May 10, 2016
by Lee S. Perres and Jill D. Rein
Pierce & Associates, P.C. – USFN Member (Illinois)
The Third District Court of Appeals recently affirmed the circuit court’s decision, holding that waiting more than two years after the assignment of mortgage to substitute party plaintiff is of no relevance to the issue of standing. [PennyMac Corporation v. Colley, 2015 Ill. App. (3d) 140964 (Dec. 14, 2015)]. The appellate court further held that a prove-up affidavit was sufficient even though all of the business records that the affiant relied upon were not attached to the affidavit but were filed with the court and available for inspection. On March 30, 2016 the defendants’ Petition for Leave to Appeal with the Illinois Supreme Court was denied.
Standing — On appeal, the defendants challenged the trial court’s denial of the motion to stay the sale and its granting of PennyMac’s motion to confirm the sale. The defendants contended that they demonstrated PennyMac’s lack of standing and asserted that CitiMortgage’s request to substitute plaintiff was untimely, and that the assignment did not establish PennyMac’s standing.
Affirming the trial court’s decision, the appellate court emphasized that “[w]here the plaintiff has moved for confirmation of the sale, it is too late for the defendant to assert a standing defense.” Id. at ¶ 11. The appellate court concluded that “[f]or whatever reason that CitiMortgage continued in the proceedings after the assignment, it was ‘master’ of its cause of action.” Id. at ¶ 14. The fact that CitiMortgage waited more than two years after the assignment to substitute PennyMac as the plaintiff is of no relevance, and the defendants were neither surprised nor prejudiced by the change of plaintiff. Id. at ¶ 14. Accordingly, the appellate court concluded that none of the defendants’ arguments was persuasive and did not necessitate that the sale be rejected based on the claim that PennyMac lacked standing. Id. at ¶ 14.
Prove-Up Affidavit Sufficiency — Additionally on appeal, the defendants challenged the trial court’s granting of PennyMac’s motion for summary judgment, maintaining that the prove-up affidavit was insufficient under Illinois Supreme Court Rule 191 because it did not attach relied-upon documents and was not based on personal knowledge. The appellate court affirmed the trial court’s granting of PennyMac’s motion for summary judgment, stating that the payment history, along with other documents filed with the court, satisfied the requirements for summary judgment prove-up affidavits. Id. at ¶ 19. The prove-up affidavit was properly supported with the payment history; the other relevant bank reports were filed with the court and were available for inspection. Id. at ¶ 18.
Furthermore, the court concluded that the prove-up affidavit established that the affiant had personal knowledge. Id. at ¶ 18. Therefore, the appellate court concluded that because the defendants failed to raise any genuine issue of material fact, the trial court’s granting of PennyMac’s motion for summary judgment was not in error. Id. at ¶ 19.
The opinion in Colley is published and is binding precedent; it allows plaintiffs to carry out foreclosures after an assignment of mortgage without substituting the party plaintiff right away. Moreover, the failure to attach all of the business records to the affidavit of prove-up is not fatal to the entry of summary judgment where the business records were filed with the court and were available for inspection.
Editor’s Note: The authors’ firm represented appellee PennyMac Corporation in the case summarized in this article.
©Copyright 2016 USFN and Pierce & Associates, P.C. All rights reserved.