## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Bank of Am erica, N.A. v. L and , 2013 IL App (5th) 120283

Appellate Court Caption BA NK OF AMERI CA, N.A., as Successor by Merg er to BA C Home L oans Servicing
, L P, f/k/a Country wide Home L oans S er v i cing
, LP, P laintiff-Appe llee, v. GEORGE M. LAND, EUNI CE F. LAND, and Unknown Owne rs and Nonr ecor d Claimants, Defe ndants-Appe llants.

District & N o. Fifth District
Docke t No. 5-12-0283

Rule 23 Order

filed Motion to publ ish

g rante d Opinion filed J une 24, 2013

J uly 31, 2013
J uly 31, 2013

Held (Note : Th is syl lab us

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

par ed by 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

. ) I n a mortg ag e fore closure action, the entry of summary judgme nt for plaintiff mortg ag ee, including a judgme nt for fore closure and sale and an

awa rd of attorney fee s and costs, was aff irmed, notwithstanding defe ndants’ contentions that a question of materia l f act e x isted as to the balanc e of their loan, that the denial of their last-minute pleading s was an abuse of discretion and that the fee s and costs wer e improperly awa rded, since defe ndants did not prese nt a counter aff idavit challeng ing plaintiff’s aff idavit as to the loan balanc e, there was no p re judice wher e the trial
court consi dere d arguments on defe ndants’ last-minute claims befor e reje cting them, an d d efe ndants’ objection to the awa rd of attorney fee s and costs wa s waived.

Dec ision Under Review Appea l from th e C i rc u i t Court of J ohnson County
, No. 11-CH-21; the Hon. J ames R. Will iamson, J udg e, pre siding.J udg ment Affir med.

Counsel on Appea l Alfre d E. Sanders, J r., of Sanders & Associates, of Marion, for appella nts.

L ouis J

. Manetti, J r., of C o d i l i s & Associates, P.C., of Bur r Ridge
, for appellee

.

Panel J USTI CE WEXSTTEN delivere d the judgme nt of the court, with opinion. Presiding J ustice Spomer and J ustice Stewart concur red in the judgme nt and opinion.

OP INION

¶ 1 FACTS ¶ 2 In J uly 2011, the plaintiff, Ba nk of Americ a, N.A. (B OA), co m m en ce d a fo rec losure action ag ains t the defe ndants, Geor g e and Eunice L and (the L ands), in the circ uit court of J ohnson County

. BO A’s complaint for fore closure alleg ed that in J une 2007, the L ands and

one of its prede cessor s in interest had enter ed into a mortg ag e agree ment through which the L ands had be en loane d $125,000 to f inance their purcha se of re al estate commonly known

as 4715 L ick Creek Road, Bunc ombe, I llinois

. The complaint further alleg ed that the L ands had not paid a month l y m o rt gag e installment since August 2010 and that the outstanding principal on their loa

n was a pproxi mately

$121,000. ¶ 3 In October 2011, af t er u n s u cc es s fu l l y m o v i n g t o d i s m iss BO A’s complaint for fore closure, the L ands filed an answe r with aff irmativ e defe nses and counter claims. In November

2011, BO A filed a

motion to strike the aff

irmative def

enses a nd counter claims. In Marc h 2012, the ci rc u i t court enter ed a modified order striking the L ands’ aff irmative defe nses without prejudice and dismiss ing their counter claims wi th o u t prejudice

. Three

wee ks later
, BO A fi led a motion for summ ary judgme nt pursuant to section 2-1005 of t he Code of Civil Procedur e (735 I L CS 5/2-1005 (West 2010)). The cause proce eded to a hearing on B OA’s motion for summary judgme nt in J une 2012. ¶ 4 On the day of the hearing o n BO A’ s m o t i o n for summary judgme nt, the L ands filed a
response to the motion and a motion for leave to ame n d t h eir answe r with aff irmative defe nses and counter claims. At the commence ment of the hearing, BO A objected t o the untimely filing of the L ands’ response and motion for leave to amend, and the circ uit c ourt enter tained arguments on the m atter. S u gg esting that the pl eading s should have been filed

-2-“bef ore walking in the courtroom” on the day of the schedule d hearing, the court ultimately struck the L ands’ response to BO A’s motion for summary judgme nt and denied their motion for leave to amend their an s wer with aff irmative defe nses and counter claims. The court

never theless allowed the L ands to file an a ffidavit in which they attested to having made a $ 489.80 pay

ment on the loan in September 2009. See 735 I L CS 5/2-1005(c) (We s t 2 0 1 0 ) (providing that a party in opposition to a motion for summary judgme nt “may prior to or at the time of the he aringon the motion file countera ffidavits”)

. ¶ 5 In support o f i t s m o t i o n fo r s u m m ary judgme nt, BO A submitt ed an aff idavit from J ennife r L y

nn Cherks, an assistant vice president of BO A. The aff idavi t i n cl u ded a rec ord of all pay ments that the L ands had made on the afor ementioned mortg ag e and stated the total “amount of the d ef

au l t ” as of Dec ember 23, 2011. In response , the L ands objected to the admission of Cherks’ aff

idavit, arguing, inter alia
, that it included information that prec eded BO A’s ac quisiti on of the loan. ¶ 6 At the conc lusion of t he hearing
, the circuit court gra nted BOA’s mot ion for summ ary judgme nt. The court subsequently entered a written judgme nt for forec losure and sale and

awa rded BO A $3,654 in attorney fee s and costs. The judgme nt included an express written finding that it was a final and appea lable order and that there was “no just cause for delay ing the enf orce ment of [t he] judgment or a ppeal ther efrom.” See I ll. S. C t. R. 304(a) (e ff. F eb. 26, 2010). The L ands subs equently filed a notice of a ppeal, whic h noted that it was timely filed “pur suant to Supreme Court Rule[s] 303 and 304.”

¶ 7 DI SCUS SI ON ¶ 8 On appea l, the L ands argue that the circ uit court err ed in (1) g ranting BO A’s motion for
summary judgme nt, (2) stri k i n g t h eir response to the m otion and denying their motion for leave to amend their answe r, and (3) awa rding BO A attorney fee s and costs. We will addre ss

eac h contention in turn.

¶ 9 BO A’s Motion for Summary J udg ment ¶ 10 Be cause summary judgme nt is a drastic means of disposing of litigation, it should only be used wher e the pleading s and other evidentiar y materia l in the rec ord, when viewed in a light most favor able to the nonmoving party , demonstrate that no g enuine issue of materia l fac t exis ts an d t h at t h e m o ving party is entitled to judgme nt as a matter of law. Sardiga v. Northern Trus t Co. , 409 I ll. App. 3d 56, 61 ( 2011). “The purpose of summary judgme nt is
not to try a question of fac t but to deter mine whether one exis ts.” Tannehill v. Costello
, 401 I ll. App. 3d 39, 42 (2010). We revie w the circ uit c ourt’s g ranting of summary judgme nt de

novo

. Id. at 41. ¶ 11 The L ands maintain that Cherks’ aff idavit was insufficient to support BO A’s motion for
summary judgme nt. Noting that other entities had assumed their mortg ag e prior to BO A, the L ands sug g est t h at Cherks’ purported testimony “as to rec ords kept by another company ” would be inadmissible hear say if offe red at t ri al

. The L ands thus sug g est that Cherks’ aff idavit did not sufficie ntly demonstrate that BO A was entitled to judgment as a matter of law. See Skipper Marine Electronics, Inc. v. United Parcel Servic e, Inc.
, 2 1 0 I ll. App. 3d

-3-231, 236 (19 9 1 ) (“An aff idavit in support of a motion for summ ary judgme nt is actua lly a substitut e for t es t i m o n y taken in open court and should meet the same require ments as competent testimony .”); Loveland v. City of Lewistow n , 84 I ll. App. 3d 190, 192-93 (1980) (“It is true that if the evidenc e is not admissible at trial, it woul d n o t be admissible in an aff idavit acc ompanying a

motion for summary

judgme nt.”). We disagree

. ¶ 12 I llinois Supreme Court Rule 236, which codifies the bus iness-re cords ex ception to the hear say rule, provide s as follows: “Any writing or record, whether in the form of any entry in a book or ot herw ise, made

as a memorandum or rec ord of any act, transac tion, occur renc e, o r event, shall be admissible as evidenc e of the act, transac tion, occur renc e, or event, if made in the regular

course of any b u s i n es s , an d i f i t was the regular course of the bus iness to make such a memorandum or rec ord at the ti me of such an act, transac tion, occur renc e, or event or within a rea sonable time there afte r. All other circ umstances of the making of the writing

or rec ord, including lack of persona l knowledg e by the entra nt or maker
, may be shown
to aff ect its weight, but shall not aff ect its admissibili ty

. The term ‘business,’ as used in this rule, includes business, profe ssion, occupation, and calling of ever y kind.” I ll. S. Ct. R. 236(a) ( eff

. Aug . 1, 1992). Notably
, “Rule 23 6 ex pressly provides that lack of persona l knowledg e by the m aker may aff ect the weight of the evidenc e but not its a dmissibi lity .” In re Estate of W eiland
, 338 I ll. App. 3d 585, 601 (2003). ¶ 13 “The theory upon which entries made in the regul ar co u rs e o f b u s i n es s are

admissible as an exception to the hear say rule is that ‘since their purpose is to aid i n the proper transac tion of the business and they are useless for that pu rp o s e unless acc urate , the m otive for following a routine o f ac cu ra cy is g reat and the motive to falsify nonexis tent.’ ” Kimble v. Earle M. Jorgenson Co.
, 358 I ll. App. 3d 400, 414 (2005) (quoting Michae l H. Gra ham, Cleary and Gra

ham’s Handbook of

I llinois Evidence § 803.10, at 817 (7th ed. 1999) ).
“T hus, it makes no differ ence whether the records are those of a party or of a thi rd p er s o n authorized by the business to g ener ate the rec ord on the business’s behalf .” Id. A party may there fo re est ablish a foundation for admitting business rec ords through the testimony of a

rec ords custodian or “anothe r person familiar with the business and its mode of operation.” In re Estate of W

eiland
, 338 I ll. App. 3 d at 6 00. The admission of business rec ords is revie wed f

or an a buse of discr etion. Id. ¶ 14 Her e, in her aff idavit, Cherks attest ed t h at s h e wa s persona lly familiar with BOA ’s
proce dures for cre ating and maintaining its business re cords a nd that its recor ds perta ining to the L ands’ mortg ag e wer e “made at or ne ar the time of the occ urre nce of the matters se t forth there in by persons with persona l knowledg e of the information in the business rec ord.” She further

attested that the r ecor ds were kept in the cour se of BOA’ s regularly conducte d b u siness activities and that it was BO A’s regular prac tice to make and keep such re co rd s

. Cherks’ aff

idavit w as thus admissibl e pursua nt to Rule 236 and provided a sufficie nt ba sis
upon which to conclude that BO A was entitled to judgme nt as a m at ter of law. See Indepe ndent Trust Corp. v. Hurwick
, 35 1 I l l

. App. 3d 941, 950 (2004) (business rec ords

-4-offe red in support of motion for summary judgme nt proper ly considere d wher e aff idavits established that the rec ords wer e made in the regular c ourse of business and that it was the
regular course of business to prepa re such reco rd s ); Farm Credit Bank of St. Louis v. Biethman
, 262 I ll. App. 3d 614, 622 (1994) (trust deed and p ro m issory note established prima facie case of fore closure) ; Miller v. Swanson
, 66 I ll. App. 2d 179, 185 (1965) (promissory notes, trust deed, and “proof of defa ult in the perf

ormanc e of their terms” established right of rec overy and fore clos u re ); see also 735 I L CS 5/15-1506(a) (2) (West 2010) (“[W] here all the alleg ations of fac t in the complaint have been proved by verific ation of the complaint or af

fi d avit, the court upon motion supported by an aff idavit stating the
amount which is due the mortg ag ee, shall enter a judgme nt of fore closure as reque sted in the complaint.”). ¶ 15 The L ands also argue that g ranting BO A’s motion for summary judgme nt was improper beca use there rema ins a question of materia l fa ct as to the balanc e of their loan, which Cherks’ aff

idavit stated was $139,620.95, as of Dec ember 23, 2011. Noting that in 2009 and 20 1 0
, t h ey m ade a series of $489.80 pay ments pursuant to a loan-modifica tion agree ment with BO A, the L ands maintain that the modified pay ments wer e not timely applied to the principal of their lo an and that the acc rued interest on the loan was thus improperly calc ulated. They further sug g est that the private mortg ag e insurance (PMI ) on the loan might have somehow “ser

ved to reduc e” the total amount owed. At the hearing on BO A’s motion for summary judgme nt, these claims wer e addre ssed, and the circ uit court implicitl y reje cted them. ¶ 16 The loan-modification agree ment stated that the L ands’ $489.80 pay ments would be held “in a non-intere st bearing acc ount until they total an amount that is enough to pay [the] oldest delinquent monthly paym en t o n [t he] loan in full.” At the hearing on BO A’s motion for
summary judgme nt, the L ands complained that whe n t h ei r modified pay ments totaled a de linquent pay

ment amount, the pay

ments had not been immediately applied to the principal, noting that it took 19 day s in one instance and 15 day s in another

. As BO A notes, howeve r, the modification agree ment did not “plac e a timeline on when [t he lende r] ne eded to a pply the pay ments from t h e s u s pense acc ount,” and in all instances, the pay ments wer e applied
to the loan as agree d. In the absenc e of a specific timeline, a rea sonable time is implied ( The Prime Group, Inc. v. Northern Trust Co.
, 215 I ll. App. 3d 1065, 1070 (1991))
, and in any event, “fa cts contained in a n aff idavit in support of a motion for summary judgme nt which

are not contra dicted by counter aff idavit are admitted and must be taken as true for purposes of the motion” (

Pu r t i ll v. Hess
, 111 I ll. 2d 229, 241 (1986); see also Bloomingdale State Bank v. W

oodland Sales Co.
, 186 I ll. App. 3d 227, 234 (1989) (def en d ant’s counter claim
proper ly dismiss ed wher e supporting aff idavit did not c ontain “new evidenc e or fa cts” and “only purported to state t hat t he [ b]ank [had] brea ched the standard of car e of the i ndustry based on the other fa cts which we re pr esente d befor e the c ourt”))

. ¶ 17 Her e, th e L an d s d i d n o t s ub m i t a co untera ffidavit contra dicting BO A’s af fidavit
reg arding t h e balanc e of the loan, and under the circ umstances, the circ uit court rightfully relied on BO A’s calc ulations when enter ing summary judgme nt. See In re Ma r r i a g e of Palacios
, 275 I ll. App. 3d 561, 568 (1995) (“The mere sug g estion that a g enuine i s s u e of materia l fac t exis ts without supporting documentatio n does not cre ate an issue of m ater ial

-5-fac t prec luding summary judgme nt.”). Wit h respe ct to the L ands’ claim that the PMI might

have somehow reduc ed the balanc e of their loan, we agree with BO A’s assessment that this
argument amounts to theore tical speculation that the L ands have no standing to make. “PMI protec ts the mortg ag e lender in the event the mortg ag e borrowe r defa ults” ( Perez v. Citi corp Mortgage, Inc.
, 301 I ll. App. 3d 413, 415 (1998))
, and a third party cannot claim rights under

a contra ct unless “the contra ct was enter ed into for the party ’s direc t benef it” ( Alaniz v. Schal Associates , 175 I ll. App. 3d 310, 312 (1988)). ¶ 18 Her e, the L ands’ mortga g e agr eeme nt require d them to pay the pre miums for the P MI
, but the agree ment specific ally stated that they wer e “not a party” to the insurance

. The L ands there fore lack standing to raise a claim with respe ct to the PMI

. We als o note that at the hearing on BO A’s motion for summary judgme nt, BO A maintained that it could not even “make a cla im on [ the] P MI until there [was] actua lly a [j] udgment for [f]oreclosureand a sale [of the prope rty].”

¶ 19 The L ands’ L ast-Minute Pleading s ¶ 20 As noted above, on the day of the hearing on BO A’s motion for summary judgme nt, the L ands filed a response to the motion and a motion for leave to amend their answe r with aff irmative defe nses and counter claims. Suggesting that the pleading s wer e untimely brought, the circ uit court struck the former and denied the latter. The L ands assert that the circ uit court abused its discre tion in thi s reg ard. We disagree

. ¶ 21 The right to amend pleading s is not absolute or unlimit ed, and the circ uit court’s de cision
to g rant or deny that right will not be disturbed absent an abuse of discretion. Resolution Trust Corp. v. Holtzman
, 248 I ll. App. 3d 105, 110 (1993). When deciding whether to allow

a party to amend its pleading s, the circ uit court can consider the timeliness of the reque st, the party ’s previous opportunities to asser t its claims, and the ultimate eff icac y of the claims. Id.
at 111. “In deter

mining whether the court’s discretion has been abused, the centr al conce rn is whether the court’s decision further s the ends of justice.” Shaifer v. Folino
, 272 I ll. App. 3d 709, 720 (1995). Whether to allow a party to file a late response to a motion for summary judgme nt is also a matter within the ci rc u i t court’s discretion. Premier Electrical Construction Co. v. Morse /Diesel, Inc

. , 257 I ll. App. 3d 445, 454 (1993). ¶ 22 Her e, the L ands filed their answe r with aff irmative defe n s es an d co u n t er claims in October 2011, and their alleg ed defe nses and counter claims sou n d ed in fra ud, brea ch of
contra ct, and lack o f s t an d i n g

. In November 2011, BO A filed a motion to strike the defe ndant’s aff

irmat i v e d ef

enses and counter claims, maintaining that they wer e either inapplicable or insufficiently pled. In J anuar y 2012, the circ uit court enter ed an order striking the L ands’ a ffirmative defe nses with prejudice and dismiss ing their counte rcla ims without prejudice . In Marc h 2012, on the L ands’ motion, the circ uit c ourt enter ed a modified order striking the aff

irmative defe nses without prejudice and dismiss ing the counter claims without prejudice . Threewee ks later, B OA filed its motion for summary judgme nt. ¶ 23 I n J u n e 2012, on the day of the hearing on BO A’s motion for summary judgmen t , t h e L ands tender ed their motion for leave to amend their answe r with aff irmative defe nses and
counter claims. The motion for leave sug gested that BO A lacke d standing to bring its

-6-forf eiture action and that the L ands had been “misled” with respe ct to the application of their modified loan pay

ments. Along with their motion for leave to amend, the L ands also filed their response t o BO A’s mot ion for summ ary jud gm en t

. T he L ands’ response alleg ed that Cherks’ aff

idavit was insufficient to support BO A’s motion for summary judgme nt and that the PMI pay

ments an d untimely application of their modified loan pay ments raised a question of m ater ial fac t as t o the balance of the loan. The response contained an affidavit in which the L ands attested to having made a $489.80 pay ment on the loan in September 2009. ¶ 24 The circ uit court has the discretion to manag e its docket to ensure that there is no undue delay in the resolution of the proce eding s befor e it ( Scentura Creations, Inc. v. Long
, 325 I ll. App. 3d 62, 73 (2001))
, and here
, the circ uit court did not abuse its discretion in denying the L ands’ motion for leave to amend their answe r and striking their response to BO A’s motion for summary judgme nt. The L ands’ contention th at BO A l acked standing was previously resolved ag ainst them when the circ uit court denied their mo ti o n to dismiss BO A’s complaint for fo reclosure upon proof that BO A had assumed the L ands’ mortga g e as a holder in due

course

. The L ands’ asser

tion that they wer e somehow “misled” was a mere conclusion, and their motion for leave to amend did not ref ere nce or reiter ate the alleg ations of fra ud and brea ch of contract t h at wer e alleg ed in their previously dismiss ed answe r to BO A’s complain t

. M o reove r, the L ands did not submit a proposed amende d answe r. “Where the party seeking to amend does not attach a p roposed amende d pleading to its motion or otherwise specify t h e n ew alleg ations that it would include, a trial court has no basis on which to c onsider whether the amendment would cure the defe cts in the curr ent pleading ,” which is alway s a “primar y” fac tor to consider. Hytel Group, Inc. v. Butler
, 405 I ll. App. 3d 113, 128 (2010). Although the circ uit court struck the L ands’ response to BO A’s motion for
summary judgme nt, the L ands wer e allowed to file their supporting aff idavit, and the court enter tained arguments on the und er lying claims befor e reje cting them. The court thus consid er ed the ultimate eff icac y of the claims, notwithstanding their untimeliness and the L ands’ previous opportunities to assert them. We thus a g ree with B OA’s asser tion that the circ uit court “re viewed ever y thing nece ssary” befor e deter mining that BO A was entitled to judgme nt as a matter of law. We further agree that t h e ci rc u i t co u rt did not abuse its discretion with respe ct t o the L ands’ last-minute pleading s and that t here was no resulting prejudice

. See Morse/Diese l, Inc.
, 257 I ll. App. 3d at 452-56 (conc luding that the circ uit
court did not abuse its discretion in denying plaintiff’s reque sts to file untimely response to defe ndant’s motion for summary judgme nt wher e plaintiff was permitted to prese nt oral
arguments at the hearing on defe ndant’s motion and the court’s decision was not “unfa ir or unjust” under the circ umstances) ; Holtzman
, 248 I ll. App. 3d at 111, 113 (conc luding that the circ uit court did not abuse its discretion in denying defe ndants’ untimely reque st for leave
to file amende d defe nses and counter claim wher e the court “conside red the ultimate eff icac y of defe ndants’ claims and found t h at t h e tender ed aff irmative defe nses did not advanc e a cognizable leg al theory

which would abate the for eclosure ”).

¶ 25 Attorney Fe es ¶ 26 The L ands lastly argue that the circ uit court improperly awa rded BO A attorney fee s and

-7-costs. BO A counter s that the L ands’ “argument about attorney fee s was not raised at the trial

court leve l” and should thus be “disre g arde d.” B OA fur ther maintains that the ar gument is without merit. ¶ 27 I

n its complaint for fore closure, BO A’s reque st for relief included attorney fee s and cost s , “if soug ht.” In its motion for summary judgme nt, BO A specific ally reque sted that the circ uit
court enter a judgme nt for fore closure and sale. At the conclusion of the hearing on BO A’s motion for summary judgme nt, BO A’s attorney tender ed a draf t or der that the circ uit court adopted and enter ed as its written judgme nt or der for fore closure and sale. BO A’s attorney also submitt ed a cer

tificate of prove- up o f attorney fee s and costs, which listed itemiz ed
expenses t o t al i n g $3,654. In its written judgme nt order
, the circ uit court ref ere nced the

cer tificate of prove- up and g rante d BO A the re quested a war d. The c ourt’s orde r noted that pursuant to the terms of the L ands’ mortg ag e agree ment, BO A was entitled to both attorney fee s and for eclosure costs. The judgment order for f orec losure and sale was filed the same day as the hearing. As indicated, the L ands challeng e the circ uit court’s judgme nt awa rding BO A attorney fee s and costs for the first time on appea l. They do not contest that BO A was entitled to rec over its attorney fee s and costs, howeve r, nor do they claim that the fee s wer e

unrea sonable. ¶ 28 To prese rve an alleg ed error for p u rp o s es o f appellate revie w, a party must raise a n objection in the circ uit court, or the issue is dee med waive d on appea l. LaSalle Bank, N.A.

v. C/HCA Dev elopment Corp.
, 384 I ll. App. 3d 806, 826 (2008). The L ands asser t that their failure to obje ct to the attorney fee s awa rd in the prese nt c ase should be excused, howeve r, beca use they wer e not serve d with proper notice that t h e award was being soug ht and
g rante d. In support of their arg ument, the L ands cite First J udicial Circuit Court Rule 1.12, which states a s follows:

“ P reparat ion of

Judgme nts and Orders Unless the court direc ts otherwise, whene ver a written order or judgme nt is require d, the attorney for the preva iling party s h al l p ro mptly prepa re and prese nt a draf

t to the court, with proof of service on opposing counsel

. T h e draf t tender ed may be enter ed forthwith unless objection is made w ithin five workingday s after serviceof the dra ft.” 1st J udicial Cir. Ct. R. 1.12 (S ept. 1, 2010). ¶ 29 R el at ed l y , I l l inois Supreme Court Rule 272, which was adopted to resolve i s s u es reg arding the timeliness of an ap p ea l b y re m oving “any doubt” as to the date that a final judgme nt was enter ed ( Stoermer v. Edgar
, 104 I ll. 2d 287, 293 (1984)) , states, in pertinent part: “I f at the time of announcingfinal judg ment the judg e re quires the submission of a form of written judgme nt to be signe d by the judge or if a circ uit c ourt rule require s the
preva iling party to submit a draf t order
, the cler

k shall make a notation to that eff ect and the j udg ment become s final onl y when the signe d judgme nt is fi l ed

. ” I ll. S. Ct. R. 272 (ef f. Nov. 1, 1990). ¶ 30 Her e, the rec ord indicates that BO A’s attorney submitt ed h e r c e r ti f ic a te o f p r ove-up a long with BO A’s dra ft o rd er of the judgme nt for fore closure and sale in open court at the conclusion of the hearing on BO A’s motion for summary judgme nt. O n appea l, B OA does

-8-not dispute that the L ands wer e not persona lly serve d with c opies of these documents prior

to their filing. Noting that circ uit court rule 1.12 require s proof of service “[u] nless the court direc ts otherwise” (1st J udicial Cir. Ct. R. 1.12 (Sept. 1, 2010)), howeve r, BO A argues that the circ uit court “dire cted a proce dure other than the one contemplated by the local rule.” We
agree , and we note that the rule ’s direc tive that the prevailing party “promptly

prepa re a nd
prese nt a draf

t to the court” seeming ly

envisions a per iod of time that is nonexis tent wher e

a draf t is tender ed instanter
, as was done in the prese nt case

. See Morgan v. Departme nt of Financial & Professional Regulation
, 388 I ll. App. 3d 633, 673 (2009) (noting that the word “promptly” has “bee n define d as ‘without appre ciable delay ’ ” (quoting Barry v. Barchi
, 443 U.S. 55, 66 (1979)) and that “ ‘[ t] o do somethi n g “p romptly” is to do it without delay and with rea sonable speed’ ” (quoting Bla ck’s L aw Dictionary 1214 (6th ed. 1990))) ; In re Estate ofDavison
, 21 I ll. App. 3d 1043, 1044 (1974) (noting that the word “ instanter ” means “ ‘at
once, or immediately ’ ” (quoting Hamilton v. People
, 163 I ll. App. 541, 544 (1911)) ). We thus agree with BO A’s intimation that the L ands are unable to establish that circ uit court rule 1.12 was violated in the pr esent c ase. ¶ 31 “Courts in I llinois have hel d t h at a party waives his right to a hearing on attorney fee s wher e he did not reque st a hearing befor e the trial court and is the reby left with the judge ’s ruling on the basis of the fee petition and aff idavits alone.” In re Marriage of Jones
, 187 I ll. App. 3d 206, 231 (1989). Her e, in light of their mortg ag e agree ment and BO A’s complaint for forec losure, the L ands were o n n otice that the circuit court mi g ht awa rd BOA attorney fee s and costs as part o f i t s fi n al judgme nt, but they did not object. That alone supports a finding that the L ands’ instant objection has been waived. See Coldwell Banke r Have ns, Inc.

v. Renfro
, 288 I ll. App. 3d 442, 448 (1997) (holding that wher e defe ndants reque sted attorney fee s in their counter claim’s prayer for relief and plai n t i ff d i d n ot object to the reque st, plaintiff waived objection for p u rp oses of appea l). The L ands wer e further awa re that pursuant to Supreme Court Rule 272, they could not perf ect an appea l until the circ uit court’s

wr i t t en judgme nt for fore closure and sale was signe d and filed. See I ll. S. Ct. R. 272 (e ff

. Nov. 1, 1990). L astly
, as BO A observe s, the L ands knew that by local rule, they had five day s to revie w and ch alleng e the judgme nt order while the circ uit court still reta ined j u ri s diction over the matter. See 1st Judicial Cir. Ct. R. 1.12 (Sept. 1, 2010). The L ands complain beca

use they wer e not pers o n all y serve d with the judgme nt order
, but it was prese nted in their prese nce in open court and was filed without objec t i on. Under the circ umstances, we conclude that at the very least, t he L ands had constructive notice of the order ’s contents (see La Salle National Bank v. Dubin Residential Communities Corp.
, 337 I ll. App. 3d 345, 35 2 (2 0 0 3 ) (“Constructive notice is define d as ‘[n] otice arising by presumption of law from the exis tence of fac ts and circ umstances that a party had a duty to t ak e n o t i ce o f ***; notice presumed by law to have been acquir ed by a person and thus imputed to that person.’ ” (quoting Bla ck’s L aw Dictionary 1088 (7th ed. 1999))) ), and we infer that the L ands waived their right to challeng e BO A’s claimed attorney fee s (see Hahn

v. A.G. Bec ker Paribas, Inc.
, 164 I ll. App. 3d 660, 670 (1987) (“When a party intentionally relinquishes a known right, either expressly
, as by objection, or by conduct such as silence, incons i s t ent with an intent to enfor ce that right, waiver may be inferr ed.”) ; see also Corporati on of

Harpers Ferry v. Taylor
, 711 S.E.2d 571, 575 (W. Va. 2011) (“ ‘Even though

-9-a party ag ainst whom costs and attorney ’s fee s are to be assessed has a due proce ss right to

notice and a

n opportunity to be heard thereon prior to their i mpositi on, it is imperative f or

a party to actively enfor ce his/her notice and hearing rights instead of sitti ng on his/her laure ls and eff

ectively waiving the proce ss to which he/she is due.’ ” (quoting In re John T.
, 695 S.E.2d 868, 878 (W. Va. 2010) (Da vis, C.J ., concur

ring ))) ). ¶ 32 The circ uit court “has broad discretionar y power s in awa

rdi n g at t o rn ey fe es an d its decision will not be reve rsed on appea l unle ss the court abused its discretion.” In re Estate of Callahan
, 144 I ll. 2d 32, 43-44 (1991). Her e, the L ands have waived their objection to the circ uit court’s judgme nt awa rding BO A atto rn ey fe es and costs, and the court did not otherwise abuse its discretion in deter mining that BO A was entitled to the same. See Sterling Homes, Ltd. v. Raspberry
, 325 I ll. App. 3d 703, 708 (2001) (circ uit court proper ly awa rded attorney fee s on submitt ed af

fidavit wher e the f

ees w ere rea sonable a

nd war rante d).

¶ 33 CONCLUSI ON ¶ 34 For the fore g oing rea sons, the judgme nt of the circ uit court of J ohnson County is hereby aff irmed.

¶ 35 Affir

med.

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