2014 IL App (1st) 121759

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. 
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¶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, 146 Ill. 

App. 3d 530, 533 (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. 
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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 
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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. 
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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 
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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. 
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¶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, 

2012 IL 113419 ¶ 11; JP Morgan Chase Bank v. Fankhauser, 383 Ill. App. 3d 254, 260 (2008).
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¶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, 204 Ill. 2d 

314, 319 (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." Id.

¶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., 154 Ill. 2d 90, 102 (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, 323 Ill. App. 3d 766, 773 (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, 229 Ill. 2d 173, 178 (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, 2013 IL App (2d) 120719, ¶ 18; McClandon v. Rosewell, 299 Ill. 

App. 3d 563, 567 (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 
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trial court's reasoning was correct." Coghlan v. Beck, 2013 IL App (1st) 120891, ¶ 24.

¶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, 406 Ill. App. 3d 741, 744 (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, 235 Ill. App. 3d 1013, 
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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, 321 Ill. 

App. 3d 57, 63 (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, 235 Ill. 

App. 3d at 1025. The circuit court may not consider "evidence that would be inadmissible at 

trial" when assessing a motion for summary judgment. Id. " '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, 397 Ill. App. 3d 752, 756 (2009) (quoting 

Kugler v. Southmark Realty Partners III, 309 Ill. App. 3d 790, 795 (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, 339 Ill. App. 

3d 119, 128 (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
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"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., 2012 IL App (1st) 102429, ¶ 27; 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., 358 Ill. App. 3d 400, 414 (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., 198 Ill. 

App. 3d 822, 829 (1990). The determination that records are admissible as business records rests 
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within the sound discretion of the circuit court. In re Estate of Weiland, 338 Ill. App. 3d 585, 

600 (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. 
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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, 321 Ill. App. 3d 62-63. 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 
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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, 338 Ill. App. 3d at 601. 

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, 230 Ill. App. 3d 

122, 130 (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, 198 Ill. App. 3d at 829. 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, 2012 IL App (1st) 102429, ¶ 27. See Bank of America, N.A. v. Land, 

2013 IL App (5th) 120283, ¶ 14 (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, 111 Ill. 2d 229, 241 (1986).

"Denials in a defendant's answer do not create a material issue of genuine fact to prevent 
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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, 2013 IL 

App (1st) 130380, ¶ 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 
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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, 389 Ill. App. 3d 321, 331 (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, 122 Ill. 2d 

462, 508 (1988). Moreover, "[t]heories not raised during summary judgment proceedings are 

waived on review." Village of Arlington Heights v. Anderson, 2011 IL App (1st) 110748, ¶ 15. 

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, 2011 IL App (1st) 103516, ¶ 20. 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, 406 Ill. App. 3d 1, 7 (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 
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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, 2011 IL 

App (1st) 103516, ¶ 20; Barnes, 406 Ill. App. 3d at 6. 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, 314 Ill. App. 3d 631, 635 (2000). As the legal holder of the 

indebtedness, US Bank was therefore entitled to file the foreclosure action. Barnes, 406 Ill. App.

3d at 7; 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, 2013 IL App (1st) 130380, ¶ 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 
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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, 361 Ill. App. 3d 538, 557 (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, 2013 IL App (1st) 130380, ¶ 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, 2013 IL App (1st) 130380, ¶ 48

(quoting Kane v. Motorola, Inc., 335 Ill. App. 3d 214, 225 (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.").
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¶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.