First Bank of Highland Park v. Heiman

2022 IL App (1st) 192270-U

• Court: Appellate Court of Illinois
• Decided: September 16, 2022
• Docket: 1-19-2270
• Status: Unpublished

Opinion

2022 IL App (1st) 192270-U No. 1-19-2270 September 16, 2022 Sixth Division ________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ FIRST BANK OF HIGHLAND PARK, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) ) SCOTT A. HEIMAN, ANDREA L. HEIMAN, ) No. 17-CH-05703 THE UNITED STATES OF AMERICA, ) HARRIS, N.A., ELIAH KAHN, ) UNKNOWN OWNERS, and ) NON-RECORD CLAIMANTS. ) Honorable ) Judge John J. Curry Jr. Defendants ) Judge Presiding. ) (Scott A. Heiman and Andrea L. Heiman, ) Defendants-Appellants). )

JUSTICE WALKER delivered the judgment of the court. Justice Hyman and Justice Coghlan concurred in the judgment.

ORDER ¶1 Held: The circuit court correctly denied defendants’ motion for leave to file a counterclaim because the limitations period for the counterclaim expired before the plaintiff’s cause of action arose. Where defendants did not file a Rule 191 affidavit in support of their request for a deposition of one of plaintiff’s employees, the circuit court did not abuse its discretion by denying the request. No. 1-19-2270

¶2 Plaintiff-Appellee First Bank of Highland Park sued to foreclose its mortgage on the home

of defendants-appellants Scott and Andrea Heiman. The circuit court granted First Bank’s motion

for summary judgment and later approved the sale of the home. On appeal from the circuit court’s

denial of their motion to vacate the sale, the Heimans argue the circuit court (1) should have

permitted them to file a counterclaim; (2) should have permitted them to take the deposition of one

of First Bank’s officers; (3) should have ignored the documents First Bank presented in support of

its motion for summary judgment; (4) should have vacated the sale because of insufficient notice

of the motion to approve the sale; and (5) awarded too much for attorney fees. We affirm the circuit

court’s judgment.

¶3 BACKGROUND

¶4 In 2002, the Heimans gave First Bank a mortgage on their home in exchange for a loan

and a revolving line of credit. In 2011, the Heimans signed a promissory note made out to First

Bank in exchange for a loan of $2,040,000. The Heimans and First Bank signed a “Work-Out and

Forbearance Agreement,” dated December 2016, in which the Heimans agreed to list their home

for sale and repay the entire loan by March 2017. In exchange, First Bank agreed not to file for

foreclosure before March 2017. In April 2017, First Bank filed a complaint for foreclosure on the

mortgage, alleging that the Heimans had not complied with the work-out agreement and still owed

more than $1.7 million on the loan.

¶5 The Heimans sought leave to file a counterclaim alleging that, in 2004, First Bank agreed

to loan Scott $4.7 million so that Scott could purchase a commercial property. The Heimans were

alleging that First Bank’s failure to make the agreed loan, caused Scott to lose profits anticipated

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from the proposed purchase. The Heimans deposed a bank officer who stated in an affidavit that

bank records showed the Heimans still owed the bank $1,885,820 plus interest of $247.66 per day.

¶6 The circuit court found the statute of limitations barred Scott’s counterclaim and granted

First Bank’s motion for summary judgment on the complaint.

¶7 First Bank then filed the supplemental affidavit of Anne O’Connor, a senior vice president

of First Bank, who stated she reviewed bank documents and found the Heimans’ debts had

increased to more than $2,000,000. In addition, to increases in interest and late fees listed in the

prior affidavit, she added charges for insurance, appraisal fees, and real estate taxes. The Heimans

filed a request for leave to take O’Connor’s deposition and a motion to stay the sale. The circuit

court denied both motions.

¶8 On June 14, 2019, First Bank filed a motion for an order approving the sale. In the notice

of motion, First Bank’s attorney stated: “on July 2, 2019 at 2:00 p.m., or as soon thereafter as

counsel may be heard, I shall appear before the Honorable Darryl B. Simko or any judge sitting in

his stead, in the courtroom usually occupied by him, Courtroom 2806.” The attorney certified that

he mailed a copy of the motion to the Heimans’ attorney on June 14, 2019. Although the circuit

court had initially assigned the case to Judge Simko, the court had reassigned the case to Judge

Curry, on the Heimans’ motion for substitution of judge, long before First Bank filed its motion to

approve the sale.

¶9 The circuit court approved the sale of the home to First Bank for $1.7 million. The circuit

court also entered a judgment against the Heimans for $447,700.94, which included the amount

remaining due on the loan and $30,104.50 in attorney fees. The Heimans filed a motion to vacate

the sale, arguing that First Bank did not send the required notice for the motion to approve the sale.

The circuit court denied the motion to vacate. The Heimans now appeal.

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¶ 10 ANALYSIS

¶ 11 On appeal, the Heimans contend the circuit court committed five errors: the court should

have (1) allowed the Heimans to file their counterclaim; (2) granted the Heimans’ request for a

deposition of O’Connor; (3) disregarded the exhibits attached to O’Connor’s affidavit; (4) vacated

the sale because First Bank did not show valid notice; and (5) awarded a smaller amount for

attorney fees. Different standards of review govern the differing arguments.

¶ 12 Counterclaim

¶ 13 The circuit court denied the Heimans’ motion for leave to file a counterclaim because the

court found the statute of limitations barred their claim. We review the ruling de novo. Barragan

v. Casco Design Corp., 216 Ill. 2d 435, 440 (2005). The Code of Civil Procedure provides:

"A defendant may plead a set-off or counterclaim barred by the statute of limitation,

while held and owned by him or her, to any action, the cause of which was owned

by the plaintiff or person under whom he or she claims, before such set-off or

counterclaim was so barred, and not otherwise." 735 ILCS 5/13-207 (West 2018).

¶ 14 In the proposed counterclaim, the Heimans allege First Bank breached a contract with Scott

in 2004 when First Bank reneged on its promise to lend Scott $4.7 million. The limitations period

for the contract claim expired in 2014, ten years after the alleged breach. See 735 ILCS 5/13-206

(West 2012).

¶ 15 The Heimans argue that by 2014 they had already missed payments on their 2011

promissory note, so First Bank had a cause of action against them for foreclosure before 2014.

However, First Bank did not sue for foreclosure based on the 2011 note. First Bank contended

instead that the Heimans breached the 2016 work-out agreement when they failed to repay the loan

by March 2017. The cause of action for breach of the work-out agreement did not arise until March

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2017, several years after the limitations period expired for the proposed counterclaim. The circuit

court correctly denied the motion for leave to file the counterclaim. See Beneficial Illinois, Inc. v.

Parker, 2016 IL App (1st) 160186, ¶¶ 19-20.

¶ 16 Discovery

¶ 17 The Heimans contend the circuit court should have granted them leave to take O’Connor’s

deposition before considering First Bank’s motion to approve the sale. We will not disturb the

circuit court’s ruling on the discovery motion unless the circuit court abused its discretion. Ragan

v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 352, 701 N.E.2d 493 (1998).

¶ 18 Supreme Court Rule 191(b) establishes the procedure for obtaining depositions needed for

responding to motions for summary judgment:

“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, *** granting a continuance to permit *** the depositions of

any of the persons so named.” Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013).

¶ 19 “Parties who fail to file Rule 191(b) affidavits cannot complain that the discovery process

was insufficient or limited.” (Internal quotation marks omitted) Parkway Bank & Trust Co. v.

Korzen, 2013 IL App (1st) 130380, ¶ 48. The Heimans filed no Rule 191(b) affidavit. Hence, the

circuit court did not abuse its discretion by denying the Heimans’ request for leave to take

O’Connor’s deposition.

¶ 20 Supporting Documents

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¶ 21 The Heimans contend the court should have stricken the documents appended to

O’Connor’s affidavit in support of her calculation of the amount due. Those documents include

the mortgage, the 2011 note, the work-out agreement, and First Bank’s record of the Heimans’

payment history for the note. O’Connor in her affidavit stated:

“I am familiar with the day-to-day business operations of FBHP [First Bank] as

well as the documents maintained in FBHP’s ordinary course of business which

relate to the loan transaction between FBHP and Scott A. Heiman and Andrea L.

Heiman ***. •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• *** The above amounts due and owing to FBHP are based upon my personal

review and reliance upon the following records, which are maintained in the normal

and ordinary course of FBHP’s business: the Loan Payoff Letter *** and the Loan

Payment History.”

¶ 22 According to O’Connor, First Bank recorded the mortgage payments near the time the bank

received the payments. We find the affidavit sufficient to support the circuit court’s award. See

US Bank, National Ass'n v. Avdic, 2014 IL App (1st) 121759, ¶¶ 26-30.

¶ 23 Notice

¶ 24 The Heimans argue that three errors invalidate the notice of motion for approval of the

sale: (1) their attorney never received the notice; (2) First Bank sent the notice by mail, not by

email; and (3) the notice identified the wrong judge and the wrong courtroom. We review the

circuit court’s ruling on a motion to vacate a sale for abuse of discretion. Deutsche Bank National

v. Burtley, 371 Ill. App. 3d 1, 5 (2006). The circuit court abuses its discretion when its ruling rests

on an error of law. CitiMortgage, Inc. v. Johnson, 2013 IL App (2d) 120719, ¶ 18, 993 N.E.2d

563.

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¶ 25 “Service of a document by mail is not invalid merely because the party to be served denies

receiving it.” Ingrassia v. Ingrassia, 156 Ill. App. 3d 483, 501, 509 N.E.2d 729 (1987). The

certificate of First Bank’s attorney attesting to posting the notice suffices to prove notice by mail.

See Crum v. Gulf Oil Corp., 12 Ill. App. 3d 988, 990, 299 N.E.2d 820 (1973).

¶ 26 Supreme Court Rule 11 Provides:

“(b) E-mail Address. An attorney must include on the appearance and on all

pleadings filed in court an e-mail address to which documents and notices will be

served ***.

(c) Method. Unless otherwise specified by rule or order of court, documents shall

be served electronically.” Ill. S. Ct. R. 11 (eff. July 1, 2021).

¶ 27 The attorney for the Heimans complains that First Bank did not email him notice of the

motion to approve the sale. However, the attorney for the Heimans violated Rule 11(b) by failing

to include his email address on the Heimans’ pleadings filed in court. We find notice by mail

sufficient for an attorney who failed to include his email address on the pleadings.

¶ 28 The Heimans argue that the misidentification of the judge and courtroom invalidates the

notice, but the Heimans knew Judge Simko no longer presided over the case. They also knew that

the court had reassigned the case to Judge Curry and how to find Judge Curry’s courtroom. First

Bank’s notice appears to substantially comply with the notice requirement as it adequately

informed the Heimans and their attorney of the nature of the motion and the time for the hearing.

See Vole, Inc. v. Georgacopoulos, 181 Ill. App. 3d 1012, 1019 (1989); Prairie Vista, Inc. v. Central

Illinois Light Co., 37 Ill. App. 3d 909, 912, 346 N.E.2d 72 (1976). Moreover, the Heimans cite no

statute, rule, or case law for their argument concerning the misidentifications. This court "is not

merely a repository into which an appellant may dump the burden of argument and research."

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(Internal quotation marks omitted) U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459, 920 N.E.2d

515 (2009). The Heimans have not shown the errors in the notice that require reversal.

¶ 29 Attorney Fees

¶ 30 Finally, the Heimans argue the circuit court awarded excessive attorney fees. We review

the award of fees for abuse of discretion. 3432 West Henderson Building, LLC v. Gizynski, 2017

IL App (1st) 160588, ¶ 40, 81 N.E.3d 94. The Heimans complain the fee petition clumps too many

tasks under single entries. They show one example of a single entry for which the attorney billed

2.8 hours:

“Review of email from Ken Kreisel regarding status; preparation of response to

same; preparation of all documents for initial case management conference per

local administrative Orders; electronic filing of same with Clerk of the Circuit

Court of Cook County; preparation of letter to Judge transmitting courtesy copies

of same.”

¶ 31 Judge Curry made all substantial rulings in this case. "The trial court's determination as to

an appropriate award of attorney fees must be considered in light of the principle that the trial

judge is permitted to use his own knowledge and experience to assess the time required to complete

particular activities, and a court of review may not reverse an award of attorney fees merely

because it may have reached a different conclusion." Chicago Title & Trust Co v. Chicago Title &

Trust Co., 248 Ill. App. 3d 1065, 1074, 618 N.E.2d 949 (1993). We find no abuse of discretion by

awarding First Bank $30,104.50 in attorney fees in this case.

¶ 32 CONCLUSION

¶ 33 The circuit court correctly denied the Heimans’ motion for leave to file a counterclaim, as

the statute of limitations for the counterclaim expired before First Bank’s cause of action arose.

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The Heimans’ failure to file a Rule 191(b) affidavit in support of their motion for a deposition of

O’Connor justified the court’s denial of the motion. O’Connor presented an adequate foundation

for the documents appended to her affidavit. The Heimans have not shown a lack of adequate

notice for the motion to approve the sale of their home. They also have not shown an abuse of

discretion in the award of attorney fees. Accordingly, we affirm the circuit court’s judgment.

¶ 34 Affirmed

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