ILLINOIS OFFICIAL REPORTS

Appellate Court

Wells Fargo Bank, N.A. v. Watson, 2012 IL App (3d) 110930

Appellate Court

Caption

WELLS FARGO BANK, N.A., Plaintiff-Appellee, v. CECIL W.

WATSON, Defendant-Appellant.

 District & No. Third District

Docket No. 3-11-0930

Filed July 9, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Plaintiff bank’s presentation of a judgment of foreclosure in its forcible

entry and detainer action justified the entry of summary judgment for the

bank, regardless of the fact that the judgment was neither signed nor

dated, because there was no objection concerning the judgment’s entry or

accuracy, the judgment entitled the bank to possession of the property,

and there was no evidence defendant had any legal interest in the property

or was entitled to possession.

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 11-LM-2802; the

Hon. Mark Thomas Carney, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Cecil W. Watson, of Bolingbrook, for appellant.

Michelle V. Dohra and Lucia Nale, both of Mayer Brown LLP, and

Shaun Callahan, of Pierce & Associates, both of Chicago, for appellee.

Panel JUSTICE CARTER delivered the judgment of the court, with opinion.

Presiding Justice Schmidt and Justice Holdridge concurred in the

judgment and opinion.

OPINION

¶ 1 Plaintiff, Wells Fargo Bank, N.A., brought suit pursuant to the Forcible Entry and

Detainer Act (735 ILCS 5/9-101 et seq. (West 2010)) against defendant, Cecil W. Watson,

for possession of a single-family residence located in Bolingbrook, Illinois. During the

course of the trial court proceedings, plaintiff filed a motion for summary judgment. After

a hearing, the trial court granted the motion. Defendant appeals the trial court’s grant of

summary judgment for plaintiff. We affirm the trial court’s ruling.

¶ 2 FACTS

¶ 3 Defendant owned the residence in question and sold it to his cousin, Darrell Coburn, in

May 2008. In order to finance the purchase, Coburn executed a note of approximately

$177,000 and secured that debt with amortgage from Franklin American Mortgage Company

(Franklin), naming Mortgage Electronic Registration System, Inc. (MERS), as nominee for

Franklin with the power to foreclose on the property in the event of a default by Coburn.1

After the sale, defendant continued to reside at the residence with Coburn.

¶ 4 On September 1, 2009, plaintiff filed a mortgage foreclosure complaint in Will County

case No. 09-CH-3901 (the foreclosure action), alleging that it was the holder of the mortgage

To the extent permissible under the law and for the purpose of providing a thorough review 1

of this case, we have taken judicial notice of the record and procedural facts set forth in appellate

case No. 3-11-0847, a related appeal which is also before this court. See Ill. R. Evid. 201 (eff. Jan.

1, 2011) (when appropriate, a court may take judicial notice, whether requested or not, at any stage

of the proceedings); 735 ILCS 5/8-1002 (West 2010) (the appellate court shall take judicial notice

of all matters of which the circuit court was required to take judicial notice); Walsh v. Union Oil Co.

of California, 53 Ill. 2d 295, 299 (1972) (a court may take judicial notice of other proceedings in

other courts under certain circumstances); People v. Davis, 65 Ill. 2d 157, 161-65 (1976) (a court

may take judicial notice of matters of record in other cases in the same court under certain

circumstances).

-2-
and note for the property. Coburn was the only named defendant in that suit. On November

4, 2009, plaintiff filed motion for summary judgment in the foreclosure action and attached

an undated supplemental document indicating that MERS, as nominee for Franklin, assigned

the mortgage to plaintiff “prior to 08/24/2009.” The document was signed by Jill Rein, a

“Certifying Officer” for MERS, and was notarized on September 25, 2009. Records from the

Will County recorder’s office indicate that the assignment of mortgage in favor of plaintiff

was not recorded until October 14, 2009, more than a month after the foreclosure action

began on September 1, 2009.

¶ 5 On December 31, 2009, Coburn filed his response to the motion for summary judgment.

Coburn claimed that he was procuring the necessary funds to cure his default before the next

court date but did not challenge plaintiff’s standing to bring the foreclosure action.

¶ 6 In July 2010, the trial court granted summary judgment for plaintiff in the foreclosure

action. The property was sold at a public sale on December 8, 2010. On March 11, 2011, the

trial court approved the foreclosure sale and entered the final foreclosure judgment. The

foreclosure judgment was signed by the Honorable Richard J. Siegel and provided that

plaintiff was entitled to possession of the property and that the sheriff was to evict Coburn

from the property. Coburn did not appeal the foreclosure judgment.

¶ 7 On September 19, 2011, plaintiff filed the instant forcible entry and detainer action

against defendant in Will County case No. 11-LM-2802, seeking an order of possession to

the property. An unsigned and undated copy of the foreclosure judgment from case No. 09-

CH-3901 was attached to the complaint. The instant case was assigned to the Honorable

Mark Thomas Carney. On October 21, 2011, plaintiff filed a motion for summary judgment

in the instant case. Attached to the motion for summary judgment were copies of the

foreclosure judgment (unsigned and undated); a written demand for possession addressed to

Coburn and unknown occupants; proofs of service showing that the demand had been

personally served on defendant and served by substitute service on Coburn (by delivery to

defendant) at the residence on June 2, 2011; and an affidavit of posting showing that the

demand for possession had also been posted on the front door of the residence on June 2,

2011.

¶ 8 On November 4, 2011, Coburn filed a motion to vacate the foreclosure judgment in the

foreclosure action. Coburn alleged in the motion to vacate that plaintiff lacked legal standing

to file the mortgage foreclosure complaint. On that same date, defendant filed a response

opposing summary judgment in the instant case. In his response, defendant made essentially

the same allegation against plaintiff regarding lack of standing to file the mortgage

foreclosure complaint in the mortgage foreclosure action. More specifically, defendant

claimed that plaintiff filed the mortgage foreclosure complaint before the mortgage had been

assigned to it and in so doing, obtained the mortgage foreclosure judgment by committing

a fraud upon the court. Defendant attached to his response copies of the recorded deed

transferring the propertyfrom defendant to Coburn in May2008; the assignment of mortgage

from MERS to plaintiff, which was notarized on September 25, 2009, and recorded on

October 14, 2009; and the recorded notice of foreclosure.

¶ 9 On November 15, 2011, a hearing was held on Coburn’s motion to vacate in the

-3-
foreclosure action. At the conclusion of the hearing, Coburn’s motion was denied. No

explanation for the denial was provided in the written order. Coburn appealed that denial,

and that appeal is currently before this court in appeal No. 3-11-0847.

¶ 10 On November 16, 2011, a hearing was held on the motion for summary judgment in the

instant case. At the conclusion of the hearing, the trial court granted plaintiff’s motion for

summary judgment. No explanation for the trial court’s ruling was provided in the written

order. Defendant appealed in the instant case to challenge the trial court’s ruling and filed

an emergencymotion in this court to stay the eviction pending appeal. We denied the motion

to stay. A similar motion was denied in the trial court.

¶ 11 ANALYSIS

¶ 12 On appeal, defendant argues that the trial court erred in granting summary judgment for

plaintiff. Defendant asserts that summary judgment should not have been granted because

genuine issues of material fact remain as to whether plaintiff had legal standing to file the

mortgage foreclosure complaint in the foreclosure action and whether plaintiff obtained the

mortgage foreclosure judgment by committing fraud on the court. Plaintiff disputes

defendant’s assertions and argues that the trial court’s ruling was proper and should be

affirmed.

¶ 13 “The parties to a forcible entry and detainer action, like other civil litigants, may avail

themselves of a motion for summary judgment where the procedural device is appropriate.”

First Illinois Bank & Trust v. Galuska, 255 Ill. App. 3d 86, 90 (1993). The purpose of

summary judgment is not to try a question of fact, but to determine if one exists. Adams v.

Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment should be

granted only where the pleadings, depositions, admissions, and affidavits on file, when

viewed in the light most favorable to the nonmoving party, show that there is no genuine

issue as to any material fact and that the moving party is clearly entitled to a judgment as a

matter of law. 735 ILCS 5/2-1005(c) (West 2010); Adams, 211 Ill. 2d at 43. Summary

judgment should not be granted if the material facts are in dispute or if the material facts are

not in dispute but reasonable persons might draw different inferences from the undisputed

facts. Adams, 211 Ill. 2d at 43. Although summary judgment is to be encouraged as an

expeditious manner of disposing of a lawsuit, it is a drastic measure and should be allowed

only where the right of the moving party is clear and free from doubt. Adams, 211 Ill. 2d at

43. In appeals from summary judgment rulings, the standard of review is de novo. Adams,

211 Ill. 2d at 43.

¶ 14 The purpose of the Forcible Entry and Detainer Act (Act) is to provide a speedy remedy

to allow a person who is entitled to the possession of certain real property to be restored to

possession. Rosewood Corp. v. Fisher, 46 Ill. 2d 249, 251 (1970) (per curiam). A forcible

entry and detainer action, therefore, is a limited and distinct proceeding that determines who

is entitled to immediate possession of real property. Avenaim v. Lubecke, 347 Ill. App. 3d

855, 861 (2004). Because forcible entry and detainer actions are summary in nature, matters

that are not germane to the issue of possession may not be raised. See Avenaim, 347 Ill. App.

3d at 861; 735 ILCS 5/9-106 (West 2010) (except as otherwise provided, matters not

-4-
germane to the issue of possession may not be introduced into a forcible entry and detainer

action by joinder, counterclaim or otherwise). Thus, “the only factual questions which need

be answered in such a proceeding are which party is entitled to immediate possession and

whether a defense which is germane to the distinctive purpose of the action defeats plaintiff’s

asserted right to possession.” Galuska, 255 Ill. App. 3d at 90.

¶ 15 “Germane matters” are those that are closely connected with, and relevant to, the issue

of possession (see Rosewood Corp., 46 Ill. 2d at 256) and generally fall into one of four

categories: “(1) claims asserting a paramount right of possession; (2) claims denying the

breach of the agreement vesting possession in the plaintiff; (3) claims challenging the

validity or enforceability of the agreement on which the plaintiff bases the right to

possession; or (4) claims questioning the plaintiff’s motivation for bringing the action.”

People ex rel. Department of Transportation v. Walliser, 258 Ill. App. 3d 782, 788 (1994).

Serious title disputes, however, may not be determined in a forcible entryand detainer action.

Avenaim, 347 Ill. App. 3d at 862.

¶ 16 In the present case, at the summary judgment hearing in November 2011, the trial court

had before it a judgment of foreclosure that clearly entitled plaintiff to possession. Although

the judgment order was not dated or signed, defendant did not dispute that the order had been

entered or that the copypresented was accurate. In addition, defendant presented no evidence

to establish by way of a defense that he had any legal interest in the property or that he was

rightfully entitled to possession. Based upon the evidence that was presented, it was proper

for the trial court to grant summary judgment for plaintiff on its forcible entry and detainer

complaint. See 735 ILCS 5/2-1005(c) (West 2010); Adams, 211 Ill. 2d at 43. The matters

asserted by defendant in opposition to plaintiff’s motion for summary judgment were not

germane to the issue of possession but, rather, constituted a collateral attack on the mortgage

foreclosure judgment. See Norwest Mortgage, Inc. v. Ozuna, 302 Ill. App. 3d 674, 680

(1998) (actions for mortgage foreclosure and forcible entry and detainer were separate and

distinct actions); Lady v. Montgomery Ward & Co., 80 Ill. App. 3d 69, 72-73 (1980) (tenant

who was named defendant in mortgage foreclosure proceeding could not contest mortgage

foreclosure judgment in forcible entryand detainer action because of application of collateral

estoppel). Defendant’s assertions, therefore, were properlyrejected bythe trial court. See 735

ILCS 5/9-106 (West 2010); Rosewood Corp., 46 Ill. 2d at 255-56; Avenaim, 347 Ill. App. 3d

at 861; Galuska, 255 Ill. App. 3d at 90; Walliser, 258 Ill. App. 3d at 788.

¶ 17 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 18 Affirmed.

-5-