2014 IL App (1st) 131252

No. 1-13-1252

Fifth Division

September 30, 2014

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

BANK OF AMERICA, N.A.,

Plaintiff-Appellee,

v.

OLUFEMI A. ADEYIGA and 

BOLA E. ADEYIGA,

Defendants-Appellants.

)

)

)

)

)

)

)

)

)

)

)

Appeal from the Circuit Court of Cook County.

No. 11 CH 2979

The Honorable Mathias Delort,

Judge presiding.

______________________________________________________________________________

 JUSTICE GORDON delivered the judgment of the court, with opinion.

 Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.

OPINION

¶ 1 This is a case of first impression.

¶ 2 On January 24, 2011, BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans 

Servicing, LP (BAC) brought this mortgage foreclosure action against defendants Olufemi A. 

Adeyiga (Olufemi) and Bola E. Adeyiga (Bola), his wife. Bank of America, N.A. (Bank), was 

later substituted as plaintiff after it merged with BAC and became its successor. 

¶ 3 On December 8, 2011, the trial court denied Olufemi and Bola’s motion to dismiss and 

granted the Bank’s motions: (1) for summary judgment against Olufemi; (2) for default against 
No. 1-13-1252

2

Bola; and (3) for judgment of foreclosure pursuant to the Illinois Mortgage Foreclosure Law (the 

Foreclosure Law). (735 ILCS 5/15-1101 et seq. (West 2010)).

¶ 4 On this direct appeal, Olufemi and Bola raise, essentially, three issues: (1) whether the 

Bank has standing; (2) whether the Bank committed fraud when it concealed that BAC did not 

have standing when it filed its complaint; and (3) whether the trial court erred in denying 

Olufemi and Bola’s motion to dismiss based upon the Bank’s failure to send a “grace period 

notice” as required by section 15-1502.5 of the Foreclosure Law, which is commonly known as 

the Homeowner Protection Act.

1 735 ILCS 5/15–1502.5 (West 2010).

¶ 5 Since there is no evidence in the record that the Bank sent a “grace period notice” prior to 

filing its complaint, which is required before any foreclosure action may be instituted under the 

Foreclosure Law, by sections 15-1502.5(b) and (c) of the Foreclosure Law (735 ILCS 5/15-

1502.5(b), (c) (West 2010)), we remand to the trial court to determine in an evidentiary hearing 

whether the grace period notice was sent. If the trial court finds that no grace period notice was 

sent, then we find that: (1) the trial court abused its discretion in confirming the judicial sale and 

all subsequent orders; (2) and in that event, the judicial sale must be vacated in accordance with 

section 15-1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 2010)); and (3) the 

case must be dismissed. If the trial court finds that a grace period notice was sent, but plaintiff 

did not wait 30 days to file its lawsuit, we find that: (1) the trial court abused its discretion in 

confirming the judicial sale and all subsequent orders; (2) and in that event, the judicial sale must 

be vacated in accordance with section 15-1508(b) of the Foreclosure Law (735 ILCS 5/15-

1508(b) (West 2010)); and (3) the case must be dismissed. If the trial court finds that a grace 

 1 Section 15-1502.2 of the Foreclosure Law is a temporary provision that is scheduled to 

expire on July 1, 2016. 735 ILCS 5/15-1502.5(k) (West 2012).
No. 1-13-1252

3

period notice was sent and plaintiff waited 30 days before filing suit, then the judgment of the 

trial court is affirmed.

¶ 6 BACKGROUND

¶ 7 I. The Complaint

¶ 8 Olufemi and Bola are the mortgagors of an owner-occupied, single-family, residential 

property located in Lansing, Illinois. The mortgage was executed on February 2, 2007. The 

mortgage defines: defendants as the borrowers, Aegis Wholesale Corporation (Aegis) as the 

lender, and “Mortgage Electronic Registration Systems” (MERS) as the mortgagee. The note 

secured by the mortgage provided that the lender could transfer the note and that anyone who 

received the note by transfer was entitled to receive payments under the note. The mortgage and 

promissory note were attached to the complaint. 

¶ 9 On January 24, 2011, BAC filed a verified complaint to foreclose the mortgage, alleging 

that Olufemi, Bola, and “unknown owners and nonrecord claimants” were in default of the 

mortgage loan in the amount of $123,368.29 in unpaid principal, interest, costs, advances and 

fees. The complaint alleged that Olufemi and Bola had not paid the monthly installments of 

principal, interest, taxes, and insurance since December 1, 2009.

¶ 10 Paragraphh 3(N) of the complaint states: “Capacity in which Plaintiff brings this 

foreclosure: Plaintiff is the Mortgagee under 735 ILCS 5/15-1208 [(West 2010)].” Section 15-

1208 of the Foreclosure Law reads:

“’Mortgagee means (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). 
No. 1-13-1252

4

¶ 11 The complaint did not allege that the Bank had mailed a “grace period notice,” which is 

required before any foreclosure action may be instituted. 735 ILCS 5/15-1502.5(b),(c) (West 

2010)).

¶ 12 On November 24, 2010, the trial court appointed ProVest LLC to serve process. In an 

affidavit dated February 7, 2011, Darletha Smith, an employee of ProVest, stated that she had 

personally served Olufemi on January 26, 2011, at the subject property, and had served Bola by

substitute service on the same date, by giving Olufemi a copy of the complaint and summons at 

the subject property.

¶ 13 II. Defendants’ Pro se Filings

¶ 14 On February 8, 2011, Olufemi filed a pro se appearance and verified answer. In his 

answer, Olufemi listed under “other affirmative matter,” that: “[Paragraph] 3(N) - The note was 

not endorsed and no assignment or allonge was attached or recorded.”

¶ 15 On March 18, 2011, Olufemi filed three pro se discovery motions: (1) a request to 

produce pursuant to Illinois Supreme Court Rule 214 (eff. Jan. 1, 1996); (2) Illinois Supreme 

Court Rule 213 written interrogatories; and (3) a request to admit pursuant to Illinois Supreme 

Court Rule 216 (eff. Jan. 1, 2011). On that same date, Olufemi filed a pro se motion for leave to 

file instanter: (1) an amended appearance with a jury demand; (2) an amended answer to the 

Bank’s complaint; and (3) an affirmative defense and counterclaim. Also on March 18, 2011, 

Olufemi filed an amended appearance with a jury demand, an amended answer, an affirmative 

defense and counterclaim, and a motion for leave to file a change of address instanter.

¶ 16 On March 25, 2011, the trial court ordered that: (1) Olufemi’s motion to file an amended 

answer, affirmative defenses, jury demand and counterclaim was denied without prejudice,

finding they were not appropriate; (2) all discovery would be stayed pending further review of 
No. 1-13-1252

5

the court and that the court would consider opening discovery “when and if Olufemi 

meaningfully participates” in the Cook County mediation program; (3) the request for production 

of documents, interrogatories and request to admit facts were stricken; and (4) both Olufemi and 

Bola forfeited their right to bring a motion to quash service by virtue of Olufemi filing an answer 

and substantive motion. 

¶ 17 In support of its order, the trial court noted that, although Olufemi should be given 

“liberal authority” to amend his answer and file new affirmative defenses and counterclaims, 

“the court is unwilling to do so at this time” because his proposed amended pleadings were 

prepared in such a haphazard way that they would “unduly burden the plaintiff in any attempt to 

meaningfully respond to them.” It then cited several aspects of the documents, calling them 

“inexplicable,” “confusing” and “bizarre.” The trial court stated that it was clear that the 

documents had been prepared by someone unlicensed to practice law, and that Olufemi himself 

did not understand their nature or content. 

¶ 18 III. The Bank’s Motion for Summary Judgment 

¶ 19 On September 22, 2011, BAC filed a motion to substitute the Bank, successor by merger 

to BAC, as plaintiff. The motion claimed that, subsequent to BAC filing the complaint on 

January 24, 2011, BAC merged with the Bank. The trial court granted the motion on December 

8, 2011. 

¶ 20 Also on September 22, 2011, the Bank filed a motion for summary judgment pursuant to 

section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). In support of 

its motion, the Bank asserted in an affidavit that Olufemi’s general denials and affirmative 

defenses, as pleaded, “fail to sufficiently set forth facts and supporting documentation which 

tend to indicate that a genuine issue of material fact exists.” Further, the Bank asserted that 
No. 1-13-1252

6

Olufemi failed to submit any counter affidavit refuting the facts contained in its affidavit in 

support of its motion for summary judgment. The Bank requested: (1) an entry of an order of 

summary judgment; and (2) the entry of a judgment of foreclosure and sale.

¶ 21 Attached to the Bank’s motion for summary judgment was: (1) the affidavit of Acee 

Fuller, Jr.; and (2) a certificate of prove-up of foreclosure fees and costs.

¶ 22 Fuller’s affidavit stated that, according to the Bank’s records for “the Loan,” Olufemi and 

Bola “defaulted by failing to make required payments” and that, as of July 1, 2011, the amount in 

default was $142,995.92. The itemized sums of money included: the principal balance of 

$132,638.29; interest due through July 1, 2011, of $13,136.30; escrow advance total of 

$6,532.60; and additional fees and credits. Attached to Fuller’s affidavit was a printout of the 

business records regarding the loan that were maintained electronically by the Bank. 

¶ 23 The attached certificate of prove-up of foreclosure fees and costs listed costs and 

expenses incurred by the Bank, including filing fees, service of summons, recording costs, title 

charges and foreclosure attorney fees, totaling $2,225, which the Bank stated “ought to be 

assessed as costs and expenses as provided in the subject mortgage and note.” 

¶ 24 IV. Defendants’ Response to the Bank’s Motion for Summary Judgment

¶ 25 Olufemi and Bola retained attorneys from the Illinois Foreclosure Defense, LLC, who 

filed, on November 9, 2011, a response in opposition to the Bank’s motion for summary 

judgment, and a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure 

(Code) (735 ILCS 5/2-619 (West 2010)) that included the same subject matter.

¶ 26 In their response, defendants argued that the motion for summary judgment should be 

denied because there were questions of material fact that could not be answered by the pleading 

and affidavits submitted, including whether the mortgagee is authorized to sue for foreclosure. 
No. 1-13-1252

7

Specifically, defendants argued that the Bank had not met its burden of proof to show that it had 

mailed, a “grace period notice” prior to the filing of the complaint, which is required by sections 

15-1502.5(b) and (c) of the Foreclosure Law. (735 ILCS 5/15-1502.5(b), (c) (West 2010)).

Attached to response were the affidavits of Olufemi and Bola. Each stated that they signed the 

note and mortgage provided by Aegis in February 2007, and that Aegis was the holder of the 

note and mortgage on the property at that time. Both Olufemi and Bola stated that they did not 

receive a notice of default or a grace period notice.

¶ 27 Defendant’s response also contested plaintiff’s allegation that it is the holder of the note 

and the mortgagee under section 15-1208 of the Foreclosure Law. 735 ILCS 5/15-1508 (West 

2010), arguing that the original plaintiff, BAC, was not the mortgagee on January 24, 2011, 

because the assignment of mortgage to BAC was not recorded with the Cook County Register of 

Deeds until January 31, 2011, and therefore it did not own the note or mortgage attached to its 

complaint. Defendants argued that, as a result, plaintiff lacked standing to bring the foreclosure 

action because plaintiff did not establish that on the day the mortgage was filed it was the 

mortgagee under section 15-1208 of the Foreclosure Law (735 ILCS 5/15-1208 (West 2010)), 

which defines a mortgagee as a “holder of an indebtedness or obligee of a non-monetary 

obligation secured by a mortgage” or “any person claiming through a mortgagee as successor,” 

because it did not produce any assignment of mortgage on the date of filing. 

¶ 28 Also, defendants contested plaintiff’s allegation that it presented its motion for summary 

judgment to the court with an affidavit of mortgage in accordance with Illinois Supreme Court 

Rule 191(a). Ill. S. Ct. R. 191(a) (eff. Jul. 1, 2002). Defendants argued that Fuller’s affidavit does 

not meet the requirements of Rule 191(a) because the affiant does not attest to personal 

knowledge of the facts he recites, but rather states: “by persons with personal knowledge of the 
No. 1-13-1252

8

information in the business record, or form information transmitted by persons with personal 

knowledge.” Defendants thus concluded that the affiant’s assertions are hearsay and not based on 

personal knowledge. They further asserted that the affidavit is defective because it was notarized 

on August 16, 2011, seven months after the foreclosure complaint was filed.

¶ 29 On November 28, 2011, Olufemi and Bola’s attorneys, Illinois Foreclosure Defense, 

LLC, filed a motion to withdraw their appearance for Olufemi and Bola. On December 14, 2011, 

the trial court granted the attorneys leave to withdraw their representation. 

¶ 30 V. The Bank’s Reply to the Motion to Dismiss

¶ 31 On November 22, 2011, the Bank filed its reply, and did not deny that it failed to send the 

grace period notice. The Bank argued that since Olufemi did not raise a defense with regard to 

failure to send a grace period notice in his answer, and Bola filed no answer, they had admitted 

to receiving the grace period notice. It further argued that it was improper for Olufemi and Bola

to raise the claim that a grace period notice was not sent in a motion to dismiss, as the claim 

“merely refutes a well-plead [sic] allegation of the Complaint.”2

¶ 32 VI. The Trial Court’s Judgment on December 8, 2011

¶ 33 On December 8, 2011, the trial court: (1) denied the motion to dismiss; (2) granted 

summary judgment against Olufemi; (3) entered an order of default against Bola; and (4) entered 

a judgment of foreclosure and sale. In its order, the trial court considered defendants’ claim that

the plaintiff lacked standing and found that defendants waived the argument since Olufemi did 

not plead lack of standing as an affirmative defense in his answer.

3 The trial court also stated 

 2 There was no such written allegation in the complaint.

3 The trial court did not clarify why Olufemi’s statement in his answer was insufficient to 

raise the affirmative defense of lack of standing. Olufemi stated under “other affirmative 

matters,” that: “[Section] 3(N) - The note was not endorsed and no assignment or allonge was 

attached or recorded.” This referred to plaintiff’s statement of capacity in its complaint.
No. 1-13-1252

9

that, even if defendants did not waive the argument, they did not prove that the Bank lacked 

standing because the fact that the assignment of the mortgage had not been recorded until after 

the present case was filed was “not problematic.” 

¶ 34 In a written judgment order, the trial court responded to Olufemi and Bola’s claim in their

response to the Bank’s motion for summary judgment that the Bank did not mail the grace period 

notice required by section 15-1502.5 of the Foreclosure Law (735 ILCS 5/15-1502.5 (West 

2010)), and therefore did not meet the condition precedent for filing the present suit. 

¶ 35 In its decision making process, the trial court found that section 15-1504(c) of the 

Foreclosure Law states, that if the Bank used “substantially” the specified form complaint, set 

out in section 15-1504(a), the complaint should be construed to include 12 additional statutorily 

specified allegations, including “that any and all notices of default or election to declare the 

indebtedness due and payable or other notices required to be given have been duly and properly 

given.” (Emphasis added.) 735 ILCS 5/15-1504(a), (c), (c)(9) (West 2010) Citing U.S. Bank, 

N.A. v. Olavarria, No. 10-CH-32532 (Cir. Ct. Cook Co.), the trial court stated that the grace 

period notice required by section 15-1502.5 of the Foreclosure Law is covered by the statutory 

language “other notices required to be given,” and the notices were deemed given.

¶ 36 Section 1504(a) provides the following form complaint, which was followed by the 

original plaintiff, BAC, in its complaint: 

“(a) Form of Complaint. A foreclosure complaint may be in substantially 

the following form: 

(1) Plaintiff files this complaint to foreclose the mortgage (or other 

conveyance in the nature of a mortgage) (hereinafter called ‘mortgage’) 
No. 1-13-1252

10

hereinafter described and joins the following person as defendants: (here 

insert names of all defendants).

(2) Attached as Exhibit ‘A’ is a copy of the mortgage and as 

Exhibit ‘B’ is a copy of the note secured thereby.

(3) Information concerning mortgage:

(A) Nature of instrument: ***

(B) Date of mortgage: 

(C) Name of mortgagor: 

(D) Name of mortgagee: 

(E) Date and place of recording: 

(F) Identification of recording: ***

(G) Interest subject to the mortgage: ***

(H) Amount of original indebtedness *** :

(I) Both the legal description of the mortgaged real estate 

and the common address ***:

(J) Statement as to defaults *** :

(K) Name of present owner of the real estate: 

(L) Names of other persons who are joined as defendants 

and whose interest in or lien on the mortgaged real estate is sought 

to be terminated:

(M) Names of defendants claimed to be personally liable 

for deficiency, if any:
No. 1-13-1252

11

(N) Capacity in which plaintiff brings this foreclosure *** : 

(O) Facts in support of redemption period *** :

(P) Statement that the right of redemption has been waived 

by all owners of redemption, if applicable:

(Q) Facts in support of request for attorneys' fees and of 

costs and expenses, if applicable:

(R) Facts in support of a request for appointment of 

mortgagee in possession or for appointment of receiver, and 

identity of such receiver, if sought:

(S) Offer to mortgagor in accordance with Section 15-1402 

to accept title to the real estate in satisfaction of all indebtedness 

and obligations secured by the mortgage without judicial sale, if 

sought:

(T) Name or names of defendants whose right to possess 

the mortgaged real estate, after the confirmation of a foreclosure 

sale, is sought to be terminated and, if not elsewhere stated, the 

facts in support thereof[.]” 735 ILCS 5/1504(a) (West 2010).

Accordingly, the trial court found that the complaint was “substantially” in the form provided in 

section 1504(a) of the Foreclosure Law (735 ILCS 5/1504(a) (West 2010)), and therefore the 

complaint included the “deemed” allegation that “other notices required to be given” had been 

given, which the trial court held to include a grace period notice. Thus, the court found that 

Olufemi and Bola admitted that grace period notice was sent, because Olufemi did not address 
No. 1-13-1252

12

the grace period notice in his answer, and Bola made no answer at all. Thus, the trial court found 

that the Bank was not required to present evidence regarding the grace period notice.

¶ 37 The trial court also responded to Olufemi and Bola’s claim that the affidavit attached to 

the Bank’s motion for summary judgment did not meet the requirements of Illinois Supreme 

Court Rule 191(a) (eff. Jul. 1, 2002), because it was not made based on personal knowledge of 

the affiant. The trial court noted that the affiant stated that he had personal knowledge of the 

procedures for creating the records discussed in the affidavit, and that, considering the statements 

of the affidavit as a whole, the affidavit satisfies the business records exception to the hearsay 

rule enunciated in Champaign National Bank v. Babcock, 273 Ill. App. 3d. 292, 298 (1995). 

¶ 38 Accordingly, the trial court found that Olufemi and Bola’s arguments did not raise a 

genuine issue of material fact, and granted summary judgment in favor of the Bank. 

¶ 39 The trial court then turned to Olufemi and Bola’s motion to dismiss, stating that it was 

premised “solely” on the claim that the Bank failed to send a grace period notice as required by 

section 15-1502.5 of the Foreclosure Law. The trial court stated that, as it had previously 

observed, that Olufemi and Bola had admitted in effect that the grace period notice was sent, and 

any further argument had been waived, when the Olufemi’s answer failed to bring up the claim 

that no grace period notice was sent. Further, the trial court noted that “the time for filing a 

motion to dismiss as a responsive pleading is long passed,” because the case stood before the 

court on a fully briefed motion for summary judgment. The trial court accordingly denied 

Olufemi and Bola’s motion to dismiss.
No. 1-13-1252

13

¶ 40 V. Defendants’ Motion to Vacate

¶ 41 On March 3, 2012, the Bank sent a notice of sale to Olufemi and Bola, specifying the 

date of public auction on April 10, 2012. On March 23, 2012, the trial court granted Olufemi and 

Bola’s motion to stay the sale until April 26, 2012.

¶ 42 On March 23, 2012, by and through his new attorney Robert D. Shearer, Jr., who entered 

an appearance on that same date, Olufemi filed an emergency section 2-1301 motion to vacate

the judgment of foreclosure, the sale, the confirmation of sale, and the order for possession based 

on unclean hands, bad faith, unfair dealing and fraud upon the court. 735 ILCS 5/2-1301 (West 

2010). However, on April 6, 2012, the motion was voluntarily withdrawn and the trial court 

granted Shearer leave to file an additional appearance for Olufemi and Bola and to reply during 

the period in which the sale was stayed, ending on April 26, 2012. 

¶ 43 On April 24, 2012, Olufemi and Bola filed a motion to vacate the summary judgment, 

order of default, and the judgment of foreclosure and sale, pursuant to section 2-1301 of the 

Code of Civil Procedure (735 ILCS 5/2-1301 (West 2010)). The motion argued that the 

judgment orders must be vacated because the Bank lacked standing and therefore the trial court 

lacked subject matter jurisdiction to enter the orders. Olufemi and Bola presented three 

alternative reasons why the original plaintiff, BAC, lacked standing: (1) when Aegis was 

dissolved on August 13, 2007, by the United States Bankruptcy Court for the District of 

Delaware, its principal-agency relationship with MERS was terminated, and therefore the 

purported assignment of Aegis’ interest in the subject mortgage to BAC was void; or (2) in the 

alternative, BAC lacked standing because it did not hold title to both the promissory note and 

mortgage, nor was it a nominee of an entity that held both interests; or (3) in the alternative, the 
No. 1-13-1252

14

purported assignment of the interest in the mortgage by MERS to BAC was invalid because it 

was created by an attorney representing BAC, not an independent agent of MERS.

¶ 44 Attached to Olufemi and Bola’s motion was the affidavit of Tony Hernandez, who 

testified that he engaged in research pertaining to the present suit. Hernandez stated that during 

his research he discovered that the assignment of mortgage from MERS, as nominee for Aegis, 

to BAC, the original plaintiff, purports to have an authorized signer for MERS named William 

McAllister. He stated that there are six people named William McAllister in the state of Illinois, 

and only one had a connection with MERS, and that William McAlister is a supervising attorney 

for Codilis & Associates, P.C. (Codilis), which is counsel for the Bank. He stated that, based on 

his research and the verbiage of the assignment documents, the assignment was created by 

Codilis and signed by McAlister, “which may present a quandary for all parties as it appears that 

the foreclosing attorney has prepared evidence in favor of its defunct client BAC.” He stated that 

this might be a violation of the Code of Ethical Conduct for attorneys. The assignment was also 

attached to Olufemi and Bola’s motion. 

¶ 45 On July 31, 2012, the trial court denied Olufemi and Bola’s motion to vacate, “the court 

explaining its reasoning before a court reporter.” However, this transcript is not in the appellate

record. 

¶ 46 On August 30, 2012, Olufemi and Bola filed a motion for reconsideration of the trial 

court’s July 31, 2012, judgment order denying Olufemi and Bola’s motion to vacate the 

summary judgment and judgment of foreclosure and sale. The motion argued that the trial court 

erred in its application of existing law when it denied its motion to vacate; again raising the 

argument that the original plaintiff, BAC, lacked standing when it filed its complaint, and further 

arguing that the Bank had fraudulently concealed that fact from the court. Therefore, Olufemi 
No. 1-13-1252

15

and Bola concluded that their motion to vacate should be granted, and accordingly, the trial 

court’s entry of summary judgment and judgment of foreclosure and sale in favor of the Bank 

should be vacated. On September 21, 2012, following a hearing, the trial court denied Olufemi 

and Bola’s motion for reconsideration.

¶ 47 On October 23, 2012, the Bank filed a motion for order approving the report of sale and 

distribution. The report of sale and distribution stated that on September 10, 2012, and continued 

to October 15, 2012, the subject property was sold at public auction to the highest bidder for

cash. The Bank offered a bid of $159,543.56, and that being the highest bid, the Judicial Sales 

Corporation sold the subject property to it. The Bank also attached to its motion the certificate of 

sale signed by the Judicial Sales Corporation on October 15, 2012. 

¶ 48 On December 20, 2012, the trial court entered an order approving the report of sale and 

distribution, and confirming the sale and the order of possession. The court further ordered that 

the successful bidder, any insurers, investors and agents of the Bank “are entitled to and shall 

have possession” 60 days after the entry of the order.

¶ 49 On January 3, 2013, Olufemi and Bola filed a notice of appeal, and this direct appeal 

followed. 

¶ 50 ANALYSIS

¶ 51 On this direct appeal, Olufemi and Bola raise, essentially, three issues: (1) whether the 

Bank has standing; (2) whether the Bank committed fraud on the court when it concealed that 

BAC did not have standing when it filed its compliant; and (3) whether the trial court erred when 

it found that Olufemi and Bola admitted in effect to receiving a “grace period notice” by failing 

to deny an unstated allegation in the Bank’s complaint that such notice had been sent.
No. 1-13-1252

16

¶ 52 Since there is no evidence in the record that the Bank sent a “grace period notice” prior to 

filing its complaint, which is required before any foreclosure action may be instituted under the 

Foreclosure Law, by sections 15-1502.5(b) and (c) of the Foreclosure Law (735 ILCS 5/15-

1502.5(b), (c) (West 2010)), we remand to the trial court to determine in an evidentiary hearing 

whether the grace period notice was sent. If the trial court finds that no grace period notice was 

sent, then we find that the trial court abused its discretion in confirming the judicial sale and all 

subsequent orders, the judicial sale must be vacated in accordance with section 15-1508(b) of the 

Foreclosure Law, and the case must be dismissed. 735 ILCS 5/15-1508(b) (West 2010).

¶ 53 I. Standard of Review

¶ 54 On appeal, Olufemi and Bola ask us to reverse the trial court’s order granting the Bank’s 

motion for summary judgment and the denial of Olufemi and Bola’s motion to dismiss, filed 

pursuant to section 2-619 of the Code of Civil Procedure (Code). 735 ILCS 5/2-619 (West 2010).

The purpose of summary judgment is not to try an issue of fact, but to determine whether a 

triable issue of fact exists. Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002); Schrager v. North 

Community Bank, 328 Ill. App. 3d 696, 708 (2002). “Although a plaintiff is not required to prove 

his [or her] case at the summary judgment stage, in order to survive a motion for summary 

judgment, the nonmoving party must present a factual basis that would arguably entitle the party 

to a judgment.” Robidoux, 201 Ill. 2d at 335.

¶ 55 A trial court is permitted to grant summary judgment only “if the pleadings, depositions, 

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as 

to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 

ILCS 5/2-1005(c) (West 2010). The trial court must consider documents and exhibits filed in 

support or opposition to a motion for summary judgment in the light most favorable to the 
No. 1-13-1252

17

nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004); 

see also Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995) (a court “must 

construe [documents and exhibits] strictly against the movant and liberally in favor of the 

nonmoving party”). Summary judgment is a drastic measure and should be granted only if the 

movant's right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty 

Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). 

¶ 56 We review a trial court's decision on a motion for summary judgment de novo. Outboard 

Marine Corp., 154 Ill. 2d at 102; Hernandez v. Alexian Brothers Health System, 384 Ill. App. 3d 

510, 519 (2008). Under the de novo standard of review, the reviewing court does not need to 

defer to the trial court's judgment or reasoning. People v. Vincent, 226 Ill. 2d 1, 14 (2007). De 

novo review is completely independent of the trial court's decision. United States Steel Corp. v. 

Illinois Pollution Control Board, 384 Ill. App. 3d 457, 461 (2008). De novo consideration means 

that the reviewing court performs the same analysis that a trial judge would perform. Khan v. 

BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). 

¶ 57 “A motion to dismiss, pursuant to section 2–619 of the Code, admits the legal sufficiency 

of the plaintiffs' complaint, but asserts an affirmative defense or other matter that avoids or 

defeats the plaintiffs' claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia Technology, 

LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). When reviewing a section 2-619 

motion to dismiss, “a court must accept as true all well-pleaded facts in plaintiffs' complaint and 

all inferences that can reasonably be drawn in plaintiffs' favor.” Morr-Fitz, Inc. v. Blagojevich, 

231 Ill. 2d 474, 488 (2008). “In ruling on a motion to dismiss under section 2-619, the trial court 

may consider pleadings, depositions, and affidavits.” Raintree Homes, Inc. v. Village of Long 

Grove, 209 Ill. 2d 248, 262 (2004). We review a court’s ruling on a motion to dismiss de novo. 
No. 1-13-1252

18

Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006); Blagojevich,

231 Ill. 2d at 488. 

¶ 58 II. Standing

¶ 59 Olufemi and Bola first argue that the Bank lacked standing to file a foreclosure action, 

arguing that: (1) MERS did not have the authority to assign the mortgage to BAC because 

MERS' agency powers terminated when Aegis was dissolved in bankruptcy court on August 13, 

2007; (2) MERS never received title to the promissory note and could not assign it to BAC; (3) 

BAC did not hold the promissory note and mortgage when the foreclosure lawsuit was filed on 

January 20, 2011. In response, the Bank argues that Olufemi and Bola waived the issue since 

Olufemi did not raise it as an affirmative and Bola did not file an answer, and that, even if the 

issue was not waived, the Bank sufficiently proved that it had standing to sue.

¶ 60 A. Waiver

¶ 61 When a plaintiff lacks standing in a foreclosure action, the trial court's entry of summary 

judgment and orders of foreclosure and sale are improper as a matter of law. Bayview Loan 

Servicing, L.L.C. v. Nelson, 382 Ill. App. 3d 1184, 1188 (2008). “The doctrine of standing is 

designed to preclude persons who have no interest in a controversy from bringing suit,” and 

“assures that issues are raised only by those parties with a real interest in the outcome of the 

controversy.” Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999). “[S]tanding requires some 

injury in fact to a legally cognizable interest ***.” Glisson, 188 Ill. 2d at 221. Our Illinois 

Supreme Court has stated that the “lack of standing in a civil case is an affirmative defense, 

which will be forfeited if not raised in a timely fashion in the trial court.” Greer v. Illinois 

Housing Development Authority, 122 Ill. 2d 462, 508 (1988); People v. Kelly, 397 Ill. App. 3d 
No. 1-13-1252

19

232 (2009). As an affirmative defense, the lack of standing is the defendant's burden to plead and 

prove. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252-53 (2010).

¶ 62 In its order for Summary Judgment, the court rejected Olufemi’s argument that the Bank 

lacked standing, because he did not plead lack of standing as an affirmative defense in his 

answer, and therefore the argument was waived. On appeal, the Bank relies on the reasoning of 

the trial court, arguing that Olufemi and Bola have waived the argument that the Bank lacks 

standing. The Bank relies on Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. 

App. 3d 1, 6-7 (2010), which found that when a defendant mortgagor fails to argue a lack of 

standing before a foreclosure judgment, that argument is forfeited and the defendant is barred 

from litigating the issue later.

¶ 63 However, Olufemi did plead lack of standing as an affirmative defense in his answer. 

Because his motion for leave to file an amended answer was denied, the only answer on file is 

his original pro se answer. His pro se answer states under “other affirmative matter,” the 

following: “3(N) - The note was not endorsed and no assignment or allonge was attached or 

recorded.” Section 3(N) of the complaint, to which the answer refers, states that: “Capacity in 

which Plaintiff brings this foreclosure: Plaintiff is the Mortgagee under 735 ILCS 5/15-1208.” 

¶ 64 Section 2-603(c) of the Code provides that “pleadings shall be liberally construed with a 

view to doing substantial justice between the parties.” 735 ILCS 5/2-603(c) (West 2010). 

Construing Olufemi’s answer with the view of doing substantial justice, we find that Olufemi 

adequately pled standing in his answer such that the argument has not been waived, and we will 

address each of defendants' arguments in turn.
No. 1-13-1252

20

¶ 65 B. Dissolution of Aegis

¶ 66 Olufemi and Bola first argue that the dissolution of the original lender, Aegis, terminated 

MERS’ agency powers as to the assignment of the mortgage and consequently the assignment of 

Aegis’ interest in the mortgage to BAC was rendered void. Olufemi and Bola claim that, on 

August 13, 2007, Aegis was dissolved by the U.S. Bankruptcy Court for the District of Delaware 

pursuant to Title 11 of Chapter 11 of the United States Code, and that the principal-agency 

relationship between MERS and Aegis terminated on that day. As a result, Olufemi and Bola 

argue that MERS no longer had the agency power to assign Aegis' interest in the mortgage to 

BAC on January 20, 2011, and that the Bank does not have standing because that assignment 

was void.

¶ 67 To establish a prima facie case of foreclosure in accordance with section 15-1504, a 

plaintiff is required to introduce evidence of the mortgage and promissory note, at which time the 

burden of proof shifts to the defendant to prove any affirmative defenses. Farm Credit Bank of 

St. Louis v Biethman, 262 Ill. App. 3d 614, 622 (1994). Section 15-1504 does not require that a 

foreclosure be filed by the owner of the note and mortgage, and instead states that the legal 

holder of the indebtedness, a pledge, an agent, or a trustee may file the lawsuit. 735 ILCS 5/15-

1504(a)(3)(N) (West 2010).

¶ 68 In the instant case, the Bank met the requirements to maintain a foreclosure action 

because it filed copies of the mortgage and note attached to the complaint. In its motion for 

summary judgment, the Bank attachment an affidavit of Acee Fuller, an officer of the Bank, who 

stated that BAC holds the promissory note and that the Bank is successor by merger to BAC. The 

Bank also submitted a copy of the assignment from MERS to BAC, which was signed and 

notarized prior to the filing of the instant action.
No. 1-13-1252

21

¶ 69 Once the Bank filed its motion for summary judgment with its supporting affidavits, the 

burden shifted to Olufemi and Bola to prove that there was no genuine issue of material fact. In 

re Marriage of Palacios, 275 Ill. App. 3d 561, 568 (1995) ("There mere suggestion that a 

genuine issue of material fact exists, without supporting documentation, does not create an issue 

of material fact precluding summary judgment."); Prather v. Decatur Mem'l Hospital, 95 Ill. 

App. 3d 470, 472 (1981) ("Where facts contained in an affidavit in support of a motion for 

summary judgment are not contradicted by counter-affidavit, such facts are admitted and must be 

taken as true."). 

¶ 70 Here, the only evidence that Olufemi and Bola presented in favor of their argument was a 

one-page Internet printout reporting that the United State Bankruptcy Court for the District of 

Delaware entered a chapter 11 order on August 13, 2007, which is insufficient to prove that the 

Bank lacked standing since it says nothing concerning what happened to the assets and liabilities 

following Aegis' purported dissolution. Furthermore, Olufemi and Bola's brief does not cite to 

any additional facts in the appellate record and does not cite to any case law beyond the general 

rule that an agent's authority does not extend beyond the dissolution of the principal. As a result, 

Olufemi and Bola failed to prove that the Bank lacked standing, and the trial court's rejection of 

this argument was not improper, and the trial court did not err in granting the Bank's motion for 

summary judgment and denying Olufemi and Bola's motion to dismiss.

¶ 71 C. MERS' Agency Powers

¶ 72 Olufemi and Bola next argue that MERS, the original mortgagee, could not assign the 

debt instrument from the original lender, Aegis, to BAC because MERS never received title to 

the promissory note. Olufemi and Bola claim that MERS is a private corporation that merely 

tracks the transfer of ownership interests and servicing rights to mortgage loans, and that MERS 
No. 1-13-1252

22

has no independent right to collect on any debt since MERS itself does not extend credit and 

mortgage debtors do not owe it money. As a result, Olufemi and Bola argue that, since there was 

no evidence in the mortgage documents attached to the foreclosure complaint that demonstrated 

that MERS held the promissory note or was given authority by Aegis to assign the note to BAC, 

the assignment on January 20, 2011, was void and the Bank does not have standing.

¶ 73 However, as we have explained, the Bank filed an affidavit of Acee Fuller, an officer of 

the Bank, who stated that BAC holds the promissory note and that the Bank is successor by 

merger to BAC. In addition, the Bank has a copy of the assignment from MERS to BAC, which 

was signed and notarized prior to the instant lawsuit. The burden then shifted to Olufemi and 

Bola to prove that the Bank did not have standing (In re Marriage of Palacios, 275 Ill. App. 3d 

at 568), and they failed to submit sufficient evidence to support their claim. Olufemi and Bola's 

brief does not cite to any evidence in the record concerning MERS' agency powers, and instead 

quotes from cases in Nebraska, New York, Missouri, and an unpublished opinion in California, 

all of which contain significantly different factual backgrounds. As a result, the trial court did not 

err in granting the Bank's motion for summary judgment and denying Olufemi and Bola's motion 

to dismiss since the Bank presented evidence that it held the note and mortgage.

¶ 74 D. Holder of the Promissory Note and Mortgage

¶ 75 Last, Olufemi and Bola argue that the Bank does not have standing because BAC did not 

hold title to the promissory note and mortgage at the time of the suit and did not qualify as a 

holder, agent, trustee or pledgee. Here, Olufemi and Bola largely restate their previous

arguments that the Bank cannot hold the note and mortgage because Aegis was dissolved in 2007 

and MERS never held title to the promissory note, which they also point out lists Aegis as the 

payee, not BAC. Olufemi and Bola additionally argue that, since the Bank did not have standing 
No. 1-13-1252

23

to file the foreclosure lawsuit, the trial court lacked subject matter jurisdiction to enter its order 

of summary judgment and all subsequent orders, citing People v. Capital News, Inc., 137 Ill. 2d 

162, 170 (1990) (when a plaintiff lacks standing to assert a claim, the trial court's judgment must 

be set aside for lack of subject matter jurisdiction).

¶ 76 Olufemi and Bola's argument that BAC never held the note and mortgage relies on the 

implication from their previous arguments that BAC could not have held the note and mortgage 

since MERS' agency powers were terminated when Aegis was dissolved in 2007 and MERS 

never held the note. However, the Bank presented evidence that BAC held the note when the 

instant action was filed, and Olufemi and Bola failed to present any evidence to support their 

argument that the Bank lacked standing. As a result, the trial court did not err in granting the 

Bank's motion for summary judgment and denying Olufemi and Bola's motion to dismiss.

¶ 77 II. Fraud on the Court

¶ 78 Next, Olufemi and Bola argue that the Bank's attorneys fraudulently created standing to 

file the instant action by creating and executing the assignment from MERS to BAC. 

Manufacturing evidence favorable to a plaintiff, or concealing evidence favorable to a defendant, 

and the concealment of that scheme would constitute fraud on the court. People v. Ranson, 4 Ill. 

App. 3d 953, 956 (1972). A trial court would lack subject matter jurisdiction where there was

fraud upon the court. In re Village of Willowbrook, 37 Ill. App. 3d 393 (1962).

¶ 79 Here, Olufemi and Bola argue the assignment of the mortgage by MERS to BAC is void 

since the "authorized signator" for MERS was William McAlister, who they claim is the same 

Bill McAlister who is a supervising attorney for the Bank's counsel, Codilis & Associates.

Olufemi and Bola argue that, as a general rule, an agent may not act for two principals whose 

interests are adverse (Chicago Title & Trust Co. v. Schwartz, 339 Ill. 184, 193-94 (1930)), and 
No. 1-13-1252

24

that an agent's representation of both the buyer and seller of a parcel of real estate is an improper 

agency since the buyer and seller are adverse to each other (Warrick v. Smith, 137 Ill. 504, 508 

(1891). 

¶ 80 However, Olufemi and Bola's argument relies on the Bank's alleged lack of standing, 

which they failed to show. Furthermore, Olufemi and Bola did not present evidence of the 

claimed fraud and its subsequent cover up, and they do not cite to the appellate record in their 

brief in support of their argument. 

¶ 81 We do note that Olufemi and Bola attached to their motion to vacate the affidavit of Tony 

Hernandez, who stated that he researched the lawsuit and found that there are six people named 

William McAllister in the State of Illinois, one of whom is a supervising attorney for the Bank's 

counsel, Codilis, and that he believed the assignment was created by Codilis and signed by 

McAlister, “which may present a quandary for all parties as it appears that the foreclosing 

attorney has prepared evidence in favor of its defunct client BAC,” and potentially a violation of 

the Code of Ethical Conduct for attorneys. However, Olufemi and Bola have not submitted any 

evidence supporting Hernandez's claims. 

¶ 82 Moreover, Olufemi and Bola have not presented any evidence that McAllister was not an 

authorized signatory for MERS, and they do not cite any relevant case law in their briefs that 

show that MERS acted improperly. Since Olufemi and Bola failed to show the Bank lacked 

standing and they did not present evidence of fraud, the trial court did not err when it granted the 

Bank's motion for summary judgment and denied Olufemi and Bola's motion to dismiss.

¶ 83 III. Grace Period Notice

¶ 84 Olufemi and Bola next argue that the trial court erred as a matter of law when it 

interpreted section 15-1504 of the Foreclosure Law such that Olufemi and Bola admitted in 
No. 1-13-1252

25

effect to receiving a grace period notice, by not denying such in their answer, even though the 

complaint failed to allege it. 

¶ 85 The Bank argues, in a short three-paragraph response, that the trial court did not err in 

denying Olufemi and Bola’s motion to dismiss; that the Foreclosure Law does not require that 

Olufemi and Bola receive a grace period notice only that the Bank send it; and that the court 

should not depart from the Foreclosure Law’s “long established procedures.” The Bank cites 

only one unpublished order in support of its argument.

¶ 86 A. Section 15-1502.5

¶ 87 Section 15-1502.5 of the Foreclosure Law, commonly known as Homeowner Protection 

Act (the Act), became effective on April 6, 2009. 735 ILCS 5/15-1502.5 (West 2010). The Act

was written to provide owners of single-family, owner-occupied properties an additional last 

minute escape valve to rescue their mortgages before the lender files a suit under the Foreclosure 

Law. The “grace period notice” required by the Act directs the borrower to various resources 

available for counseling and loan modification assistance. 735 ILCS 5/15-1502.5(c) (West 2010). 

If a counseling agency approved by the U.S. Department of Housing and Urban Development

notifies the lender within the 30-day period that the borrower is seeking approved counseling 

services, the lender cannot file suit until an additional 30 days has passed. 735 ILCS 5/15-

1502.5(e) (West 2010). 

¶ 88 A grace period notice is required before any foreclosure action may be instituted. 

Subsection 15-1502.5(c) of the Foreclosure Law provides that: 

“(c) *** No foreclosure action under Part 15 of Article XV of the 

Code of Civil Procedure shall be instituted on a mortgage secured by 
No. 1-13-1252

26

residential real estate before mailing the notice described in this subsection 

(c).

The notice required in this subsection (c) shall state the date on 

which the notice was mailed, shall be headed in bold 14-point type 

‘GRACE PERIOD NOTICE,’ and shall state the following in 14-point 

type: ‘YOUR LOAN IS MORE THAN 30 DAYS PAST DUE. YOU 

MAY BE EXPERIENCING FINANCIAL DIFFICULTY. IT MAY BE IN 

YOUR BEST INTEREST TO SEEK APPROVED HOUSING 

COUNSELING. YOU HAVE A GRACE PERIOD OF 30 DAYS FROM 

THE DATE OF THIS NOTICE TO OBTAIN APPROVED HOUSING 

COUNSELING. DURING THE GRACE PERIOD, THE LAW 

PROHIBITS US FROM TAKING ANY LEGAL ACTION AGAINST 

YOU. YOU MAY BE ENTITLED TO AN ADDITIONAL 30 DAY 

GRACE PERIOD IF YOU OBTAIN HOUSING COUNSELING FROM 

AN APPROVED HOUSING COUNSELING AGENCY. A LIST OF 

APPROVED COUNSELING AGENCIES MAY BE OBTAINED FROM 

THE ILLINOIS DEPARTMENT OF FINANCIAL AND 

PROFESSIONAL REGULATION.’ ” 735 ILCS 15-1502.5(c) (West 

2010).

¶ 89 On appeal, Olufemi and Bola argue that the trial court erred in its interpretation of the 

Foreclosure Law, when it held, under section 15-1504(c) of the Foreclosure Law (735 ILCS 

5/15-1504(c) (West 2010)), that Olufemi and Bola had admitted in effect that the Bank had sent 

the “grace period notice” required by section 15-1502.5 of the Foreclosure Law (735 ILCS 5/15-
No. 1-13-1252

27

1502.5 (West 2010)). However, under de novo review, we need not give any deference to the 

judgment or reasoning of the trial court. Vincent, 226 Ill. 2d at 14.

¶ 90 The facts related to a grace period notice are undisputed and in the record. Olufemi and 

Bola swore in their affidavits in response to the Bank’s motion for summary judgment that they 

never received a grace period notice. The Bank does not contest this fact, but rather argues that 

the Foreclosure Law does not require that Olufemi and Bola receive a grace period notice, but 

rather all that is required is that the Bank send the notice, and that the sending “is presumed 

when a plaintiff files a complaint that follows the form for pleadings set forth in 735 ILCS 

5/[15]-1504(a) [(West 2010)].” This argument relies upon the reasoning of the trial court, which 

found that, because the original complaint looked “substantially” like the form set forth in 

section 15-1504(a) of the Foreclosure Law, the complaint included the allegation that “other 

notices required to be given,” i.e. the “grace period notice,” had been sent. The trial court 

concluded that, since Olufemi’s answer had not denied this unstated allegation, which the trial 

court construed to be included in the complaint as part of the “other notices required to be 

given,” he had admitted it, and therefore this argument was waived. 

¶ 91 B. Relevant Case Law

¶ 92 Citing only an unpublished order in U.S. Bank, N.A. v. Olavarria, No. 10-CH-32532 (Cir. 

Ct. Cook Co.), the trial court found that “other notices required to be given” includes the grace 

period notice required by sections 15-1502.5(b) and (c) of the Foreclosure Law (735 ILCS 5/15-

1502.5(b),(c) (West 2010)). In Olavarria, the circuit court, as in the present case, denied the

defendant’s section 2-619 motion to dismiss based on lack of a grace period notice. The court in 

Olavarria stated that since the plaintiff’s complaint followed the form laid out in section 15-

1504(a) of the Foreclosure Law, it was automatically construed under section 15-1504(c) to 
No. 1-13-1252

28

include the allegation that “other notices required to be given have been duly and properly 

given.” Citing no authority other than the Foreclosure Law, the court in Olavarria held that the 

clause “other notices required to be given” in section 15-1504(c) includes the grace period 

notice. Thus, the court in the instant case held that, because on a motion to dismiss the court 

must accept all well-pled allegations in the complaint, “the court must accept the allegation that 

the grace period notice was sent by U.S. Bank to the defendant as true,” and therefore it denied 

Olufemi and Bola’s motion to dismiss.

¶ 93 However, under Illinois law, decisions of the circuit courts have no precedential value, so 

the circuit court’s decision in Olavarria, cited by the trial court, has no precedential value here. 

See Delgado v. Board of Election Commissioners of City of Chicago, 224 Ill. 2d 481, 488 

(2007).

¶ 94 Binding case law regarding the grace period notice also does not resolve the current 

dispute. This court has held that a “flawless” grace period notice is not required before a 

foreclosure complaint can be filed and that, where there is a technical defect in the notice and the 

mortgagor has not alleged prejudice, dismissal of the complaint would be “futile.” Bank of 

America, N.A., v. Luca, 2013 IL App (3d) 120601, ¶ 16; Aurora Loan Services, LLC v. Pajor, 

2012 IL App (2d) 110899, ¶ 27. In Bank of America, N.A., v. Luca, 2013 IL App (3d) 120601, ¶ 

8, the defendants argued that since the grace period notice was addressed to only one of the two 

defendants, the notice was defective, and the foreclosure action could not commence. The 

appellate court found, however, that since both defendants had knowledge of the notice, had in 

fact discussed loan modification with the plaintiff, and had failed to allege any prejudice based 

on defective notice, their claim was meritless. Luca, 2013 IL App (3d) 120601, ¶ 17. Similarly, 

in Aurora Loan Services, LLC v. Pajor, 2012 IL App (2d) 110899, ¶¶ 26-28, the court held that 
No. 1-13-1252

29

although the plaintiff had sent a grace period notice before it was technically the mortgagee, the

substantive requirements of section 15-1502.5 were met, and thus this “irregularity” did not 

warrant dismissal of the foreclosure action. In each of these cases, there was evidence in the 

record that the grace period notice was sent, and that the defendants had knowledge of the notice.

See Pajor, 2012 IL App (2d) 110899, ¶ 27; Luca, 2013 IL App (3d) 120601, ¶ 17. In the present 

case, however, Olufemi and Bola do not allege that the grace period notice was defective, but 

rather that they did not receive any notice at all. Further, evidence of a grace period notice being 

sent is not found within the record, nor did the Bank claim they sent it. Neither this court nor the 

Illinois Supreme Court has ever held that a sale may be confirmed on appeal without any grace 

period notice being sent. Indeed, section 15-1502.5(h) of the Foreclosure Law states that there 

can be no waiver of this prerequisite. 735 ILCS 5/15-1502.5(h) (West 2010).

¶ 95 The trial court’s holding on this issue and the Bank’s argument on appeal both rely on a 

specific interpretation of section 15-1504 of the Foreclosure Law. Since the case law does not 

speak to this issue, the resolution of this issue is a case of first impression and turns upon a 

question of statutory interpretation.

¶ 96 C. Statutory Interpretation

¶ 97 Statutory interpretation is a question of law that we review de novo. See Ryan v. Board of 

Trustees of the General Assembly Retirement System, 236 Ill. 2d 315, 319 (2010); McNamara v. 

Oak Lawn Municipal Officers Electoral Board, 356 Ill. App. 3d 961, 964 (2005); Cullerton v. Du 

Page County Officers Electoral Board, 384 Ill. App. 3d 989, 991 (2008). As we have indicated, 

de novo consideration means we perform the same analysis that a trial judge would perform. 

Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 278 (2011).
No. 1-13-1252

30

¶ 98 The fundamental rule of statutory construction is to ascertain and give effect to the 

legislature's intent. People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 45 (2002). The best 

indication of legislative intent is the plain and ordinary meaning of the statutory language. 

Birkett, 202 Ill. 2d at 45. Where the language is clear and unambiguous, we must apply the 

statute without resort to other aids of statutory construction. Birkett, 202 Ill. 2d at 45-46. If the 

statutory language is ambiguous, we look to other sources to decide the legislature's intent. 

Birkett, 202 Ill. 2d at 46. We must view all provisions of a statutory enactment as a whole and 

“[a]ccordingly, words and phrases should not be construed in isolation, but must be interpreted in 

light of other relevant provisions of the statute.” Southern Illinoisan v. Illinois Department of 

Public Health, 218 Ill. 2d 390, 415 (2006) (citing Michigan Avenue National Bank v. County of 

Cook, 191 Ill. 2d 493, 504 (2000)). Statutes are interpreted with the presumption that the 

legislative intent was not to create “absurd, inconvenient, or unjust results.” In re County 

Treasurer, 2013 IL App (1st) 130103, ¶ 9 (citing Fisher v. Waldrop, 221 Ill. 2d 103, 112

(2006)). “Furthermore, reviewing courts have a duty to construe a statute in a manner that 

upholds its validity and constitutionality.” In re County Treasurer, 2013 IL App (1st) 130103, 

¶ 9 (citing Fisher, 221 Ill. 2d at 112).

¶ 99 This issue requires the resolution of two sections of the Foreclosure Law: sections 15-

1502.5 and 15-1504. Section 15-1502.5 of the Foreclosure Law reads in pertinent part:

“(b) *** [N]o mortgagee shall file a complaint to foreclose a mortgage 

secured by residential real estate until the requirements of this Section have been 

satisfied.
No. 1-13-1252

31

(c) *** No foreclosure action under Part 15 of Article XV of the Code of 

Civil Procedure shall be instituted on a mortgage secured by residential real estate 

before mailing the notice described in this subsection (c).

The notice required in this subsection (c) shall state the date on which the 

notice was mailed, shall be headed in bold 14-point type ‘GRACE PERIOD 

NOTICE***.’

The sending of the notice required under this subsection (c) means 

depositing or causing to be deposited into the United States mail an envelope with 

first-class postage prepaid that contains the document to be delivered.

***

(d) Until 30 days after mailing the notice provided for under subsection (c) 

of this Section, no legal action shall be instituted under Part 15 of Article XV of 

the Code of Civil Procedure.

* * *

(h) There shall be no waiver of any provision of this Section.” 735 ILCS 

5/15-1502.5(b), (c), (d), (h) (West 2010). 

¶ 100 The plain language of this section indicates that the legislature intended for the grace 

period notice to be sent prior to any foreclosure action under the Foreclosure Law, as indicated 

by sections 15-1502.5(b) (“[N]o mortgagee shall file a complaint to foreclose a mortgage secured 

by residential real estate until the requirements of this Section have been satisfied.”), 15-

1502.5(c) (“No foreclosure action under Part 15 of Article XV of the Code of Civil Procedure 

shall be instituted on a mortgage secured by residential real estate before mailing the notice 

described in this subsection (c).”), and 15-1502.5(d) (“Until 30 days after mailing the notice 
No. 1-13-1252

32

provided for under subsection (c) of this Section, no legal action shall be instituted under Part 15 

of Article XV of the Code of Civil Procedure.”). 735 ILCS 5/15-1502.5(b), (c), (d) (West 2010). 

These requirements are mandatory, because section 15-1105(b) defines the word “shall” as used 

in the Foreclosure Law as “mandatory and not permissive.” 735 ILCS 15-1105(b) (West 2010). 

“A mortgagee cannot comply with these requirements while a foreclosure suit is pending. The 

notice must come before the suit.” Pajor, 2012 IL App (2d) 110899, ¶ 23.

¶ 101 The Bank contends, however, relying on the logic of the trial court, that Olufemi and 

Bola lost the ability to challenge a lack of grace period notice by not denying in an answer that it 

was sent, despite the fact that the complaint failed to state that this notice was sent, and 

regardless of whether the notice was actually sent. The Bank’s argument relies on a specific 

reading of section 15-1504 of the Foreclosure Law. 735 ILCS 5/15-1504 (West 2010). This 

section reads in pertinent part:

“(c) The statements contained in a complaint in the form set forth in 

subsection (a) of Section 15-1504 are deemed and construed to include allegations 

as follows:

* * *

(9) that any and all notices of default or election to declare the 

indebtedness due and payable or other notices required to be given have 

been duly and properly given.” 735 ILCS 5/15-1504(c)(9) (West 2010).

¶ 102 The trial court interpreted “other notices required to be given” to include the grace period 

notice described in section 15-1502.5 of the Foreclosure Law. Under this interpretation of the 

Foreclosure Law, it is deemed alleged in any complaint in the form set forth in section 15-

1504(a) that the grace period notice was sent. If a defendant does not deny this unstated
No. 1-13-1252

33

allegation, it is therefore admitted. In the trial court’s assessment, cited approvingly by the Bank,

the issue has therefore been waived. This admission and waiver would apply regardless of 

whether the mortgagee had actually sent a grace period notice, and there is no burden on the 

mortgagee to provide any proof that it was sent. However, as we explain below, we find that the 

trial court’s interpretation of the Foreclosure Law does not reflect the intent of the legislature and 

find that the language “other notices required to be given” in section 15-1504 does not include 

the grace period notice required by section 15-1502.5.

¶ 103 First, we observe that section 15-1504 was enacted in 1990, 19 years prior to the 

enactment of section 15-1502.5 in 2009. Therefore, when the legislature wrote in section 15-

1504 of the Foreclosure Law that, “the statements contained in a complaint in the form set forth 

in subsection (a) of Section 15-1504 are deemed and construed to include allegations *** that 

*** other notices required to be given have been duly and properly given,” it could not have 

intended for “other notices required to be given” to include grace period notice, because grace 

period notice was not a required notice at the time of drafting of that provision. Instead, the most 

recent enunciation of the legislature controls, that “there shall be no waiver” of the requirement 

of grace period notice prior to the filing of a suit under the Foreclosure Law. 735 ILCS 5/15-

1502.5(h) (West 2010).

¶ 104 Further, the interpretation of the statute by the trial court and the Bank creates an (1) 

absurd; (2) unjust; and (3) inconvenient result, and therefore is presumed not to be the intent of 

the legislature. See In re County Treasurer, 2013 IL App (1st) 130103, ¶ 9 (citing Fisher, 221 Ill.

2d at 112).

¶ 105 This interpretation creates an absurd result when viewed in light of the other relevant 

statutory provisions. Subsection 15-1502.5(h) states that no provision within that section, which 
No. 1-13-1252

34

includes the requirement of a grace period notice, can be waived. 735 ILCS 5/15-1502.5(h) 

(West 2010). To read the “other notices required to be given” to include “grace period notice” 

would create the absurd result that a defendant’s inaction in response to an unwritten allegation 

could waive the need for such notice, which the statute states cannot be waived. To allow this 

section to be so easily waived would render it nearly unenforceable, an absurd result in light of

the emphasis the statute places on the need for such notice to be sent prior to any action under 

the Foreclosure Law. See 735 ILCS 5/15-1502.5(b), (c), (d) (West 2010). 

¶ 106 This interpretation also leads to an unjust result for Olufemi and Bola, and for future 

defendants. The Homeowner Protection Act was written to provide owners of single-family, 

owner-occupied properties an additional last minute escape valve to rescue their mortgages 

before the lender files a suit under the Foreclosure Law. The “grace period notice” required by 

the Act directs the borrower to various resources available for counseling and loan modification 

assistance. 735 ILCS 5/15-1502.5(c) (West 2010). If a HUD-approved counseling agency 

notifies the lender within the 30-day period that the borrower is seeking approved counseling 

services, the lender cannot file suit until an additional 30 days has passed. 735 ILCS 5/15-

1502.5(e) (West 2010). 

¶ 107 In Pajor, 2012 IL App (2d) 110899, ¶ 24, the appellate court held that the purpose of 

section 15-1502.5 is to “encourage workouts for mortgages in default.” This is achieved by 

allowing for a 30-day extension, during which the mortgagor may not file suit, if the mortgagor 

obtains approved housing counseling and the creation of a “sustainable loan workout plan.”

Pajor, 2012 IL App (2d) 110899, ¶ 24; 735 ILCS 5/15-1502.5(e) (West 2010). The events in the 

present case illustrate the potential injustice under the Bank’s interpretation of the statute. In 

affidavits attached to their response to the Bank’s motion for summary judgment, Olufemi and 
No. 1-13-1252

35

Bola insist that they did not receive any grace period notice. The Bank does not contend that this 

notice was sent. Instead, the Bank argues that Olufemi and Bola have waived their ability to raise 

the issue after Olufemi’s pro se response to the complaint, in which he supposedly admitted an 

unstated allegation by failing to deny it. Olufemi states in his motion for leave to file instanter,

that he filed his pro se answer to preserve his rights. Instead, under the Bank’s interpretation of 

the statute, he lost his right to a grace period notice. We cannot assume that had Olufemi and 

Bola received such notice, they necessarily would have been able to create a workout plan;

however, it is the intent of the legislature for each mortgagor to have this opportunity prior to any 

foreclosure action, and this opportunity was never given to them, creating an unjust result. 

¶ 108 Lastly, this interpretation is inconvenient. As stated above, the legislature intends for 

mortgages to be worked out prior to the filing of a foreclosure suit. By allowing this provision to 

be so easily admitted, it creates a disincentive for mortgagees to send a grace period notice and 

create a workout plan with the mortgagor, which would lead to the inconvenience of additional 

foreclosure cases filed in the courts. 

¶ 109 The Bank also points out that Olufemi and Bola’s affidavits, attached to their response to 

the motion for summary judgment, stated only that they did not receive a grace period notice, 

while the statute requires only that the mortgagee send a grace period notice. However, Olufemi 

and Bola’s affidavits, which state that that they did not receive a grace period notice can imply

that the Bank did not send such notice, particularly where it is not within the Olufemi and Bola’s

knowledge whether the notice was sent and where the Bank never claimed that such a notice was 

sent.
No. 1-13-1252

36

¶ 110 The Bank also argues that any departure from the “long-established” procedures of the 

Foreclosure Law defies logic. In support of this contention, the Bank cites a circuit court’s 

unpublished order describing the Foreclosure Law:

“Enacted and codified in 1987, it is an obvious compromise between 

lenders and borrowers. Lenders benefit from the law's establishment of a form 

complaint which is fairly immune from attack through pleading motions, and 

from the streamlined procedure the lender may use to prove up its case. 

Borrowers benefit from the many windows of opportunity the law provides them

to rescue their properties out of the foreclosure process and the extraordinary 

length of time it takes to litigate even an uncontested case.” (Emphasis added.) 

Citimortgage v. Schroedter, No. 11-CH-7639 (Cir. Ct. Cook Co.).

First, this description of the Foreclosure Law only emphasizes the importance of the grace period 

notice, which is a “window of opportunity” for homeowners to prevent foreclosures. Second, and 

foremost, unpublished orders have no precedential value. Burnette v. Stroger, 389 Ill. 2d 321, 

329 (2009) (citing Ill. S. Ct. R. 23 (eff. May 30, 2008)). 

¶ 111 Finally, we note that, even if section 15-1504 presumes that a grace period notice was 

sent, that section does not presume an allegation in the complaint that a plaintiff waits 30 days to 

file an action pursuant to section 15-1502.5. 735 ILCS 5/15-1502.5(d) (West 2010). However,

since there is no evidence that the Bank actually sent the grace period notice to Olufemi and 

Bola, it is impossible to determine whether the Bank waited 30 days to file the instant 

foreclosure action.

¶ 112 Accordingly, the trial court erred as a matter of law when it deemed that Olufemi and 

Bola admitted to receiving the grace period notice, even though the Bank never showed evidence 
No. 1-13-1252

37

that they mailed or served a notice, and thus we remand to the trial court to determine in an 

evidentiary hearing whether the grace period notice was sent, and whether the Bank waited past 

30 days before they filed suit.

¶ 113 IV. Judgment of Foreclosure and Sale

¶ 114 On December 8, 2011, the trial court entered a judgment of foreclosure and sale against 

Olufemi and Bola. On December 20, 2012, it entered an order approving the report of sale and 

distribution, confirming the sale, and the order of possession. Olufemi and Bola request that this 

court vacate the judicial sale. We find that since a grace period notice is required to be sent and

that the Bank must wait 30 days before a foreclosure action is filed, and there is no evidence in 

the record that this notice was sent, we must remand to the trial court to determine in an 

evidentiary hearing whether the grace period notice was sent and whether the Bank waited past 

30 days before they filed suit. If the trial court finds that no grace period notice was sent or the 

Bank did not wait past 30 days before filing suit, we find that the trial court abused its discretion 

in confirming the judicial sale and all subsequent orders, and the judicial sale must be vacated in 

accordance with section 15-1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 

2010)), and the case must be dismissed.

¶ 115 A. Standard of Review

¶ 116 “Under the Foreclosure Law, after a judicial sale and a motion to confirm the sale has 

been filed, the court's discretion to vacate the sale is governed by the mandatory provisions of 

section 15-1508(b).” Wells Fargo Bank, N.A.v. McCluskey, 2013 IL 115469, ¶ 24. Section 15-

1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 2010)) grants the court broad 

discretion to approve or disapprove judicial sales. Parkway Bank & Trust Co. v. Korzen, 2013 IL 

App (1st) 130380, ¶ 15. We review the approval of judicial sales under an abuse of discretion 
No. 1-13-1252

38

standard. Parkway, 2013 IL App (1st) 130380, ¶ 15. A circuit court abuses its discretion when its 

ruling “is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view 

adopted by the trial court.” People v. Caffey, 205 Ill. 2d 52, 89 (2001). An abuse of discretion 

standard is highly deferential to the circuit court. Davis v. Kraff, 405 Ill. App. 3d 20, 28 (2010).

¶ 117 B. Section 15-1508(b) of the Foreclosure Law

¶ 118 Section 15-1508(b) of the Foreclosure Law requires that the sale shall not be confirmed 

unless the court finds that: “(i) a notice required in accordance with subsection (c) of Section 15-

1507 was not given,[4] (ii) the terms of sale were unconscionable, (iii) the sale was conducted 

fraudulently, or (iv) justice was otherwise not done.” 735 ILCS 5/15-1508(b) (West 2010). 

¶ 119 “A court is justified in refusing to approve a judicial sale if unfairness is shown that is 

prejudicial to an interested party.” Mortgage Electronic Recording Systems, Inc., v. Thompson, 

368 Ill. App. 3d 1035, 1037 (2006) (citing Citicorp Savings of Illinois v. First Chicago Trust Co.

of Illinois, 269 Ill. App. 3d 293, 300 (1999)). 

¶ 120 The Foreclosure Law does not define “injustice” under section 15-1508(b)(iv). 735 ILCS 

5/15-1508(b)(iv) (West 2010). Although NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 

121147, ¶ 9, attempted to narrow this provision, our supreme court in Wells Fargo Bank, N.A. v.

McCluskey, 2013 IL 115469, subsequently defined its use. Our supreme court describes the 

injustice clause as a codification of “the long-standing discretion of the courts of equity to refuse 

to confirm a judicial sale.” McCluskey, 2013 IL 115469, ¶ 19. “The justice provision under 

section 15-1508(b)(iv) acts as a safety valve to allow the court to vacate the judicial sale and, in 

 4 Subsection (c) of section 15-1507 requires that mortgagees give notice of the sale of the 

property to the mortgagor and to the public, prior to the judicial sale. 735 ILCS 5/15-1507(c) 

(West 2010). This is separate from the grace period notice required by section 15-1502.5. 
No. 1-13-1252

39

rare cases, the underlying judgment, based on traditional equitable principles.” McCluskey, 2013 

IL 115469, ¶ 25.

¶ 121 Our supreme court has stated that in order to vacate a sale and the underlying judgment, a

defendant must: (1) have a meritorious defense; and (2) “establish under section 15-1508(b)(iv) 

that justice was not otherwise done because either the lender, through fraud or misrepresentation, 

prevented the borrower from raising his meritorious defenses to the complaint at an earlier time 

in the proceedings, or [that] the borrower has equitable defenses that reveal he was otherwise 

prevented from protecting his property interests.” (Emphasis added.) McCluskey, 2013 IL 

115469, ¶ 26. 

¶ 122 C. Application

¶ 123 Since we are remanding for an evidentiary hearing to determine whether the Bank sent 

the grace period notice and waited past 30 days to file its suit, we turn to the vacation of the sale.

To vacate a sale, Olufemi and Bola must show that either: (1) fraud or misrepresentation 

prevented them from raising their meritorious defenses; or (2) an equitable defense reveals they 

were prevented from protecting their property interests. McCluskey, 2013 IL 115469, ¶ 26. 

Although in asking this court to vacate the sale, Olufemi and Bola do not cite specifically to one

of the four provisions of section 15-1508(b), they do directly challenge their lack of grace period 

notice, and argue that the interpretation of the trial court was “fundamentally unfair” and 

constitutes a due process violation. Both of these claims speak to the fourth provision of section 

15-1508(b), that “justice was not otherwise done.” 735 ILCS 15-1508(b) (West 2010).

¶ 124 A grace period notice provides homeowners a mechanism to prevent foreclosure and stay 

in their homes. As stated earlier, a grace period notice has the purpose of encouraging workouts 

for mortgages, by giving mortgagors the opportunity to obtain “APPROVED HOUSING 
No. 1-13-1252

40

COUNSELING.” Pajor, 2012 IL App (2d) 110899, ¶ 24; 735 ILCS 15-1502.5(b) (West 2010). If 

the mortgagor obtains HUD-approved counseling within 30 days, and gives notice to the 

mortgagee, the mortgagor has an additional 30 days after sending such notice before the 

mortgagee may institute a foreclosure action. 735 ILCS 5/15-1502.5(a),(e) (West 2010). During 

this 30-day period, the mortgagor or the counselor, or both, may “prepare and proffer to the 

mortgagee a proposed sustainable loan workout plan.” 735 ILCS 5/15-1502.5(e) (West 2010). A 

“sustainable workout plan” under this section is defined as: “a plan that the mortgagor and 

approved counseling agency believe shall enable the mortgagor to stay current on his or her 

mortgage payments for the foreseeable future.” 735 ILCS 5/15-1502.5(a) (West 2010). In other 

words, such a plan would allow mortgagors to retain their interest in the property and remain in 

their home. If the mortgagor and mortgagee agree to a workout plan, then no foreclosure action 

can be instituted under the Foreclosure Law while the mortgagor adheres to such plan. 735 ILCS 

5/15-1502.5(e) (West 2010). These provisions of the Homeowner Protection Act provide 

homeowners with a powerful mechanism to prevent foreclosure on their homes, and therefore 

protect their property interest. Thus, where the required grace period notice has not been sent 

prior to the commencement of a foreclosure action or where the plaintiff has not waited past 30 

days to file suit, mortgagors have been “prevented from protecting their property interests,” and

justice has not been done under subsection 15-1508(b)(iv) of the Foreclosure Law. 

¶ 125 In the present case, there is no evidence on the record that a grace period notice was

actually sent; Olufemi and Bola have claimed that they have not received such notice, and the

Bank does not contend that the notice was sent or not sent. The Bank argues that the section 15-

1508(b) factors have been met; however, it does not present any evidence concerning the grace 

period notice. Accordingly, since a grace period notice is required to be sent and the plaintiff 
No. 1-13-1252

41

must wait past 30 days before a foreclosure action is filed, and there is no evidence in the record 

that this notice was sent or how long the Bank waited to file suit, we must remand to the trial 

court to determine in an evidentiary hearing whether the grace period notice was sent and 

whether the Bank waited past 30 days to file its suit. If the trial court finds that no grace period 

notice was sent, then we find that: (1) the trial court abused its discretion in confirming the 

judicial sale and all subsequent orders; (2) and in that event, the judicial sale must be vacated in 

accordance with section 15-1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 

2010)); and (3) the case must be dismissed. If the trial court finds that a grace period notice was 

sent, but plaintiff did not wait 30 days to file its lawsuit, we find that: (1) the trial court abused its 

discretion in confirming the judicial sale and all subsequent orders; (2) and in that event, the 

judicial sale must be vacated in accordance with section 15-1508(b) of the Foreclosure Law (735 

ILCS 5/15-1508(b) (West 2010)); and (3) the case must be dismissed. If the trial court finds that 

a grace period notice was sent and plaintiff waited 30 days before filing suit, then the judgment 

of the trial court is affirmed.

¶ 126 CONCLUSION

¶ 127 For the reasons set forth above, we remand to the trial court to determine in an 

evidentiary hearing whether the grace period notice was sent and whether the Bank waited past 

30 days to file its suit. If the trial court finds that no grace period notice was sent, then we find 

that the trial court abused its discretion in confirming the judicial sale and all subsequent orders, 

and the judicial sale must be vacated in accordance with section 15-1508(b) of the Foreclosure 

Law, and the case must be dismissed. 735 ILCS 5/15-1508(b) (West 2010).

¶ 128 Remanded for an evidentiary hearing.