
Honorable Edward Robles, Judge Presiding.
FIFTH DIVISION.
PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Mitchell and Lyle concurred in the judgment and oрinion.
OPINION
¶ 1 BACKGROUND
¶ 2 This is a mortgage foreclosure case involving a deceased mortgagor. The administrator
¶ 3 In 1964, Ida Christopher and her husband purchased a home on the west side of Chicago. After the husband‘s death, Ida continued residing at the home. She died on July 24, 2015.
¶ 4 In 2014, a year before her death, Ida signed a reverse mortgage on the property with Maverick Funding Corporation as mortgagee, in the face amount of $232,500. The mortgage was later assigned to Reverse Mortgage Funding LLC (Reverse Mortgage), the plaintiff-appellee herein. Ida‘s signatures on the copies of the mortgage and note in the record show that she struggled to even sign her name.
¶ 5 Shortly after her death, Reverse Mortgage filed this mortgage foreclosure lawsuit against Ida and various subordinate lienholders pursuant to
¶ 6 The process server reported that he had duly sеrved Ida on April 1, 2016, by serving Ida‘s daughter at the subject property. The return of service does not reflect that Ida was deceased, nor that the daughter informed the process server of her mother‘s death. Unusually, Reverse Mortgage‘s foreclosure complaint did not allege that the loan had become delinquent because of nonpayment. Rather, it nonsensically сlaimed that under the mortgage‘s acceleration clause, “the Mortgagor [was] in default as of October 2015 under the terms and the condition of the Mortgage and Note for failure to occupy the property.” The complaint alleged that Ida was still the sole owner of the property and did not refer to her death.
¶ 7 Ida‘s son, Tyrone Christopher, appeared in the circuit court on Ida‘s case, and the court referred him to a legal service agency for assistance. The agency declined representation, and the matter was continued numerous times over the course of a year for “status of probate.” Eventually, a decedent‘s estate was opened, and an individual named Tyrone Logan was appointed as independent administrator of Ida‘s estate.
¶ 8 Reverse Mortgage then filed an amended complaint, which is the operative complaint for the purpose of this appeal. The amended complaint named as defendants Tyrone Logan, in his capacity as administrator of Ida‘s estate; Tyrone Christopher and his siblings, nieces, and nephews, as putative heirs; and various subordinate lienholders. Tyrone Christopher and Tyrone Logan appeared through a private law firm that represents them pro bono. These defendants1 moved to dismiss the amended complaint pursuant to
¶ 10 On November 20, the defendants moved for additional time to file an amended answer and affirmative defenses. Two days later, Reverse Mortgage filed a complete summary judgment packet, requesting a judgment of foreclosure and sale and other relief pursuant to
¶ 11 On December 13, the defendants filed an amended answer and an affirmative defense. The amended affirmative defense reads in full:
“1. On May 29, 2014, Ida M. Christopher (“Ms. Christopher“) was treated by Dr. Alan M. Wilson from Advocate Medical Group. In his notes from that visit, Dr. Wilson wrote that Ms. Christopher was experiencing ‘[o]bvious significant deficits in reсent memory.’
2. Dr. Wilson diagnosed Ms. Christopher with ‘[p]rimary degenerative dementia of Alzheimer type.’
3. At the end of his notes from the May 29, 2014 visit, Dr. Wilson stated that Ms. Christopher‘s ‘[o]verall picture [is] consistent with the onset of [Alzheimer‘s] dementia,’ and he developed a treatment plan consistent with that diagnosis, though he noted that her dementia was ‘progressive’ and ‘untreatable‘.
4. The Mortgage was exеcuted on June 27, 2014, nearly one month after Ms. Christopher had been initially diagnosed with dementia.
5. Under Illinois law, it is well established that in order to have the requisite capacity to enter into a contract, one must have sufficient mental ability to appreciate the effect of what he or she is doing.
6. Ms. Christopher, who was diagnosed with dementia prior to executing the Mortgage, сould not appreciate the effect of what she was doing when she executed the Mortgage; therefore, she did not have the requisite mental capacity to execute the Mortgage.”
¶ 12 On December 16, the court entered an order over Reverse Mortgage‘s objection, granting the defendants leave to file the amended affirmative defense and deeming the amended defense on file to be timely. In the same order, the court set a briefing schedule on Reverse Mortgage‘s motion for summary judgment. However, at that stage of the case, Reverse Mortgage had not yet answered or pleaded to the amended affirmative defense as required by
¶ 13 Three days later, during the time allotted for the defendants to respond to the summary judgment motion, Reverse Mortgage moved to strike the amended affirmative defense pursuant to
8, 2020, the court set a new briefing schedule under which the defendants could respond to both the motion for summary judgment and motion to strike affirmative defenses on the same day, February 3, 2020.
¶ 14 The defendants filed separate, but similar, responses to Reverse Mortgage motions to strike the amended affirmative defense and for summary judgment. In their responses, the defendants presented new factual materials as exhibits. These materials included an affidavit from Tyrone Christopher stating that when he lived at the subject property with his mother, she was approached by an individual named Mark who was working for Reverse Mortgage‘s predecessor in interest. Mark visited Ida and urged her to sign a reverse mortgage to help pay her debts and obtain money to rehabilitate the building. Although Tyrone Christopher told Mark that his mother was not competent to sign any contracts due to her “severe dementia,” she signed the mortgage dоcuments anyway, at Mark‘s behest. Mark told Tyrone Christopher that he was “irrelevant.”
¶ 15 Tyrone Christopher‘s affidavit was a copy of an original he submitted in support of an earlier consumer fraud lawsuit filed by the Illinois Attorney General against an individual named Mark Diamond and several companies. In that litigation, the circuit court of Cook County granted summary judgment to the State, finding, among other things, that Diamond engaged in both “unfair or deceptive acts and practices” and “in the deceptive conduct of using a fake home repair company as a means of extracting a consumer‘s home equity.” The same court later entered a $51,500 restitution judgment in favor of Ida and against Diamond. People v. United Construction of America, Inc., No. 09-CH-33398 (Cir. Ct. Cook County, Jan. 22, 2016); People v. United Construction of America, Inc., No. 09-CH-33398 (Cir. Ct. Cook County, July 11, 2016).
¶ 16 In summary, the defendants argued both that the amended affirmative defense was suffiсiently pleaded and that Tyrone Christopher‘s affidavit, together with the other factual
materials, created a genuine issue of material fact sufficient to defeat summary judgment on the issue of Ida‘s competence to validly sign the reverse mortgage contract.
¶ 17 After further briefing, the court entertained arguments on the motions. The defendants requested time to conduct discovery, but the court found that the defendants’ failure to file an
¶ 18 After considerable delays due to the COVID-19 pandеmic, Reverse Mortgage purchased the property at a judicial sale for a full credit bid. The defendants made similar arguments in opposition to Reverse Mortgage‘s motion for confirmation of the sale as they had against summary judgment. On July 6, 2022, the court again rejected these arguments, and it entered a final judgment confirming the sale pursuant to
¶ 19 During the pendency of this appеal, the defendants filed their appellants’ brief along with an appendix as required by
federal government‘s criminal prosecution against Diamond (United States v. Diamond, No. 17-CR-332 (N.D. Ill.). The defendants contended that the materials were properly submitted because they were tangentially mentioned in other documents already in the record. The designated motion justice ordered that the motion be taken with the case. Upon review of the record, we find that the subpoena was properly included in the appendix because it appears in the record as an exhibit to a motion. We agree with Reverse Mortgage, however, that the other three documents were not presented below and therefore were not properly included in the appendix. Accordingly, we grant the motion to strike in part аnd deny it in part. We will not consider the signed certified mail receipt, medical records, or the Department of Justice letter in reaching our disposition.
¶ 20 ANALYSIS
¶ 21 On appeal, the defendants contend that the circuit court erred in striking the amended affirmative defense, and the materials they submitted in opposition to Reverse Mortgage‘s motion for summary judgment were sufficient to crеate a genuine issue of material fact.
¶ 22 We first address the circuit court‘s order striking the amended affirmative defense. An affirmative defense admits the legal sufficiency of the cause of action but “asserts new matter by which the plaintiff‘s apparent right to recovery is defeated.” Vroegh v. J&M Forklift, 165 Ill. 2d 523, 530 (1995) (citing Vanlandingham v. Ivanow, 246 Ill. App. 3d 348, 357 (1993)).
¶ 23 A defendant must state the facts establishing an affirmative defense with the same degree of specificity that is required of a plaintiff stating a cause of action. International Insurance Co. v. Sargent & Lundy, 242 Ill. App. 3d 614, 630 (1993). A motion to dismiss an affirmative defense pursuant to
defendant will prevail, the court should not dismiss it. Farmer City State Bank v. Guingrich, 139 Ill. App. 3d 416, 422 (1985). Under
¶ 24 As noted above,
concealment be a basis for setting aside the agreement.” Freiders v. Dayton, 61 Ill. App. 3d 873, 880 (1978) (citing Fewkes v. Borah, 376 Ill. 596, 601 (1941)).
¶ 25 The amended affirmative defense alleges that before signing the mortgage (1) Ida was diagnosed with “degenerative dementia of Alzheimer type,” (2) her сondition was progressive and untreatable, and (3) she could not appreciate what she was signing and thus did not have the requisite mental capacity to execute the mortgage. We find that this allegation was sufficient to withstand Reverse Mortgage‘s
¶ 26 We next consider the circuit court‘s order granting summary judgment or, stated otherwise, a judgment of foreclosurе and sale. 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.”
¶ 27 In the circuit court, the only evidentiary material defendants presented in opposition to summary judgment that specifically supported their affirmative defense was the recycled affidavit from
attested that he lived with Ida when she signed the contract and that he believed she could not sign the mortgage because she was “not of sound mind” after she had been diagnosed with “severe dementia.” Putting aside the obvious evidentiary deficiencies in the affidavit—the affiant‘s assertion regarding the physician‘s diagnosis was hearsay and his layman‘s opinion regarding Idа‘s capacity provides scant information regarding the depth or frequency of his observations of Ida‘s condition—we note that the affidavit related to a defense that had been pleaded, but not yet stricken, when the court considered whether to grant summary judgment. While the affiant is not a physician, he most certainly can opine as to his mother‘s mental capacity (see In re Estate of Roeseler, 287 Ill. App. 3d 1003 (1997)) and apparent state of health (see People v. Botsis, 388 Ill. App. 3d 422, 442-43 (2009)). In fact, such lay opinions may overcome an expert opinion. People v. Coleman, 168 Ill. 2d 509, 525-26 (1995).
¶ 28 Defendants did not present a genuine issue of material fact sufficient to overcome Reverse Mortgage‘s summary judgment motion. However, the court erred by striking the amended affirmative defense, which was properly pleaded, while simultaneously granting summary judgment to the opposing party. This deprived the defendants of a fair opportunity to properly frame their defense of incapacity. In fact,
¶ 29 Accordingly, we vacate the orders granting summary judgment and a judgment of foreclosure and sale to Reverse Mortgage and remand for the circuit court to provide the defendants an opportunity to pursue their defense and allow them to plead a counterclaim for rescission, which is the customary remedy for parties challenging the validity of a contract. It
necessarily follows that because we have reversed the orders striking the affirmative defense, and vacated the order granting a judgment of foreclosure and sale, we must also vacate the order confirming the sale.
¶ 30 CONCLUSION
¶ 31 In sum, we (1) reverse the judgment of the circuit court of Cook County striking the affirmative defense; (2) vacate the orders of summary judgment, foreclosure, and sale; (3) vacate the order confirming sale; and (4) remand with directions as specified herein. In regard to the motion to strike taken with the appeal, we grant in part and deny in part.
¶ 32 Reversed in part and vacated in part; cause remanded.
Reverse Mortgage Funding, LLC v. Catchins, 2023 IL App (1st) 221197
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-CH-4558; the Hon. Edward Robles, Judge, presiding.
Attorneys for Appellant: Joseph L. Motto and Thomas J. Neuner, of Winston & Strawn LLP, of Chicago, for appellants.
Attorneys for Appellee: Paul T. Massey, Marcos Posada, and Phil Schroeder, of McCalla Raymer Leibert Pierce, LLC, of Chicago, for appellee.