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Illinois Court Finds General Denial as Admission Condition Precedent

Posted By USFN, Wednesday, July 17, 2019
Updated: Monday, July 15, 2019

Marcos Posada
McCalla Raymer Leibert Pierce, LLC
USFN Member (AL, CA, CT, FL, GA, IL, MS, NV, NJ, NY)

The Appellate Court of Illinois has offered a bit of guidance for practitioners in prosecuting mortgage foreclosure actions. The Court in Bank of N.Y. Mellon v Wojcik, 2019 IL App (1st) 180845, was presented with the issue of whether the trial court erred in denying the defendants’ cross-motion for summary judgment in a foreclosure action concerning defendants’ condominium unit. In answering the Complaint to Foreclose, defendants’ answer denied the deemed allegation found in 735 ILCS 5/15-1504(c)(9) that any and all notices of default or election to declare the indebtedness due and payable or other notices required to be given have been properly given. Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 7.

In response, Bank of New York argued that defendants had waived their argument because there were no specific facts raised to show how the condition precedent had not been met. In essence, Bank of New York utilized the requirements of Illinois Supreme Court Rule 133(c). As the Court in Wojcik found, Rule 133(c) requires when pleading a condition precedent, e.g., sending of a notice of default, that it is sufficient to allege that the party completed the conditions on their part and that if the allegation is denied, specific facts must be alleged showing where there was a failure to perform. Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 20.

Further, relying on other Illinois decisions, the Wojcik Court stated, “[A] general denial to an allegation of the performance of a condition precedent in a contract is treated as an admission of that performance.” Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 21. Accordingly, the Court refused to allow contradiction at the summary judgment stage and instead found that the defendants’ judicial admission in their answer as to the deemed allegations of the Complaint to Foreclose did not lead to an issue of fact, thereby affirming the decision of the trial court denying defendants’ cross-motion for summary judgment.

This opinion sent a strong lesson on Illinois Supreme Court Rule 133(c): “As our supreme court has recognized: "The rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written." Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 24 citing Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 209 Ill. Dec. 735 (1995).

In practice, it has been common for defendants’ answers to Complaints to Foreclose to include general denials of deemed allegations, including the deemed allegation that required notices were sent. Often, when a party denies a deemed allegation, Illinois Courts have required plaintiffs, at the summary judgment stage, to establish that notices were sent, which makes this opinion particularly beneficial to plaintiffs in foreclosure matters. Adopting the approach in Wojcik in Illinois will improve judicial economy and ensure that cases are decided upon the merits rather than simply making a plaintiff jump through hoops after already establishing a prima facie case for foreclosure.


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