Opinion filed August 26, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

BAYVIEW LOAN SERVICING, LLC, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellee, ) Will County, Illinois. ) v. ) Appeal No. 3-14-0412 ) Circuit No. 11-CH-3635 JOSE J. CORNEJO and ROCIO CORNEJO, ) ) The Honorable Defendants-Appellants. ) Thomas A. Thanas, ) Judge, presiding. _____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices Lytton and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 The defendants, Jose and Rocio Cornejo, appeal from an order of summary judgment

entered in favor of the plaintiff, Bayview Loan Servicing LLC, in an action to foreclose a

mortgage.

¶2 FACTS

¶3 On July 27, 2011, the former plaintiff, JPMorgan Chase Bank filed a complaint to

foreclose a mortgage against the defendants, Jose and Rocio Cornejo. Attached as exhibits to the

complaint were: (1) a mortgage listing the Cornejos as the borrowers for the purchase of a single family home and Washington Mutual Bank as the lender; and (2) a note wherein the borrowers

agreed to repay $248,000 to Washington Mutual Bank. The copy of the note attached to the

complaint did not contain any indorsements.

¶4 On July 26, 2013, JPMorgan Chase Bank filed a motion for a default judgment. On that

same day, an attorney for the Cornejos filed an appearance. The Cornejos were granted leave to

file an answer, and they filed an answer with affirmative defenses. One of the affirmative

defenses alleged that JPMorgan Chase Bank lacked standing because it did not demonstrate that

it held the debt. JPMorgan Chase filed a motion to strike the affirmative defenses.

¶5 In court on September 18, 2013, JPMorgan Chase’s counsel presented the Cornejos with

the original note for inspection. The note contained an indorsement from Washington Mutual

Bank to blank, signed by Cynthia Riley as vice president of Washington Mutual Bank. The

Cornejos amended their answer and affirmative defenses to challenge the indorsement. In

response, on November 13, 2013, JPMorgan Chase filed a second motion to strike the Cornejos’

affirmative defenses. The trial court granted the motion, striking the affirmative defenses.

¶6 Thereafter, Bayview Loan Servicing, LLC, (Bayview) was substituted for JPMorgan

Chase as the party plaintiff, over the Cornejos’ objection. The motion to substitute alleged that

JPMorgan Chase, as the investor, had transferred the servicing rights on the loan to Bayview.

The attached assignment indicated that the mortgage was assigned to Bayview on December 10,

2013, and it was recorded on January 10, 2014. Bayview moved for summary judgment, arguing

that the pleadings established that the Cornejos were in default and still owed on the account. In

opposition, the Cornejos argued that there were genuine issues of material fact because: (1) the

order striking their affirmative defenses was void because JPMorgan Chase had assigned the

mortgage to Bayview before that date; (2) Bayview’s basis for foreclosure was unclear; (3) the

2 Affidavit of Amounts Due and Owing did not comply with Illinois Supreme Court Rule 191

(eff. Jan. 4, 2013); and (4) Bayview failed to attach a Loss Mitigation affidavit to its motion for

judgment.

¶7 The trial court granted Bayview’s motion for summary judgment, and entered judgment

of foreclosure and sale in favor of Bayview and against the Cornejos. The trial court granted the

Cornejos’ motion for a special finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb.

26, 2010), and they appealed.

¶8 ANALYSIS

¶9 The Cornejos contest the ability of JPMorgan Chase, and later Bayview, to bring this suit

against them. They appeal from the orders granting the motion to strike their affirmative

defenses, granting leave to substitute party plaintiffs, and granting summary judgment in favor of

Bayview.

¶ 10 JPMorgan Chase brought its second motion to strike the Cornejos’ affirmative defenses

pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 5/2-619.1 (West 2012)).

A motion under section 2-619.1 of the Code allows a party to combine a section 2-615 (735 5/2-

615 (West 2012)) motion to dismiss based upon insufficient pleadings with a section 2-619 (735

5/2-619 (West 2012)) motion to dismiss based upon certain defects or defenses. 735 ILCS 5/2-

619.1 (West 2012); Carr v. Koch,

(quoting Edelman, Combs &

Latturner v. Hinshaw & Culbertson,

(2003)). When the legal

sufficiency of a complaint is challenged by a section 2-615 motion to dismiss, all well-pleaded

facts in the complaint are taken as true and a reviewing court must determine whether the

allegations of the complaint, construed in a light most favorable to the plaintiff, are sufficient to

establish a cause of action upon which relief may be granted. King v. First Capital Financial

3 Services Corp.,

(2005). On the other hand, a motion to dismiss under section

2-619 admits the legal sufficiency of the plaintiff's complaint, but asserts affirmative matter that

defeats the claim. King,

. If a cause of action is dismissed due to the affirmative

matter asserted in a section 2-619 motion to dismiss, the question on appeal is whether there is a

genuine issue of material fact and whether the moving party is entitled to judgment as a matter of

law. Illinois Graphics Co. v. Nickum,

(1994). We review de novo an order

striking affirmative defenses under section 2-619.1 of the Code. Carr,

.

¶ 11 The Cornejos argue that JPMorgan Chase did not establish a claimed interest in the note

at the time it filed its original complaint and thus lacked standing. Specifically, the Cornejos

note that JPMorgan Chase filed the complaint as a mortgagee, but the Cornejos contend that

JPMorgan Chase did not have possession of the indorsed note at the time of filing. It is

undisputed that JPMorgan Chase was not the named mortgagee, and the note attached to the

complaint did not contain any indorsement. However, JPMorgan Chase argues that it made a

prima facie showing that it owned the note by attaching copies to the complaint. It argues that it

then further established its standing by producing the original note, which was indorsed in blank,

in open court.

¶ 12 The doctrine of standing requires that a party have real interest in the action and its

outcome. Wexler v. Wirtz Corp.,

(2004). A party’s standing to sue must be

determined as of the time the suit if filed. Deutsche Bank National Trust Co. v. Gilbert,

. An action to foreclose upon a mortgage may be filed by a mortgagee, or

by an agent or successor of a mortgagee. Deutsche Bank National Trust Co.,

. The attachment of a copy of the note to a foreclosure complaint is prima facie

4 evidence that the plaintiff owns the note. Rosestone Investments, LLC v. Garner,

(citing Parkway Bank & Trust Co. v. Korzen,

,

¶ 24). Lack of standing to bring an action is an affirmative defense, and the burden of pleading

and proving the defense is on the party asserting it. Lebron v. Gottlieb Memorial Hospital,

(2010).

¶ 13 The note attached to the original foreclosure complaint is prima facie evidence that

JPMorgan Chase owned the note, even though it lacked the indorsement in blank. Since the

burden was on the Cornejos to prove that JPMorgan Chase lacked standing at the time the

complaint was filed, they needed to present some evidence that the transfer did not occur before

the complaint was filed. See Rosestone Investments, LLC,

(written assignment of mortgage, dated 4 days after a mortgage complaint was filed, was not

sufficient to prove that a plaintiff lacked standing on the date the foreclosure complaint was filed

when the plaintiff attached a copy of the note to the complaint and later produced the original

note with a blank indorsement); but see Deutsche Bank National Trust Co.,

(although a copy of the note was attached to the foreclosure complaint, an

assignment of mortgage dated several months after the foreclosure complaint was filed was

sufficient evidence that the plaintiff lacked standing at the time the foreclosure action was filed).

¶ 14 In this case, in an effort to meet their burden of showing that the assignment to JPMorgan

Chase did not take place until after the foreclosure complaint was filed, the Cornejos point to:

(1) the lack of an indorsement on the note attached to the foreclosure complaint; (2) the fact that

JPMorgan Chase did not attach the indorsed note to its initial motion to strike affirmative

defenses; and (3) alleged inconsistencies with the indorsement. The fact that JPMorgan Chase

did not attach the note with the indorsement to its original complaint, nor attach it to the initial

5 motion to strike, was not evidence that JPMorgan Chase did not hold the mortgage and note at

the time the complaint was filed in 2011. See Parkway Bank & Trust Co. v. Korzen,

, ¶ 26 n.4, as supplemented (Dec. 16, 2013) (Illinois Supreme Court Rule

113(b) (eff. May 1, 2013) now requires that the copy of the note attached to a foreclosure

complaint must be a copy of the note as it currently exists, together with indorsements and

allonges.). The deposition of Cynthia Riley, taken in another proceeding in 2013, was also not

sufficient to show that the indorsement, which is presumed authentic and authorized, (see 810

ILCS 5/3-308(a) (West 2012)), was unauthorized in this case, nor later ratified. Absent some

evidence, such as the document at issue in Gilbert, that showed that the assignment actually took

place after the complaint was filed, the Cornejos have failed to meet their burden of showing that

the indorsement was not made before the complaint was filed. See CitiMortgage, Inc. v.

Sconyers,

(“If defendants meant to contend that a party other

than [the plaintiff] was the ‘rightful’ holder of the note, it was their obligation to present

evidence that would support their contention.”). Thus, the trial court did not err in granting

JPMorgan Chase’s motion to strike.

¶ 15 The Cornejos argue that the trial court erred in granting Bayview’s motion for summary

judgment on the same basis: that a genuine issue of material fact exists as to Bayview’s basis for

foreclosure. The Cornejos also argue that, on the date that JPMorgan Chase’s motion to strike

was granted, JPMorgan Chase was no longer an interested party, so the order should be held to

be void or vacated. They argue that the substitution should have been made prior to any

substantive motion, and the trial court abused its discretion in allowing a substitution of plaintiff.

We review a trial court’s decision to allow a substitution of plaintiff for an abuse of discretion.

6 Cincinnati Insurance Co. v. American Hardware Manufacturers Ass'n,

(2008).

¶ 16 Section 2-1008 of the Code allows for the substitution of a party, providing in

subsection (a):

“If by reason of marriage, bankruptcy, assignment, or any other event occurring after

the commencement of a cause or proceeding, either before or after judgment, causing a

change or transmission of interest or liability, or by reason of any person interested

coming into existence after commencement of the action, it becomes necessary or

desirable that any person not already a party be before the court, or that any person

already a party be made party in another capacity, the action does not abate, but on

motion an order may be entered that the proper parties be substituted or added, and that

the cause or proceeding be carried on with the remaining parties and new parties, with or

without a change in the title of the cause.” 735 ILCS 5/2-1008(a) (West 2012).

¶ 17 For purposes of this section an assignment occurs when there is a transfer of some

interest from the assignor to the assignee; no particular form of assignment is required.

Cincinnati Insurance Co. v. American Hardware Manufacturers Ass'n,

(2008). JPMorgan Chase was the holder of the note when it filed its motion to strike in

November 2013. The assignment to Bayview was executed after that date, on December 10,

2013, and recorded on January 10, 2014. The order striking the affirmative defenses was entered

on January 29, 2014, and the motion to substitute plaintiffs was filed on March 7, 2014. The trial

court upheld the order striking the affirmative defenses, finding that it was a case of nonjoinder

or misjoinder of parties under section 2-407 of the Code (735 ILCS 5/2-407 (West 2012)), and

7 finding that the Cornejos were not prejudiced by the error. We find no abuse of discretion in the

decision allowing the substitution of plaintiff.

¶ 18 Other than the previously discussed issues regarding standing, the Cornejos argue that

summary judgment should not have been granted because the affidavit of amounts due and

owing submitted by an employee of Bayview, Leticia Sanchez, was not based on her personal

knowledge because Bayview’s records included records from prior holders of the debt.

Summary judgment is appropriate when the pleadings, depositions, and admissions on file, and

any affidavits, show 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 2012). We review de novo

an order granting summary judgment. Lazenby v. Mark’s Construction, Inc.,

(2010).

¶ 19 Rule 191(a) affidavits must assert facts. Ill. Ct. R. 191(a) (eff. Jan. 4, 2013); Jaffe v.

Fogelson,

(1985). The Cornejos argued in their motion for summary

judgment that Sanchez’s affidavit did not comply with Rule 191 because she reviewed business

records, which were based on data compilations done by others. Bayview argues that the

affidavit met the requirements for a business record affidavit pursuant to Illinois Supreme Court

Rule 236 (eff. Aug. 1, 1992). Sanchez attested that she was familiar with the business process

and the records were made in the regular course of business, so the affidavit was admissible and

supported the judgment. See Bank of America, N.A. v. Land,

(affidavit by an employee of the current holder of the debt was admissible under Rule 236 in a

foreclosure proceeding even though some of the business records were created by a prior entity).

In light of our prior holdings, and the admissibility of Sanchez’s affidavit, we affirm the grant of

summary judgment in favor of Bayview.

8 ¶ 20 The Cornejos filed an emergency motion to stay the sheriff’s sale pending appeal, which

was taken with the case. The sheriff’s sale was scheduled for September 4, 2014. In light of the

fact that the motion raised no new issues, it is denied.

¶ 21 CONCLUSION

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

¶ 23 Affirmed.

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