HSBC Bank USA v. Rowe

2015 IL App (3d) 140553, 36 N.E.3d 254

• Court: Appellate Court of Illinois
• Decided: June 23, 2015
• Docket: 3-14-0553
• Status: Unpublished

Opinion

2015 IL App (3d) 140553

Opinion filed June 23, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

HSBC BANK USA, NATIONAL ) Appeal from the Circuit Court ASSOCIATION as Trustee for ) of the 12th Judicial Circuit, Deutsche Alt-A Securities Mortgage ) Will County, Illinois, Loan Trust, Series 2007-3, ) ) Plaintiff-Appellee, ) ) v. ) ) Appeal No. 3-14-0553 SCOTT ROWE; NANCI ROWE a/k/a ) Circuit No. 2010-CH-7142 NANCI L. ROWE; BENEFICIAL ILLINOIS ) INC.; PORTFOLIO RECOVERY ) ASSOCIATES LLC; WHEATLAND ) HOMEOWNERS ASSOCIATION; CITY ) OF AURORA; UNKNOWN OWNERS and ) NONRECORD CLAIMANTS, ) Honorable ) Thomas A. Thanas, Defendants-Appellants. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Carter and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Plaintiff, HSBC Bank USA, filed a complaint to foreclose mortgage against defendants,

Scott and Nanci Rowe. Pursuant to plaintiff's motion, the trial court struck defendants'

affirmative defense of lack of standing. The court also denied defendants' motion to deem their

requests for admissions admitted. After granting summary judgment on the complaint, the court entered a judgment for foreclosure and sale. Defendants appeal, arguing that the court: (1) erred

in granting summary judgment; and (2) abused its discretion in denying defendants' motion to

deem requests admitted. We affirm.

¶2 FACTS

¶3 On November 18, 2010, plaintiff filed a complaint to foreclose mortgage against

defendants. In section D of the complaint, "Mortgage Electronic Registration Systems, Inc.

[(MERS)] as nominee for Mortgageit, Inc.," was named as the original mortgagee. Section N of

the complaint read: "Capacity in which Plaintiff brings this foreclosure: Plaintiff is the

Mortgagee under 735 ILCS 5/15-1208."

¶4 Plaintiff attached copies of the promissory note and mortgage as exhibits to the

complaint. The promissory note was executed by Scott Rowe in favor of MortgageIt, Inc., and

was in the amount of $335,250. The first page of the copy of the note was signed and stamped

by MortgageIt, certifying that it was a "true and correct copy of the original." Only Scott Rowe's

signature appeared on the note, with no other markings on the signature page. To secure

repayment of the note, the mortgage was executed the same day in favor of MERS, the

mortgagee and nominee for MortgageIt.

¶5 On December 12, 2012, defendants filed an amended answer and an affirmative defense

of lack of standing. Defendants alleged plaintiff lacked standing to pursue the foreclosure

because: (1) plaintiff had not attached an assignment of mortgage to the complaint; (2) the

assignment for the mortgage from MERS to plaintiff was invalid; and (3) plaintiff had no valid

interest in the note.

¶6 Plaintiff filed a motion to strike defendants' affirmative defense of lack of standing.

Plaintiff argued that the note and mortgage were legally inseparable. Plaintiff attached to its

2 motion a second copy of the note. This copy of the note did not contain the "true and correct"

stamp on the first page, but did include an indorsement in blank below Scott Rowe's signature.

At a March 13, 2013, hearing, plaintiff produced the original note and mortgage in open court.

Defendants withdrew their affirmative defense of lack of standing, and plaintiff's motion to strike

the affirmative defense was declared moot, with defendants given 21 days to replead affirmative

defenses.

¶7 On April 3, 2013, defendants filed their third affirmative defense, alleging again that

plaintiff lacked standing to foreclose. Defendants posited, inter alia, that "[t]he Trojan

Assignment surreptitiously inserted at Par. 'Q' of the Mortgage is void ab initio and confers no

interest in the Legal Title to the property or the Note to M.E.R.S., Inc." Paragraph Q of the

mortgage defines "Successor in Interest of Borrower" as "any party that has taken title to the

Property, whether or not that party has assumed Borrower's obligations under the Note and/or

this Security Instrument." Defendants also alleged that the memorialized assignment of the note

to plaintiff was a "made-to-order fraud on the [trial] Court and exists as a criminal cloud on

title." Defendants claimed that the assignment of the mortgage by MERS, which it attached as

exhibit 1, was invalid because it did not include plaintiff's name. Plaintiff again responded with

a motion to strike the affirmative defense, this time attaching the note and the written assignment

of the note to plaintiff. The trial court granted the motion to strike.

¶8 On July 30, 2013, defendants served plaintiff with requests for admission of facts and of

genuineness of documents pursuant to Illinois Supreme Court Rule 216 (eff. May 1, 2013).

Plaintiff, having been granted a 28-day extension, filed its response to defendants' requests on

September 27. In its response, plaintiff, through its attorneys, objected generally to the request

on the grounds that defendants had not complied with Supreme Court Rule 216. Specifically,

3 plaintiff asserted that defendants had not sent the requests as a separate document, as required by

the rule.

¶9 Plaintiff also objected individually to each request to admit the genuineness of documents

and all but 2 of 22 requests for admission of fact. Plaintiff objected to each request to admit the

genuineness of documents as vague, confusing, or not reasonably calculated to lead to the

discovery of relevant evidence. Plaintiff objected to the requests for admissions of facts on the

same grounds. Many objections found in plaintiff's response are followed by the phrase,

"[w]ithout waiving said objection, Plaintiff ***," followed by plaintiff's response to the request

in the form of a denial or admission. Plaintiff's responses were not sworn.

¶ 10 On February 24, 2014, defendants filed a motion to deem the requests admitted.

Defendants argued that because plaintiff's responses were not sworn and were otherwise

nonresponsive, Supreme Court Rule 216 dictated that the requests be deemed admitted. The trial

court denied the motion, as well as the subsequent motion to reconsider.

¶ 11 On January 24, 2014, plaintiff filed a motion for summary judgment, as well as a motion

for entry of a judgment for foreclosure and sale. In their response, defendants again asserted that

plaintiff lacked standing, thus rendering summary judgment improper. In particular, defendants

claimed that the complaint was insufficient for failure to contain a statement as to the current

mortgage and that MERS could not validly assign the mortgage. At oral argument on the motion

for summary judgment, plaintiff produced the original note in open court for the second time.

The court granted summary judgment and entered a separate judgment for foreclosure and sale.

¶ 12 ANALYSIS

¶ 13 On appeal, defendants argue that plaintiff's complaint was statutorily insufficient.

Defendants contend that by this failure to properly plead the complaint, plaintiff failed to

4 establish standing, a justiciable matter, and, in turn, subject matter jurisdiction. Relatedly,

defendants' claim that the entry of summary judgment was improper where genuine questions of

material fact regarding ownership of the note had been raised. Finally, defendants argue that the

trial court abused its discretion in denying defendants motion to treat its requests for admissions

as admitted. We find each of these arguments without merit.

¶ 14 I. Summary Judgment

¶ 15 Summary judgment is appropriate where, when viewed in the light most favorable to the

nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there

is no genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law. 735 ILCS 5/2-1005(c) (West 2010). We review the grant of summary judgment

de novo. Bruns v. City of Centralia, 2014 IL 116998, ¶ 13.

¶ 16 A. Complaint

¶ 17 The Illinois Mortgage Foreclosure Law establishes the formal requirements of a

foreclosure complaint. 735 ILCS 5/15-1504 (West 2010). The statute requires that a complaint

include, inter alia, the name of the mortgagee (735 ILCS 5/15-1504(a)(3)(D) (West 2010)) and

the capacity in which the plaintiff brings the complaint (735 ILCS 5/15-1504(a)(3)(N) (West

2010)). Defendants contend that plaintiff "failed to plead who was current mortgagee at the time

of filing of the Complaint," (emphasis in original) as required by statute, and thus failed "to set

out any interest in the cause in the interest of HSBC."

¶ 18 Plaintiff's complaint sets forth MERS, as nominee for MortgageIt, as the "Name of the

original mortgagee." A subsequent section of the complaint read: "Capacity in which Plaintiff

brings this foreclosure: Plaintiff is the Mortgagee under 735 ILCS 5/15-1208." Plaintiff's

complaint complies with the statutory requirements.

5 ¶ 19 B. Copies of the Note

¶ 20 Defendants also maintain that a genuine issue existed as to the holder of the note where

two copies of the note introduced by plaintiff at separate times during the litigation contained

different markings. Defendants point out that the copy of the note attached to the original

complaint was signed only by Scott Rowe. The first page of that copy of the note was signed

and stamped by MortgageIt, certifying that it was a "true and correct" copy of the original. The

copy of the note later attached to plaintiff's motion to strike affirmative defenses, however, did

not contain that certification stamp. Instead, that note was indorsed in blank on the final page—

beneath Scott Rowe's signature—via stamp and signature from MortgageIt. Defendants maintain

that this discrepancy between the two copies created a genuine issue of material fact as to who

owned the note.

¶ 21 A note is a negotiable instrument as defined by section 3-104 of the Uniform Commercial

Code (Code), as adopted by Illinois. 810 ILCS 5/3-104 (West 2010). A negotiable instrument is

an unconditional promise to pay a fixed amount of money; it is "payable to bearer or to order at

the time it is issued or first comes into possession of a holder." 810 ILCS 5/3-104(a)(1) (West

2010). Section 3-205 of the Code states that "[w]hen indorsed in blank, an instrument becomes

payable to the bearer and may be negotiated by transfer of possession alone until specifically

indorsed." 810 ILCS 5/3-205(b) (West 2010). Further, it is a longstanding rule that "possession

of bearer paper is prima facie evidence of title thereto, [citation] and sufficient to entitle the

plaintiff to a decree of foreclosure." Joslyn v. Joslyn, 386 Ill. 387, 395 (1944). Attachment of

the note to the complaint is prima facie evidence that the plaintiff owns the note. Rosestone

Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 26.

6 ¶ 22 Plaintiff here plainly established a prima facie case that it held title to the note by

attaching it to the complaint. Despite defendants' contentions, the second copy of the note—

attached to plaintiff's motion to strike—does not raise any questions as to who holds title to the

note. The possession of a note indorsed in blank remains payable to the bearer. 810 ILCS 5/3-

205 (West 2010). In other words, under both versions of the note, plaintiff held title as a result

of its possession of the instrument. While the nonidentical copies do raise some questions—such

as, at what point in time the note attached to the complaint was copied 1—these questions are

immaterial to the issue or ownership and standing.

¶ 23 We find that no genuine issues of material fact existed as relating to plaintiff's

satisfaction of the statutory pleading requirements or to the issue of ownership of the note. The

trial court's grant of summary judgment was proper.

¶ 24 II. Requests for Admission

¶ 25 Defendants also argue that the trial court abused its discretion in denying their motion to

deem their requests for admissions admitted. Defendants contend that plaintiff's response to the

requests did not comply with Illinois Supreme Court Rule 216(g) (eff. May 1, 2013) and were

otherwise nonresponsive and made in bad faith. Defendants maintain that these infirmities

required the trial court to deem the requests admitted.

1 We also note that Illinois Supreme Court Rule 113(b) (eff. May 1, 2013) requires that "a

copy of the note, as it currently exists, including all indorsements and allonges" must be attached

to the complaint at the time of filing. However, this rule became effective on May 1, 2013, well

after the 2010 complaint in the present case. The failure to attach to the complaint a copy of the

note bearing MortgageIt's indorsement in blank, therefore, did not cause plaintiff to run afoul of

any pleading standards.

7 ¶ 26 Supreme Court Rule 216 governs requests for admissions of fact or of the genuineness of

documents. Subsection (c) of that rule, entitled "Admission in the Absence of Denial," holds:

"Each of the matters of fact and the genuineness of each document of which

admission is requested is admitted unless, within 28 days after service thereof, the

party to whom the request is directed serves upon the party requesting the

admission either (1) a sworn statement denying specifically the matters of which

admission is requested or setting forth in detail the reasons why the party cannot

truthfully admit or deny those matters or (2) written objections on the ground that

some or all of the requested admissions are privileged or irrelevant or that the

request is otherwise improper in whole or in part. If written objections to a part of

the request are made, the remainder of the request shall be answered within the

period designated in the request. A denial shall fairly meet the substance of the

requested admission. If good faith requires that a party deny only a part, or

requires qualification, of a matter of which an admission is requested, the party

shall specify so much of it as is true and deny only the remainder. Any objection

to a request or to an answer shall be heard by the court upon prompt notice and

motion of the party making the request. The response to the request, sworn

statement of denial, or written objection, shall be served on all parties entitled to

notice." Ill. S. Ct. R. 216(c) (eff. May 1, 2013).

¶ 27 Initially, defendants contend that plaintiff's response to their request for admissions was

noncompliant in that they were not sworn to. Rule 216(c) only requires a sworn statement where

a party denies the matters for which admission is requested. Written objections need not be

sworn to by the responding party. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 355 (2007)

8 ("[T]he plain language of the rule states that the party to whom the requests to admit are directed

must serve upon the requesting party either a sworn statement denying the matters of which

admission is requested or written objections which need not be sworn." (Internal quotation

marks omitted.)).

¶ 28 More broadly, defendants contend that plaintiff's response was not made in good faith.

Defendants' maintain that plaintiff's blanket objections rendered the response wholly

nonresponsive, and argue that the requests for admission should thus be deemed admitted

pursuant to Supreme Court Rule 216(c).

¶ 29 "[A] party has a good-faith obligation to make a reasonable effort to secure answers to

requests to admit from persons and documents within the responding party's reasonable control."

Szczeblewski v. Gossett, 342 Ill. App. 3d 344, 349 (2003). Where a party responds to requests

for admissions in the form of objections to those requests, it is the duty of the requesting party to

raise the issue of the objection in a motion before the trial court. La Salle National Bank of

Chicago v. Akande, 235 Ill. App. 3d 53, 67 (1992). Indeed, Supreme Court Rule 216 itself states

that "[a]ny objection to a request or to an answer shall be heard by the court upon prompt notice

and motion of the party making the request." Ill. S. Ct. R. 216(c) (eff. May 1, 2013).

¶ 30 In the case at hand, defendants' claims that plaintiff's responses were nonresponsive and

made in bad faith have substantial merit. Defendants requested that plaintiff admit the

genuineness of five documents, attaching each of those five documents to its request. Plaintiff

objected to two of these requests as vague, and objected to the remaining three requests as both

vague and confusing. This court fails to see how such simple requests could be categorized as

either. However, any insufficiency in plaintiff's objections would not be cause to treat

defendants' requests as admitted.

9 ¶ 31 Given the shortfalls of plaintiff's responses, defendants' proper remedy would have been

to promptly bring a motion in the trial court challenging the propriety of the objections. See Ill.

S. Ct. R. 216(c) (eff. May 1, 2013). Instead, defendants sought to have the requests deemed

admitted, despite the outstanding objections. This court is aware of no case law—and defendants

have cited none—that supports the contention that a trial court may forego ruling on objections

and simply deem the matters objected to admitted. Indeed, such a position would run counter to

our supreme court's stated policy goal of adjudicating cases on their merits rather than on

technicalities. Haas, 226 Ill. 2d at 352. Accordingly, we find that the trial court did not abuse its

discretion in denying defendants' motion to deem requests for admission admitted.

¶ 32 CONCLUSION

¶ 33 The judgment of the circuit court of Will County is affirmed.

¶ 34 Affirmed.