Case Information
*1
) Appeal from the WELLS FARGO BANK, N.A., ) Circuit Court of
) Cook County Plaintiff-Appellee, ) ) v. ) No. 14 CH 4761
) IAN MUNDIE and JACQUELINE MUNDIE, )
) Honorable Defendants-Appellants. ) Michael Mullen,
) Judge Presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion. Justices Gordon and Lampkin concur in the judgment and opinion. OPINION Defendants Ian and Jacqueline Mundie appeal from the circuit court of Cook County's
order denying their motion to dismiss which was brought pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). On appeal, defendants contend that the circuit court erred in denying their motion because plaintiff Wells Fargo Bank, N.A., insufficiently plead that it had the capacity to sue as a "mortgagee." For the reasons that follow we conclude an allegation that a plaintiff is a mortgagee pursuant to section 15-1208 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1208 (West 2014)) is sufficient to plead capacity to sue and, accordingly, we affirm the judgment of the circuit court. ¶ 2 BACKGROUND This matter commenced as a mortgage foreclosure action pursuant to the Foreclosure
Law (735 ILCS 5/15-1501 et seq. (West 2014)). Plaintiff filed a complaint on March 19, 2014, alleging defendants were in default for failure to make payments toward the mortgage on the property located at 533 Fairview Circle in Schaumburg (the property). Using the statutory form complaint (735 ILCS 5/15-1504 (West 2014)), plaintiff alleged, "Capacity in which Plaintiff brings this foreclosure: Plaintiff is the Mortgagee under 735 ILCS 5/15-1208." Attached to the complaint were copies of the mortgage and note. The note was endorsed in blank. Defendants filed an appearance in the matter and thereafter filed a motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)). Defendants requested the circuit court "strike" portions of the complaint due to plaintiff's failure to sufficiently plead its capacity to sue as required under section 15-1504 of the Foreclosure Law. According to defendants, plaintiff could not qualify as the holder of the indebtedness because the note listed a different entity as the lender. Defendants further argued that plaintiff's allegation that it was the "mortgagee" provided no indication of plaintiff's interest in the loan. On August 28, 2014, the circuit court denied defendants' motion without stating a basis. The record on appeal contains no transcript of the hearing. Defendants were provided 28 days to answer the complaint. Defendants subsequently answered the complaint and asserted as affirmative defenses: (1) lack of standing in that plaintiff did not demonstrate it was the holder of an "original properly negotiated note"; (2) lack of consideration in that plaintiff did not pay the original mortgagor, Washington Mutual Bank, in exchange for the note; and (3) lack of privity to contract as defendants did not execute a contract with plaintiff. On October 1, 2014, plaintiff filed a motion to strike the affirmative defenses. On December 1, 2014, after plaintiff presented the original note in court, the circuit court allowed defendants to withdraw with prejudice their affirmative defenses and, as a result, plaintiff withdrew its motion as moot. On January 22, 2015, plaintiff moved for summary judgment and judgment of
foreclosure. The parties entered into a briefing schedule on the motion for summary judgment. After the matter was fully briefed, the trial court granted plaintiff's motion for summary judgment and a judgment of foreclosure was entered. [1] The property was sold at a judicial sale on August 14, 2015. The sale was confirmed by the circuit court on September 17, 2015, and an order of possession was entered. This appeal followed. ANALYSIS A motion to dismiss pursuant to section 2-615 of the Code attacks the legal sufficiency of
a complaint by alleging defects on the face of the complaint.
Id.
;
Vitro v. Mihelcic
, 209 Ill. 2d
76, 81 (2004). When ruling on a section 2-615 motion, the relevant question is whether the
allegations in the complaint, construed in a light most favorable to the plaintiff, are sufficient to
state a cause of action upon which relief may be granted.
Canel v. Topinka
,
because section 15-1504(a)(3)(N) requires plaintiff to plead specifically whether it is the holder
of the indebtedness, a pledgee, an agent, the trustee under a trust deed, or in what other capacity
it acts. 735 ILCS 5/15-1504(a)(3)(N) (West 2014). According to defendants, plaintiff's
allegation that it was a mortgagee lacked the required specificity because plaintiff did not
"choos[e] from the examples" listed in section 15-1504(a)(3)(N). Defendant further argues that
the definition of mortgagee in section 15-1208 of the Foreclosure Law provides "four different
scenarios for which one can be a mortgagee" and "says nothing about capacity."
The Foreclosure Law establishes the formal pleading requirements of a foreclosure
complaint. 735 ILCS 5/15-1504 (West 2014);
PNC Bank, National Ass'n v. Zubel
, 2014 IL App
(1st) 130976, ¶ 14. Section 15-1504(a) provides that a complaint
may
be in substantially the
form prescribed by statute, and section 15-1504(a)(3)(N) requires the plaintiff to state the
capacity in which it brings the foreclosure. 735 ILCS 5/15-1504(a)(3)(N) (West 2014). In
parentheses section 15-1504(a)(3)(N) suggests the alternatives of legal holder of the
indebtedness, pledgee, agent, trustee under a trust deed "or otherwise, as appropriate."
Id.
Although "mortgagee" is not listed in section 15-1504(a)(3)(N), the use of the
parenthetical along with the phrase, "or otherwise, as appropriate" (
id.
) indicates that the list
provided is not all inclusive. Looking to the statute as a whole, section 15-1208 of the
Foreclosure Law defines a "mortgagee" as "(i) the holder of an indebtedness or obligee of a non-
monetary obligation secured by a mortgage or any person designated or authorized to act on
behalf of such holder and (ii) any person claiming through a mortgagee as successor." 735 ILCS
5/15-1208 (West 2014). Such a definition is sufficient to set forth a plaintiff's capacity in
bringing a foreclosure cause of action under the Foreclosure Law. See
HSBC Bank USA,
National Ass'n v. Rowe
,
¶ 13 In conclusion, we find that by alleging its capacity as "mortgagee" plaintiff complied
with the Foreclosure Law's pleading requirements and, thus, the trial court did not err when it
denied defendants' motion to dismiss. See
Rowe,
Notes
[1] The record does not contain a copy of defendant's response brief to the motion for summary judgment, but does include a copy of plaintiff's reply.