2017 IL App (1st) 160357
FOURTH DIVISION March 23, 2017
No. 1-16-0357
OLIVE PORTFOLIO ALPHA, LLC, Assignee of Olive Portfolio, ) Appeal from the LLC, Successor to BMO Harris Bank N.A., f/k/a Harris N.A., ) Circuit Court ) Cook County. Plaintiff-Appellee, ) ) v. ) ) No. 14 CH 1929 116 WEST HUBBARD STREET, LLC; BRIDGEVIEW BANK ) AND TRUST; UNKNOWN OWNERS; NONRECORD ) CLAIMANTS; UNKNOWN TENANTS, OCCUPANTS, and ) LEASEHOLDS ) )
Defendants )
)
(116 West Hubbard Street, LLC, ) Honorable ) Michael F. Otto, Defendant-Appellant). ) Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Ellis and Justice Burke concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Olive Portfolio Alpha, LLC, assignee of Olive Portfolio, LLC, successor to
BMO Harris Bank N.A., f/k/a Harris N.A., filed a mortgage foreclosure complaint in February
2014, against defendant 116 West Hubbard Street, LLC. In June 2015, the trial court granted
plaintiff’s motion for summary judgment against defendant and entered a judgment of
foreclosure and sale in plaintiff’s favor. A judicial sale was held, and plaintiff filed a motion to
confirm the sale in September 2015. In December 2015, the trial court granted plaintiff’s motion
to confirm the sale. No. 1-16-0357
¶2 Defendant appeals, arguing that (1) the trial court erred in granting summary judgment
when defendant had raised affirmative defenses and denied defendant’s motion for an extension
of time to file a response; (2) the trial court erred in denying discovery pursuant to Supreme
Court Rule 191(b) (Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013)); and (3) the trial court erred in
granting counsel’s motion to withdraw simultaneously with approving the judicial sale and not
providing defendant 21 days to obtain new counsel and file a response.
¶3 In February 2014, plaintiff filed its complaint seeking foreclosure of a mortgage on the
commercial property located at 116 West Hubbard Street in Chicago, owned by defendant. An
amended complaint was subsequently filed in September 2014. The amended complaint stated
that in February 2007, Harris N.A. (Harris) agreed to loan defendant up to $7.2 million under a
promissory note, which provided for five months of interest payments with a maturity date of
August 20, 2007, with one balloon payment of all outstanding principal and interest due from
defendant. As collateral on the loan, defendant granted a mortgage on the commercial property to
Harris. Also in February 2007, Harris agreed to loan defendant up to $300,000 in a promissory
note with the same initial payment terms.
¶4 In June 2008, the two loans were consolidated into one loan with a new promissory note
for $7.5 million. The new note stated that interest payments were to be paid by defendant
beginning in July 2008, with a maturity date of February 20, 2009, for a balloon payment of
outstanding principal and interest. A series of amendments and extensions were made on the
original loans. In January 2012, an amended promissory note provided that defendant would pay
Harris $7,466,056.94, through monthly $5000 plus interest payments retroactive to September
2011, with a maturity date of August 13, 2013 (hereinafter the 2012 Note).
¶5 In February 2013, BMO Harris (f/k/a Harris) assigned its interest in the 2012 Note to
Olive Portfolio, LLC. The assignment was subsequently recorded with the Cook County recorder
of deeds. The document was titled “Endorsement and Allonge 1 to Promissory Note,” it was
signed by a vice president of BMO Harris, and stated:
“PAY to the order of Olive Portfolio, LLC, a Delaware limited
liability company, without warranty, representation or recourse of
any kind, that certain Amended and Restated Promissory Note
dated January 1, 2012 in the original principal amount of
$7,466,056.94 made by 116 West Hubbard Street, LLC, an Illinois
limited liability company, to the order BMO Harris Bank National
Association (f/k/a Harris, N.A.).”
¶6 In July 2013, Olive Portfolio, LLC, conveyed its interest in the promissory note to
plaintiff through an assignment, which was subsequently recorded. The allonge stated:
“THIS ALLONGE IS TO BE ATTACHED TO AND
MADE AN INTEGRAL PART of the following instrument:
Note: Amended and Restated Promissory Note Dated: January 1, 2012 Payable by: 116 WEST HUBBARD STREET, LLC Payable to the Order of: BMO HARRIS, N.A., F/K/A HARRIS, N.A. Original Principal Amount: Seven Million Four Hundred Sixty-Six Thousand Fifty-Six and 94/100 Dollars ($7,466,056.94)
1 “Allonge” is defined in Black’s Law Dictionary as “A slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements. • Former UCC § 3-202 required that indorsements be made on the instrument unless there was no space—and only then could an allonge be used. Current UCC § 3-204(a) eliminates that requirement and provides that ‘a paper affixed to the instrument is part of the instrument.’ The UCC comment makes it clear that the allonge is valid even if space is available on the instrument.” Black’s Law Dictionary (10th ed. 2014).
PAY TO THE ORDER OF OLIVE PORTFOLIO ALPHA, LLC,
A DELAWARE LIMITED LIABILITY COMPANY, WITHOUT
RECOURSE AND WITHOUT REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED OR BY OPERATION
OF LAW, OF ANY KIND AND NATURE WHATSOEVER.
OLIVE PORTFOLIO, LLC, a Delaware limited
liability company”
¶7 As of August 28, 2013, the total amount due to plaintiff under the 2012 Note was
$7,675,251.05, which consisted of the principal balance, interest, late charges, and other fees.
Notice of default was sent to defendant.
¶8 In July 2014, defendant filed a motion to dismiss plaintiff’s complaint under section 2
619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), arguing that plaintiff failed
to properly allege or demonstrate that it owned and/or was a holder of the 2012 Note and how it
acquired its interest in the 2012 Note. On September 22, 2014, the trial court granted defendant’s
motion in part and denied it in part. The motion was granted “as to failure to attach allonge
between BMO [Harris] and Olive Portfolio” and denied without prejudice for the remaining
allegations. In the same order, the trial court noted that “plaintiff presented to court original of
amended and restated promissory note, February 27, 2013 Allonge and July 25, 2013 Allonge,”
and “that July 25, 2013 Allonge does not have binder holes at top and neither allonge has staple
holes or marks.” On September 26, 2014, plaintiff filed its amended complaint. No motion to
dismiss the amended complaint was filed.
¶9 In October 2014, plaintiff paid approximately $900,000 in unpaid real estate taxes on the
subject property to avoid the issuance of a tax deed.
¶ 10 Subsequent to the filing of the amended complaint, defendant filed its answer and
affirmative defenses in November 2014. Defendant raised three affirmative defenses: (1) plaintiff
lacks standing to bring this action because plaintiff is a foreign limited liability company (LLC)
that does business in Illinois but failed to register in Illinois prior to filing the instant action; (2)
plaintiff is not a valid holder of the 2012 Note because the allonge was not affixed to the 2012
Note at the time of filing or when it was negotiated to plaintiff; and (3) plaintiff is barred from
charging late fees based on a flat fee.
¶ 11 In December 2014, plaintiff sought leave to file its answers to defendant’s affirmative
defenses. Plaintiff answered that the first affirmative defense presented “simply legal conclusions
which include no factual allegations that can be admitted or denied. Notwithstanding, [plaintiff]
denies that it lacks standing or that its claims against [defendant] are barred.” As for the second
affirmative defense, plaintiff admitted that it filed the foreclosure action and that it was the
holder of the note through an allonge. Plaintiff answered that defendant’s claims regarding the
UCC requirements that the allonge be affixed to the note were legal conclusions with no factual
allegations. Plaintiff denied defendant’s allegation that the allonge was not affixed to the note at
the time the action was filed or when the note was negotiated to plaintiff.
¶ 12 In March 2015, plaintiff filed its motion for summary judgment against defendant and
judgment of foreclosure and sale. On March 2015, the trial court granted defendant 40 days to
file its response to the summary judgment motion: May 15, 2015. The motion was set for hearing
on June 16, 2015.
¶ 13 On May 15, 2015, defendant filed two motions, a motion for extension of time to file a
response and a motion for additional discovery under Rule 191. The motion for extension of time
sought an extension until the Rule 191 discovery was completed. The motion for discovery under
Rule 191 stated that discovery was necessary for two limited areas: (1) plaintiff’s relationship
with Sabal Financial Group LP (Sabal), a nonparty and plaintiff’s loan servicer; and (2) the
transaction through which plaintiff and its predecessor Olive Portfolio acquired the loan from
BMO Harris. Defendant also attached deposition notices to its motion. The notices were for two
Sabal employees, a former associate of Olive Portfolio, and Olive Portfolio’s “most
knowledgeable” person.
¶ 14 On June 16, 2015, the trial court granted plaintiff’s motion for summary judgment and
judgment of foreclosure and sale. The court also denied defendant’s two motions. Subsequently
the date of the judicial sale was set for July 27, 2015. On July 16, 2015, defendant filed an
emergency motion to stay the judicial sale and motion to reconsider the June rulings, which the
trial court denied in August 2015. Defendant later filed and withdrew a second emergency
motion to stay the judicial sale, indicating that the parties were negotiating a potential settlement.
In September 2015, defendant filed a third emergency motion to stay the judicial sale, stating the
same settlement negotiations as its basis, which the trial court denied.
¶ 15 On September 18, 2015, a judicial sale was conducted, and plaintiff was the highest
bidder with a credit bid of $6 million. On September 23, 2015, plaintiff filed a motion to approve
the report of sale, which was noticed for October 14, 2015. The motion included a request for a
deficiency judgment against defendant in excess of $3 million. The motion also attached a
broker’s opinion valuing the price of the property between $5,087,898 and $5,723,886, which
was less than the bid by plaintiff.
¶ 16 On October 7, 2015, defendant’s counsel filed a motion to withdraw, citing
“irreconcilable differences” between defendant and counsel. The motion was also noticed for
October 14. On that date, the trial court observed that defendant’s counsel had not included proof
of service of his motion to defendant. The court entered and continued the motion to withdraw
and set a briefing schedule on the motion to approve the sale. No response to the motion to
approve the sale was filed by defendant’s counsel in the intervening time.
¶ 17 On December 2, 2015, the trial court granted plaintiff’s motion to approve the report of
sale. The court also entered an order granting counsel’s motion to withdraw. Defendant was
given 21 days to seek new counsel. On December 23, 2015, new counsel appeared for defendant
and filed a motion to reconsider the December 2 orders, which the trial court denied in January
2016.
¶ 18 This appeal followed.
¶ 19 Defendant contends that the trial court erred in granting summary judgment in favor of
plaintiff and entering the judgment of foreclosure and sale because its affirmative defenses
remained pending and the trial court abused its discretion in denying its motions for an extension
of time to respond to the motion for summary judgment and for discovery under Rule 191(b).
¶ 20 Summary judgment is appropriate where the pleadings, depositions, and admissions on
file, together with any affidavits and exhibits, when viewed in the light most favorable to the
nonmoving party, indicate that there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). We review cases
involving summary judgment de novo. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d
342, 349 (1998).
¶ 21 First, we consider whether the trial court abused its discretion in denying defendant’s
motion for discovery. Defendant failed to file a response to plaintiff’s motion for summary
judgment, but rather on the date a response was due, filed a motion requesting additional
discovery under Rule 191(b). Defendant has never contested the merits of the action, specifically
that it defaulted on its mortgage and note originally granted to Harris. Plaintiff maintains that no
additional discovery was necessary because both arguments advanced by defendant presented
legal questions.
¶ 22 Rule 191(b) provides:
“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, either granting or
refusing the motion, or granting a continuance to permit affidavits
to be obtained, or for submitting interrogatories to or taking the
depositions of any of the persons so named, or for producing
documents in the possession of those persons or furnishing sworn
copies thereof. The interrogatories and sworn answers thereto,
depositions so taken, and sworn copies of documents so furnished,
shall be considered with the affidavits in passing upon the motion.”
Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013).
¶ 23 “Failure to comply with Rule 191(b) defeats an objection on appeal that insufficient time
for discovery was allowed.” Giannoble v. P&M Heating & Air Conditioning, Inc., 233 Ill. App.
3d 1051, 1064 (1992). “A trial court is afforded considerable discretion in ruling on matters
pertaining to discovery, and thus its rulings on discovery matters will not be reversed absent an
abuse of that discretion.” Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine
Wine, Ltd., 392 Ill. App. 3d 1, 11 (2009). “An abuse of discretion will be found where no
reasonable person would take the view adopted by the trial court.” Dawdy v. Union Pacific R.R.
Co., 207 Ill. 2d 167, 177 (2003).
¶ 24 Defendant asserted that additional discovery was necessary to determine the relationship
between plaintiff and its loan servicer, Sabal. According to defendant, the discovery related to
two of its affirmative defenses, i.e., plaintiff lacked standing to file the action because it failed to
register as business in Illinois, and plaintiff was not a valid holder of the note because the allonge
was not affixed to the note. In support of its motion, defendant attached affidavits from its client
representative and its attorney.
¶ 25 Nikki Dumas-Accera submitted the first affidavit attached to the Rule 191(b) motion as
defendant’s representative. She stated that additional discovery is needed because the summary
judgment motion was supported by an affidavit of John Calder which disclosed a relationship
between plaintiff and Sabal. Defendant required discovery into that relationship because plaintiff
had maintained that it was “a single purpose entity that does not transact business in Illinois, all
the while hiding the self-proclaimed agent Sabal, which may—and as public record reveals
does—transact business in Illinois.” (Emphasis in original.) Dumas-Accera stated that oral
discovery was needed to determine the “manner and method in which Sabal serviced the loan
and maintained the business records” relied upon in the Calder affidavit. She believed that if
Calder was questioned, he would testify that Sabal is an agent of plaintiff , “whose actions and
conduct have the affect of binding Plaintiff, and whose actions and conduct can be imputed to
Plaintiff.” Further, she stated that “Calder’s testimony regarding Sabal’s business will establish
that Sabal does in fact transact business in Illinois on behalf of Plaintiff.” Dumas-Accera
additionally stated that she believed that Calder would testify that he has “no first-hand
knowledge of how much is purportedly due and owing under the Note because Plaintiff and
Sabal never maintained any business records prior to Plaintiff’s purported acquisition of the
Note***.”
¶ 26 Dumas-Accera also stated that additional discovery was necessary because her attorney’s
inspection of the original loan documents “revealed credible evidence that the original allonge
from Olive Portfolio, LLC, to Plaintiff *** was never affixed to the original Note, as required by
810 ILCS 5/3-204(a).” She stated that additional discovery was needed into the chain of custody
of the allonge and note. She believed that “George Sears, John Calder, and R. Patterson Jackson
will have actual knowledge regarding the physical characteristics of the loan documents.”
¶ 27 The second affidavit was from defendant’s attorney. Counsel described his inspection of
the original note, the first allonge from BMO Harris to Olive Portfolio, and the second allonge
from Olive Portfolio to plaintiff. He specifically noted all hole-punches and staple marks in the
documents, and that the second allonge did not contain any marks and was not affixed to the
note.
¶ 28 Initially, we observe that an affidavit from an attorney does not comply with Rule 191(b),
which requires affidavits from the party. See Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013); see also
Crichton v. Golden Rule Insurance Co., 358 Ill. App. 3d 1137, 1151 (2005) (finding affidavit
signed by attorney to be “deficient”); Giannoble, 233 Ill. App. 3d at 1064 (finding affidavit
under Rule 191(b) to be “fatally defective” in part because it was signed by the attorney, not a
party). Additionally, appellate counsel argued for the first time at oral argument that the
attorney’s affidavit created a question of material fact as to whether the second allonge was
paperclipped to the note. However, under Supreme Court Rule 341(h)(7), “[p]oints not argued
are waived and shall not be raised in the reply brief, in oral argument, or on petition for
rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016); Doe v. University of Chicago Medical
Center, 2015 IL App (1st) 33735, ¶ 55 (citing McCann v. Presswood, 308 Ill. App. 3d 1068,
1073 (1999)). Since this argument was first raised at oral argument, it has been forfeited and we
need not consider the merits.
¶ 29 Further, Dumas-Accera’s affidavit only offers a general belief of what testimony would
be disclosed during discovery. “The affidavit must state specifically what the affiant believes the
prospective witness would testify to if sworn and reasons for the affiant’s belief.” Giannoble,
233 Ill. App. 3d at 1065. “Rule 191(b) requires facts, not conclusions.” Id; see also Wynne v.
Loyola University of Chicago, 318 Ill. App. 3d 443, 456 (2000) (finding that allegations in a
“general sense” of what relevant information proposed witnesses would provide for the
plaintiff’s claim was not sufficient to show compliance with Rule 191(b)). Here, Dumas
Accera’s affidavit was based on speculation and supported by pages printed from the internet to
support her conclusion that Sabal conducted business on behalf of plaintiff in Illinois. Moreover,
she failed to state in her affidavit that the material facts were known only to persons whose
affidavits the affiant was unable to procure, i.e., Calder, Sears, and Jackson. See Crichton, 358
Ill. App. 3d at 1151; Wynne, 318 Ill. App. 3d at 456. Further, her affidavit offers only general
speculation regarding plaintiff’s status as holder of the 2012 Note and provides no specific facts
that she believed any of the named witnesses would present through testimony.
¶ 30 Next, we address the discovery requests related to whether plaintiff was the proper holder
of the 2012 Note through the second allonge.
¶ 31 “The mere fact that a copy of the note is attached to the complaint is itself prima facie
evidence that the plaintiff owns the note.” Parkway Bank & Trust Co. v. Korzen, 2013 IL App
(1st) 130380, ¶ 24. “For over 25 years, the Foreclosure Law has been interpreted as not requiring
plaintiffs’ production of the original note, nor any specific documentation demonstrating that it
owns the note or the right to foreclose on the mortgage, other than the copy of the mortgage and
note attached to the complaint.” Id. ¶ 26 (citing First Federal Savings & Loan Ass’n of Chicago
v. Chicago Title & Trust Co., 155 Ill. App. 3d 664, 665-67 (1987)).
¶ 32 Here, in addition to attaching the note, mortgage, and the allonges to the amended
complaint, the original documents were presented in open court. In its September 2014 order
ruling on defendant’s motion to dismiss, the trial court included its observations of the
documents, “plaintiff presented to [the] court [the] original of [the] amended and restated
promissory note, February 27, 2013 Allonge and July 25, 2013 Allonge,” and “that July 25, 2013
Allonge does not have binder holes at top and neither allonge has staple holes or marks.”
Plaintiff has never disputed the absence of any holes to attach the allonge to the original note, but
has maintained that the allonge was affixed by a paper clip. Calder stated in his affidavit in
support of summary judgment that both allonges “are affixed by way of a paper clip.” The trial
court’s acceptance of the documents presented in open court apparently resolved this claim, but
we will review the merits of defendant’s claim in any event.
¶ 33 Section 3-204(a) of the Uniform Commercial Code (UCC) pertains to indorsements of a
negotiable instrument and includes the following language, “For the purpose of determining
whether a signature is made on an instrument, a paper affixed to the instrument is a part of the
instrument.” 810 ILCS 5/3-204(a) (West 2012). The crux of defendant’s contention turns on
whether the allonge could be properly “affixed” by a paper clip. It is unclear what additional
discovery would disclose when plaintiff has not contested this issue and the documents were
physically presented to the trial court for inspection.
¶ 34 Defendant admits that no Illinois case has determined what “affixed” under section 3-204
means, but cites two federal cases which suggest that stapling can satisfy the statute. In Berg v.
eHome Credit Corp., No. 08 C 05530, 2011 WL 761486, at *3 (N.D. Ill. Feb. 25, 2011), the
district court found that the defendant holder sufficiently established its possession of the subject
note and two allonges affixed to the note where an affidavit stated that “the original note and
allonges were physically attached to each other and to the folder via a metal fastener inserted
between two holes at the top of each page.” The district court also observed that,
“The statute does not define ‘affixed.’ ‘It is appropriate to employ
a dictionary to ascertain the meaning of an otherwise undefined
word or phrase.’ Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 8 (Ill.
2009). The dictionary defines ‘affix’ as ‘secure to something;
attach.’ The American Heritage College Dictionary, 3d. Edition,
Houghton Mifflin Co., Boston, MA, 2000.” Berg, 2011 WL
761486, at *3.
¶ 35 In In re Schmeglar, 523 B.R. 119, 123 (Bankr. N.D. Ill. 2014), the court observed that
“Illinois courts have not ruled on whether an allonge is ‘affixed’ under the meaning of § 3-204 of
the UCC. However, multiple Courts interpreting similar provisions have held that stapling an
allonge containing an indorsement to an instrument at the time of signing meets the
requirement.”
¶ 36 However, plaintiff cites a federal case from the district court in New Hampshire which
interpreted identical language of the UCC. In Galvin v. EMC Mortgage Corp., No. 12-cv-320
JL, 2014 WL 4980905 (D.N.H. Oct. 3, 2014), the plaintiff challenged the indorsement of the
note to the holder. The district court pointed out that the New Hampshire version of the UCC
“does not require ‘permanent’ affixation of an allonge to a note.” Id. at *8. “An earlier version of
the UCC did require an allonge to be ‘so firmly affixed’ to a negotiable instrument ‘as to become
a part thereof.’ N.H. Rev. Stat. Ann. § 382-A:3-202(2) (1993). Under that version of the UCC,
by which some states still abide, some courts took the view that attaching an allonge to a note
with a paper clip was not sufficient affixation.” Id.
“Over 20 years ago, however, New Hampshire adopted a
revised version of the UCC providing that an allonge need only be
‘affixed to the instrument’ to be considered ‘part of the
instrument.’ N.H. Rev. Stat. Ann. § 382-A:3-204(a). Although the
court has found no case law discussing whether, under this version
of the UCC, an allonge may be ‘affixed’ to a note by means of a
paper clip, many commentators have taken the view that the
omission of the adverb ‘firmly’ from the revised version allows
just that. One respected treatise remarks, for example:
[‘][The revised] section merely requires that the
paper be “affixed” to the instrument. Any
manner of attaching the paper to the instrument
would seem to be sufficient. There is no
requirement that the paper containing the
indorsement be firmly attached to the
instrument. Stapling the paper to the instrument
is clearly sufficient. Even paper clipping the
allonge to the instrument should be sufficient.[’]
6B Lary Lawrence, Anderson on the Uniform Commercial Code
§ 3-204:12R, at 240 (3d ed.2003); see also 6 William D. Hawkland
et al., Hawkland’s Uniform Commercial Code Series § 3-204:3
(2012) (‘Section 3-204(a) omitted old Article 3’s requirement that
the allonge be firmly affixed. Thus, a paper clipped or stapled to an
instrument is sufficient as an allonge.’).
The court agrees with these authorities that attachment of
an allonge to an instrument by means of a paper clip is sufficient to
satisfy an § 382-A:3-204(a)’s requirement that the allonge be
‘affixed to the instrument.’ Cf. Federal Home Loan Mortg. Corp.
v. Madison, No. 09-cv-1508, 2011 WL 2690617, at *4 (D. Ariz.
July 12, 2011) (holding that an ‘allonge is sufficiently affixed to
the promissory note when secured by an Acco fastener’).” Id.
¶ 37 As previously noted, the New Hampshire statutory language is identical to relevant
language in section 3-204, “a paper affixed to the instrument is a part of the instrument.”
Compare 810 ILCS 5/3-204(a) (West 2014), with N.H. Rev. Stat. Ann. § 382-A:3-204(a) (1994).
We agree with the analysis in Galvin. The cardinal rule in construing a statute, to which all
others are subordinate, is to ascertain and give effect to the intent of the legislature. Alvarez v.
Pappas, 229 Ill. 2d 217, 228 (2008). To determine legislative intent, we turn to the language of
the statute, which is the best indicator of its intent. Alvarez, 229 Ill. 2d at 228. We must give the
statutory language its “plain, ordinary, and popularly understood meaning,” and “[w]here the
language is clear and unambiguous, the statute must be given effect as written without resort to
further aids of statutory construction.” Alvarez, 229 Ill. 2d at 228. “[A]ll words and phrases must
be interpreted in light of other relevant provisions of the statute and must not be construed in
isolation.” Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007). “Each word, clause and sentence of
the statute, if possible, must be given reasonable meaning and not rendered superfluous.”
Brucker, 227 Ill. 2d at 514.
¶ 38 As the district court observed in Berg, the statute did not define “affixed” and the
dictionary definition was to “secure to something; attach.” The statute does not limit the
language of affix to only permanent forms of attaching. Thus, we conclude that a paper clip is
sufficient to satisfy the requirement of affixing an allonge to an instrument under section 3-204.
Accordingly, defendant did not need further discovery to establish that the allonge was affixed to
the 2012 Note, and the trial court did not abuse its discretion for denying this request for
additional discovery.
¶ 39 Defendant’s other request for additional discovery related to plaintiff’s standing to pursue
the action. It is undisputed that plaintiff is a foreign LLC, registered in Delaware. Defendant
argues that “Illinois requires that ‘a foreign limited liability company [such as Olive Alpha], may
not maintain a civil action in any court of this State until the limited liability company is
admitted to transact business in this State.’ 805 ILCS 180/45-45(a).”
¶ 40 The complete text of section 45-45(a) of the Limited Liability Company Act provides
“[a] foreign limited liability company transacting business in this
State may not maintain a civil action in any court of this State until
the limited liability company is admitted to transact business in this
State.” 805 ILCS 180/45-45(a) (West 2014).
¶ 41 Defendant asserts that plaintiff provided inconsistent information about its relationship
and its loan servicer, Sabal. Defendant relies on different descriptions of Calder’s employment,
i.e., in an answer to interrogatories Calder indicated that he was representing plaintiff, whereas in
the summary judgment motion he stated that he was employed by Sabal as the servicer for
plaintiff. Defendant contends that under agency law, Sabal’s business activities in Illinois could
be imputed to plaintiff. Defendant also argues that additional discovery was necessary to review
Sabal’s accounting methods of the mortgage at issue.
¶ 42 “Standing is an affirmative defense and, as such, it is the defendant’s burden to prove that
the plaintiff does not have standing.” (Emphasis omitted.) Parkway Bank, 2013 IL App (1st)
130380, ¶ 24. “It is not the plaintiff’s burden to prove it does have standing.” Id. However,
defendant has not satisfied its burden to establish that plaintiff lacks standing. Defendant has
cited no authority that the holder of a mortgage is transacting business in Illinois, such that
registration is required, in order to pursue a foreclosure action, nor that a loan servicer’s actions
separate from its work on the subject mortgage can be imputed to the holder. Supreme Court
Rule 341(h)(7) requires an appellant to include in its brief an “[a]rgument, which shall contain
the contentions of the appellant and the reasons therefor, with citation of the authorities and the
pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008). Moreover, it is well-
settled that a contention that is supported by some argument but does not cite any authority does
not satisfy the requirements of Rule 341(h)(7), and bare contentions that fail to cite any authority
do not merit consideration on appeal. Wasleff v. Dever, 194 Ill. App. 3d 147, 155-56 (1990).
Defendant has not provided any authority to support its assertions beyond bare citation to a
statute and citations to general agency and discovery principles, and, therefore, this claim has
been forfeited. Accordingly, the trial court did not abuse its discretion in denying defendant’s
motion for discovery on this issue.
¶ 43 Since we have concluded that the trial court was within its discretion to deny defendant’s
motion for discovery, we turn to defendant’s assertion that the trial court erred in granting
plaintiff’s summary judgment motion. Defendant contends that “at a minimum” the trial court
should have granted it an extension to respond to plaintiff’s motion. We disagree.
¶ 44 Defendant cites U.S. Bank, N.A. v. Kosterman, 2015 IL App (1st) 133627, to support its
argument that summary judgment was improper. We find Kosterman distinguishable from the
circumstances present in this case. There, the trial court struck the defendants’ affirmative
defense of lack of standing, holding that lack of standing was not an affirmative defense. Id. ¶ 9.
The Kosterman court held that the trial court had erred because the appellate court had held
several times in the previous two years that lack of standing was an affirmative defense that must
be raised in the defendant’s answer or else it would be forfeited. Id. ¶ 10.
¶ 45 The reviewing court then turned to the trial court’s grant of summary judgment in favor
of the plaintiff. The plaintiff filed a motion for summary judgment two weeks after the
defendant’s affirmative defenses were stricken. The motion was supported by an affidavit from a
vice president of loan documentation for a bank, but the plaintiff failed to attach any of the
documents on which the supporting affidavit relied, as required by Rule 191(a). Id. ¶ 12. The
defendants attached affidavits under Rule 191(b) to their response to the motion for summary
judgment asserting that they were unable to respond to the motion for summary judgment
without being able to review the records on which the plaintiff relied. Id. The plaintiff then faxed
a loan transaction history to the defendant, but this document had not been certified by the affiant
who provided the affidavit in support of the plaintiff’s motion for summary judgment. Id. ¶ 13.
Moreover, the affiant averred that she relied on “ ‘data compilations, electronically imaged
documents, and others,’ ” but the loan transaction history apparently did not correspond to the
affiant’s statements. Id. The plaintiff responded that the documents were too numerous to make
available. The defendants then attempted to depose the affiant. Id. ¶ 14. The trial court granted
summary judgment in favor of the plaintiff. The plaintiff moved to strike the defendants’
outstanding discovery requests and to strike the deposition of the affiant. Id. The trial court
subsequently struck all of the defendants’ outstanding discovery requests. Id.
¶ 46 The majority in Kosterman held that the trial court’s ruling on discovery was an abuse of
discretion because the defendants “never even had an opportunity to explore their defenses.”
Id. ¶ 15. The court further held that the error was compounded because the records on which the
plaintiff’s affiant relied were never made available to the defendants, and the defendants were
precluded from deposing “the only person offering testimony against them.” Id. ¶ 17. The court
concluded that, without the records or the ability to conduct a deposition of the plaintiff’s affiant,
the defendants had no meaningful chance to challenge the plaintiff’s contentions. Id.
¶ 47 Here, in contrast, defendant was permitted to raise its affirmative defenses and propound
discovery to support its defenses. Defendant submitted interrogatories to plaintiff, which it issued
its response. Defendant filed its answer to the amended complaint and its affirmative defenses in
November 2014. Plaintiff filed its motion for summary judgment on March 24, 2015, and
presented it before the trial court three days later. The trial court gave defendant 40 days, until
May 15, 2015, to file its response. On May 15, defendant did not file a response, but instead filed
the motion for discovery and a motion for extension of time to respond. The motion for an
extension of time asked for an extension until after discovery was completed, it did not make a
request in the alternative for an extension to respond to the motion.
¶ 48 Further, defendant contends that the discovery requested in its motion was revealed only
when plaintiff filed the summary judgment motion. Defendant, nevertheless, waited the full 40
days granted for a response to file its request for discovery and extension of time. No action was
taken in the intervening time. This case is not analogous to Kosterman and we find defendant’s
reliance to be misplaced. Here, defendant had a significant period of time to engage in discovery
and to respond to plaintiff’s motion for summary judgment, but failed to take timely action.
Defendant has asserted no material fact to preclude summary judgment beyond his allegations in
the motion for discovery, which have already been considered and rejected. Since defendant has
failed to raise a question of material fact such that summary judgment was improper, we find that
the trial court did not err in granting summary judgment in favor of plaintiff.
¶ 49 Next, defendant argues that the trial court erred in simultaneously confirming the judicial
sale and granting its counsel’s motion to withdraw. Specifically, defendant asserts that the trial
court erred in failing to grant it 21 days to obtain new counsel and file a response to the motion
to confirm the judicial sale. According to defendant, the trial court “artificially stag[ed] the
sequence of the orders by a single moment so that the Sale Confirmation Motion was technically
granted first,” which allowed the court to avoid the requirements of Supreme Court Rule 13 (Ill.
S. Ct. R. 13 (eff. July 1, 2013)) and prejudiced defendant.
¶ 50 Plaintiff filed its motion to approve the report of sale on September 23, 2015, which was
set to be presented in court on October 14, 2015. Defendant’s former counsel initially filed his
motion to withdraw on October 7, 2015, which was also noticed for October 14. On that date,
defendant’s counsel acknowledged to the trial court that he had not properly served defendant
with his motion to withdraw. The motion was entered and continued, and a briefing schedule was
set for the motion to approve the sale. Defendant was given until November 4, 2015, to file its
response to the motion to approve sale. The trial court advised defendant’s counsel, “So, you
know, if you talk to your client and they want someone else to leap in and file a response that
they intend to file that’s between you and them. For now you’re counsel. I don’t know they got
notice of your motion so I can’t let you out.” Both motions were set for hearing on December 2,
2015. No response was filed by defendant in the interim.
¶ 51 On December 2, 2015, the trial court granted the motion to confirm the sale. Counsel
informed the court that he did not prepare a response to the motion because he was “ethically”
prohibited from filing anything on defendant’s behalf due to the “irreconcilable differences” with
defendant. After some discussion, the trial court entered the orders as follows:
“I am going to grant the motion to confirm sale. Having
granted that motion, now that you do have return receipt from the
client, I see no reason not to allow you to withdraw at this point.”
¶ 52 Supreme Court Rule 13(c), provides, in relevant part:
“(2) Notice of Withdrawal. An attorney may not withdraw
his appearance for a party without leave of court and notice to all
parties of record, and, unless another attorney is substituted, he
must give reasonable notice of the time and place of the
presentation of the motion for leave to withdraw, by personal
service, certified mail, or a third-party carrier, directed to the party
represented by him at his last known business or residence address.
Such notice shall advise said party that to insure notice of any
action in said cause, he should retain other counsel therein or file
with the clerk of the court, within 21 days after entry of the order
of withdrawal, his supplementary appearance stating therein an
address at which service of notices or other documents may be had
upon him.
(3) Motion to Withdraw. The motion for leave to withdraw
shall be in writing and, unless another attorney is substituted shall
state the last known address of the party represented. The motion
may be denied by the court if the granting of it would delay the
trial of the case, or would otherwise be inequitable.
(4) Copy to be Served on Party. If the party does not appear
at the time the motion for withdrawal is granted, either in person or
by substitute counsel, then, within three days of the entry of the
order of withdrawal, a copy thereof shall be served upon the party
by the withdrawing attorney in the manner provided in paragraph
(c)(2) of this rule, and proof of service shall be made and filed.” Ill.
S. Ct. R. 13(c)(2), (c)(3), (c)(4) (eff. July 1, 2013).
¶ 53 Defendant contends that under Rule 13(c)(2), the trial court should have delayed ruling
on the motion to confirm the sale until defendant could obtain new counsel. According to
defendant, the failure to continue the motion to confirm the sale prejudiced defendant because a
$3 million deficiency judgment had been entered as part of the sale confirmation since the sale
price of $6 million was less than what was due under the mortgage default. Defendant cites the
following reasoning from In re Marriage of Miller, 273 Ill. App. 3d 64, 69 (1995), “the letter and
spirit of Rule 13 require a 21-day transition period and that nothing prejudicing a client’s rights
should occur within the 21 days following the allowance of an attorney’s withdrawal.”
¶ 54 Defendant has not cited any authority finding that a trial court has to rule on motions in a
specified order. Plaintiff’s motion to confirm the sale was filed prior to counsel’s motion to
withdraw. The motion to withdraw was continued only because counsel failed to properly serve
defendant, and counsel concluded that he was “ethically” prohibited from preparing a response to
plaintiff’s pending motion. We point out that no action occurred on the case during the 21-day
period after the motion to withdraw was granted. The trial court complied with Rule 13(c).
¶ 55 Nevertheless, even if the trial court erred in granting the motion to confirm the sale
without allowing a 21-day continuance, defendant has not set forth any claim of how it was
prejudiced. On December 23, 2015, defendant, through new counsel, filed a motion to reconsider
the order granting the motion to confirm the sale. In the motion, defendant raised no basis to
reconsider the order confirming the sale. Rather, defendant objected to the court’s granting the
motion to withdraw without continuing the motion to confirm the sale for 21 days.
¶ 56 Under the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et
seq. (West 2014)), “after a judicial sale and a motion to confirm the sale has been filed, the
court’s discretion to vacate the sale is governed by the mandatory provisions of section 15
1508(b).” Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶ 18. Section 15-1508(b) of
the Foreclosure Law provides:
“Upon motion and notice in accordance with court rules applicable
to motions generally, which motion shall not be made prior to sale,
the court shall conduct a hearing to confirm the sale. Unless the
court finds that (i) a notice required in accordance with subsection
(c) of Section 15-1507 [(735 ILCS 5/15-1507(c) (West 2014))]
was not given, (ii) the terms of sale were unconscionable, (iii) the
sale was conducted fraudulently, or (iv) justice was otherwise not
done, the court shall then enter an order confirming the sale.” 735
ILCS 5/15-1508(b) (West 2014).
¶ 57 Thus, unless defendant set forth an argument under one of the four bases listed in section
15-1508(b), the trial court was required to confirm the sale. However, defendant has at no time in
the trial court nor in this court raised a claim under this statute that would have precluded the
confirmation of the sale. As previously stated, the property sold at the judicial sale for $6
million, which was less than the amount due under the default and more than the broker’s
opinion on the value of the property. Defendant has not shown any meritorious argument it was
prevented from making under section 15-1508(b) to oppose the motion to confirm sale.
Accordingly, we find that the trial court properly granted plaintiff’s motion to confirm the sale.
¶ 58 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
County.
¶ 59 Affirmed.