## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Harris, N.A. v. Sau k V

illage Developm ent, LLC , 2012 IL App (1st) 120817

Appellate Court Caption HARRI S, N.A., Plaintiff, v. SAUK VI L LAGE DEVEL OPMENT, L L C, G RE G O RY ST E C, G S M A NA G E M EN T , L L C, SE A M U S M O RI A RT Y , KONSTANTI

NOS D. ANTON I OU, MARTI NEZ FROGS, I

NC., RI CARD O M A RT I

N E Z , T E K

NA C ON S T R

U CT I O N CO M PA

NY , L L C, J AMES B. PL ANEY, G & D EXCAVATI NG, I NC., UNKNO WN OWNERS AND NONRECORD CL AI MANTS, Def endants (Chicag o Title L and Trust Company
, as Trustee u/t No. 9173, Third-Party PlaintiffAppellant; Har

ris, N.A. and Sauk Vill age De velopment, L L C, ThirdParty Def endants-A

ppellees)

.

District & N o. First District, Second D ivision Docke t No. 1-12-0817

Filed Dec ember 24, 2012

Held (Note : This s

yl lab us

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

par ed by t he 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

. ) In an action arising from third-par ty plaintiff’s err oneous conveyance of

a 46-ac re parc el to defe ndants to satisfy a contra ct for the sale of only 17.48 acr es, the trial court’s denial of t h i rd -p ar ty plaintiff’s motion to

rec onsider the or ders dismissing its complaint for slande r of title and to quiet title and app roving the judicial sale of the entire parc el to the purcha ser’ s mortg ag ee was upheld, bec a u s e th ird

- p a

r ty plaintiff no longe r owned the pr operty

and lac ked standing

.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 09-CH-49752; the Hon. Daniel Patrick Br ennan and the Hon. Marga ret Ann Br ennan, J udg es, pre siding.

J udg ment Affir med.Counsel on

Appea l Schain, Bur ney , Ba nks & Kenny , Ltd., of Chicag o (James R. Griff in and Michae l R. Burne y , of counse l), for a ppellant.

Crowley & L amb, P.C., of Chicag o (James M. Crowley
, of counsel), for appellee s.

Panel PRES I DI NG J USTI CE HARRI S delivere d the judgme nt of the court, with opinion. J ustices Quinn and Simon concur red in the judg ment and opinion.

OP INION

¶ 1 Third-pa

rty plaintiff, Chicag o Title L and Trust Company (CTL T), appea ls the judg ment of the c ircuit court de nying its motion filed pursuant to se ction 2-1203 of the I llinois Code of Civil Procedur e (735 I L CS 5/2-1203 (West 2008)), to rec onsider and vac at e order s dismiss ing the amende d third-par ty complaint and approving the judicial sale. On appea l, CTL T co n t en d s the trial court err ed in deny ing its motion to rec onsider when it made a mistake in law by ruling that CTL T has no standingto file its amended complaint. For the

rea sons that follow, we a ffirm.

¶ 2 J URI SDI CTI ON ¶ 3 The trial court enter ed a fi n al j u d gm en t in the instant case on Fe bruar y 8, 2011, and plaintiff filed its notice of appea l on Marc h 10, 2011. Acc ording ly
, this court has jurisdiction p u rs u an t to I llinois Supreme Court Rules 301 and 303 g overning appea ls from fi n al judgme nts e ntere d below. I ll. S. C t. R. 301 (eff. F eb. 1, 1994); R. 303 (ef f. May 30, 2008).

¶ 4 BA CKGROUND ¶ 5 On May 27, 2007, CTL T and Gre g Stec (Stec) enter ed into a contra ct to purcha se vaca nt land in Sauk Villag e, I llinois

. CTL T owned approximately 46 acr es of vaca nt l an d

. T h e contra ct to purcha se involved 16.64 acr es of t h at land. At the same time, J ames Planey (P l aney ) and Stec enter ed into a contra ct with CTL T to purcha se another parc el of approx imately 0.8 acr es. Stec subsequently assig ned his interest in the contra cts to S au k Villag e De velopment (SVD). ¶ 6 The closing occur red on Dec ember 11, 2007. In connec tion with the closing
, CTL T and SVD executed a closing statement which described the sale proper ty as consisting of 16.64

acr es. The deed executed and delivered by CTL T at the c losing li sted the property addre ss as “16.64 a cre s at NEC of Torrence Avenue & Sauk Trail R oad, S auk Vill ag e, I L 60411.” Howeve r, the leg al descr iption of the sale proper ty contained in the deed descr ibed the entire

-2-46 acr es owned by CTL T. The deed was rec orded with the Cook County rec order of deeds.

¶ 7 At the time of the closing
, SVD also secur ed a loan on the proper ty in the am o u n t of $1,849
, 7 0 0 wi t h Har

ris, N.A. (Ha

rris). The mortg ag e on the loan contained only the leg al descr iption from the deed descr ibing the entire 46 acr es. SVD also enter ed into a construction loan agree ment with Harr is. This ag ree ment descr ibed the land a s 17.48 acr es (16.64 acr es plus approximately 0.8 acr es), althoug h the leg al descr iption ag ain descr ibed the entire 46-

acr e par cel. ¶ 8 Some time afte r t he mortgag es were re co rd ed
, CTL T discovere d the error. They made

a reque st to SVD to corr ect the err or by executing and delivering a quitclaim deed. By quitclaim deed SVD rec onveyed approximately 29.49 acr es of proper ty to Planey as nominee for Sauk Villag e Venture , a benef iciary of CTL T. The quitclaim deed was rec orded on May 14, 2009. The plat act affidavit filed by SVD in connec tion wi t h the qui tclaim deed stated that the conveyance was “made to corr ect descr iptions in prior conveyance s.” The

rec onveyed prope rty , howeve r, wa s still subject to the Ha rris mortg ag e. ¶ 9 SVD subsequently defa ulted on its loans. On Fe bruar y 15, 2009, Har

ris, SVD, and Stec enter ed into a forbe ara

nce agree ment in which SVD and Stec acknow ledg ed the defa ults and aff irmed the validity of the mortg ag e and note. On J uly 15, 2010, CTL T filed its first thirdparty complaint for ref

ormation due to the err or in the descr iption of the proper ty contained in the mo rt gage

. Ha rris filed a motion to dismiss the complaint. In support of its motion, Har ris arg ued that CTL T was no longe r owner of the disputed 30 acr es and lacke d standing to bring the complaint. I t also alleg ed that CTL T rec eived the relief it reque sted when SVD executed the quitclaim dee d. The trial c ourt g rante d the motion to dis miss. ¶ 10 On J anuar

y 21, 2011, CTL T filed an amende d two-count complaint to quiet title and for slander of title. The complaint reque sted that the court quiet title to approximately 30 acr es by rele asing Har

ris’ mortg ag e on that proper ty , and soug ht compensato ry an d p unitive damag es for slander of title. Har ris filed a motion to dismiss the amende d complaint pursuant to section 2-619 of the I llinois Code of Civil Procedur e (C o d e) (735 I L CS 5/2-619 (West 2008)) on the quiet title count, alleg ing that CTL T does not have standing to bring the claim. Alternatively
, Har

ris sought dismiss al of the complaint pursuant to section 2-615 of the Code based on the s lander of t itle count. The trial court gra n t ed Harris’ section 2-619 m otion to dismiss on April 12, 2011. 1 ¶ 11 Meanwhile, Har ris filed mo ti o n s f

o r s u mm a r y ju d gme nt, defa

ult, judgme nt of for eclosure and sale, and to appoint a selling office r. On Fe bruar y 2, 2011, the trial court g rante d Har ris’ summary judgme nt m o tion for default. On May 24, 2011, the t rial court enter ed judgment of fore closure and sale in favor of Har ris. The judgme nt involved the entire 46-ac re proper ty descr ibed in the mortg ag e. Har ris was the succe ssful bidder at a judicial sale on September

T he re cor d doe s not con ta in a re port of the pro cee din gs o n t h e mo t i o n to dis m is s, nor is 1 the re a bysta nde r’ s re por t or agree d st at ement con cer nin g the pro cee din gs. CT LT , as the app el la nt, has the bur den to pre sen t a complet e re cor d on app eal to sup por t it s cl ai m s of e r r o r

. F o u t c h v. O’Br yan t , 99 I ll . 2d 389, 392 (1 984) . W it hout a com ple te re cor d, thi s cour t pre sumes that the tr ia l

cou rtent er ed i ts or derincon form it y with t he l aw an d i t h ad a suf fi ci ent fa ctual bas is

. Id.

-3-30, 2011, and the tria l court conf irmed the judicial sale on October 26, 2011. ¶ 12 On November 23, 2011, CTL T filed a motion to rec onsider and vacate order s dismis sing the amende d third-par

ty complaint and approving t h e judicial sale. In its motion, CTL T alleg ed that the trial court misapplied the law in dismiss ing its amende d th ird

- p a rty complaint pursuant to sec tion 2-619. The trial c ourt denied the motion on Februa ry 28, 2012, finding

no misapplication of the law in g ranting the motion to dismiss CTL T’s amende d complaint since CTL T did not own the disputed proper ty and there fore lacke d standing to asser t a claim to quiet titl e and f

or slander of title. CTL T filed this timely appea l.

¶ 13 ANALYSI S ¶ 14 CTL T contends th at the t rial court err ed in denying its motion to rec onsider because it misapplied the law in dismiss ing CTL T’s amende d third-par ty complaint. This court revie ws
a denial of a motion to rec onsider based on t h e t ri al court’s misapplication of the law de

novo

. Muhammad v. Muhammad-Rahmah
, 363 I ll. App. 3d 407, 415 (2006). We also revie w dismiss al of a complaint under e ither sec tion 2-619 or 2-615 of the Code de novo

. Kean v. W al-Mart Stores, Inc. , 235 I ll. 2d 351, 361 (2009). ¶ 15 The trial court dismiss ed the complaint pursuant to section 2-619 beca use it de termined that CTL T lacke d stand i n g t o bring the claim. A section 2-619 motion for involuntary dismiss al “admits the leg al sufficie ncy of the plaintiff’s complaint, but asser ts an aff irmative defe nse or other matter that avoids or defe ats the plaintiff’s claim.” Barber v. American Airlines, Inc. , 241 I ll. 2d 450, 455 (2011). L ack of standing is an aff irmative defe nse. Gree r v. Illinois Housing Deve lopment Authority
, 122 I ll. 2d 462, 494 (1988). Theref ore, lack of standing is proper ly raised as an af fi rmative defense in a section 2-619 m otion to dismiss

. Rec ord-A-Hit, Inc. v. Nati o n a l F i r e Insur ance Co. of Hartford
, 377 I ll. App. 3d 642, 648 (2007). When a party moves to dismiss a complaint pursuant to section 2-619 based on lack of standing
, all well-pled fac ts in the complaint ar e t aken as true. DeW oskin v. Loew’s Chicago Cinema, Inc. , 306 I ll. App. 3d 504, 513 (1999). Har ris bear s the burden to plead and prove CTL T’s lack of standing

. Law Off i ce s o f Colleen M. McLaughlin v. First Star Financial Corp. , 2011 I LApp (1st) 101849, ¶ 16. ¶ 16 CTL T argues the trial court err ed in dismis s i n g its amende d complaint beca use CTL T

n ever intended to convey the approximately 30 acr es of land at issue and is there fore sti l l

owner of that land. Fur

thermore
, since C T L T n ever consente d to the mortg ag e on the 30

acr es, the mortg ag e should be remove d as an encumbr ance on CTL T’s title. CTL T maintains that its action to quiet tit le is the appropriate re medy to remove a

cloud on its tit le. ¶ 17 Howeve r, in order to maintain an action to quiet title one must hold title to the proper ty

. La Salle N

a tional Bank v. Kissane , 163 I ll. App. 3d 534, 540 (1987) (a party “ca nnot complain of a cloud of title absent proof of title in himself” (citing Klingel v. Kehrer
, 81 I ll. App. 3d 431, 439 (1980)) ). C TL T argues t hat i t still holds title to the 30 acr es because the proper ty was convey ed throug h an err oneous leg al descr iption contained in the deed. Although the deed descr ibed the entire 46 acr es owne d by CTL T, the front of the deed and the sales contra ct clea

rly showed an inte n t to transfe r only approximately 17 acr es. As support, CTL T cites David v. Schiltz
, 415 I ll. 545 (1953), and Ko r sga a r d v. Elliott
, 17 I ll.

-4-App. 3d 1061 (1974), in which the court allowed ref ormation of th e erro n eo u s deeds to ref lect the a ctual intention of the pa rties. ¶ 18 David and Korsgaard are distinguishable. T h e p l aintiffs seeking deed ref ormation in David and Korsgaard rema ined owner s of the proper ty in question. Thus, the issues of

o wn er s h i p and title did not arise in those case s. In the case at bar, CTL T had title to t h e disputed 30 acr es when it e x ecute d the err oneous deed to SVD. It subse quently discovere d the err or but it did not file an action to ref orm the deed as occur

red in David and Korsgaard

. Instead, CTL T made a reque st to SVD t o corr ect the err or by executing and delivering a quitclaim deed. In its amende d complaint and response to Har ris’ motion to dismiss
, CTL T stated that SVD rec onveyed by quitclaim deed approx imately 29.49 acr es of proper ty to Planey as nominee for

Sauk Villag e Ve nture, a

benef iciary of CTL T. The plat act aff idavit filed by SVD in connec tion with the quitclaim deed stated that the c onveyance was “ made to corr ect descr iptions in prior conveyance s.” It appea rs CTL T and SVD attempted to corr ect the err or throug h rec onveyance of the 30 acr es by quitclaim deed to Planey

. Wit hout title to the proper

ty in question, CTL T l acks standing to file an action to quiet title. Benne tt v. Chicago Tit le &Trust Co. , 404 I ll. App. 3d 1088, 1100 (2010). ¶ 19 C T L T co n t ends, howeve r, that the trial court should not have dismiss ed its am en d ed complaint beca

use CTL T alleg ed sufficie nt f acts to de monstrate standing
, and on a section 2-619 motion to dismiss
, all well-pled fac ts in the complaint are taken as true. CTL T argues its alleg ation that it owns the 30 acr es at issue sufficie ntly demonstrates standing beca use fac ts show it never intended to convey the proper ty to SVD. As support, CTL T cites McVe y

v. Unknown Shareholders of Inland Coal & W a s h ing Co.
, 100 I ll. App. 3d 584 (1981). In McVe y , the plaintiff broug ht suit to quiet title alleg ing that he owned the proper ty in question throug h title acquir ed by a 1958 deed. Id

. at 585. The trial court held that t h e d eed did not convey title or interest in the proper ty to the plaintiff. Id

. The appellate court, howeve r, deter mined that the languag e of the de ed could be construed to c onvey a fe e simple title to the plaintiff subject to an ease ment held by a railroa d company

. Id

. at 586-87. There fore
, the plaintiff’s alleg ation that he owne d the prope rty by way of the de ed wa s sufficie nt to show standingto bringhis suit. Id . at 588. ¶ 20 McVe

y is distinguishable. The plaintiff in McVe y held a deed to the proper ty in que stion and the issue was whether the deed c onveyed title in that proper ty

. Her e, C TL T conclude s in its amende d complaint that it still owns the proper ty in question. Howeve r, CTL T alleg ed fac ts contra dicting that conclusion. It s t at ed t hat SVD executed and delivere d a quitclaim deed for the 30 acr es to Planey
, at C T L T ’s reque st, “to corr ect descr iptions in prior conveyance s.” There is no alleg ation that this conveyance was err oneous or fra udulent. In revie wing a motion to dismiss
, this court does not consider conclusions unsupported by

s p ec i fi c fac tual alleg ations. Managem ent Ass’n of Illinois, Inc. v. Board of Rege nts o f Northern Illinois University , 248 I ll. App. 3d 599, 606 (1993). We find that CTL T does not have title to the proper

ty in question, and the trial court proper ly dismiss ed its complaint to quiet title for lack of

standing

. ¶ 21 Due to our dispositi on of this issue, we need not consider CTL T’s alternative claim that the trial court err ed in dismiss ing its amende d complaint pursuant to section 2-615 beca use the complaint alleg ed the ne cessa ry fac ts to maintain an action for slander of

title.

-5-¶ 22 For the fore g oing r easons, we aff irm the judg ment of the c ircuit court.

¶ 23 Affir

med.

-6-