2015 IL App (3d) 140964

Opinion filed December 14, 2015 

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015 

PENNYMAC CORPORATION, )

 ) 

 Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

EDWARD COLLEY, JR., and ) 

CAROL J. COLLEY, ) 

 ) 

Defendants-Appellants ) 

 ) 

 ) 

)

Appeal from the Circuit Court

of the 12th Judicial Circuit, 

Will County, Illinois. 

Appeal No. 3-14-0964 

Circuit No. 08-CH-4004 

Honorable 

Thomas A. Thanas 

Judge, Presiding 

_____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion. 

Presiding Justice McDade and Justice Carter concurred in the judgment and opinion. 

_____________________________________________________________________________

 OPINION

¶ 1 Plaintiff CitiMortgage filed a complaint for foreclosure against defendants Edward 

and Carol Colley. During the pendency of the proceedings, CitiMortgage assigned its interest in 

the mortgage and note to plaintiff PennyMac Corp. CitiMortgage moved for summary judgment 

and to amend the pleadings to name PennyMac as plaintiff. The trial court granted both motions 

and also granted PennyMac’s motion to confirm the judicial sale. Colley appealed. We affirm. 

¶ 2 FACTS
2 

¶ 3 Defendants Edward Colley and Carol Colley (collectively Colley) entered into a 

mortgage contract with CitiMortgage and executed a promissory note. Colley defaulted on the

payments and CitiMortgage filed a complaint for foreclosure in September 2008. Attached to 

the complaint were the mortgage agreement and note. The case was stricken from the call and 

refiled several times. In December 2010, the case was dismissed without prejudice on 

CitiMortgage’s motion but later reinstated. 

¶ 4 In November 2013, CitiMortgage filed motions for foreclosure and sale, to substitute 

plaintiffs, to amend the pleadings, and for summary judgment. Attached to the motion to 

substitute was a copy of the assignment transferring interest in the foreclosure property from 

CitiMortgage to PennyMac Corporation. The assignment established that it was executed on 

March 10, 2010 by M. Arndt, a CitiMortgage vice president, and prepared by M.E. Wileman of 

Orion Financial Group, Inc. Attached to the summary judgment motion was a proveup affidavit 

executed by Teri Gerrish, a default specialist for PennyMac Loan Services. Gerrish attested that 

she was “familiar with the books and records of PennyMac Loan Services, LLC as servicer and 

has personally examined them.” Gerrish further attested that the “records are maintained in the 

ordinary course of business made at or near the time of the event by or from information 

provided by a person with knowledge” and it was “the regular practice to make and keep these 

records.” Finally, Gerrish attested that she personally examined the records and that 

$585,090.54 was due and owing on the mortgage and note. 

¶ 5 The motion to substitute party plaintiff and the motion to amend the pleadings sought to 

have PennyMac substituted as the plaintiff because it became the holder of the promissory note. 

The assignment of mortgage to PennyMac, which was executed by M. Arndt, a CitiMortgage 

vice president, was attached to the motion to substitute. In response, Colley challenged the 
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motion for summary judgment and the Gerrish affidavit. The trial court entered orders of 

default, summary judgment, and judgment of foreclosure and sale. It also granted 

CitiMortgage’s motion to amend the pleadings to substitute PennyMac as plaintiff. The trial 

court did not rule on CitiMortgage’s motion to substitute plaintiff but the trial court’s subsequent 

orders captioned PennyMac as the plaintiff. 

¶ 6 A notice of sale was filed and Colley moved to stay the foreclosure sale. Colley argued 

that PennyMac was never substituted as plaintiff; CitiMortgage untimely brought its motion to 

substitute; and the assignment could not be considered valid as the signatory, M. Arndt, did not 

have the requisite knowledge of the transfer or authority to make the transfer. Colley attached as 

exhibits a LinkedIn profile of M. Arndt and a July 2011 article in Further Fraud Digest. The 

profile identifies M. Arndt as a document specialist at Orion Financial Group. The article, 

entitled “Who’s Signing Now?” names Arndt as a nationally known document robosigner. The 

trial court denied Colley’s motion to stay the sale and the property was sold in October 2014. 

The trial court approved the report of sale and distribution and order for possession and eviction. 

Colley appealed. 

¶ 7 ANALYSIS

¶ 8 On appeal, Colley argues that the trial court erred when it denied the motion for stay and 

confirmed the judicial sale, and when it granted summary judgment in PennyMac’s favor. 

¶ 9 In the first issue, Colley challenges the trial court’s denial of the motion to stay the sale 

and its grant of PennyMac’s motion to confirm the sale. Colley submits they demonstrated that 

PennyMac lacked standing and argues that CitiMortgage’s request to substitute plaintiff was 

untimely, and that the assignment did not establish PennyMac’s standing. 
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¶ 10 As part of its inherent authority to control its docket, the trial court may stay proceedings 

to control the disposition of cases before it. Philips Electronics, N.V. v. New Hampshire 

Insurance Co., 295 Ill. App. 3d 895, 901 (1998). Factors the trial court may consider to 

determine whether to stay proceedings are the orderly administration of justice and judicial 

economy. Philips Electronics, 295 Ill. App. 3d at 901-02. A trial court is required to confirm a 

judicial sale following a hearing unless one of four exceptions applies: (1) lack of notice under 

section 15-1507 (735 ILCS 5/15-1507 (West 2012)); (2) the sale terms were unconscionable; (3) 

the sale was fraudulently conducted; or (4) “justice was otherwise not done.” 735 ILCS 5/15-

1508(b)(iv) (West 2012); Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008). We will 

not disturb a trial court’s decisions to deny a stay and to confirm a judicial sale unless they were 

an abuse of discretion. Philips Electronics, 295 Ill. App. 3d at 902; Lewis, 229 Ill. 2d at 178-79. 

¶ 11 Standing is determined as of the time the complaint is filed. Deutsche Bank National 

Trust Co. v. Gilbert, 2012 IL App (2d) 120164, ¶ 15, as modified on denial of reh’g (Dec. 28, 

2012). Lack of standing is an affirmative defense that is waived if not timely raised. Mortgage 

Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6 (2010) (quoting Greer v. 

Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988)). When a party fails to 

timely challenge standing and participates in, and benefits from, the proceedings, it has waived 

the issue of standing. Deutsche Bank National Trust Co. v. Snick, 2011 IL App (3d) 100436, ¶ 9. 

Where the plaintiff has moved for confirmation of the sale, it is too late for the defendant to 

assert a standing defense. Snick, 2011 IL App (3d) 100436, ¶ 9. The burden of disproving 

standing is on the party asserting lack of it. Gilbert, 2012 IL App (2d) 120164, ¶ 15, as modified 

on denial of reh’g (Dec. 28, 2012). 
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¶ 12 Colley did not challenge PennyMac’s standing until the hearing on the motion to confirm 

the judicial sale. By that point in the proceedings, Colley had forfeited the affirmative defense of 

standing and the trial court was required to confirm the sale unless one of the statutory grounds 

applied. Colley argues the ground of “unless justice otherwise requires” applies to the 

circumstances at bar and requires reversal of the order confirming the judicial sale. According to 

Colley, PennyMac should have sought leave to file an amended complaint based on the 

assignment from CitiMortgage, CitiMortgage’s request to substitute plaintiffs was untimely filed 

nearly two years after the assignment, and PennyMac was never substituted as a plaintiff. We 

disagree. 

¶ 13 CitiMortgage filed a complaint for foreclosure in 2008, alleging that it held the mortgage 

and it attached copies of the mortgage and promissory note to the complaint. In March 2010, 

CitiMortgage assigned its interest in the foreclosed property to PennyMac, as evidenced by the 

assignment filed as an exhibit in May 2012. Also in May 2012, CitiMortgage filed its first 

motion to substitute plaintiff. It filed a subsequent motion to substitute plaintiff again in 

November 2013. The trial court did not rule on either motion to substitute but it did grant 

CitiMortgage’s motion to amend the pleadings on their face. In the motion to amend, 

CitiMortgage sought to substitute PennyMac as plaintiff for CitiMortgage. 

¶ 14 That CitiMortgage waited more than two years after the assignment to substitute 

PennyMac as the plaintiff is of no relevance. For whatever reason that CitiMortgage continued in 

the proceedings after the assignment, it was “master” of its cause of action. Lewis, 229 Ill. 2d at 

180. There were no improprieties in the assignment and Colley was neither surprised nor 

prejudiced by the change of plaintiff. In the later proceedings, both parties referenced PennyMac 

as the plaintiff and the captions on the court orders also identified PennyMac as the plaintiff. 
6 

None of Colley’s arguments are persuasive and do not necessitate that the sale be rejected based 

on the claim that PennyMac lacked standing. 

¶ 15 The next issue is whether the trial court erred in granting PennyMac’s motion for 

summary judgment. Colley argues that she raised an issue of fact regarding the sufficiency of 

the affidavit filed by PennyMac in support of the motion. She submits that the affiant lacked 

personal knowledge and that the appropriate business records were not attached. 

¶ 16 Summary judgment should be granted when the pleadings, depositions, and affidavits, if 

any, establish there is no genuine issue of material fact. 735 ILCS 5/2-1005(c) (West 2012). An 

affidavit that is filed in support of a summary judgment motion must comply with Illinois 

Supreme Court Rule 191(a) (eff. July 1, 2002). Collins v. St. Paul Mercury Insurance Co., 381 

Ill. App. 3d 41, 46 (2008). The requirements of Rule 191 include the affidavit be made on the 

affiant’s personal knowledge, set forth with particularity the facts on which the claim is based, 

have attached sworn or certified copies of all documents on which the affiant relied, be based on 

admissible facts and not consist of conclusions; and show affirmatively that the affiant could 

testify competently to the facts if sworn as a witness. Ill. S. Ct. R. 191(a) (eff. July 1, 2002). The 

failure to attach supporting documents is fatal to the submission of the affidavit as substantive 

evidence. Preze v. Borden Chemical, Inc., 336 Ill. App. 3d 52, 57 (2002). 

¶ 17 A business record is admissible when a foundation is established demonstrating: (1) the 

transaction was made in the regular course of business and (2) it was the regular course of 

business to make the record at the time of, or within a reasonable time after, the transaction. Ill. 

S. Ct. R. 236 (eff. Aug. 1, 1992). Other circumstances concerning the making of the record, such 

as lack of personal knowledge, goes to the weight of the evidence and not its admissibility. Ill. 

S. Ct. R. 236 (eff. Aug. 1, 1992). It is the business record itself that is admissible, not the 
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witness’s testimony Champaign National Bank v. Babcock, 273 Ill. App. 3d 292, 298 (1995). 

Where the business record includes a mass of documents, the documents are available for the 

non-moving party to examine, and the computations are not questioned, a summary of loan 

documents may be attached to an affidavit in support of summary judgment. See Cole Taylor 

Bank v. Corrigan, 230 Ill. App. 3d 122, 129 (1992); Babcock, 273 Ill. App. 3d at 298. When the 

party opposing the motion fails to file counteraffidavits, the material facts that were set forth in 

the movant’s affidavit must be taken as admitted. Babcock, 273 Ill. App. 3d at 299. We 

consider the propriety of an affidavit submitted in support of a summary judgment motion de 

novo. US Bank, National Ass'n v. Avdic, 2014 IL App (1st) 121759, ¶ 18 (quoting Jackson v. 

Graham, 323 Ill. App. 3d 766, 773 (2001)). 

¶ 18 Some of the documents in this case are filed out of order. However, the documents filed 

the same date as the summary judgment motion included the Gerrish affidavit and a payment 

history on the mortgage account. The other relevant bank reports were filed with the trial court 

and were available for inspection. The affidavit was properly supported with the attached 

payment history and, as proper under the summary document rule, the remaining documents 

were available for inspection. The Gerrish affidavit established that the affiant had access to the 

loan records, had personally examined them, had personal knowledge of how the records were 

kept and maintained, and that the records were maintained in the ordinary course of business 

made at or near the time of the loan servicing by or from information that was provided by a 

person with the applicable knowledge. The affiant also attested that $585,090.54 was due and 

owing. 

¶ 19 The attached payment history, with other documents filed with the court, satisfied the 

requirements for summary judgment proveup affidavits. Colley’s argument that summary 
8 

judgment was improperly entered because the Gerrish affidavit was insufficient must therefore 

fail. Moreover, Colley did not file any counteraffidavits challenging the facts in the Gerrish 

affidavit, thus, the facts must be taken as true. In the affidavit, Gerrish attests that Colley 

defaulted on the loan and there were amounts due and owing on the loan. Because Colley failed 

to raise any genuine issue of material fact, the trial court’s grant of summary judgment in favor 

of PennyMac on its foreclosure claim was not in error. 

¶ 20 Based on the foregoing reasons, the judgment of the circuit court of Will County is

affirmed. 

¶ 21 Affirmed.