IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

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Plaintiff,
v.
Defendants.
RESPONSE IN OBJECTION TO MOTION FOR SUMMARY JUDGMENT
NOW COMES Defendant, M R (hereinafter Defendant or R), b and thro!"h her
attornes, David S. Rodri"!e# and Millenni!$ %a& 'ro!( P.C., and files her res(onse in
ob)e*tion to the Plaintiff+s Motion for S!$$ar ,!d"$ent, or in the alternative, Motion for
,!d"$ent and ,!d"$ent of -ore*los!re and Sale (Motion), and states as follo&s.
BACKGROUND
Plaintiff filed a Co$(laint see/in" to fore*lose the Mort"a"e alle"edl se*!red b
Defendant+s (ri$ar residen*e *o$$onl /no&n as 00000000000000, Chi*a"o, 1llinois (the
Pro(ert),(hereinafter Co$(laint), a *o( of &hi*h is atta*hed hereto as Exhibit A. Plaintiff
is not the ori"inal %ender !nder the Mort"a"e and the Plaintiff+s Co$(laint did NO2 in*l!de an
3ssi"n$ent of Mort"a"e. See Exhibit A. On 3!"!st 4, 5675, Defendant filed her 3ns&er to the
Co$(laint, to &hi*h she denied $an alle"ations of the Co$(laint, in*l!din" b!t not li$ited (i)
that she &as NO2 in defa!lt and denied the a**!ra* of the a$o!nts so!"ht8 and (ii) Plaintiff &as
NO2 the Mort"a"ee !nder 9:; 1%CS ;<7;=7564 and no relief &as available or d!e Plaintiff, a
*o( of &hi*h 3ns&er is atta*hed hereto as Exhibit B >See (ara". :()) and :(n)?.
Defendant+s finan*ial ills o**!rred fro$ a loss of e$(lo$ent ho&ever her finan*ial
sit!ation has re*entl i$(roved as she no& has a )ob and "enerates s!ffi*ient and stable in*o$e to
/ee( her ho$e, b &a of a loan $odifi*ation. Defendant has $ade n!$ero!s atte$(ts in see/in"
a loan $odifi*ation fro$ Plaintiff, to &hi*h she has re*eived no res(onse. 1n fa*t, on -ebr!ar 59,
567@, Defendant (resented a Motion for Mediation, &hi*h this Co!rt denied as essentiall bein"
(re$at!re sin*e Defendant+s a((li*ation has not been formally denied b Plaintiff, a *o( of &hi*h
Order is atta*hed hereto as Exhibit C. 2o date, Defendant has re*eived no res(onse fro$
Plaintiff as the stat!s of her loan $odifi*ation. On -ebr!ar 5@, 567@, Plaintiff also (resented the
instant Motion, to &hi*h this Co!rt set a briefin" s*hed!le, ho&ever for all reasons herein, said
Motion $!st be denied.
ARGUMENT
S!$$ar )!d"$ent is a (ro(er $ethod of dis(osin" of liti"ation &hen the (leadin"s,
de(ositions, ad$issions of re*ord and affidavits sho& there is no "en!ine iss!e of $aterial fa*t and
the $ovin" (art is entitled to )!d"$ent as a $atter of la&. See Schrager v. North Community
Bank, et al., :54 1ll.3((.:d ABA, 96:=96@, 9A9 N.E.5d :9A, :47 (7
st
Dist. 5665). Co!rts vie&
s!$$ar )!d"$ent as an aid to eC(editio!s dis(osition of a la&s!it. See Morris v. Margulis, 7B9
1ll.5d 54, :;, 9;@ N.E.5d :7@, :74 (5667). Dere, the Plaintiff has failed to s!b$it an affidavit that
*onfor$s to 1llinois S!(re$e Co!rt R!le 7B7. 3ffidavits s!b$itted in s!((ort of $otion for
s!$$ar )!d"$ent $!st *onfor$ to reE!ire$ents of S!(re$e Co!rt R!les. See Busch v. Graphic
Color Corp., 5A4 1ll.3((.:d 9A:, 9A;, A@@ N.E.5d 4:B, 4@7(5
nd
Dist. 7BB;). -!rther, the
do*!$entation atta*hed to the Motion also fails to *onfor$ to the reE!ire$ents of S.C.R. 77:(*)
and S.C.R. 7B7. 2h!s, there are "en!ine iss!es of $aterial fa*t that (re*l!de entr of )!d"$ent in
favor of Plaintiff.
I. THIS COURT SHOULD DENY PLAINTIFFS MOTION.
5
A. Th! D!"!#$%#t h%& '%i&!$ %# i&&(! )" *%t!'i%+ "%,t %#$ P+%i#ti"" h%& "%i+!$ t)
*!!t '!-(i'!*!#t& )" SCR ./. %#$ SCR ..0.
1llinois S!(re$e Co!rt R!le 7B7 (rovides in (ertinent (art as follo&s.
Affidavits in support of and in opposition to a motion for summary judgment under section 2-1005 of
the Code of Civil Procedure ...shall be made on the personal no!ledge of the affiants" shall set
forth !ith particularity the facts upon !hich the claim# counterclaim# or defense is based" shall have
attached thereto s!orn or certified copies of all papers upon !hich affiant relies" shall not consist of
conclusions but of facts admissible in evidence" and shall affirmatively sho! that the affiant# if s!orn
as a !itness# can testify competently thereto.
1ll. S!(.Ct.., R. 7B7 (567:)8 See also Bruno v. Illinois Cent R. Co., 57B 1ll.3((.:d 799, 747, ;94
N.E.5d 7:4;, 7:44 (;th Dist. 7BB7). Dere, Plaintiff $oves for s!$$ar )!d"$ent based on Selena
Mit*herson+s 3ffidavit+s, an 3ffidavit of 3$o!nts D!e and O&nin", a *o( of &hi*h is atta*hed
hereto as Exhibit D. 3ffidavits in a s!$$ar )!d"$ent (ro*eedin" are "overned b 1llinois
S!(re$e Co!rt R!le 7B7. 1llinois S!(re$e Co!rt R!le 7B7 $andates that affidavits *annot *onsist
of *on*l!sions b!t $!st set forth fa*ts ad$itted into eviden*e. See Laneros v. !"uity #roperty $
%evelopment, :57 1ll.3((.:d ;9, 9@9 N.E.5d :B7 (7
st
Dist. 5667)8 Ro&iou' v. (liphant, 567 1ll.5d
:5@, ::;, 99; N.E.5d B49, BB: (1ll. 5665).
On Mar*h 7, 567:, the 1llinois S!(re$e Co!rt ado(ted R!le 77: f!rther addin" to the
reE!ire$ents in a Prove=!( 3ffidavit &hen see/in" a )!d"$ent of fore*los!re, as follo&s.
(c) Prove-up Affidavits.
$1% &e'uirement of Prove-up Affidavits. All plaintiffs seeing a judgment of foreclosure# under section 15-150(
of the )llinois *ortgage +oreclosure ,a! $-.5 ),C/ 5015-150(%# by default or other!ise# shall be re'uired to
submit an affidavit in support of the amounts due and o!ing under the note !hen they file any
motion re'uesting a judgment of default against a mortgagor or a judgment of foreclosure.
$2% Content of Prove-up Affidavits. All affidavits submitted in support of entry of a judgment of foreclosure#
default or other!ise# shall contain, at a minimum, the following information [EMPHA! A""E"#1
$i% 2he identity of the affiant and an e3planation as to !hether the affiant is a custodian of records or a
person familiar !ith the business and its mode of operation. )f the affiant is a person familiar !ith the
business and its mode of operation# the affidavit shall e3plain ho! the affiant is familiar !ith the
business and its mode of operation.
$ii% An identification of the boos# records# and0or other documents in addition to the payment history
that the affiant revie!ed and0or relied upon in drafting the affidavit# specifically including records
transferred from any previous lender or servicer. $he pa%ment histor% must &e attached to the
:
affidavit in only those cases !here the defendant$s% filed an appearance or responsive pleading to
the complaint for foreclosure.
$iii% 2he identification of an% computer program or computer software that the entit% relies on
to record and trac mortgage payments. )dentification of the computer program or computer soft!are
shall also include the source of the information# the method and time of preparation of the record to
establish that the computer program produces an accurate payment history# and an e3planation as to
!hy the records should be considered 4business records5 666.
$.% Additional 7vidence. 2he affidavit shall contain any additional evidence# as may be necessary# in
connection !ith the party8s right to enforce the instrument of indebtedness. 666
Ms. Mit*herson+s 3ffidavit sho!ld be stri*/en as it does (i) not $eet evidentiar
reE!ire$ents of SCR 7B7 and SCR 77: and (ii) in*l!des $isre(resentations, as follo&s.
(a) Per the Mort"a"e and Plaintiff+s Co$(laint, the +)%# )'i1i#%t!$ )#
.2320324 ho&ever the Plaintiff failed to in*l!de a complete loan history in its
Motion and 3ffidavit, as reE!ired !nder SCR 7B7 and 77:, and in*l!ded onl
partial time perios thro!"h O*tober 7A, 567:, as follo&in".
(i) C!sto$er 3**o!nt 3*tivit State$ent (rinto!t fro$ 5'i)' +!#$!'
(to &hi*h Ms. Mit*herson *annot attest), Ne) #rincipal *** Loan
Setup>E$(hasis 3dded? of 632732/ t) /3.03.2, a *o( of &hi*h
C!sto$er 3**o!nt 3*tivit State$ent is atta*hed hereto as Exhibit
E8
(ii) C!sto$er Servi*e Wor/station (SER7<%oan) R!sh$ore %oan
Mana"e$ent Servi*es F 765 (rinto!t fro$ Loan Setup
>E$(hasis 3dded? of 63283.8 t) .23.93.0, a *o( of &hi*h
C!sto$er Servi*e Wor/station (SER7<%oan) R!sh$ore %oan
Mana"e$ent Servi*es is atta*hed hereto as Exhibit F8
(iii) Plaintiff is MISSING LOAN HISTORY fro$ .2320324 t) 63632/
and /3.:3.2 t) 6383.88
(b) Ms. Mit*herson+s 3ffidavit in*l!des $isre(resentations, &hi*h are dire*tl
*onfir$ed b Plaintiff+s eChibits atta*hed to its Motion, as (er (ara"ra(h 5 of
her 3ffidavit, she states that the Servi*er, R!sh$ore %oan Mana"e$ent
Servi*es %%C (R!sh$ore) a*E!ired the loan on 73803.2, &hen in fa*t, (er
the C!sto$er Servi*e Wor/station (SER7<%oan), the loan &as not set !( n
R!sh$ore !ntil al$ost 5 ears later on 63283.8. See Exhibit D and Exhibit
F. G Plaintiff+s eChibit, it a((ears that R!sh$ore $i$ NOT %,-(i'! th!
+)%# (#ti+ 63283.88
(c) Ms. Mit*herson+s 3ffidavit and the Co$(laint both alle"e that the loan &as
d!e 63.3822/, &hi*h Defendant denied in her 3ns&er, both as to bein" in
defa!lt and as to the alle"ed a$o!nts so!"ht in Plaintiff+s Co$(laint. See
Exhibit A, B, D. Per Plaintiff+s loan histor fro$ (rior lender titled
C!sto$er 3**o!nt 3*tivit State$ent, there re$ain PAYMENT entries
&hi*h &ere UNAPPLIED FUNDS on the loan for the follo&in" dates
and a$o!nts.
@
Process 9ate 666 2ransaction Amount 666 Code09escription
(i) 9<64<6B H7,7B4.66 Pa$ent III Jna((lied -!nds
(ii) 9<7;<6B H7,7B4.66 Pa$ent III Jna((lied -!nds
(iii) 4<6:<6B H7,7B4.66 Pa$ent III Jna((lied -!nds
(iv) B<6@<6B HA47.5: Pa$ent III Jna((lied -!nds
(v) 76<6;<6B HA47.5: Pa$ent III Jna((lied -!nds
(vi) 76<6;<6B H5,@;:.BB Pa$ent III Jna((lied -!nds
(vii) 77<6@<6B HA47.5: Pa$ent III Jna((lied -!nds
See Exhibit E, (". @=;. 2here is no eC(lanation in the 3ffidavit as to these
entries nor is there an *redit refle*tin" &hen and if these Pa$ents &ere
ever a((lied or ret!rned. -!rther, there no& eCists a $aterial fa*t and iss!e
if Plaintiff *o!ld even alle"e Defendant in defa!lt for 9=7=6B as if these
U#%55+i!$ F(#$& had been a((lied it $a have been *!red8
(d) Ms. Mit*herson attests in her 3ffidavit that the total a$o!nt d!e thro!"h
77<74<567: is ;:./,496.24 >See Exhibit D?8 ho&ever in an !ntitled (rinto!t
of ass!$in"l histor as to advan*es, the +ugment ,igures Goo through
ate- ../.0/12.3 Plaintiff dis*loses a different total of ;:8:,7.9.0:, a *o(
of &hi*h ,!d"$ent -i"!res 'ood thro!"h date. 77<74<567: is atta*hed
hereto as Exhibit G. 2he a$o!nts of )!d"$ent so!"ht do not $at*h, even if
ass!$in" argueno one &as to add the so!"ht attorne+s fees of H5,B;4.66
as (rovided in the Plaintiff+s Co!nsel+s 3ffidavit, the total &o!ld then be
;:88,484.24 >H@7B,;;A9.6;KH5,B;4.66?. 3s s!*h, on*e a"ain, based on
Plaintiff+s o&n 3ffidavit and o&n eChibit, there eCist an iss!e of fa*t as to the
a**!ra* )!d"$ent a$o!nt8
(e) Ms. Mit*herson attests in her 3ffidavit that the total a$o!nt d!e thro!"h
77<74<567: for Da#ard 1ns!ran*e is ;.:,776.:4 >See Exhibit D?, ho&ever in
an !ntitled (rinto!t of ass!$in"l histor as to advan*es for Da#ard
1ns!ran*e in the +ugment ,igures Goo through ate- ../.0/12.3, the
total for Da#ard 1ns!ran*e entries fro$ @<7B<5677=76<B<567: total to
;.:,760.89 <See Exhibit G?. 2he total Plaintiff alle"es as d!e for Da#ard
1ns!ran*e var and as s!*h, on*e a"ain, based on Plaintiff+s o&n 3ffidavit
and o&n eChibit, there eCist an iss!e of fa*t as to the a**!ra* of )!d"$ent
a$o!nt8
(f) Ms. Mit*herson fails to identif the *a!se for the drasti* variation in the
Da#ard 1ns!ran*e (re$i!$ for the Pro(ert, or the freE!en* of (re$i!$
(a$ents, ran"in" fro$ a((roCi$atel as lo& as H:96.9:(total fro$
7<B<567:=76<B<567:) to as hi"h as HA,@:6.;: on @<7B<56778 H@,6:A.66 only a
month later on ;<A<56778 and H@,6:A.66 on 5<9<5675. See Exhibit D and
Exhibit G. 1t $a a((ear that the Plaintiff d!(li*ated *ertain Da#ard
1ns!ran*e (a$ents as t&o lar"e a$o!nts &ere $ade &ithin less than a
$onth a(art of HA,@:6.;: on :=./=82..8 H@,6:A.66 on 4=9=82.. . See Exhibit
G. 2hese iss!es are *riti*al in deter$inin" the a$o!nts so!"ht and
deter$ined Plaintiff, and !ntil *onfir$ed, re$ain as a $aterial iss!e8
;
(g) Ms. Mit*herson fails to identif &hether she is a custodian of records or a
person familiar !ith the business and its mode of operation, as required
under SCR 113(2)(i), See Exhibit D;
(h) Ms. Mit*herson fails to identif boos# records# and0or other documents in addition
to the payment history that the affiant revie!ed and0or relied upon in drafting the affidavit#
specifically including records transferred from any previous lender or servicer, as
required under SCR 113(2)(ii). Further, Ms. Mitcherson
failed to attach the entire payment history for the loan to her
ada!it as required since the "efendant filed an appearance or
responsive pleading to the complaint for foreclosure, as #rescri$ed under
SCR 113(2)(ii), See Exhibit D;
(i) Ms. Mit*herson fails to identif the computer program or computer soft!are
that the entity relies on to record and trac mortgage payments. )dentification of the
computer program or computer soft!are shall also include the source of the
information# the method and time of preparation of the record to establish that the
computer program produces an accurate payment history# and an e3planation as to
!hy the records should be considered 4business records5 !ithin the meaning of the
la!, as required under SCR 113(2)(iii), See Exhibit D. Ms.
Mitcherson onl% !er% &enerall% refers that the Ser!icer uses
Lender Processing Service as the co'#uter s%ste' $ut
fails to include the source of the information# the method and time of
preparation of the record to establish that the computer program produces an
accurate payment history# and an e3planation as to !hy the records should be
considered 4business records5 !ithin the meaning of the la!, See Exhibit
D;
(j) Ms. Mit*herson fails to identif any additional evidence# as may be necessary# in
connection !ith the party8s right to enforce the instrument of indebtedness, as
required under SCR 113(3), See Exhibit D. (o its Motion,
)lainti* 'erel% attached for the FIRST TIME a co#% of an
+ssi&n'ent of Mort&a&e, ho,e!er the docu'ent is -.(
certi/ed or s,orn to as required under SCR 101(a) or
contained in the +da!it as required under SCR 113;
(k) Ms. Mit*herson fails to identif any additional evidence# as may be necessary# in
connection !ith the party8s right to enforce the instrument of indebtedness, as
required under SCR 113(3), See Exhibit D. (o its Motion,
)lainti* 'erel% attached certain docu'ent, such as co#% of
Mort&a&e and -ote, ho,e!er all of these docu'ents are
-.( certi/ed or s,orn to as required under SCR 101(a) or
contained or referenced in the +da!it as required under
SCR 113;
(l) Ms. Mit*herson fails to identif for &hat (eriod of ti$e the Plaintiff reE!ests
interest, and $erel stated it is thro!"h 77<74<567:, See Exhibit D. 1n
A
Plaintiff+s eChibit titled the +ugment ,igures Goo through ate-
../.0/12.3, Plaintiff f!rther fails to in*l!de the rate of *al*!lation of the
loan and $erel in*l!des interest rates ran"in" fro$ 6.6666L to H:.:9;66L
to H:.9;666L to H:.A5;66L, &itho!t the attrib!ted a$o!nts *har"ed or the
ti$e (eriod to &hi*h the interest rate a((lied. See Exhibit G8
(m) Ms. Mit*herson fails to set forth ho& or !(on &hi*h do*!$ent(s) the defa!lt
is alle"ed, See Exhibit D8
(n) Ms. Mit*herson fails to set forth &ith (arti*!larit the fa*ts !(on &hi*h the
*lai$ is based, as reE!ired !nder SCR 7B7, See Exhibit D.
Gased !(on the fore"oin", this Co!rt sho!ld find that Ms. Mit*herson+s 3ffidavit be stri*/en
as it does not $eet the evidentiar reE!ire$ents of SCR 7B7 and SCR 77:. -!rther, as stated in the
Defendant+s 3ns&er, the Defendant has denied the alle"ations of a defa!lt and the a**!ra* as to
the a$o!nt alle"ed as d!e. See Exhibit B. 2he Defendant is !nable deter$ine ho& the Plaintiff
arrived at its H:::,6B6.9: !n(aid (rin*i(al balan*e fi"!re as (i) there is no loan histor atta*hed to
the Motion fro$ .2320324 t) 63632/ and /3.:3.2 t) 6383.88 (ii) there are entries in the loan histor
titled C!sto$er 3**o!nt 3*tivit State$ent in &hi*h there re$ain PAYMENT entries &hi*h
&ere UNAPPLIED FUNDS on the loan for a ti$e (eriod of 9<64<6B=77<6@<6B8 a *o( of
Defendant+s 7B7(b) affidavit is atta*hed hereto and $ade a (art hereof as Exhibit H. -!rther,
Defendant is !nable to deter$ine the interest rate !sed and the ti$e (eriod for the *al*!lation of
interest so!"ht of H;4,44:.4;. See Exhibit H. 3dditionall, the Defendant is !nable to deter$ine
the *orre*t 2otal ,!d"$ent 3$o!nt so!"ht thro!"h 77<74<567: d!e to the *onfli*tin" infor$ation
of the Plaintiff+s 3ffidavit and s!((ortin" loan histor >See Exhibit D, G %#$ H> and a$o!nt
so!"ht and s!b$itted b Plaintiff, and as to the *onfli*tin" Da#ard 1ns!ran*e 3$o!nts so!"ht >See
Exhibit D %#$ G> and also freE!ent and hi"h (re$i!$s la*/in" eC(lanation.
-!rther, Ms. Mit*herson fails to eC(lain ho& she *an attest to. (a) 4uantum Servicing
Corporation5+ a**!ra*, et* fro$ &hi*h the servi*in" ri"hts &ere alle"edl transferred on
73803.2 >altho!"h Ms. Mit*herson+s o&n atta*hed loan histor (roves that the loan &as not set
9
!( !ntil 63283.8? a*tivities ass!$in" argueno (rior to 4=5:=76 as the alle"ed defa!lt is for 63.3
2/8 and (b) a$o!nt d!e is based on $ revie& of the follo&in" re*ords. PREM1OJS SERM1CER
P3NMEN2 D1S2OR1ES and CJRREN2 P3NMEN2 D1S2ORN III &hen she is the Mi*e
President of R!sh$ore and *an onl attest as to R!sh$ore+s standard, a**!ra* of re*ords and
R!sh$ore+s a*tivities. See Exhibit D, Exhibit E O Exhibit F.
2o be"in, &e note that there is a distin*tion bet&een *o$(!ter="enerated re*ords and
*o$(!ter=stored re*ords. Re*ords dire*tl "enerated b the *o$(!ter itself are "enerall ad$issible
as re(resentin" the tan"ible res!lt of the *o$(!terPs internal o(erations. 3ll that need be sho&n is
that the re*ordin" devi*e &as a**!rate and o(erated (ro(erl &hen the eviden*e &as "enerated. 1n
*ontrast to *o$(!ter="enerated re*ords, (rinto!ts of *o$(!ter=stored data *onstit!te state$ents
(la*ed into the *o$(!ter b o!t=of=*o!rt de*larants and *annot be tested b *ross=eCa$ination.
S!*h infor$ation therefore sho!ld not be ad$issible absent an eC*e(tion to the hearsa r!le.
2an"ible (rinto!ts of *o$(!ter=stored data are ad$issible !nder the b!siness eC*e(tion to the
hearsa r!le if (7) the ele*troni* *o$(!tin" eE!i($ent is re*o"ni#ed as standard, (5) the in(!t is
entered in the re"!lar *o!rse of b!siness reasonabl *lose in ti$e to the ha((enin" of the event
re*orded, and (:) the fo!ndation testi$on establishes that the so!r*es of infor$ation, $ethod and
ti$e of (re(aration indi*ate its tr!st&orthiness and )!stif its ad$ission. See In re Marriage of
%eLarco, :7: 1ll.3((.:d 769, 77@=77;, 954 N.E.5d 7594, 754A (5
nd
Dist. 5666). 1n #eople v.
Morro), 5;A 1ll. 3((.:d :B5, :B9, A54 N.E.5d ;;6, ;;@ (7
st
Dist. 7BB:), the *o!rt fo!nd that in
addition to the "eneral fo!ndation reE!ire$ents reE!ired to ad$it b!siness re*ords into eviden*e
$ore is reE!ired &hen the re*ords are *o$(!ter "enerated re*ords as is the *ase in the instant
$atter. S(e*ifi*all, the *o!rt stated.
)n the case of computer-generated records# a proper foundation additionally re'uires a
sho!ing that1 standard e'uipment !as used" the particular computer generates accurate
4
records !here used appropriately" the computer !as used appropriately" and the sources of
the information# the method of recording utili:ed# and the time of preparation indicate that
the record is trust!orthy and should be admitted into evidence.
#eople v. Morro) S!(ra at :B9. See also #eople v. +ohnson, :9A 1ll. 3((. :d 79;, 746, 49; N.E.5d
75;A, 75A6=75A7 (7
st
Dist. 5669), *itin" #eople v. Morro) at 746. Moreover, the 1llinois R!les of
Eviden*e, effective January 1, 2011, 46:(A) and B65 (77) set forth the reE!ire$ents for the
ad$issibilit of b!siness re*ords. 1llinois R!les of Eviden*e B67 (B) des*ribes the reE!ire$ents for
the a!thenti*ation for a (ro*ess or sste$. 1llinois R!les of Eviden*e 46:(A) (rovides in (ertinent
(art as follo&s.
;0.. <7A&/A= 7>C7P2)?@/" AAA),AB),)2= ?+ 97C,A&A@2 )**A27&)A,
2he follo!ing are not e3cluded by the hearsay rule# even though the declarant is available as a !itness1
$(% &ecords of &egularly Conducted Activity. A memorandum# report# record# or data compilation# in any form#
of acts# events# conditions# opinions# or diagnoses# made at or near the time by# or from information
transmitted by# a person !ith no!ledge# if ept in the course of a regularly conducted business activity# and if
it !as the regular practice of that business activity to mae the memorandum# report# record or data
compilation# all as sho!n by the testimony of the custodian or other 'ualified !itness# or by certification that
complies !ith &ule C02$11%# unless the source of information or the method or circumstances of preparation
indicate lac of trust!orthiness# but not including in criminal cases medical records. 2he term 4business5 as
used in this paragraph includes business# institution# association# profession# occupation# and calling of every
ind# !hether or not conducted for profit.
1llinois R!les of Eviden*e B67(B) (rovides in (ertinent (art as follo&s.
&7DE)&7*7@2 ?+ AE2<7@2)CA2)?@ ?& )97@2)+)CA2)?@
$a% Feneral Provision. 2he re'uirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in 'uestion is !hat its
proponent claims.
$b% )llustrations. By !ay of illustration only# and not by !ay of limitation# the follo!ing are e3amples of
authentication or identification conforming !ith the re'uirements of this rule1
$C% Process or /ystem. 7vidence describing a process or system used to produce a result and sho!ing that
the process or system produces an accurate result.
1llinois R!les of Eviden*e B65(77) (rovides in (ertinent (art as follo&s.
C02. /7,+-AE2<7@2)CA2)?@
73trinsic evidence of authenticity as a condition precedent to admissibility is not re'uired !ith respect to the
follo!ing1 6 6 6
$11% Certified &ecords of &egularly Conducted Activity. 2he original or a duplicate of a record of regularly
conducted activity that !ould be admissible under &ule ;0.$(% if accompanied by a !ritten certification of its
custodian or other 'ualified person that the record
$A% !as made at or near the time of the occurrence of the matters set forth by# or from information transmitted
by# a person !ith no!ledge of these matters"
B
$B% !as ept in the course of the regularly conducted activity" and
$C% !as made by the regularly conducted activity as a regular practice.G
2he !ord 4certification5 as used in this subsection means !ith respect to a domestic record# a !ritten
declaration under oath subject to the penalty of perjury and# !ith respect to a record maintained or located in a
foreign country# a !ritten declaration signed in a country !hich# if falsely made# !ould subject the maer to
criminal penalty under the la!s of the country. A party intending to offer a record into evidence under this
paragraph must provide !ritten notice of that intention to all adverse parties# and must mae the record and
certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse
party !ith a fair opportunity to challenge them.
3s stated earlier, Ms. Mit*herson+s 3ffidavit fails to *o$(l &ith the evidentiar
reE!ire$ents of SCR 7B7 and SCR 77: affidavits. Ms. Mit*herson+s 3ffidavit also fails to set forth
the reE!isite fo!ndation to ad$it an *o$(!ter re*ords and th!s the affidavit $!st be stri*/en.
-!rther, Defendant files a 7B7(b) *o!nter=affidavit o((osin" the $aterial fa*ts set forth in Ms.
Mit*herson+s 3ffidavit and eC(lains the need for needin" oral and &ritten dis*over as to. (i) Ms.
Mit*herson+s de(osition, in*l!din" b!t not li$ited to deter$inin" sin*e &hen the loan has been
servi*ed b R!sh$ore %oan Mana"e$ent Servi*es %%C as there eCist $aterial iss!es of *onfli*tin"
dates bet&een her 3ffidavit of 4=5:=76 and the loan histor atta*hed fro$ R!sh$ore %oan
Mana"e$ent Servi*es %%C of 9=65=758 (ii) obtain dis*over as to the a$o!nts so!"ht as there
re$ain o!tstandin" 6napplie #ayments &hi*h Plaintiff first dis*losed in its Motion, and there is
missing loan history of .2320324 t) 63632/ and /3.:3.2 t) 6383.8. 2h!s, this Co!rt sho!ld enter
an order stri/in" Ms. Mit*herson+s 3ffidavit, denin" Plaintiff+s Motion and "rantin" Defendant
leave to ta/e the de(osition of Ms. Mit*herson and iss!e dis*over !(on Plaintiff.
B. P+%i#ti"" +%,?& &t%#$i#1 i# thi& %,ti)# %& ,)#"i'*!$ b@ A&&i1#*!#t )" M)'t1%1!
2he 1llinois stat!te relative to the atta*h$ents of eChibits, s(e*ifi*all 9:; 1%CS ; Q 5=A6A
(rovides that if a *lai$ is fo!nded !(on a &ritten instr!$ent, a *o( thereof or so $!*h of the
sa$e as is relevant $!st be atta*hed to the (leadin" as an eChibit. 2he do*trine of standin"
reE!ires that a (art brin"in" s!it have a real interest in the *ontrovers and so$e in)!r in fa*t to a
76
le"all *o"ni#able interest. Glisson v. City of Marion, 744 1ll. 5d 577, 557 (7BBB). 3 (laintiff need
not alle"e fa*ts establishin" that he has standin" to (ro*eed. Rather, it is the defendant+s b!rden to
(lead and (rove la*/ of standin". Where a (laintiff has no standin", the (ro*eedin" $!st be
dis$issed. 2hat is so be*a!se la*/ of standin" ne"ates the (laintiff+s *a!se of a*tion. See 7e'ler
et al., v. 7irt8 Corporation, et al., 577 1ll.5d 74, 46B N.E.5d 75@6, (1ll. 566@).
3s (res*ribed b the Mort"a"e, the loan ori"inated &ith Mid 3$eri*a Gan/ on O*tober :,
566;, a *o( of &hi*h (a"e 7 of the Mort"a"e is atta*hed hereto as Exhibit I. 2his a*tion &as
initiated b 7ells ,argo Bank, N.9., as trustee to the RM9C #ass:;hrough ;rust, Series 12.2:<;,
See Exhibit A. 2o its Motion and for the ,IRS; ;IM! >as this &as NO2 atta*hed to the
Co$(laint?, Plaintiff in*l!des an !ns&orn to and !n*ertified *o( of an 3ssi"n$ent of Mort"a"e
re*orded Nove$ber B, 5676 fro$ #NC B9N= N9;I(N9L 9SS(CI9;I(N S/B/M MI% 9M!RIC9
B9N=, ,SB to 7ells ,argo Bank, Not in its Iniviual capacity, &ut solely as ;rustee for the
RM9C ;rust, Series 12.2:<;, a *o( of &hi*h is atta*hed herein as Exhibit J.
3**ordin" to Plaintiff+s do*!$entation in*l!ded in its Motion, Plaintiff has failed to
eviden*e standin" and a*t!all confirms that it has no standin" as there is no do*!$entation &hi*h
assi"ns the Mort"a"e fro$ Mid 3$eri*a Gan/ to #NC B9N= N9;I(N9L 9SS(CI9;I(N S/B/M
MI% 9M!RIC9 B9N=, ,SB> )' fro$ Mid 3$eri*a Gan/ to 7ells ,argo Bank, Not in its
Iniviual capacity, &ut solely as ;rustee for the RM9C ;rust, Series 12.2:<;. -!rther, Plaintiff
itself has never filed an 3ffidavit alle"in" its standin" >other than the !nverified Co$(laint?, to
&hi*h the Defendant has denied that Plaintiff is d!e an relief. 3s s!bstantiated b Defendant in her
3ns&er in (ara"ra(h :(n), %efenant enies that #laintiff is the Mortgagee uner <3? ILCS
?/.?:.120 an there&y enies that any relief is availa&le or ue #laintiff. III. See Exhibit B.
RDenials in a defendantPs ans&er do not *reate a $aterial iss!e of "en!ine fa*t to (resent
77
s!$$ar )!d"$ent. >Citation.? When a (art $oves for s!$$ar )!d"$ent files s!((ortin" affidavits
*ontainin" &ell=(leaded fa*ts, and the (art o((osin" the $otion files no *o!nteraffidavits, the $aterial
fa*ts set forth in the $ovantPs affidavits stand as ad$itted. >Citation.? 2he o((osin" (art $a not stand
on his or her (leadin"s in order to *reate a "en!ine iss!e of $aterial fa*t.R #ark)ay Bank an ;rust Co.
v. =or8en, 567: 1% 3(( (7st) 7:6:46, S @9.
1n this instan*e, Defendant files a 7B7(b) *o!nter=affidavit o((osin" the $aterial fa*ts set
forth in the Movants affidavit. -!rther, as r!led in #ark)ay Bank $ ;rust, Defendant has $et the
standard for needin" dis*over as to. (i) Ms. Mit*herson+s de(osition as there eCists an iss!e of
&hen and if Plaintiff a*E!ired the loan8 (ii) ta/e dis*over as to Plaintiff+s standin", as for the first
ti$e in this a*tion, Plaintiff (rod!*ed an 3ssi"n$ent of Mort"a"e in its Motion, b &hi*h it
*ontin!es to la*/ eviden*e of standin". 2h!s, this Co!rt sho!ld enter an order stri/in" Ms.
Mit*herson+s 3ffidavit, denin" Plaintiff+s Motion and "rantin" Defendant leave to ta/e the
de(osition of Ms. Mit*herson and iss!e dis*over !(on Plaintiff.
C. P+%i#ti"" h%& "%i+!$ t) ,)*5+@ Aith 604 ILCS 4=.43.428.4 b@ Ahi,h P+%i#ti""&
%,ti)# i& 5'!*%t('! %#$ thi& C)('t +%,?& B('i&$i,ti)#.
3t all relevant ti$es herein, in*l!sive of ,!l 7, 566B thro!"h (resent, the Pro(ert has been
Defendant+s residential real estate as defined b the 1llinois Mort"a"e -ore*los!re. 9:; 1%CS ;<7;=
757B. See Exhibit H. Whether d!e to i"noran*e of the nat!re of the Pro(ert, 1llinois la& or an
intentional disre"ard of the 1llinois Code of Civil Pro*ed!re, Plaintiff failed to $ail, "ive or (rovide
the a((ro(riate stat!tor ho$eo&ner (rote*tion noti*e reE!ired !nder 9:; 1%CS ;<7;=7;65.;
('ra*e Period Noti*e) to Defendant (rior to filin" of its Co$(laint. 3t all relevant ti$es herein,
Defendant has not re*eived an 'ra*e Period Noti*e fro$ Plaintiff for the loan. See Exhibit H.
3t all relevant ti$es herein, Defendant has not re*eived an noti*e fro$ Plaintiff infor$in" or
advisin" that he $a see/ a((roved ho!sin" *o!nselin" for the loan. See Exhibit H.
75
9:; 1%CS ;<7;=7;65<; (rovides in (ertinent (art as follo&s.
Except for mortgages secured by residential real estate in which any
mortgagor has filed for relief under the United States Bankruptcy
Code, if a mortgage secured by residential real estate becomes
delinquent by more than 3 days the mortgagee shall send !ia U"S" mail
a notice ad!ising the mortgagor that he or she may wish to seek
appro!ed housing counseling" #otwithstanding anything to the contrary
in this Section, nothing shall preclude the mortgagor and mortgagee
from communicating with each other during the initial 3 days of
delinquency or reaching agreement on a sustainable loan workout plan,
or both" $$$
#o foreclosure action under %art &' of (rticle )* of the Code of Ci!il
%rocedure shall be instituted on a mortgage secured by residential
real estate before mailing the notice described in this subsection
+c,"III
Defendant did not re*eive as !(on infor$ation and belief, Plaintiff did not send the reE!ired
noti*e P!rs!ant to 9:; 1%CS ;<7;65.;(*). 1n fa*t, to its Motion, Plaintiff atta*hes a *o( of the
De$and %etter, b!t o$its an 'ra*e Period Noti*e, a *o( of &hi*h is atta*hed hereto as Exhibit
K. Defendant has never filed for relief !nder the Jnited States Gan/r!(t* Code. See Exhibit H.
2he 1llinois Code of Civil Pro*ed!res has inter(reted that. III (b) Shall. 2he &ord shall as
!sed in this arti*le $eans $andator and not (er$issive. 9:; 1%CS ;<7;=776;.
2he reE!ire$ents of 9:; 1%CS ;<7;=7;65<; *annot be &aived, therefore Defendant &as
entitled to this noti*e (rior to the (laintiff+s filin" of its *o$(laint. 9:; 1%CS ;<7;=7;65.;. Des(ite
the (ro(ert in E!estions bein" the Defendant+s residential real estate as defined b the 3*t, Plaintiff
did not send the noti*e reE!ired b 9:; 1%CS ;<7;=7;65.;. Res!ltin" fro$ Plaintiff+s fail!re to
(rovide the reE!ired 'ra*e Period Noti*e, Defendant has been (re)!di*ed as she &as de(rived of
see/in" and *ons!ltin" &ith a((roved ho!sin" *o!nselin" a"en*ies (rior to the Plaintiff instit!tin"
this a*tion, &hi*h had Plaintiff *o$(lied, Defendant &o!ld have so!"ht alternative fore*los!re
o(tions and avoid this liti"ation and the dero"ator *redit re(ortin" on Defendant+s *redit re(ort.
See Exhibit H. 3 $ort"a"ee *annot *o$(l &ith the reE!ire$ents of 9:; 1%CS ;<7;=7;65.; &hile
7:
a fore*los!re s!it is (endin". 2he noti*e $!st *o$e b!")'! the s!it. 2herefore, d!e to Plaintiff+s
fail!re to *o$(l &ith 9:; 1%CS ;<7;=7;65.;, and for all of the reasons stated herein, Plaintiff+s
Motion $!st be denied.
D. P+%i#ti"" h%& "%i+!$ t) '!&5)#$ t) D!"!#$%#t& '!-(!&t ")' +)%# *)$i"i,%ti)#.
Defendant+s finan*ial ills o**!rred fro$ a loss of e$(lo$ent ho&ever her finan*ial
sit!ation has re*entl i$(roved as she no& has a )ob and "enerates s!ffi*ient and stable in*o$e to
/ee( her ho$e, b &a of a loan $odifi*ation. Defendant has $ade n!$ero!s atte$(ts in see/in" a
loan $odifi*ation fro$ Plaintiff, to no avail. 1n fa*t, on -ebr!ar 59, 567@, Defendant (resented a
Motion for Mediation &hi*h this Co!rt denied as essentiall bein" (re$at!re sin*e Defendant+s
a((li*ation has not been formally denied b Plaintiff. See Exhibit C. 3ltho!"h at first Plaintiff
failed to $ail to Defendant a loan $odifi*ation (a*/a"e, Defendant has sin*e *o$(leted a D3MP
a((li*ation and s!b$itted to Plaintiff, to &hi*h she a"ain a)aits for a res(onse. See Exhibit G.
1t a((ears that &hile Defendant has been a&aitin" for a res(onse fro$ Plaintiff as to first a
loan $odifi*ation a((li*ation and no& a res(onse as to the de*ision on her loan $odifi*ation
a((li*ation, Plaintiff is (ro*eedin" &ith its Motion &hilst delain" on the Defendant+s reE!ests. 2o
its Motion, Plaintiff atta*hed a %oss Miti"ation 3ffidavit (re(ared b Tevin Elliott of R!sh$ore
filed ,!ne 5@, 567:, alle"in" Plaintiff+s atte$(ts $ade !(on the Defendant as to fore*los!re
alternative and $odifi*ation o(tions, a *o( of &hi*h is atta*hed hereto as Exhibit K.
On Mar*h 7, 567:, the 1llinois S!(re$e Co!rt ado(ted R!le 77@ settin" the reE!ire$ents in
a %oss Miti"ation 3ffidavit &hen see/in" a )!d"$ent of fore*los!re, as follo&s.
'ule ((). *oss Mitigation Affidavit
(a) *oss Mitigation. +or all actions filed under the )llinois *ortgage +oreclosure ,a!# and !here a
mortgagor has appeared or filed an ans!er or other responsive pleading# Plaintiff must# prior to
moving for a judgment of foreclosure# comply !ith the re'uirements of any loss mitigation program
!hich applies to the subject mortgage loan.
7@
(&) Affidavit Prior to or at the $ime of Moving for a +udgment of ,oreclosure. )n order to
document the compliance re'uired by paragraph $a% above# Plaintiff# prior to or at the time of moving
for a judgment of foreclosure# must file an affidavit specifying1
$1% Any type of loss mitigation !hich applies to the subject mortgage"
$2% Hhat steps !ere taen to offer said type of loss mitigation to the mortgagor$s%" and
$.% 2he status of any such loss mitigation efforts.
(c) ,orm of Affidavit. 2he form of the affidavit shall be as set forth belo! in +orm 1# or shall be in a
form specified by amendment to this rule# but# in any case# shall contain the information set forth
in paragraph (&) a&ove.
Dere, not onl does Plaintiff+s %oss Miti"ation 3ffidavit not *o$(l &ith 1SCR 77@ as.
(i) Mr. Elliot "%i+& t) &5!,i"@ &hat steps !ere taen to offer said type of loss mitigation to the
mortgagor5 and instead, $a/es the follo&in" "eneral state$ent &itho!t an s(e*ifi*it.
@Calling an letter A::unreaa&le::B an reach &orro)er &ut no response5.
See Exhibit K, (ara". A.8 and
(ii) Mr. Elliott "%i+& t) &5!,i"@ the stat!s of an s!*h loss $iti"ation efforts as reE!ired
!nder 77@(b)(:), and instead, inserts N/9. See Exhibit K, (ara". 9.
2his is *riti*al as it is the Defendant that (resented her $otion as/in" for the $atter to be
transferred to $ediation in ho(es of (ro"ressin" her loan $odifi*ation after the lender disre"arded
her reE!ests. 2herefore, as Plaintiff+s 3ffidavit for %oss Miti"ation does not $eet the s(e*ifi*it
standard !nder 1SCR 77@, and is dis(!ted to b Defendant in her Co!nteraffidavit, said 3ffidavit
$!st be stri*/en and the Motion be denied. See Exhibit H. -!rther, this Co!rt sho!ld transfer the
$atter to $ediation d!e to Plaintiff+s disre"ard to the Defendant+s reE!ests for a loan $odifi*ation.
CHEREFORE for the fore"oin" reasons, the Defendant, M R, (ras
that this Donorable Co!rt enter an Order &hereb.
3. Den the Plaintiff+s Motion for S!$$ar ,!d"$ent8
G. Stri/e Ms. Mit*herson+s 3ffidavit (!rs!ant to this Res(onse and the atta*hed
Co!nter=3ffidavit atta*hed hereto as Exhibit H8
C. 'rant Defendant leave to ta/e the de(osition of Ms. Mit*herson and iss!e dis*over
!(on Plaintiff for all of the reasons raised in this Res(onse and the atta*hed Co!nter=
3ffidavit atta*hed hereto as Exhibit H8
D. 2ransfer this $atter for loan $ediation, or in the alternative, order Plaintiff to
res(ond to Defendant+s loan $odifi*ation s!b$ission &ithin no later than ten das8
E. 1n the alternative, *ontin!e the $atter to allo& the Defendant leave for the ta/in" of
the de(osition of Ms. Mit*herson+s and iss!e and obtain dis*over !(on and fro$
Plaintiff as to the $atters raised in this Res(onse and the atta*hed Co!nter=3ffidavit
atta*hed hereto as Exhibit H, so Defendant *an have all of the infor$ation
7;
ne*essar to res(ond to the Motion8 and
-. 'rant the Defendant an f!rther relief this Co!rt dee$s (ro(er.
Res(e*tf!ll s!b$itted,
00000000000000000000000000000
3ttorne for Defendant
7A