IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

ILLINOIS EASTERN DIVISION

U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE RELATING TO J.P.

MORGAN MORTGAGE ACQUISITION

CORP. 2005-FRE1 ASSET BACKED

PASS-THROUGH CERTIFICATES ,

SERIES 2005-FRE1,

Plaintiff,

vs.

CHERYLE A. COLLINS-FULLER T.,

HEYWOOD FULLER T., KEYBANK 

NATIONAL ASSOCIATION,

MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC. AS

NOMINEE FOR FREMONT

INVESTMENT AND

LOAN,

Defendants.

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) 12 C 5057

) Hon. Marvin E.

Aspen

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MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Court Judge:

Presently before us is a Motion for Judgment on the Pleadings filed by Defendants

Cheryle A. Collins-Fuller T. and Heywood Fuller T. (“Defendants”), seeking dismissal of this

foreclosure action pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 103.) As set

forth below, we deny the motion. We also very briefly address and deny several other pending

motions, including Plaintiff’s motion for summary judgment.

BACKGROUND

Defendants borrowed $232,000 on approximately August 15, 2005 from Fremont

Investment and Loan. (Compl. ¶ 10.) Defendants executed an Adjustable Rate Note in favor of 

Fremont for the loan and a Mortgage, granting Fremont a security interest for the Note in real
 propert y located in Naperville, Illinois (“Propert y”). (Id.) Plaintiff alleges that

Defendants are in default due to their failure to pay required monthly installments as of February

2011. (Id. 

¶ 10(j).) Plaintiff further alleges that it “is the legal holder of the indebtedness and the owner of

the mortgage given as security” and, as such, is entitled to foreclose on the Property. (Id.

¶ 10(n), (p), (s).) With its complaint, Plaintiff submitted copies of the pertinent Note, Mortgage,

and Assignment of Mortgage. (Compl., Exs. 3–5.)

Defendants, acting pro se at the time, answered the complaint on June 3, 2013. 

(Dkt. No. 63.) Plaintiff subsequently moved for summary judgment and for appointment of a

special commissioner on June 27, 2013. (Dkt. No. 73.) After summary judgment briefing

concluded, Defendants obtained counsel, who filed an appearance on October 25, 2013. 

Defendants then filed the instant motion, seeking judgment on the pleadings due to purported 

deficiencies with Plaintiff’s complaint. 

STANDARD OF REVIEW

Under Rule 12(c), a party may seek judgment on the pleadings “[a]fter the pleadings have 

closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c); see Buchanan-Moore v. Cty.

of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). When reviewing Rule 12(c) motions, we

employ the same standards applicable to motions brought under Rule 12(b)(6). BuchananMoore, 570 F.3d at 827 (citing Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 

2007)); see Adams v. City of Indianapolis, 742 F.3d 720, 727–28 (7th Cir. 2014); Northern Ind. 

Gun & Outdoor Shows, Inc. v. South Bend, 163 F.3d 449, 452 (7th Cir. 1998). Accordingly, for 

purposes of this motion, we must accept all well-pleaded allegations in the complaint as true and 

draw all reasonable inferences in the plaintiff’s favor. Adams, 742 F.3d at 728; Thompson v. Ill. 

Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Jafri v. Chandler LLC, — F.

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Supp. 2d — , 2013 WL 5513238, at *1 (N.D. Ill. Oct. 4, 2013). We ma y grant a motion for

judgment under Rule 12(c) “[o]nly when it appears beyond a doubt that the plaintiff cannot

prove an y facts to support a claim for relief and the moving party demonstrates that there are no 

material issues of fact to be resolved.” Supreme Laundry Serv., L.L.C. v. Hartford Cas. Ins. Co., 

521 F.3d 743, 746 (7th Cir. 2008) (internal quotation omitted); Beiles v. City of Chi. — F. Supp. 

2d — , 2013 WL 6571165, at *2 (N.D. Ill. Dec. 13, 2013).

ANALYSIS

Defendants argue that Plaintiff’s complaint fails to state a claim for relief for two reasons.

Defendants first assert that Plaintiff lacks standing to foreclose on the Property because it is not 

the legal holder of the Note, which was neither indorsed nor assigned to Plaintiff. (Mem. at 5–

10; Reply at 4–8.) Defendants also contend that Plaintiff’s complaint fails to comply with the

requirements of the Illinois Mortgage Foreclosure Law (“IMFL”), necessitating judgment in

their favor. We address each argument in turn.

A. Standing

“To recover on a promissory note under Illinois law, a plaintiff must show that (1) a 

defendant executed the promissory note; (2) the plaintiff is the holder of the note; and (3) the

defendant has no viable defense.” Land O’Lakes Purina Feed, LLC v. WelkCo, LLC, No. 10 C

981, 2011 WL 1465632 at *2 (S.D. Ill. Apr. 18, 2011). Defendants claim that they are entitled to

judgment because Plaintiff cannot establish the second element, standing. As Defendants point

out, the Note attached to the complaint evidences the debt owed to Fremont but does not include

an indorsement, assignment, or proof of transfer of the Note from Fremont to Plaintiff.

In response, Plaintiff contends that its production of a copy of the unindorsed Note with 

the complaint demonstrates that it possesses the Note. (Resp. at 2–6.) Plaintiff argues that it 

obtained the Note—along with standing to enforce it as a nonholder in possession with the rights

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of a holder—b y virtue of an assignment from Fremont and pursuant to the Illinois Uniform

Commercial Code. (Id. at 3–5 (citing 810 ILCS 5/3-203, 3-301).) 

For purposes of the present motion, we agree with Plaintiff. At this stage, we accept as

true Plaintiff’s allegation that it “is the legal holder of the indebtedness and the owner of the

mortgage given as security.” (Id. ¶ 10(n).) Although Plaintiff does not describe any transfer of

the Note from Fremont in the complaint, it alleges that it is the holder of the debt, i.e. the

Note.1Plaintiff attached a copy of the Note with its complaint, and we cannot discredit the

allegation that it owns the Note. See, e.g., Land O’Lakes Purina Feed, LLC, 2011 WL 1465632,

at *3 (presuming at the motion to dismiss stage that plaintiff acquired full interest in an

allegedly transferred note that it attached to the complaint). Moreover, under Illinois law,

“possession of a note, albeit unendorsed, can be sufficient to confer standing to enforce it.”

HSBC Bank USA, N.A. v. Hardman, 12 C 481, 2013 WL 515432, at *4 (N.D. Ill. Feb. 12, 2013)

(further explaining how a nonholder in possession with rights of a holder may enforce an

unindorsed note);

Deutsche Bank Nat’l Trust Co. v. Christian, 12 C 3613, 2013 WL 6283584, at *2–3 (N.D. Ill. 

Dec. 4, 2013) (same); see also Parkway Bank & Tr. Co. v. Korzen, 13-380, 2013 Ill. App. 13030, 

2 N.E.3d 1052, ¶ 24 (1st Dist. Sept. 23, 2013) (noting that “the mere fact that a copy of the note 

is attached to the complaint is itself prima facie evidence that the plaintiff owns the note” and is

sufficient to show a plaintiff’s standing); Martin v. Martin, 174 Ill. 371, 374, 51 N.E. 691, 692 

(Ill. 1898) (“The possession of an unindorsed note is prima facie evidence of ownership in the

holder.”).

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We acknowledge that this allegation appears inconsistent with Plaintiff’s current position that it 

is a nonholder in possession of the Note.

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We previously addressed a similar issue in U.S. Bank National Association v. Carroll, 11

C 6535, 2013 WL 3669320, at *2–3 (N.D. Ill. July 12, 2013). There, the bank asserted at

summary judgment that its possession of an unindorsed note served as prima facie evidence that

it owned and could enforce the note. (Id.) Citing Hardman, we stated that “a copy of the 

unindorsed [n]ote may suffice for purposes of establishing standing at the motion to dismiss

stage.” (Id. at *3.) We further stated, however, that possession of the unindorsed note was not

sufficient to establish ownership for summary judgment purposes. (Id.) We explained that the 

Illinois UCC required additional proof of transfer from the holder before a nonholder in 

possession of an unindorsed note could exercise the rights of the holder. (Id.) Consistent with

the above authorities, we hold that Plaintiff has sufficiently alleged standing to enforce the Note,

and we deny Defendants’ motion for judgment on the pleadings.

Based on our reasoning in Carroll, however, we conclude that Plaintiff’s pending

summary judgment motion simply cannot succeed due to Plaintiff’s failure to produce—either in 

the complaint or in the summary judgment briefing—a copy of the Note bearing an indorsement,

or adequate evidence of the underlying transaction between Fremont and Plaintiff that allegedly

transferred the Note. Given this unresolved, material fact question, as well as counsel’s relatively

recent appearance on behalf of Defendants, we deny the summary judgment motion.2

We also

deny several related motions without prejudice in light of this holding, including Plaintiff’s

Motion to Appoint Special Commissioner and Defendants’ three pro se motions requesting

discovery.

2

Because of this gaping evidentiary problem with Plaintiff’s summary judgment proof, a separate

opinion addressing that motion is unnecessary. In the interests of efficiency and clarity, we

elect to summarily dismiss that motion without prejudice as to refiling, rather than address its

merits in detail.

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B. Sufficiency of the Foreclosure Allegations

In their motion, Defendants also claim that Plaintiff failed to satisfy the pleading

requirements set forth in the IMFL, 735 ILCS 5/15-1504(a). Section 15-1504(a) provides that a

foreclosure complaint “may be in substantially” the form of the complaint set forth by the

statute. 735 ILCS 5/15-1504(a). The IMFL’s form complaint includes a list of allegations that a

plaintiff may plead in a complaint to foreclose. Id. The statute also specifically requires a

plaintiff to attach copies of the mortgage and note.3See 735 ILCS 5/15-1504(a)(2); see Christian,

2013 WL 6283584, at *2; Ocwen Loan Servicing LLC v. Kroening, 10 C 4692, 2011 WL

5130357, at *4 (N.D. Ill. Oct. 28, 2011); Ocwen Fed’l Bank, FSB v. Harris, 99 C 658, 2000 WL

1644377, at *2 (N.D. Ill. Oct. 24, 2000); see Korzen, 2013 Ill. App. 13030, 2 N.E.3d 1052, ¶ 26

(emphasizing that Illinois law does not require production of any specific documentation for

foreclosure “other than the copy of the mortgage and note attached to the complaint”). Under the

IMFL, pleadings that follow the proposed form complaint “are deemed and construed to include”

an allegation “that the exhibits attached are true and correct copies of the mortgage and note.” 

735 ILCS 5/151504(c)(2). 

Defendants contend that Plaintiff’s complaint fails to state a claim for relief because the

attached copy of the Note is incomplete. The Note plainly references and instructs the parties to

consult a rider—“*SEE ADJUSTABLE RATE NOTE RIDER ATTACHED HERETO AND 

MADE A PART HEREOF*”—but no rider is attached or otherwise located in the record. 

(Compl., Ex. 4, Note ¶ 2 (emphasis in original).) Although Plaintiff dismisses this argument as

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The IMFL does not require plaintiffs to provide the original loan documents at any time; copies

suffice. Korzen, 2013 Ill. App. 13030, 2 N.E.3d 1052, at ¶ 32 (reaffirming that “production of

the original note in open court, rather than simply relying on the copy attached to the complaint, 

is not a required element of proof in a foreclosure case”); First Fed’l Savings & Loan Assoc. of

Chi. v. Chi. Title & Trust Co., 155 Ill. App. 664, 665, 508 N.E.2d 287, 288–89 (1st Dist. 1987).

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having no legal effect, (Resp. at 2), it does not dispute that the cop y of the Note is incomplete. 

Under the circumstances, we find that Plaintiff may rely on the incomplete Note to state a

claim for foreclosure under the IMFL. Plaintiff provided copies of the Note and the Mortgage, 

which are deemed true and correct, and it substantially followed the form complaint set out by

the IMFL. Even with the rider missing, Defendants have sufficient information from which to 

comprehend the complaint and defend the action, as required b y Rule 8. Fed. R. Civ. P. 8(a); 

see, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1949–50 (2009); Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). We consider the omission of the

Note’s rider to be a technical defect that could be remedied by Plaintiff. As such, judgment on 

the pleadings is not warranted. See Supreme Laundry Serv., L.L.C., 521 F.3d at 746 (authorizing

grant of a Rule 12(c) motion “[o]nly when it appears beyond a doubt that the plaintiff cannot

prove any facts to support a claim for relief and the moving party demonstrates that there are no 

material issues of fact to be resolved”).

As with the indorsement question discussed earlier, however, we conclude that Plaintiff

cannot rely on an incomplete copy of the Note to ultimately prevail. Evidence concerning the 

Note is integral to Plaintiff’s burden of proof, and the rider may include information necessary

for the parties to ascertain all of the contract terms and potential damages. Moving forward, 

Plaintiff must produce a complete copy of the Note or, if appropriate, explain why the rider is

unavailable.

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CONCLUSION

For the reasons set forth above, we deny Defendants’ Motion for Judgment on the

Pleadings. (Dkt. No. 103.) As explained, we also deny Plaintiff’s motion for summary judgment

(Dkt. No. 73) without prejudice. We deny several additional motions without prejudice in light

of this holding, including Plaintiff’s Motion to Appoint Special Commissioner (Dkt. No. 76) and 

Defendants’ three pro se motions requesting discovery (Dkt. Nos. 95, 97, and 99).4

It is so ordered.

Dated: Chicago, Illinois

March 24, 2014

Marvin E. Aspen

United States District

Judge 

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The case is set for a status hearing on April 24, 2014 at 10:30 a.m. 

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