Bank of America, N.A. v. Lampert

2020 IL App (2d) 190880-U

• Court: Appellate Court of Illinois
• Decided: September 16, 2020
• Docket: 2-19-0880
• Status: Unpublished

Opinion

2020 IL App (2d) 190880-U No. 2-19-0880 Order filed September 16, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

BANK OF AMERICA, N.A., ) Appeal from the Circuit Court ) of Lake County. ) Plaintiff-Appellant, ) ) v. ) ) JOAN T. LAMPERT, Chicago Title Land Trust ) Company, as Successor Trustee to American ) No. 15-CH-1805 National Bank and Trust Company of Chicago, ) a National Banking Association, as Trustee ) under a Trust Agreement dated 06/04/1985 and ) known as Trust Number 64532, ) Honorable ) Luis Berrones, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Presiding Justice Birkett and Justice Hudson in the judgment.

ORDER

¶1 Held: Trial court presumed to have properly denied the Bank’s motion for leave to file a second amended complaint when the Bank provided no transcript of the hearing on that motion, no bystanders report, and there were no written findings in the trial court’s order denying the motion. The trial court properly granted defendants’ motion for a directed finding on count I of the Bank’s first amended complaint when the Bank did not demonstrate a prima facie case for specific performance. The trial court also properly granted defendants’ motion for a directed finding on count II of the first amended complaint when the Bank failed to make a prima facie 2020 IL App (2d) 190880-U

showing that it was entitled to an equitable lien. Finally, the Bank forfeited its claim that the trial court abused its discretion in denying its post-trial motion when it presented no substantive argument to support its position, in violation of Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018).

¶2 After a bench trial, the trial court directed a finding for defendants Joan Lampert and

Chicago Title Land Trust Company of Chicago (Chicago Title) (collectively, defendants) and

against plaintiff Bank of America (Bank). On appeal, the Bank argues that the trial court erred in

(1) denying leave to file a second amended complaint, (2) granting defendants’ motion for a

directed verdict, and (3) denying its post-judgment motion to modify the judgment. For the

following reasons, we affirm.

¶3 I. BACKGROUND

¶4 In March 2009, Countrywide Bank FSB (Countrywide) agreed to lend $310,000 to

Lampert (the Loan) to refinance two prior loans that were secured by two mortgages recorded

against a property located at 57 Cumberland Drive in Lincolnshire Illinois. Chicago Title, as

successor trustee under a trust agreement dated June 4, 1985 and known as trust number 64532

(the Land Trust), held record title to the property. Lampert was the sole beneficiary of the Land

Trust.

¶5 At the March 26, 2009, scheduled closing of the Loan transaction, Lampert signed a Note

payable to Countrywide, a Department of Housing and Urban Development settlement statement

(HUD-1) that showed the disbursements of the proceeds of the Loan, and a Document Correction

and Fees Due Agreement (Document Correction Agreement).

¶6 Paragraph 10 of the Note, titled “Uniform Secured Note,” stated in part, “[in] addition to

the protections given to the Note Holder under this Note, a Mortgage, Deed or Trust, or Security

Deed***dated the same date as this Note, protects the Note Holder from possible losses which

might result if I do not keep the promises which I made in this Note.” No mortgage to secure the

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Loan and the Note was executed. Countrywide endorsed the Note in blank. The Bank is the holder

of the Note and the successor to Countrywide.

¶7 The Document Correction Agreement, which Lampert signed, provided that:

“regardless of the reason for any loss of, misplacement of, inaccuracy in, or failure to sign

any Loan documentation, Borrower(s) agrees as follows: If any document is lost,

misplaced, misstated, inaccurately reflects the true and correct terms and conditions of the

Loan, or [sic] otherwise missing upon request of the Lender, Borrower(s) will comply with

Lender’s request to execute, acknowledge, initial and deliver to Lender any documentation

Lender deems necessary to replace or correct the lost, misplaced, misstated, inaccurate or

otherwise missing document(s).”

¶8 Lampert stopped making payment on the Loan in July 2014. In a letter dated

March 6, 2015, the Bank requested that Lampert direct the Land Trust to execute the mortgage

pursuant to the Document Correction Agreement that she signed in 2009. Lampert refused to do

so, indicating that she did not agree to the mortgage at the 2009 closing because it included an

escrow provision requiring her to pay to the lender amounts for real estate taxes and property

insurance.

¶9 On October 23, 2015, the Bank filed a one count verified complaint for specific

performance of the Document Correction Agreement to require Lampert to direct the Land Trust

to execute the mortgage. On April 18, 2017, the Bank filed a first amended verified complaint.

Count I of the first amended complaint alleged a cause of action for specific performance. Count

II, in the alternative, alleged a cause of action for an equitable lien on Lampert’s property. The

first amended complaint relied upon the correspondence the Bank sent to Lampert in 2015, which

was attached as Exhibit D. That exhibit also contained a document entitled, “mortgage,” which

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stated that it was prepared by an agent of Countrywide and should be returned to Countrywide.

The mortgage was dated March 27, 2009, the day after Lampert had allegedly refused to execute

the mortgage. The “borrower” listed on the mortgage was the Land Trust.

¶ 10 On June 14, 2017, defendants filed a joint answer and affirmative defenses to the amended

complaint. They admitted that the Land Trust held record title to the property and that Lampert

was the sole beneficiary of the Land Trust and that she had the power to direct the Land Trust to

act. The Bank moved to strike the affirmative defenses. The motion to strike was granted.

¶ 11 On August 12, 2018, the Bank filed a motion for summary judgment and a Lake County

Local Rule 2-1.04 statement of undisputed material facts. Lake County Cir. Ct. R. 2-1.04(A)(3)

(eff. Oct. 24, 2016). Defendants filed responses to both the motion and the statement. In their

response to the statement of undisputed facts defendants admitted that the Bank was the successor

to Countrywide; Lampert resided at the property; the Land Trust held record title to the property;

Lampert was the sole beneficiary of the Land Trust and possessed the power of direction for the

Land Trust; Lampert received $310,000 in proceeds of the Loan, which were used to refinance a

prior loan on the property that was secured by a mortgage on the property 1; Lampert expected the

Loan to be secured by a mortgage that was acceptable to her; Lampert executed the HUD-1

settlement statement; the Bank sent correspondence to Lampert requesting that she direct the Land

1 We note that the Bank’s statement of undisputed material fact incorrectly states, “Lampert

received $310,000 in proceeds on the Loan, which were used to refinance a prior loan on the

Property that was secured by a mortgage on the Property.” (Emphasis added.) Defendants admitted

to that incorrect fact. The record overwhelmingly reflects, however, that the $310,000 that Lampert

allegedly received was to be used to pay off two prior loans that were secured by two mortgages.

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Trust to execute a mortgage; following the Loan transaction, Lampert made payments to the Bank

on the Loan, including payments for real property taxes and insurance escrow through July 2014.

¶ 12 The HUD-1 statement, which the closer did not execute, showed that the Loan proceeds

paid off two loans, a loan for $257,456 and a loan for $24,132. It also showed that $1076.52 of the

Loan proceeds were paid into escrow for hazard insurance premiums, and $10,051.20 of the Loan

proceeds were paid into escrow for real estate taxes.

¶ 13 On October 26, 2018, the trial court denied the Bank’s motion for summary judgment. Trial

was set for February 25, 2019. On January 28, 2019, the Bank filed a motion for leave to file a

second amended complaint. In the motion, the Bank indicated that although it disagreed with the

trial court that there were material issues of fact precluding summary judgment on count I, it was

not seeking to amend count I. The Bank was, however, seeking to amend count II based upon the

trial court’s sua sponte ruling that count II did not state a claim for relief because an equitable lien

was a remedy and not a cause of action. Count II of the second amended complaint sought to state

a claim for equitable subrogation and requested an equitable lien based upon the monies advanced

to pay off the previous mortgages on the property. The Bank also added count III which sought to

foreclose on the equitable lien in count II.

¶ 14 Inexplicably, the proposed second amended complaint attached different correspondence

and a different mortgage than that attached to the first amended complaint. The mortgage attached

to the proposed second amended complaint listed the borrower as Lampert, and not the Land Trust.

Additionally, it was dated March 26, 2009, the date of the failed closing, and not March 27, 2009.

The identity of the party to whom the mortgage was to be returned was also different than the

mortgage attached to the first amended complaint. In the mortgage attached to the first amended

complaint the document was to be returned to Countywide, but the mortgage attached to the

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proposed second amended complaint indicated that it should be returned to Chicago Title-Service

Link Division. Both documents indicated that they were prepared by Mari Carmen Shaw. After a

hearing on February 22, 2019, the trial court denied the Bank’s motion for leave to amend without

any written findings.

¶ 15 A bench trial was held on February 25, 2019. The only witness called was Lampert, whom

the Bank called as an adverse witness. Lampert testified that she and her late husband acquired the

property in 1985 and placed the property into a Land Trust. They obtained a loan to finance the

purchase of the property, which was secured by a mortgage. Her husband died in 1999 and a few

years later she refinanced the original loan. At that refinance, Lampert signed a note and directed

the Land Trust to sign the mortgage. She later obtained another loan secured by a second mortgage

on the property. Lampert testified that she was the sole beneficiary of the Land Trust and she had

the power to direct the Land Trust. She understood the difference between a note and a mortgage.

¶ 16 Lampert said that she intended the Loan to refinance the two prior mortgage loans on the

property and that the Loan be secured by a mortgage. She also understood that she would need to

direct the execution of the mortgage.

¶ 17 On March 26, 2009, a man came to Lampert’s home to close the Loan. She signed several

papers, including the Note and the Document Correction Agreement. During the closing she asked

where it indicated in the documents that the insurance and taxes were not going to be escrowed.

The closer said that those terms were not included in any of the documents, but not to worry about

it because “we” could take them off. Lampert said she refused to sign the mortgage or any more

papers because she had requested that the Loan not require an escrow for real estate taxes and

property insurance.

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¶ 18 Lambert said that after the closing she did not believe that the Loan had closed; she thought

that she was continuing to pay on the old loans. She now understood that she had had been paying

on the instant Loan for the past several years. She admitted that she might have received coupons

with the Loan. Lampert stopped making payments on the Loan around five years after the failed

closing. Lampert admitted that her payments on the Loan included amounts for escrow. The

interest rate that she was paying was not significantly different than the prior interest rate. The

Banks’ counsel directed Lampert to review the HUD-1 statement where it indicated that the cash-

to-borrower amount was $8769.78. Lampert said that she was never given that amount at the failed

closing.

¶ 19 The Bank rested and defendants moved for a directed finding. The court took the motion

under advisement, and on February 26, 2019, it granted defendants’ motion. The court first found

that the Bank had failed to make a prima facie case for specific performance on count I of its first

amended complaint. Although Lampert signed the Document Correction Agreement, the plain

language of that document indicated that she only agreed to sign any additional documents that

were consistent or contained terms that were agreed to at a closing. The Document Correction

Agreement was not meant to cover the Bank’s situation, i.e., to force a borrower to agree to

mortgage terms that she had previously objected to and rejected six years earlier. The court said

that the critical element of specific performance was the existence of an agreement. Here,

however, the Bank was asking the court to create a mortgage contract between the parties under

which Lampert would be required to perform when, in reality, there had been no mortgage contract

agreement. The court noted further that even if the Bank had established a prima facie case for

specific performance, the weight of the evidence did not support the Bank’s claim on that count.

It found unpersuasive the Bank’s argument that it would not have funded the loan but for the

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oversight of the mortgage’s execution. It also disagreed with the Bank’s opinion that Lampert was

not credible. The court indicated that although Lampert was at times was evasive, it found her to

be credible at other times in her testimony, especially regarding her demand to not have escrow

provisions in the mortgage and her refusal to sign the mortgage with those provisions.

¶ 20 In reaching its conclusion, the court was also troubled that the HUD-1 statement was not

admitted into evidence, even though the Bank relied upon it. Additionally, it was revealed at trial

that the closer never signed the attestation in the HUD-1 that swore that the Loan funds were

disbursed in the manner stated in the HUD-1. Considering all the evidence, the court indicated

that, even if it had not believed Lampert, the Bank introduced no other evidence related to this

transaction and was asking the court to speculate as to whether the transaction closed in the face

of evidence supporting Lampert’s position that she refused to close and was not aware that the

Loan had closed.

¶ 21 Regarding count II alleging a cause of action for an equitable lien, the court found that the

Bank had failed to establish a prima facie case on that count also. It first noted that an equitable

lien was a remedy and not a cause of action and that the Bank had not identified what cause of

action it was pursuing. Based on the argument of the Bank’s counsel, however, the court concluded

that the Bank sought, in the alternative, a declaratory judgment that an equitable lien was

appropriate where no written mortgage existed. However, viewing the evidence in the light most

favorable to the Bank, it remained unclear whether the Loan was ever funded based upon

Lampert’s testimony. The evidence showed that the Loan closing failed because Lampert would

not agree to the mortgage terms related to the escrow. Lampert testified that she did not believe

the refinancing Loan occurred and that the funds were not disbursed as suggested in the HUD-1

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statement. Thus, the Bank could not unilaterally impose an obligation upon Lampert to seek an

equitable lien.

¶ 22 Accordingly, the court held that the Bank failed to establish a prima facie case for either

count in the first amended complaint, and it dismissed the cause with prejudice. The Bank filed a

motion for a modification of the judgment, which the court denied. The Bank filed a timely notice

of appeal.

¶ 23 II. ANALYSIS

¶ 24 On appeal, the Bank argues that the trial court erred in (1) denying it leave to file a second

amended complaint, (2) entering a directed finding for defendants, and (3) denying its post-

judgment motion to modify the judgment.

¶ 25 A. Leave to File Second Amended Complaint

¶ 26 The Bank argues that the trial court abused its discretion in denying its motion for leave to

file a second amended complaint.

¶ 27 We review the denial of a motion for leave to file an amended complaint for an abuse of

discretion. Compton v. Country Mutual Insurance Co., 382 Ill. App. 3d 323, 331 (2008). An abuse

of discretion will be found only if the court acted arbitrarily without using its conscientious

judgment, exceeded the bounds of reason and ignored recognized principles of law, or if no

reasonable person would take the position adopted by the court. Popko v. Continental Casualty

Co., 355 Ill. App. 3d 257, 266 (2005).

¶ 28 According to the common law record, the Bank’s motion for leave to file a second amended

complaint was set for a hearing on February 22, 2019. On that date, the trial court entered an order

stating that, after holding a hearing, it denied the Bank’s motion. The court’s order contained no

written findings. On appeal, the Bank has provided neither a transcript of the hearing, nor a

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bystanders’ report. Illinois Supreme Court Rule 323 requires an appellant to prepare and file a

transcript or bystander's report of the proceedings in the trial court. Ill. S. Ct. R. 323(a), (c) (eff.

July 1, 2017). Where an appellant fails to furnish the pertinent record of proceedings on appeal,

“it will be presumed that the order entered by the trial court was in conformity with law and had a

sufficient factual basis.” Foutch v. O'Bryant, 99 Ill. 2d 389, 392 (1984); Illinois Founders Ins. Co.

v. Williams, 2015 IL App (1st) 122481, ¶ 39. “Any doubts which may arise from the

incompleteness of the record will be resolved against the appellant.” Illinois Founders Ins. Co.,

2015 IL App (1st) 122481, ¶ 39.

¶ 29 Since we have no transcript of the hearing after which the court denied the Bank’s motion

for leave to file a second amended complaint, no bystander’s report, and no written findings in the

court’s order, we have no basis upon which to determine whether the trial court abused its

discretion in denying the Bank’s motion for leave to amend. Accordingly, we will presume that

the court acted in conformity with the law in denying the motion. For this reason, we find that the

trial court properly denied the Bank’s motion for leave to file a second amended complaint.

¶ 30 B. Directed Finding

¶ 31 The Bank next argues that the trial court erred in entering a directed finding in favor of

defendants because the evidence established a prima facie case for specific performance and an

equitable lien. It also contends that the trial court’s factual findings were against the manifest

weight of the evidence.

¶ 32 Section 2-1110 of the Code of Civil Procedure allows a defendant to move for a directed

finding at the close of the plaintiff's case in a bench trial. 735 ILCS 5/2-1110 (West 2018). To rule

on such a motion, the trial court must engage in a two-step analysis. Indeck Energy Services v.

DePodesta, 2019 IL App (2d) 190043, ¶ 57 (citing Edward Atkins, M.D., S.C. v. Robbins, Salomon

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& Patt, Ltd., 2018 IL App (1st) 161961, ¶ 53). First, it must determine whether the plaintiff has

presented a prima facie case as a matter of law by producing some evidence on every element

necessary to its cause of action. Id. If not, the trial court must grant the motion and enter judgment

in the defendant's favor. Id. If the plaintiff has presented a prima facie case, then the trial court is

required to consider the credibility of the witnesses, draw reasonable inferences therefrom, and

generally consider the weight and quality of the evidence. Id. ¶ 54. If sufficient evidence exists for

the plaintiff’s prima facie case to survive, the trial court should deny the defendant's motion and

continue the trial. Id. Where the evidence is not sufficient, the court should grant the motion and

enter judgment in the defendant's favor. Id.

¶ 33 In general, if the court grants a motion for a directed finding at the first stage of the section

2-1110 analysis, our standard of review is de novo, whereas if the court grants the motion at the

second stage, our standard of review is the manifest-weight standard.” Id. ¶ 58. A decision is

against the manifest weight of the evidence when an opposite conclusion is apparent or when the

court’s findings appear to be unreasonable, arbitrary, or not based on evidence. In re Marriage of

Verhines & Hickey, 2018 IL App (2d) 171034, ¶ 51.

¶ 34 A. Specific Performance

¶ 35 The Bank argues that the trial court erred when it found that it had failed to present a

prima facie case for specific performance because the Document Correction Agreement did not

apply under these facts. Specifically, it claims that the court erred in concluding that the Document

Correction Agreement did not apply where the parties agreed that the Loan would be secured by a

mortgage, as evidenced in part by the Note executed by Lampert, and Lampert’s admissions and

testimony. It claims that the mortgage is a missing document within the meaning of the Document

Correction Agreement because the parties intended for a mortgage to be executed as part of the

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Loan transaction. Finally, the Bank argues, “[t]o the extent that the court determines that the parties

did not agree to an escrow provision, the Mortgage could be modified to delete the escrow

requirement.”

¶ 36 To be entitled to specific performance, a plaintiff must prove: (1) the existence of a valid,

enforceable contract; (2) the plaintiff’s compliance with the contract or willingness and ability to

perform; and (3) the defendant’s refusal to perform its part of the contract. Happy R. Securities,

LLC v. Agri-Sources, LLC, 2013 IL App (3d) 120509, ¶ 42. As we have noted, we will review

de novo the trial court’s determination that the Bank did not make a prima facie showing of

specific performance. Indeck Energy Services, 2019 IL App (2d) 190043, ¶ 58. See ¶ 34.

¶ 37 We agree with the court that the Bank failed to make a prima facie showing of specific

performance. Although the parties agreed that the Loan would be secured by a mortgage, it was

unrefuted at trial, and the Bank does not argue now, that the parties did not come to an agreement

on the terms of a mortgage. Although some terms of a contract may be missing or left to be agreed

upon, the parties' failure to agree upon an essential term of a contract indicates that the mutual

assent required to make a contract is lacking and, thus, there is no enforceable contract. Rose v.

Mavrakis, 343 Ill. App. 3d 1086, 1091 (2003). Clearly, an essential element of a mortgage is the

amount of the monthly payment, and whether property taxes and insurance are to be escrowed will

greatly affect the amount of that monthly payment. The Bank’s argument that there was an

enforceable mortgage is further stymied, of course, by its failure to introduce any mortgage into

evidence; it is well-settled that the appellate court cannot consider documents not admitted into

evidence at trial. Jill Knowles Enterprises, Inc. v. Dunkin, 2017 IL App (2d) 160811, ¶ 24.

¶ 38 It its reply brief, the Bank alleges that the “Corrected Mortgage,” that being the one dated

March 27, 2009, was in fact admitted into evidence along with the Document Correction

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Agreement. As support for this claim, the Bank notes that the mortgage dated March 27, 2009,

was attached as Exhibit D to the first amended complaint. Also, in Lampert’s response to its

statement of undisputed material facts, she admitted to the receipt of Exhibit D but denied that she

agreed to sign it. The Bank also notes that at trial, Lampert reviewed the mortgage dated March

27, 2009, and said that she did not object to the provisions in that mortgage other than the escrow

provision and the interest rate, and the interest rate was not listed in the mortgage. In conclusion,

the Bank claims:

“Because the March 26, 2009, mortgage and the Corrected Mortgage have identical

terms and provisions, other than their dates and their identifications of the mortgagors,

[Lampert’s] testimony concerning her sole objection at the closing was also directed to the

Corrected Mortgage, which was part of the record. Plaintiff did not need to cause the

Corrected Mortgage to be admitted as a separate exhibit.”

¶ 39 Generally, a document must be offered by its proponent and admitted into evidence by the

trial court before it may be considered as evidence. People v. One 1999 Lexus, VIN

JT8BH68X2X0018305, 367 Ill. App. 3d 687, 689–90 (2006). However, a document attached to a

complaint and admitted by an answer is properly considered by the court even if not admitted into

evidence. Jill Knowles Enterprises, Inc., 2017 IL App (2d) 160811, ¶ 26 (citing Lipschultz v. So–

Jess Management Corp., 89 Ill. App. 2d 192, 199–200 (1967)).

¶ 40 We reject the Bank’s argument that the March 27, 2009, mortgage was admitted into

evidence. Here, Lampert did not admit to the contents of the March 27, 2009, mortgage in her

response to the statement of undisputed facts. Instead, she only admitted that attached to the 2015

correspondence letter was a copy of a mortgage to be executed. However, Lampert denied that she

agreed to sign that mortgage. Moreover, at trial, when the Bank’s counsel asked Lampert if she

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had refused to sign the document that accompanied the 2015 letter (the March 27, 2009 mortgage),

Lampert said that she did not remember ever seeing that mortgage. She thought that something

had come from the Bank, but that it came before 2015. Also, the correspondence from the Bank

did not have a mortgage attached to it. Lampert said she remembered receiving a letter from the

Bank asking her to sign some documents, but the Bank did not explain what the documents

contained. She remembered that in that correspondence, the Bank offered her a $200 Visa card if

she would sign the documents. She sent that correspondence to her attorney. When the Bank’s

counsel later asked Lampert whether she objected to any provision in the March 27, 2009,

mortgage other than the escrow provision Lampert said no, except for the interest rate (which was

contained in the Note, and not in either mortgage). Accordingly, the record is clear that Lampert

did not admit to the contents of the March 27, 2009, mortgage, either in her response to the

statement of undisputed material facts, or in her testimony at trial. Therefore, the March 27, 2009,

mortgage was not admitted into evidence below.

¶ 41 Since the Bank could not prove the first requirement of specific performance, i.e., the

existence of a valid, enforceable contract, the Document Correction Agreement was of no avail in

proving that the Bank had presented a prima facie case for specific performance. We disagree

with the Bank that, simply because Lampert signed the Document Correction Agreement, she

agreed to consent to unspecified terms of an uncertain mortgage agreement. Schweihs v. Davis,

344 Ill. App. 3d 493, 499 (2003) (in general, courts will enforce contracts as written, and they will

not rewrite a contract to suit one of the parties).

¶ 42 Further, we find that the terms of the Document Correction Agreement do not support the

Bank’s argument that it is entitled to specific performance given the unique facts leading up to the

failed closing. The Document Correction Agreement provides that in consideration for

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Countrywide funding the Loan, Lampert “regardless of the reason for any loss of, misplacement

of, inaccuracy in, or failure to sign any Loan documentation,” will comply with Countrywide’s

request to “execute, acknowledge, initial and deliver to Lender any documentation Lender deems

necessary to replace or correct the lost, misplaced, misstated, inaccurate or otherwise missing

document(s).” (Emphasis added). Here, no mortgage was lost, misplaced, inaccurate or otherwise

missing. Lampert refused to execute a mortgage that contained terms she opposed. A plain reading

of the terms of the Document Correction Agreement did not require Lampert to sign a mortgage

with terms that she specifically rejected. To read the document otherwise would render it

unconscionable as totally one-sided. Labuz v. Labuz, 2016 IL App (3d) 140990, ¶ 40 (to be

unconscionable, the agreement must be improvident, totally one-sided, or oppressive).

¶ 43 Having determined that the Bank failed to present a prima facie case for performance, we

need not review the Bank’s remaining contention that the trial court’s finding that even if it had

made a prima facie showing of specific performance, the weight of the evidence did not support a

cause of action for specific performance was against the manifest weight of the evidence.

¶ 44 B. Equitable Lien

¶ 45 The Bank next contends that the trial court erred in finding that it did not make a

prima facie case for an equitable lien when it established both (1) a debt and (2) an agreement that

the property would secure the repayment of that debt. Specifically, it argues that Lampert judicially

admitted to the debt and testified that the Loan funded and that it paid off her prior loans secured

by unrelated mortgages. It contends that the court also erred as a matter of law because an equitable

lien can be imposed as to an agreement of the parties upon equitable considerations.

¶ 46 The imposition of an equitable lien is a remedy for a debt that cannot be legally enforced,

but which should be recognized under considerations of fairness. Paliatka v. Bush, 2018 IL App

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(1st) 172435, ¶ 28 (citing Hargrove v. Gerill Corp., 124 Ill. App. 3d 924, 930 (1984)). The essential

elements of an equitable lien are (1) a debt, duty, or obligation defendant owed to plaintiff; and (2)

the existence of a res that, in some way, is particularly related to the debt or obligation. Paliatka,

2018 IL App (1st) 172435, ¶ 28. An equitable lien may be found either (1) where the parties

expressed in writing their intention to make real property, personal property, or some fund the

security for a debt but did not use express lien language or (2) where considerations of fairness

and justice would require imposing a lien even without an express agreement between the parties.

Paine/Wetzel Associates, Inc. v. Gitles, 174 Ill. App. 3d 389, 393 (1988).

¶ 47 We initially note that, with the exception of one footnote, the Bank failed to cite to the

record at all in the argument section of its brief on equitable liens, though it refers to the contents

of the record several times. This is a violation of Supreme Court Rule 341(h)(7) (eff. May 25,

2018) (the appellant’s brief shall contain contentions and reasoning with citation of authorities and

the pages of the record relied upon). Violations of Rule 341 can cause a party to forfeit an issue on

appeal. Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 23. Although we choose not to apply the

forfeiture rule here, we strongly advise counsel to strictly comply with all Illinois Supreme Court

Rules in the future. Morse v. Donati, 2019 IL App (2d) 180328, ¶ 16 (Illinois Supreme Court rules

have the force of law and are not mere suggestions).

¶ 48 In support of its equitable lien claim, the Bank relies upon Paine/Wetzel Associates, Inc.

In Paine/Wetzel, a real estate brokerage brought an action against the trustees and beneficiaries of

a land trust and alleged that the beneficiaries owed it a commission for the sale of property. The

brokerage sought a declaration that it held an equitable lien on the property to secure payment of

the commission. Paine/Wetzel, 174 Ill. App. 3d at 392. The trial court, sua sponte, dismissed that

count for a failure to state a claim as a matter of law. Id. The appellate court reversed and held that

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the brokerage had alleged an existence of a debt, the unpaid commission, and the res to which the

obligation attached, the property. Id. at 394. It also referred to an exception to the rule that a

beneficiary cannot affect the title to property in an Illinois land trust, specifically, that when a

beneficiary of an Illinois land trust, when acting in his capacity as beneficiary, may enter into a

valid contract affecting the title to property if the trust agreement vested in him the sole right to

direct the trustee to convey title. Id. (citing Madigan v. Buehr, 125 Ill. App. 2d 8, 16-17 (1970)).

Since the plaintiff alleged in its complaint that the beneficiaries possessed the right to direct a

conveyance from the land trust, the appellate court held that this count stated a cause of action. Id.

¶ 49 Initially we note that, unlike in Paine/Wetzel, the Bank here did not request declaratory

relief in the form of an equitable lien. Instead, it attempted to state a clause of action for an

equitable lien, though such a lien is an equitable remedy and not a cause of action. See Mordkovich

v. Tishman, Speyer Properties, 2017 IL App (1st) 161609, ¶ 23. However, the trial court gave the

Bank the benefit of the doubt that it was requesting declaratory relief in this count, and we shall

do the same.

¶ 50 More problematic for the Bank, however, is that Paine/Wetzel involved an appeal from a

motion to dismiss, and this case involves an appeal from a finding of a directed verdict. As we

have noted, the first step a trial court must take when confronted with a motion for a directed

finding is to determine whether the plaintiff has presented a prima facie case as a matter of law by

producing some evidence on every element necessary to its cause of action, and if it did not, the

trial court must grant the motion and enter judgment in the defendant's favor. Indeck Energy

Services, 2019 IL App (2d) 190043, ¶ 57. We reject the Bank’s contention that it produced prima

facie evidence of a debt and a res to which that obligation related, so as to survive defendants’

motion for a directed finding on this count.

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¶ 51 The Bank claims that it established a debt because Lampert: (1) judicially admitted and

testified at trial that the Loan funded; and (2) she received the benefits of the Loan as evidenced

by the Note because the proceeds, among other things, paid off two prior loans secured by

mortgages recorded against the property. The Bank argues that defendants judicially admitted that

the Loan funded in their response to the statement of undisputed facts, where they admitted that

Lampert “received $310,000 in the proceeds of the Loan, which were used to refinance a prior

loan on the Property that was secured by a mortgage on the Property.” The Bank states that

defendants also admitted that after the failed closing Lampert made payments on the Loan.

¶ 52 We agree with the Bank that an admission in response to a statement of undisputed fact

constitutes a judicial admission. See Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 557-58 (2005).

Thus, standing alone, Lampert’s judicial admission as to the funding of the loan might have been

dispositive as to the question of a debt. However, Lampert’s admission does not stand alone. At

trial, Lampert testified on direct examination by the Bank that she signed the HUD-1 statement

that indicated she should receive $8,769.76 at the closing, but that she did not receive that sum. In

its brief and at oral argument, the Bank claimed that Lampert only testified that she did not receive

the $8,769.76 at the time of the closing and not that she never received those funds. We disagree

with the Bank’s interpretation of Lampert’s testimony. The record reflects that the Bank’s counsel

asked Lampert whether it was accurate that the HUD-1 indicated that $8,769.76 was given to her,

and Lampert responded, “[n]o, I did not, because I was not given any money from the bank. At

that time I was not given $8,700.” Lampert never testified that she received that money at a later

time, and we will not read such a statement into her answer. The fact that Lampert did not receive

the amount listed on the HUD-1 was unrefuted, and it was bolstered by the fact that the closer

never signed the attestation in the HUD-1statement that swore that the loan funds were disbursed

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in the manner stated therein. By eliciting evidence at trial regarding the same subject matter as the

judicial admission at issue, the Bank has waived its right to rely on the admissions, and those prior

admissions must be disregarded by the factfinder. Rowe v. State Bank of Lombard, 247 Ill. App.

3d 686, 696 (1993) (right to rely on admission is waived if party introduces evidence on issue

controlled by admission). Further, Lampert testified that she did not understand at the time of the

failed closing that she was paying on a new loan when she continued to pay her mortgage. As we

have noted, these statements acted as a waiver of Lampert’s earlier judicial admissions.

¶ 53 The Bank argues that it did not waive its right to rely on the admissions since Lampert

testified as an adverse witness, citing to Kapraun v. Kapraun, 12 Ill. 2d 348, 355 (1957). However,

Kapraun does not stand for the proposition that a party does not waive its right to rely on a judicial

admission when an adverse witness gives contradictory testimony at trial. In fact, Kapraun did not

involve judicial admissions at all. Instead, Kapraun was simply a case where an adverse witness

testified one way, but when he was confronted with an exhibit that contradicted that testimony, he

acknowledged that his earlier testimony was inaccurate. Our supreme court said that the plaintiffs

were not bound to vouch for the veracity of the adverse witness’ testimony and they could

introduce any competent evidence in direct contradiction, though they were bound by any

uncontroverted testimony by the adverse witness. Kapraun, 12 Ill. 2d at 355. Accordingly, we

reject the Bank’s claim that it did not waive its reliance on Lampert’s earlier judicial admissions

when Lampert’s trial testimony contradicted those admissions.

¶ 54 Although we agree with the Bank’s argument that Lampert should have known that she

was paying on a new loan because she was making one monthly payment instead of two and that

the interest rate had changed after the failed closing, the trial court found Lampert to be credible

with most of her testimony, especially her testimony that she did not agree to have the taxes and

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insurance escrowed and that she refused to sign the mortgage because that clause was not present

in any of the closing document. We do not find that the trial court’s finding on this point to be

unreasonable, arbitrary, or not based on evidence. See In re Marriage of Verhines & Hickey, 2018

IL App (2d) 171034, ¶ 51.

¶ 55 We also agree with the trial court that even if Lampert was not a credible witness, the Bank

presented no other evidence related to the transaction and asked the court to speculate upon

whether a closing occurred. It failed to prove there was a debt when it did not enter the HUD-1

into evidence, and even if it had proven a debt, it could not tie that debt to the property when it did

not enter any mortgage into evidence.

¶ 56 Finally, the Bank argues that the same facts that it relied upon to argue for the imposition

of an equitable lien based on an express agreement between the parties support the imposition of

an equitable lien based upon general considerations of fairness. However, the Bank has failed to

cite any authority in support of this proposition, and therefore it has forfeited this argument. Ill. S.

Ct. R. 341(h)(7) (eff. May 25, 2018); Mordkovich, 2017 IL App (1st) 161609, ¶ 23 (argument that

principles of fairness and justice require a court to recognize an equitable lien is forfeited when

appellant failed to cite any authority in support of that proposition other than the general principle

that, when there is no other remedy available, a trial court may employ its equitable power to grant

relief when the circumstances require).

¶ 57 Forfeiture aside, we are not persuaded that the trial court manifestly erred in not granting

it an equitable lien on fairness grounds. The Bank would have us impose an equitable lien, but in

support asks us to speculate as to what exactly happened in 2009. This we will not do. Looking

as we must to the evidence presented at trial, it must be noted that the Bank entered neither the

HUD-1 statement, not the mortgage into evidence. Rather, it simply relied on the Note and

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Lampert’s adverse testimony, which waived her earlier admissions that $310,000 had been

disbursed to her. There simply was insufficient evidence for the court to find an equitable lien in

the Bank’s favor on fairness grounds based upon these facts.

¶ 58 C. Post-Judgment Motion

¶ 59 Finally, the Bank argues that the trial court abused it discretion in denying its post-

¶ 60 Section 2-1203(a) of the Code of Civil Procedure provides that in non-jury cases, any party

may file within 30 days a motion for a rehearing, a retrial, or modification of the judgment or to

vacate the judgment or for other relief. 735 ILCS 5/2-1203(a) (West 2018). The purpose of such a

motion is to alert the trial court to errors it has committed and to afford it an opportunity to correct

those errors. Steiner v. Eckert, 2013 IL App (2d) 121290, ¶ 16. We review the trial court's denial

of a section 2-1203 motion for an abuse of discretion. Id.

¶ 61 The Bank has forfeited this issue. It has provided no argument to support its claim that the

trial court abused its discretion other than to say that it filed the post-trial motion to “alert the trial

court of errors concerning its findings that Plaintiff failed to establish claims for specific

performance and an equitable lien.” It also states that if the trial court found that Lampert did not

execute the mortgage because of the escrow provision, it should have ordered Lampert to direct

the Land Trust to execute a mortgage within an escrow provision. This argument is an extremely

sparce re-hash of the arguments it raised on appeal and once again, we find that the Bank has

violated Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018). For these reasons, we decline

to review this issue.

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¶ 62 III. CONCLUSION

¶ 63 While we recognize that the end result here may seem harsh, it necessarily follows from

our application of the standard of review to the findings of the trial court in light of the evidence

introduced at trial. In sum, because the Bank filed neither a transcript nor a bystanders report of

the hearing on its motion for leave to file a second amended complaint, and the trial court’s order

denying the motion contained no written findings, we must presume that the trial court properly

denied the motion. Also, since the Bank did not prove the first requirement of specific

performance, i.e., the existence of a valid, enforceable contract, the trial court properly granted

defendants’ motion for a directed finding on that count. The court also properly directed a finding

for defendants on the second count of the Bank’s first amended complaint for an equitable lien

where the Bank failed to prove the existence of a debt and that there was an agreement that the

property would secure the repayment of that debt. Finally, the Bank forfeited its claim that the trial

court abused its discretion in denying its post-trial motion to modify the judgment when it

presented no substantive argument to support its position, in violation of Illinois Supreme Court

Rule 341(h)(7) (eff. May 25, 2018).

¶ 64 For the forgoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 65 Affirmed.

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