## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption WEL L S FARGO BA NK, N.A., P laintiff-Appe llee, v. CECI L W. WATSON, Defe ndant-Appe llant.

District & N o. Third District Docke t No. 3-11-0930

Filed J uly 9, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff bank’s pre sentation of a judg ment of for eclosure in its forcible entry and detainer action justified the entry of summary judgme nt for the bank, reg ardle ss of the fac t that t he judgme nt was neither signe d nor dated, beca

use there was no objection conce rning the judgme nt’s entry or

acc urac y , the judgme nt entitled the bank to p o s s es s ion of the proper ty , and there was no evidenc e defe ndant had any leg al interest in the proper ty

or wa s entitled to possession.

Dec ision Under Review Appea l from the Circuit Court of Wil l County
, No. 11-L M-2802; the Hon. Mark T homas Carne y , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Cecil W. W atson, of B olingbr ook, for a ppellant.

Michelle V. Do h ra and Lucia Nale, both of May er Br own L L P, and Shaun Callahan, of Pier ce & Associates, both of Chica g o, for a ppellee.

Panel J USTI CE CARTER delivered the judg ment of the c ourt, with opinion. Presidi n g J u s tice Schmidt and J ustice Holdridg e concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, Wells Fa rg o Ba nk, N.A., broug ht suit pursuant t o t h e Fo rc i b l e E n try and Detaine r Act (735 I L CS 5/9-101 et seq. (West 2010) ) ag ainst defe ndant, Cecil W. Watson, for possession of a single -fa mily residenc e located in Bolingbrook, I llinois

. During the

course of the trial c ourt proce eding s, plaintiff fil ed a motion for summ ary judgme nt. After

a hear ing, the trial court g rante d the motion. Def endant appea ls the tr i al co urt’s g rant of
summary judgme nt for plaintiff. We af firm the trial c ourt’s ruling

.

¶ 2 FACTS ¶ 3 Def

endant owned the residenc e in question and sold it to his cousin, Dar rell Coburn, in M ay 2 008. In order to financ e the purcha se, Coburn executed a note of approxima t el y $177,000 and secur ed that debt w it h a mo r tg a g e f r o m F r anklin Americ an Mortg ag e Company (F ranklin), naming Mortg ag e Electronic Reg istration Sy stem, Inc. (MERS), as nominee for Fr anklin with the power to fore close on the prope rt y i n the event of a defa ult by Coburn. 1 After the sale, de fenda

nt continued to reside at the residenc e with Coburn. ¶ 4 On September 1, 2009, plaintiff filed a mortg ag e fore closure complaint in Will Count y

case No. 09-CH-3901 (the fore closure action), alleg ing that it was the holder of the mortg ag e

T o the ext ent per m is si ble unde r the la w and for the purpos e of pro vidin g a tho rou gh re view 1 of thi s cas e, we have ta ken j udi ci al not ic e of the re cor d and pro ced ura l fa ct s s et fo rt h i n app el la te

cas e No. 3- 11- 0847
, a re la te d app eal whic h is also bef ore thi s cour t. See I ll . R. Evid. 201 (eff . Ja n. 1, 2011 ) (whe n app rop ri at e, a cou rt m ay ta ke j udi ci al not ic e, whet her re que st ed or not , at any st age of the pro cee din gs); 735 I LCS 5/8

- 1002 (W est 2010 ) (th e appel la te cou rt sha ll ta ke j udi ci al not ic e of al l m at te rs of whic h the ci rc uit cou rt was re qui re d to ta ke j udi ci al not ic e) ; W als h v. Unio n Oil Co.

o f Cali for nia
, 53 I ll

. 2d 295, 299 (19 72) (a cou rt m ay ta ke j udi ci al not ic e of oth er pro cee din gs in oth er cou rt s unde r cer ta in ci rc um st anc es) ; Peop le v. Davi s , 65 I ll

. 2d 157, 1 6 1 -65 (19 76) (a cou rt

m ay ta ke j udi ci al not i c e of m at te rs of re cor d in oth er cas es in the same cou rt unde r cer ta in ci rc um st anc es)

.
-2-and note for the proper ty

. Coburn was the only named defe ndant in that suit. On November 4, 2009, plaintiff filed motion for summary judgme nt in the fore closure action and attache d

an undated supplemental document indicating that MERS, as nominee for Fr anklin, assig ned the mortg ag e t o p l ai n t i ff “prior to 08/24/2009.” The document was signe d by J ill Rein, a “Certify ing Offic er” for MERS, and was notarized on September 25, 2009. Records from the Wil l County rec order ’s office indicate that the assig nment of mortg ag e in f avor of plaintiff

was not rec orded until October 14, 2009, m o re t han a month afte r the fore closure action beg an on September

1, 2009. ¶ 5 On Dec ember 31, 2009, Coburn filed his response to the motion for summary judgme nt. Coburn claimed that he was procur ing the nece ssary funds to cure his defa ult befor e the next court date but did not challeng e plaintiff’ s standing to br ing the fore closure a ction. ¶ 6 I n J u l y 2 0 10, the trial court g rante d summary judgme nt for plaintiff in the fore closure action. The proper

ty was sold at a public sale on Dec ember 8, 2010. On Marc h 11, 2011, the trial court approve d the fore closure sale and enter ed the fin al fo reclosure judgme nt. The fore closure judgmen t wa s s igne d by the Honora ble Richard J

. Siege l and provided that plaintiff was e ntitled to possession of the pr operty and that the she riff w as to evict Coburn from the pr operty . Coburn did not appeal the f orec losure judg ment. ¶ 7 On September 19, 2 0 1 1
, p l ai n t i ff filed the instant forc ible entry and detainer action
ag ainst defe ndant in Wil l County case No. 11-L M-2802, seekingan orde r of possession to the proper

ty

. An unsigne d and undated copy of the fore closure judgme nt from case No. 09- CH-3901 was attache d to the compl aint. The instant case was assig ned to the Honora ble Mark Thomas Carney

. On October 21, 2011, plaintiff filed a motion for summary judgme nt in the instant case

. Attached t o the motion for summary judgme nt wer e copies of the fore closure judgme nt (unsig ned and undated) ; a written demand for possession addre ssed to Coburn and unknown o cc u p an t s; proofs of service showing that the demand had been
persona lly serve d on defe ndant and serve d by substitut e service on Coburn (by delivery to defe ndant) at th e residence on J une 2, 2011; and an aff idavit of posting showing that the demand for p o s s es s i o n h ad also been posted on the front door of the residenc e on J une 2, 2011. ¶ 8 On November 4, 2011, Coburn filed a motion to vaca te the fore closure judgme nt in the fore closure action. Coburn alleg ed in the motion to vacate that plaintiff lacke d leg al standing
to file t h e mortg ag e fore closure complaint. On that same date, defe ndant filed a response opposing summary judgme nt in the instant case

. In his response , defe ndant made essentially the same alleg ation ag ainst plaintiff reg arding lack of st anding to file the mortg ag e fore closure complaint in the mortg ag e fore closure action. More specific ally
, defe ndant claimed that plaintiff filed the mortg ag e fore closure complaint befor e the mortg ag e had been assig ned to it and in so doing, obta ined the mortgag e foreclosure judgme nt by committing

a fra ud upon the court. Def

endant at t ache d to his response copies of the rec orded deed transfe rring the proper

ty from defe ndant to Coburn in May 2008; the assig nment of mortg ag e from MERS to plaintiff, which was notarized on September 25, 2009, and rec orded on October 14, 2009; and the re corde d notice of f orec losure. ¶ 9 On November 1 5
, 2 0 1 1
, a h ea ri n g wa s h el d on Coburn’s motion to vacate in the

-3-fo re cl o sure action. At the conclusion of the hear ing, Coburn’s motion was denied. No

exp l an at i o n fo r t he denial was provided in the writt en order. C oburn appealed that denial, and that appe al is curr ently befor e this court in appe al No. 3-11- 0847. ¶ 10 On November 16, 2011, a hear ing was held on the motion for summary judgme nt in the instant case

. At the c o n cl u s i o n of t he hearing
, the t rial court g rante d plaintiff’s mot ion for
summary judgme nt. No ex planation for the trial cour t’s rulingwas provide d in the writt en

o rd er

. De fendant appea led i n the i nstant case to challeng e the trial court’s ruling and filed

an emer g ency motion in this court to stay the eviction pending appea l. We denied the motion to stay . A similar motion was denied in the trial c ourt.

¶ 11 ANALYSI S ¶ 12 On appea l, defe ndant argues that the trial court err ed in g ranting summary judgme nt f or plaintiff. Defenda

nt asser ts that summary judgme nt should no t h av e been gra nted because
g enuine issues of m ater ial fac t rema in as t o whether plaintif f h ad l eg al s tanding to file t he mortg ag e fore closure complaint in the fore closure action and whether plaintiff obtained the mortg ag e fore clo s u re judgme nt by committing fra ud on the court. Plaintiff disputes defe ndant’s asser

tions and argues that the trial court’s rul ing was proper and should be aff irmed. ¶ 13 “The parties to a forcible entry and de t ai n er ac t ion, like other civil litigants, m ay avail themselves of a motion for summary judgme nt wher e the proce dural device is appropr iate.” First Illinois Bank & Trust v. Ga l u s ka
, 2 5 5 I ll. App. 3d 86, 90 (1993). The purpose of
summary judgme nt is not t o try

a question of fac t, but to determine if one exis ts. Adams v. Northern Illinois Gas Co.
, 211 I ll. 2d 32, 42-43 (2004). Summary judgme nt s h o u l d be
g rante d only wher e the pleading s, depositions, admissions, and aff idavits on file, when viewed in the light most favor able to the nonmoving party , s h o w t h at there is no g enuine issue as to a

ny materia l f

act and that the moving party is clear ly entitled to a judg ment as a matter of law. 735 I L CS 5 / 2 -1 0 0 5 (c ) (West 2010); Adams
, 211 I ll. 2d at 43. Summary judgme nt should not be g rante d if the materia l fac ts are in dispute or if the materia l fac ts are not in dispute but rea sonable persons might dra w diffe rent infe renc es fr om the undisputed fac ts. Ada ms , 2 1 1 I ll. 2d at 43. Although summary judgme nt is to be encour ag ed as an expeditious manner of disposing of a lawsuit, it is a drastic measure and should be allowed only wher e the rig ht of the moving party is clea r and fre e from doubt. Adams
, 211 I ll. 2d at 43. In appea ls from sum mary judgme nt ruling s, the s tandar d of review is de novo

. Adams
, 211 I ll. 2d at 43. ¶ 14 The purpose of the For cible Entry and Detaine r Act (Ac t) is to provide a speedy reme dy
to a llow a person who is e ntitled to the possession of cer tain rea l property

to be re stored to possession. Rosewood Corp. v. Fisher , 46 I ll. 2d 249, 251 (1970) ( per curiam ). A forcible entry and detainer action, there fore
, is a limit ed and distinct proce eding that deter mines who is entitle d to immediate possession of rea l proper ty

. Ave naim v. Lubecke
, 347 I ll. App. 3d 855, 861 (2004). Be cause forc ible entry and detainer actions are summary in nature , matters that are not g erma

ne to the issue of possession may not be raised. See Ave naim
, 347 I ll. App. 3d at 861; 735 I L CS 5/9-106 (West 2010) (except as otherwise provided, matters not

-4-g erma ne to the issue of possession may not be introduced into a forc ible entry and detainer action by joinder, counter claim or otherwise)

. Thus, “the only fac tual questions which need be answere d in such a proce eding are which party is entitled to immedia t e p o s s es s i o n and whether a defe nse which is g erma ne to the distinctive purpose of the action defe ats plaintiff’s

asser ted rig ht to possession.” Galuska , 255 I ll. App. 3d at 90. ¶ 15 “Ge rmane matters” a re those that are closely

connec ted with, and rele vant to, the issue of possessio n (s ee Rosewood Corp.
, 46 I ll. 2d at 256) and g ener ally fall into one of four
cate g ories: “(1) claims asser ting a para

m o u n t ri g ht of possession; (2) claims denying the brea ch of the ag ree ment vesting possess i o n i n the plaintiff; (3) claims challeng ing the validity or enfor cea

bility of the ag ree ment o n which the plaintiff bases the rig ht to possessi o n ; o r (4) claims questioning the plaintiff’s motivation for bring ing the action.” People ex rel. Departme nt of Transport ation v. W alliser
, 258 I ll. App. 3d 782, 788 (1994). Serious title disputes, howeve r, may not be deter mined in a forc ible entry and detainer action. Ave naim , 347 I ll. App. 3d at 862. ¶ 16 In the prese nt case , at the summary judgme nt hearing in November 2011, the trial court had befor e it a judgme nt of fore closure that clea rly entitled plaintiff to possession. Although the judgme nt order was not dated or signe d, defe ndant did not dispute that the order had been
enter ed or that the copy prese nted was acc urate

. In addition, defe ndant prese nted no evidenc e to e stablish by way of a defe nse that he had any leg al interest in the proper ty or that he was rig htfully entitled to possession. Ba sed upon the evidenc e that was prese nted, it was proper for the trial court to grant summary judgme nt f or plaintiff on its forc ible entry and detainer complaint. See 735 I L CS 5/2-1005(c) (West 2010); Adams
, 211 I ll. 2d at 43. The matters

asser ted by defe ndant in opposition to plaintiff’s motion for summary judgme nt wer e not g erma ne to the issue of possession but, rathe r, constituted a collater al attack on the mortg ag e fore closure judgme nt. S ee N o rwest Mortgage, Inc. v. Ozuna
, 302 I ll. App. 3d 674, 680 (1998) ( actions for

mortg ag e for eclosure and for cible entr y and detainer wer e separ ate and distinct actions); Lady v. Montgomery W ard & Co.
, 80 I ll. App. 3d 69, 72-73 (1980) (tena nt who was named defe ndant in mor tga g e fore closure proce eding could not contest mortg ag e fore closure judgme nt in forc ible entry and detainer action beca use of application of collater al estoppel). Def

endant’ s asser

tions, there fore
, wer e proper ly reje cted by th e tria l court. See 735 I L CS 5/9-106 (West 2010); Rosewood Corp.
, 46 I ll. 2d at 255-56; Ave naim
, 347 I ll. App. 3d at 861; Galuska , 255 I ll. App. 3d at 90; W alliser , 258 I ll. App. 3d at 788. ¶ 17 For

the fore g oing r easons, we aff irm the judg ment of the c ircuit court of Wil l County

.

¶ 18 Affir

med.

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