FIFTH DIVISION May 2, 2014

No. 1-12-1759

US BANK, NATIONAL ASSOCIATION, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of ) Cook County. v. ) ) ASIM AVDIC, ) ) No. 10 CH 283362 Defendant-Appellant ) ) (Hidajeta Avdic; Bank of America, N.A., Successor by ) Honorable Merger to LaSalle Bank, N.A.; United Survey Service, ) Darryl B. Simko, LLC; Unknown Owners and Nonrecord Claimants, ) Judge Presiding. Defendants). )

JUSTICE PALMER delivered the judgment of the court, with opinion Presiding Justice Gordon and Justice Taylor concurred in the judgment and opinion.

OPINION

¶1 In this mortgage foreclosure action, defendant, Asim Avdic, appeals following the circuit

court of Cook County's entry of an order approving the sale of his property. Avdic challenges

the court's orders granting summary judgment for plaintiff, US Bank, N.A., denying his motion

to strike US Bank's affidavit, denying his motion to reconsider, and approving the sale of the

property. 1-12-1759

¶2 I. BACKGROUND

¶3 On July 1, 2010, US Bank filed a foreclosure complaint against Asim Avdic, Hidajeta

Avdic, 1 Bank of America, N.A., and United Survey Service, LLC, 2 regarding the mortgage and

note executed by Asim and Hidajeta Avdic for property located at 3707 W. North Shore Avenue

in Lincolnwood, Illinois. The complaint alleged that US Bank was the mortgagee pursuant to

section 15-1208 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-

1208 (West 2010)). The complaint also alleged that Asim and Hidajeta Avdic, as mortgagors,

executed a mortgage in the amount of $417,000 on February 22, 2008, and the mortgage was

recorded on April 15, 2008, in Cook County. Further, the original mortgagee was Mortgage

Electronic Registration Systems, Inc. (MERS), "as Nominee for LaSalle Bank N.A." The

complaint alleged that defendants had not paid the monthly installments of principal, interest,

taxes, and insurance from September 2009 through the time of filing the complaint, and the

principal balance was $409,821.19 at that time.

¶4 US Bank attached a copy of the mortgage and note to the complaint. The mortgage was

dated February 22, 2008, and provided that MERS was the beneficiary, LaSalle Bank was the

lender, and Asim Avdic was the borrower. It was signed by both Asim and Hidajeta Avdic, and

it was also notarized. The accompanying note was for the amount of $417,000, with an interest

rate of 6.125%, and monthly payments of $2,533.74. The first payment was due on April 1,

1 We note that the notice of appeal was signed by attorney Andjelko Galic on behalf of only Asim Avdic. The notice of appeal must contain the signature of each appellant or appellant's attorney. Ill. S. Ct. R. 303(b) (eff. June 4, 2008). See also People v. Krueger,

(1986). Because Hidajeta Avdic did not sign the notice of appeal and her name was not listed as one of the defendants who was appealing, we consider this appeal to have been taken only by Asim Avdic. 2 The complaint indicated that Bank of America was a successor by merger to LaSalle Bank, "by virtue of a Mortgage executed by Asim Avdic, dated 03/14/2008, *** to secure a note in the principal sum of $250,000." United Survey Service had a $1,300 mechanic's lien filed against Asim Avdic and the real estate on June 15, 2009. 2 1-12-1759

2008. It was signed by Asim Avdic. The note was also endorsed "PAY TO THE ORDER OF

US Bank NA WITHOUT RECOURSE" and signed by officers of LaSalle Bank and US Bank.

¶5 On July 21, 2010, Asim and Hidajeta Avdic filed a verified answer to the complaint and

entered an appearance as pro se defendants. They admitted to nearly all the paragraphs in the

complaint. In relevant part, they admitted that: February 22, 2008, was the date of the

mortgage; that Asim and Hidajeta Avdic were the mortgagors; MERS was the original

mortgagee; the mortgage was recorded on April 15, 2008; the original amount of the mortgage

was $417,000; Asim Avdic was the owner of the property and executed the note; and US Bank

brought the foreclosure action as the mortgagee under section 15-1208 of the Foreclosure Law.

The only paragraph to which the Avdics responded that they had insufficient information to

admit or deny was paragraph 3(J), which provided, "Mortgagors have not paid the monthly

installments of principal, taxes, interest and insurance for 09/01/2009, through the present; the

principal balance due of the Note and the Mortgage is $409,821.19, plus interest, costs, advances

and fees. Interest accrues pursuant to the note." Thereafter, attorney Andjelko Galic filed a

notice of substitute appearance on October 12, 2010.

¶6 The record reflects that US Bank subsequently moved for summary judgment and for

entry of judgment of foreclosure on two or three occasions in late 2010 and early 2011, but the

motions were either withdrawn without prejudice or never proceeded upon. The motion for

summary judgment filed in November 2010 included the affidavit of Maria Lawrence, who

indicated that she was assistant vice president of US Bank.

¶7 On August 31, 2011, US Bank again moved for summary judgment and for entry of an

order of default and judgment of foreclosure and sale. US Bank argued that summary judgment

was appropriate because, pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS

3 1-12-1759

5/2-1005 (West 2010)), defendants failed to establish that any genuine issue of material fact

existed and failed to submit a counteraffidavit. In support of its motion, US Bank attached the

signed and notarized affidavit of Rebecca Armstrong, who averred that she had "personal

knowledge of the facts stated herein." Attached to the affidavit were copies of the mortgage,

note, and several computer printouts containing the payment history of the mortgage. In

summary, Armstrong averred that she had been employed by US Bank since 2002 and her duties

included reviewing and analyzing US Bank's business and loan records, which included

computer-generated payment histories and copies of origination documents. Armstrong also

averred that she was familiar with, had been trained on, and was qualified to use the computer

software system that maintained the records. She averred that she had reviewed the business

records and loan file for Avdic's loan, that the monthly payment was due for September 1, 2009,

and each month thereafter, and that US Bank elected to declare the entire balance due, and thus,

the total amount due through July 25, 2011, was $478,460.87, which included the principal

balance of $409,821.19, accrued interest of $49,761.91, late charges, and other expenses incurred

by US Bank.

¶8 On September 26, 2011, the circuit court entered an order granting US Bank's motion for

summary judgment and for a judgment of foreclosure and sale pursuant to section 15-1506 (735

ILCS 5/15-1506 (West 2010)), and also entered an order of default against Bank of America and

United Survey Service for failing to appear or plead and an order dismissing the "unknown

owners and nonrecord claimants" as defendants. However, later on that same day, the court

entered an order vacating all of these orders "pursuant to the agreement of the parties." 3 The

3 According to US Bank, after the circuit court initially granted its motions for summary judgment and judgment of foreclosure and sale, defense counsel Galic appeared later that afternoon and the court vacated its orders and set a briefing schedule. 4 1-12-1759

court entered an order setting a briefing schedule and hearing date for US Bank's motions. The

response to the motion was due October 24, 2011, the reply was due November 7, 2011, and the

hearing was set for November 22, 2011.

¶9 On October 24, 2011, Avdic filed a motion to strike Armstrong's affidavit on grounds

that it did not comply with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013). Avdic argued

that Armstrong did not have sufficient personal knowledge of his file, she did not work with his

file on a regular basis or before litigation arose, she did not know about the storage and retrieval

methods used by US Bank in maintaining and processing records, and she did not personally

receive or observe the receipt of the payments or have personal knowledge of how they were

applied. Avdic asserted that the authenticity of the attached records could not be determined,

Armstrong failed to explain the computer software program that was used to generate the

payment history or provide the name of the software program, and she failed to show how she

arrived at the amounts due. Avdic also argued that the amount that Armstrong averred was paid

into escrow ($0) was incorrect, as the attached payment history showed a balance of $5,582 in

escrow in October 2008. Avdic contended that the attached records were incomplete and were

not sworn or certified copies of all documents used to prepare the affidavit, and they were thus

hearsay without proper foundation.

¶10 On November 22, 2011, the circuit court entered an order resetting the due date for US

Bank's reply and rescheduling the date of the hearing on the motions. The order also indicated

that "the parties agreeing that defendant's motion to strike is deemed a response & plaintiff shall

reply to said motion."

¶11 In US Bank's December 2, 2011, reply, it asserted that pursuant to sections 15-1107(a)

and 15-1506(a)(2) (735 ILCS 5/15-1107(a), 15-1506(a)(2) (West 2010)), the court should enter a

5 1-12-1759

judgment of foreclosure because its motion was supported by Armstrong's affidavit stating the

amount due on the mortgage. It argued that it was entitled to summary judgment under the

Foreclosure Law, and to the extent it was inconsistent with Illinois Supreme Court Rule 191, the

Foreclosure Law prevailed. Further, because Avdic failed to submit a counteraffidavit or offer

other evidence to rebut the accuracy of the amount due set forth in Armstrong's affidavit,

Armstrong's affidavit must be taken as true. US Bank asserted that the attached documents were

admissible as business records and therefore the affiant's personal knowledge was irrelevant. US

Bank argued that the affidavit complied with both Rule 191 and Illinois Supreme Court Rule 236

(eff. Aug. 1, 1992).

¶12 On December 15, 2011, the circuit court granted US Bank's motion for summary

judgment and denied Avdic's motion to strike the affidavit. It also held that Avdic's notice of

deposition of Armstrong was "rendered moot." 4 It's order indicated that oral arguments were

heard regarding the motions. In the separate order granting summary judgment, the court held

that Avdic's answer "as pleaded without sufficient supporting documentation, does not raise a

genuine issue of material fact sufficient to preclude the entry of Summary Judgment in favor of

Plaintiff." The court entered a judgment of foreclosure and sale pursuant to section 15-1506

(735 ILCS 5/15-1506 (West 2010)), which provided that the total amount due, including

principal, accrued interest, advances, litigation costs, and attorney fees, was $490,888.98. The

order set the redemption period to expire on March 16, 2012, and provided that the sale of the

property was to occur pursuant to section 15-1507 (735 ILCS 5/15-1507 (West 2010)). The

court also entered an order of default against Bank of America and United Survey Service.

4 In our review of the lower court file, we did not find a request for or notice of deposition for Armstrong. Nevertheless, both parties indicate that Avdic submitted a notice of Armstrong's deposition when he filed his motion to strike the affidavit. 6 1-12-1759

¶13 On January 17, 2012, Avdic moved for reconsideration of the December 15, 2011, orders.

Avdic reiterated his arguments regarding the deficiencies in the Armstrong affidavit and argued

that it violated the best evidence rule, hearsay rule, and business records rule. He argued that the

assertions were conclusory and contradicted the attached documents, and the documents were

incomplete and not certified. Avdic also argued that he should have been given an opportunity

to respond to the motion for summary judgment after the court denied his motion to strike, and

contended that it was error to grant summary judgment before allowing him to take the

deposition of Armstrong. Further, Avdic asserted that no assignment of mortgage from LaSalle

Bank or MERS was attached to the complaint, and MERS should have been made a defendant.

The circuit court denied his motion to reconsider on February 24, 2012.

¶14 On April 6, 2012, US Bank moved the court to approve the sale, which occurred at a

public auction on March 19, 2012. US Bank purchased the property for $510,797.74. The

circuit court entered an order approving the sale on May 14, 2012, and held that all required

notices under section 15-1507(c) (735 ILCS 5/15-1507(c) (West 2010)) were properly given, and

the sale was fair and properly made, and ordered that US Bank was entitled to possession within

30 days of the order.

¶15 On June 12, 2012, Avdic filed a notice of appeal pursuant to Illinois Supreme Court Rule

303 (eff. May 30, 2008). 5 In the notice of appeal, Avdic stated that he was appealing the May

14, 2012, order approving the sale and granting possession to US Bank; the February 24, 2012,

order denying his motion to reconsider; and the December 15, 2011, order denying his motion to

strike Armstrong's affidavit and granting US Bank's motion to summary judgment.

5 The circuit court's order confirming the foreclosure sale, and not the judgment of foreclosure, constitutes the final and appealable order in foreclosure actions. EMC Mortgage Corp. v. Kemp,

; JP Morgan Chase Bank v. Fankhauser,

(2008). 7 1-12-1759

¶16 We note that, on appeal, defendant has not provided any transcripts or report of

proceedings from any hearings before the circuit court, although the record suggests that oral

arguments were heard on the motion for summary judgment and motion for reconsideration. It is

the appellant's duty to provide on appeal a sufficiently complete record of the lower court

proceedings to support his claims of error. Midstate Siding & Window Co. v. Rogers,

(2003). "[I]n the absence of such a record on appeal, the reviewing court will presume

that the order entered by the trial court was in conformity with the law and had a sufficient

factual basis [citations.] The court will resolve any doubts arising from the incompleteness of the

record against the appellant."

¶17 II. ANALYSIS

¶18 We review de novo the circuit court's decision to grant a motion for summary judgment.

Outboard Marine Corp. v. Liberty Mutual Insurance Co.,

(1992). In general,

this court reviews a circuit court's decision on a motion to strike an affidavit for an abuse of

discretion, but when the motion "was made in conjunction with the court's ruling on a motion for

summary judgment," we employ a de novo standard of review with respect to the motion to

strike. Jackson v. Graham,

(2001). A circuit court's decision to

confirm the judicial sale of property is reviewed for an abuse of discretion. Household Bank,

FSB v. Lewis,

(2008). The circuit court abuses its discretion if it committed

an error of law or where no reasonable person would take the view adopted by the court.

CitiMortgage, Inc. v. Johnson,

; McClandon v. Rosewell,

(1998). In reviewing the circuit court's decisions on appeal, we observe that

"this court reviews the judgment, not the reasoning, of the trial court, and we may affirm on any

grounds in the record, regardless of whether the trial court relied on those grounds or whether the

8 1-12-1759

trial court's reasoning was correct." Coghlan v. Beck,

.

¶19 On appeal, Avdic contends that the trial court erred in granting summary judgment for

US Bank and denying his motion to strike because triable issues of fact existed and there were

multiple defects in Armstrong's affidavit and the exhibits attached to it. Similar to his arguments

in the circuit court, he contends that the affidavit contained "boilerplate" conclusory statements

about which Armstrong had no personal knowledge, the exhibits were incomplete and not sworn

or certified, the exhibits could not be admitted into evidence as business records because US

Bank failed to provide the proper foundation or authentication, the affidavit contained conflicting

information from the exhibits, Armstrong failed to explain how she arrived at the amounts due,

and she failed to provide the name of the computer software program used.

¶20 In response, US Bank maintains that it was entitled summary judgment because Avdic's

answer admitted all allegations of the complaint except the amount due and owing, and

defendant submitted no evidence or counteraffidavit to create an issue of material fact or

otherwise contest the allegations and evidence presented by US Bank. Further, US Bank asserts

that Armstrong's affidavit complied with Rule 191, and in any case, the attached documents were

admissible as business records pursuant to Rule 236 (eff. Aug. 1, 1992) and Illinois Rule of

Evidence 803(6) (eff. Jan. 1, 2011).

¶21 "Summary judgment is appropriate where the pleadings, affidavits, depositions, and

admissions on file, when viewed in the light most favorable to the nonmoving party, demonstrate

that there is no genuine issue of material fact and that the moving party is entitled to judgment as

a matter of law." West Bend Mutual Insurance v. Norton,

(2010).

"The form of affidavits used in connection with motions for summary judgment is governed by

Supreme Court Rule 191 ***." Harris Bank Hinsdale, N.A. v. Caliendo,

,

9 1-12-1759

1025 (1992). Rule 191 provides in relevant part:

"Affidavits in support of *** a motion for summary judgment under section 2-1005 of

the Code of Civil Procedure *** shall be made on the personal knowledge of the affiants;

shall set forth with particularity the facts upon which the claim, counterclaim, or defense

is based; shall have attached thereto sworn or certified copies of all documents upon

which the affiant relies; shall not consist of conclusions but of facts admissible in

evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify

competently thereto." Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).

¶22 Accordingly, a Rule 191(a) affidavit must not contain mere conclusions and must include

the facts upon which the affiant relied. Landeros v. Equity Property & Development,

(2001). "[T]he affidavit is actually a substitute for testimony taken in open court

and should meet the same requisites as competent testimony." Harris Bank Hinsdale,

. The circuit court may not consider "evidence that would be inadmissible at

trial" when assessing a motion for summary judgment.

" 'If, from the document as a whole,

it appears that the affidavit is based upon the personal knowledge of the affiant and there is a

reasonable inference that the affiant could competently testify to its contents at trial, Rule 191 is

satisfied.' " Doria v. Village of Downers Grove,

(2009) (quoting

Kugler v. Southmark Realty Partners III,

(1999)). "[W]hen only

portions of an affidavit are improper under Rule 191(a), a trial court should only strike the

improper portions of the affidavit." Roe v. Jewish Children's Bureau of Chicago,

(2003).

¶23 In addition, to admit business records into evidence as an exception to the general rule

excluding hearsay, the proponent must lay a proper foundation by showing that the records were

10 1-12-1759

"made (1) in the regular course of business, and (2) at or near the time of the event or

occurrence." Gulino v. Economy Fire & Casualty Co.,

; Ill. S.

Ct. R. 236(a) (eff. Aug. 1, 1992). Similarly, Illinois Rule of Evidence 803(6) (eff. Jan. 1, 2011)

provides for the admission of "records of regularly conducted activity" where the records consist

of:

"A memorandum, report, record, or data compilation, in any form, of acts [or] events ***

made at or near the time by, or from information transmitted by, a person with

knowledge, if kept in the course of a regularly conducted business activity, and if it was

the regular practice of that business activity to make the memorandum, report, record or

data compilation, all as shown by the testimony of the custodian or other qualified

witness ***."

¶24 "The theory upon which entries made in the regular course of business are admissible as

an exception to the hearsay rule is that 'since their purpose is to aid in the proper transaction of

the business and they are useless for that purpose unless accurate, the motive for following a

routine of accuracy is great and the motive to falsify nonexistent.' " Kimble v. Earle M.

Jorgenson Co.,

(2005) (quoting Michael H. Graham, Cleary and

Graham's Handbook of Illinois Evidence § 803.10, at 817 (7th ed. 1999)).

¶25 Where computer-generated records are involved, the proponent must show that "the

equipment which produced the record is recognized as standard, the entries were made in the

regular course of business at or reasonably near the happening of the event recorded and the

sources of information, method and time of preparation were such as to indicate their

trustworthiness and to justify their admission." Riley v. Jones Brothers Construction Co.,

(1990). The determination that records are admissible as business records rests

11 1-12-1759

within the sound discretion of the circuit court. In re Estate of Weiland,

(2003).

¶26 Turning to the present case, we find that Armstrong's affidavit contained sufficient

factual detail to satisfy the requirements of Rule 191. Her affidavit set forth averments regarding

the fact that she had been an employee of US Bank since 2002, and her duties included

"reviewing and analyzing the business and loan records for loans that [US Bank] services. I am

familiar with [US Bank's] books and records including records concerning loans [US Bank]

services." She further averred that US Bank maintained records and a file for each of the loans its

services, which included "a loan payment history, computer generated records, [and] copies of

origination documents." In particular, she averred that she "reviewed and [is] familiar with the

business records and the loan file for" Avdic's loan. She further averred that she had "personal

knowledge that it is now, and was on the date of the entries, the regular course of business of

[US Bank] that the entries on the Payment Histories are made at or near the time of the

occurrence and made in the ordinary course of business. Said records are not made in

anticipation of litigation."

¶27 In particular, Armstrong averred that she reviewed the business records and loan file for

the loan at issue in this case. The mortgage, note, and payment histories upon which she relied

were attached to the affidavit. Armstrong averred that according to the attached documents, the

loan was due for the September 1, 2009, monthly payment and each monthly payment thereafter,

and US Bank had elected to claim the entire balance due. After establishing this basis for her

knowledge of the loan at issue, Armstrong described the specific amounts owed by Avdic under

the note, including principal balance, accrued interest, late charges, and other expenses incurred

by US Bank such as taxes and insurance costs, which totaled $478,460.87 as of July 25, 2011.

12 1-12-1759

These statements clearly constituted facts based on Armstrong's personal knowledge, and not

mere conclusions. Moreover, Armstrong swore in her affidavit that the attached documents were

"true and correct," that is, they were what they purported to be. Armstrong signed the affidavit

and swore "under penalties as provided by law pursuant to section 1-109 of the Code of Civil

Procedure [(735 ILCS 5/1-109 (West 2010))], certifie[d] that the statement[s] set forth in this

instrument are true and correct." The affidavit was also notarized. Although Avdic contends

that every document relied on should have been attached to the affidavit, it does not appear that

Armstrong refers in her affidavit to any extraneous documents that were not also attached to her

affidavit.

¶28 Contrary to Avdic's contention, we disagree that the affidavit in the present case is similar

to the affidavit in Landeros, where this court found that the plaintiffs' affidavit did not comply

with Rule 191 because the affiant, a security expert, merely offered his conclusion about whether

the security at a shopping mall met the standard of care without providing any facts upon which

he relied in reaching his conclusion. Landeros,

-63. As explained,

Armstrong's affidavit did not consist of mere conclusions.

¶29 In addition, Armstrong's affidavit established that the attached payment histories were

made in the regular course of US Bank's business and the entries were made at or near the time

of the payments. She further averred that the computer software program used had been in place

for the life of the payment histories, was accounting software "customarily used in the banking

industry," was "periodically checked for reliability," and could only be accessed by trained

personnel who had authority to do so. As stated, she averred that, based on her personal

knowledge, it was US Bank's regular course of business to make the entries on the payment

histories at or near the time of occurrence. Thus, contrary to Avdic's contention, Armstrong

13 1-12-1759

explained how the attached payment histories were generated. There is no requirement that she

be familiar with the record before litigation arose or have personally made the entries into the

computer system. Notably, lack of personal knowledge by the maker may affect the weight

afforded the evidence, but not its admissibility. In re Estate of Weiland,

.

Under Rule 236, "it is the business record itself, not the testimony of a witness who makes

reference to the record, which is admissible." Cole Taylor Bank v. Corrigan,

(1992).

¶30 Armstrong's statements also established that the computer software system was

customarily used in the business, was used for the life of the loan at issue, and was regularly

tested for reliability. Riley,

. Accordingly, the factual averments in

Armstrong's affidavit satisfied the foundational requirements for admission of the records and

demonstrated that they were trustworthy and reliable. As such, they were properly admissible as

business records. Gulino,

. See Bank of America, N.A. v. Land,

(finding that the affidavit by the assistant vice president of the

bank regarding the records of all payments made and the amount due on the loan was admissible

under Rule 236 and sufficient to support bank's motion for summary judgment).

¶31 We note that Avdic agreed in the circuit court that his motion to strike would suffice as

his answer to the motion for summary judgment. Also, Avdic failed to file a counteraffidavit or

present any evidence to contradict the allegations in US Bank's complaint and motion for

summary judgment. "[F]acts contained in an affidavit in support of a motion for summary

judgment which are not contradicted by counteraffidavit are admitted and must be taken as true

for purposes of the motion." Purtill v. Hess,

(1986).

"Denials in a defendant's answer do not create a material issue of genuine fact to prevent

14 1-12-1759

summary judgment. [Citation.] When a party moves for summary judgment files

supporting affidavits containing well-pleaded facts, and the party opposing the motion

files no counteraffidavits, the material facts set forth in the movant's affidavits stand as

admitted. [Citation.] The opposing party may not stand on his or her pleadings in order

to create a genuine issue of material fact." Parkway Bank & Trust Co. v. Korzen,

, ¶ 49.

¶32 As stated, the affidavit of Armstrong conformed to Rule 191 and the business records

related to the mortgage and note at issue were properly admissible. There was sufficient

evidence to establish plaintiff's case, and there was no competing affidavit or evidence to

contradict this evidence. We also agree with the trial court that defendant's denials in his

affidavit and claim of insufficient knowledge regarding paragraph 3(J) of the complaint (alleging

that the Avdics had not paid the monthly installments from September 1, 2009, through the

present and the principal balance due on the note and mortgage was $409,821.19, in addition to

interest, costs, advances, and fees), did not give rise to a material issue of fact. Notably, Avdic

never denied that he did not make the payments that were due and owing. Accordingly, we

conclude that the circuit court properly granted summary judgment for US Bank and denied

Avdic's motion to strike Armstrong's affidavit.

¶33 In a related argument, Avdic contends that the affidavit contained conflicting information

because Armstrong averred that US Bank was the "servicer" of the loan and referred to servicing

the loan on behalf of "plaintiff." Avdic maintains that the Federal Loan Mortgage Corporation

should have been the party seeking foreclosure, and US Bank concealed the true nature of the

actual owner of the note and mortgage.

¶34 To the extent that Avdic's argument challenges US Bank's standing to bring the

15 1-12-1759

foreclosure action, we find that this argument has been waived. A plaintiff is not required to

allege facts establishing standing; rather, the burden rests with the defendant to plead and prove

lack of standing. Burnette v. Stroger,

(2009). Alleging lack of

standing is an affirmative defense in a civil case, which a defendant waives "if not raised in a

timely fashion in the trial court." Greer v. Illinois Housing Development Authority,

(1988). Moreover, "[t]heories not raised during summary judgment proceedings are

waived on review." Village of Arlington Heights v. Anderson,

.

Accordingly, Avdic waived this argument because he did not raise it until his motion to

reconsider the circuit court's ruling on US Bank's motion to summary judgment and his motion to

strike.

¶35 Nevertheless, the record supports that US Bank has standing. "A foreclosure complaint is

deemed sufficient if it contains the statements and requests called for by the form set forth in

section 15-1504(a) of the Mortgage Foreclosure Law (735 ILCS 5/15-1504(a) (West 2008))."

Standard Bank & Trust Co. v. Madonia,

. A foreclosure action

may be pursued by "the legal holder of the indebtedness, a pledgee, an agent, or a trustee," and

"[a] plaintiff can maintain a lawsuit although the beneficial ownership of the note is in another

person." Mortgage Electronic Registration Systems, Inc. v. Barnes,

(2010).

A "mortgagee" is defined as "(i) the holder of an indebtedness or obligee of a non-monetary

obligation secured by a mortgage or any person designated or authorized to act on behalf of such

holder and (ii) any person claiming through a mortgagee as successor." 735 ILCS 5/15-1208

(West 2010).

¶36 US Bank pled that it was the mortgagee and also attached the note and mortgage. The

note provided that the original lender was LaSalle Bank, and that borrower "understand[s] that

16 1-12-1759

the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and

who is entitled to receive payments under this note is called the 'Note Holder.' " At the end of

the note, there was an endorsement to US Bank, signed by officers of both LaSalle Bank and US

Bank. The endorsement reads "PAY TO THE ORDER OF US Bank NA WITHOUT

RECOURSE." The mortgage provided that the lender was LaSalle Bank, and that MERS was

"acting solely as a nominee for Lender and Lender's successors and assigns." The mortgage also

provided that the note and the mortgage could "be sold one or more times without prior notice to

Borrower. A sale might result in a change in the entity (known as the 'Loan Servicer') that

collects Periodic Payments due under the Note and this Security Instruction ***."

¶37 Based on the complaint and the attached note and mortgage, US Bank complied with

section 15-1504(a) in its complaint and set forth the required information. Madonia,

; Barnes,

. US Bank established that, as the holder of

the note, it was also the holder of the mortgage. "The assignment of a mortgage note carries with

it an equitable assignment of the mortgage by which it was secured." Federal National

Mortgage Ass'n v. Kuipers,

(2000). As the legal holder of the

indebtedness, US Bank was therefore entitled to file the foreclosure action. Barnes,

; 735 ILCS 5/15-1208, 1504(a) (West 2010). Moreover, "[t]he 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,

, ¶ 24. US Bank's

complaint was legally and factually sufficient and included allegations related to standing.

¶38 We additionally find that Avdic admitted that US Bank had the requisite standing to

pursue the foreclosure action. In the answer to the complaint, the Avdics admitted to paragraph

3(N), wherein US Bank alleged that it brought the foreclosure action as a mortgagee pursuant to

17 1-12-1759

section 15-1208 of the Foreclosure Law. Contrary to Avdic's contention on appeal, their answer

functioned as a judicial admission that US Bank had standing to bring the foreclosure complaint.

See Knauerhaze v. Nelson,

(2005) ("As a general rule, a statement of

fact that has been admitted in a pleading is a judicial admission and is binding on the party

making it.").

¶39 Avdic also contends on appeal that he was entitled to take the deposition of Armstrong.

The circuit court that held his notice of deposition was moot. However, Avdic did not file a Rule

191(b) affidavit to explain why he needed Armstrong's deposition to oppose the motion for

summary judgment and requesting that the court grant a continuance for the taking of the

deposition. Parkway Bank & Trust,

, ¶ 48; Ill. S. Ct. R. 191(b) (eff.

Jan. 4, 2013). "Parties who fail to file Rule 191(b) affidavits cannot complain that the discovery

process was insufficient or limited." Parkway Bank & Trust,

, ¶ 48

(quoting Kane v. Motorola, Inc.,

(2002)). Additionally, our finding

that Avdic's pleadings, as well as his failure to file counteraffidavits during the motion practice,

failed to give rise to any material issue of fact justifies the circuit court's refusal to grant his

request for deposition. In light of this finding, the deposition request can only be viewed at best

as a fishing expedition and at worst as a delaying tactic. We find no abuse of discretion in the

circuit court's ruling regarding the notice of deposition. Id. ¶ 63.

¶40 We note that Avdic presented no argument in his opening brief regarding the circuit

court's denial of his motion for reconsideration. As such, any contention regarding the circuit

court's decision in that regard has been waived for appellate review. See Ill. S. Ct. R. 341(h)(7)

(eff. Feb. 6, 2013) ("Points not argued are waived and shall not be raised in the reply brief, in

oral argument, or on petition for rehearing.").

18 1-12-1759

¶41 III. CONCLUSION

¶42 For the reasons stated above, we affirm the circuit court's orders granting US Bank's

motion for summary judgment, denying Avdic's motion to strike the affidavit and motion to

reconsider, and confirming the judicial sale of the property.

¶43 Affirmed.

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