First Bank of Highland Park v. Heiman ( 2022 )

2022 IL App (1st) 192270-UNo. 1-19-2270
September 16, 2022
Sixth Division
________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
FIRST BANK OF HIGHLAND PARK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County, Illinois.
)
v. )
)
SCOTT A. HEIMAN, ANDREA L. HEIMAN, ) No. 17-CH-05703
THE UNITED STATES OF AMERICA, )
HARRIS, N.A., ELIAH KAHN, )
UNKNOWN OWNERS, and )
NON-RECORD CLAIMANTS. ) Honorable
) Judge John J. Curry Jr.
Defendants ) Judge Presiding.
)
(Scott A. Heiman and Andrea L. Heiman, )
Defendants-Appellants). )
JUSTICE WALKER delivered the judgment of the court.
Justice Hyman and Justice Coghlan concurred in the judgment.
ORDER
¶1 Held: The circuit court correctly denied defendants’ motion for leave to file a
counterclaim because the limitations period for the counterclaim expired before the
plaintiff’s cause of action arose. Where defendants did not file a Rule 191 affidavit
in support of their request for a deposition of one of plaintiff’s employees, the
circuit court did not abuse its discretion by denying the request.
No. 1-19-2270
¶2 Plaintiff-Appellee First Bank of Highland Park sued to foreclose its mortgage on the home
of defendants-appellants Scott and Andrea Heiman. The circuit court granted First Bank’s motion
for summary judgment and later approved the sale of the home. On appeal from the circuit court’s
denial of their motion to vacate the sale, the Heimans argue the circuit court (1) should have
permitted them to file a counterclaim; (2) should have permitted them to take the deposition of one
of First Bank’s officers; (3) should have ignored the documents First Bank presented in support of
its motion for summary judgment; (4) should have vacated the sale because of insufficient notice
of the motion to approve the sale; and (5) awarded too much for attorney fees. We affirm the circuit
court’s judgment.
¶3 BACKGROUND
¶4 In 2002, the Heimans gave First Bank a mortgage on their home in exchange for a loan
and a revolving line of credit. In 2011, the Heimans signed a promissory note made out to First
Bank in exchange for a loan of $2,040,000. The Heimans and First Bank signed a “Work-Out and
Forbearance Agreement,” dated December 2016, in which the Heimans agreed to list their home
for sale and repay the entire loan by March 2017. In exchange, First Bank agreed not to file for
foreclosure before March 2017. In April 2017, First Bank filed a complaint for foreclosure on the
mortgage, alleging that the Heimans had not complied with the work-out agreement and still owed
more than $1.7 million on the loan.
¶5 The Heimans sought leave to file a counterclaim alleging that, in 2004, First Bank agreed
to loan Scott $4.7 million so that Scott could purchase a commercial property. The Heimans were
alleging that First Bank’s failure to make the agreed loan, caused Scott to lose profits anticipated
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No. 1-19-2270
from the proposed purchase. The Heimans deposed a bank officer who stated in an affidavit that
bank records showed the Heimans still owed the bank $1,885,820 plus interest of $247.66 per day.
¶6 The circuit court found the statute of limitations barred Scott’s counterclaim and granted
First Bank’s motion for summary judgment on the complaint.
¶7 First Bank then filed the supplemental affidavit of Anne O’Connor, a senior vice president
of First Bank, who stated she reviewed bank documents and found the Heimans’ debts had
increased to more than $2,000,000. In addition, to increases in interest and late fees listed in the
prior affidavit, she added charges for insurance, appraisal fees, and real estate taxes. The Heimans
filed a request for leave to take O’Connor’s deposition and a motion to stay the sale. The circuit
court denied both motions.
¶8 On June 14, 2019, First Bank filed a motion for an order approving the sale. In the notice
of motion, First Bank’s attorney stated: “on July 2, 2019 at 2:00 p.m., or as soon thereafter as
counsel may be heard, I shall appear before the Honorable Darryl B. Simko or any judge sitting in
his stead, in the courtroom usually occupied by him, Courtroom 2806.” The attorney certified that
he mailed a copy of the motion to the Heimans’ attorney on June 14, 2019. Although the circuit
court had initially assigned the case to Judge Simko, the court had reassigned the case to Judge
Curry, on the Heimans’ motion for substitution of judge, long before First Bank filed its motion to
approve the sale.
¶9 The circuit court approved the sale of the home to First Bank for $1.7 million. The circuit
court also entered a judgment against the Heimans for $447,700.94, which included the amount
remaining due on the loan and $30,104.50 in attorney fees. The Heimans filed a motion to vacate
the sale, arguing that First Bank did not send the required notice for the motion to approve the sale.
The circuit court denied the motion to vacate. The Heimans now appeal.
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No. 1-19-2270
¶ 10 ANALYSIS
¶ 11 On appeal, the Heimans contend the circuit court committed five errors: the court should
have (1) allowed the Heimans to file their counterclaim; (2) granted the Heimans’ request for a
deposition of O’Connor; (3) disregarded the exhibits attached to O’Connor’s affidavit; (4) vacated
the sale because First Bank did not show valid notice; and (5) awarded a smaller amount for
attorney fees. Different standards of review govern the differing arguments.
¶ 12 Counterclaim
¶ 13 The circuit court denied the Heimans’ motion for leave to file a counterclaim because the
court found the statute of limitations barred their claim. We review the ruling de novo. Barragan
v. Casco Design Corp., 216 Ill. 2d 435, 440 (2005). The Code of Civil Procedure provides:
"A defendant may plead a set-off or counterclaim barred by the statute of limitation,
while held and owned by him or her, to any action, the cause of which was owned
by the plaintiff or person under whom he or she claims, before such set-off or
counterclaim was so barred, and not otherwise." 735 ILCS 5/13-207 (West 2018).
¶ 14 In the proposed counterclaim, the Heimans allege First Bank breached a contract with Scott
in 2004 when First Bank reneged on its promise to lend Scott $4.7 million. The limitations period
for the contract claim expired in 2014, ten years after the alleged breach. See 735 ILCS 5/13-206
(West 2012).
¶ 15 The Heimans argue that by 2014 they had already missed payments on their 2011
promissory note, so First Bank had a cause of action against them for foreclosure before 2014.
However, First Bank did not sue for foreclosure based on the 2011 note. First Bank contended
instead that the Heimans breached the 2016 work-out agreement when they failed to repay the loan
by March 2017. The cause of action for breach of the work-out agreement did not arise until March
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No. 1-19-2270
2017, several years after the limitations period expired for the proposed counterclaim. The circuit
court correctly denied the motion for leave to file the counterclaim. See Beneficial Illinois, Inc. v.
Parker, 2016 IL App (1st) 160186, ¶¶ 19-20.
¶ 16 Discovery
¶ 17 The Heimans contend the circuit court should have granted them leave to take O’Connor’s
deposition before considering First Bank’s motion to approve the sale. We will not disturb the
circuit court’s ruling on the discovery motion unless the circuit court abused its discretion. Ragan
v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 352, 701 N.E.2d 493 (1998).
¶ 18 Supreme Court Rule 191(b) establishes the procedure for obtaining depositions needed for
responding to motions for summary judgment:
“If the affidavit of either party contains a statement that any of the material facts
which ought to appear in the affidavit are known only to persons whose affidavits
affiant is unable to procure by reason of hostility or otherwise, naming the persons
and showing why their affidavits cannot be procured and what affiant believes they
would testify to if sworn, with his reasons for his belief, the court may make any
order that may be just, *** granting a continuance to permit *** the depositions of
any of the persons so named.” Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013).
¶ 19 “Parties who fail to file Rule 191(b) affidavits cannot complain that the discovery process
was insufficient or limited.” (Internal quotation marks omitted) Parkway Bank & Trust Co. v.
Korzen, 2013 IL App (1st) 130380, ¶ 48. The Heimans filed no Rule 191(b) affidavit. Hence, the
circuit court did not abuse its discretion by denying the Heimans’ request for leave to take
O’Connor’s deposition.
¶ 20 Supporting Documents
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No. 1-19-2270
¶ 21 The Heimans contend the court should have stricken the documents appended to
O’Connor’s affidavit in support of her calculation of the amount due. Those documents include
the mortgage, the 2011 note, the work-out agreement, and First Bank’s record of the Heimans’
payment history for the note. O’Connor in her affidavit stated:
“I am familiar with the day-to-day business operations of FBHP [First Bank] as
well as the documents maintained in FBHP’s ordinary course of business which
relate to the loan transaction between FBHP and Scott A. Heiman and Andrea L.
Heiman ***.
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
*** The above amounts due and owing to FBHP are based upon my personal
review and reliance upon the following records, which are maintained in the normal
and ordinary course of FBHP’s business: the Loan Payoff Letter *** and the Loan
Payment History.”
¶ 22 According to O’Connor, First Bank recorded the mortgage payments near the time the bank
received the payments. We find the affidavit sufficient to support the circuit court’s award. See
US Bank, National Ass'n v. Avdic, 2014 IL App (1st) 121759, ¶¶ 26-30.
¶ 23 Notice
¶ 24 The Heimans argue that three errors invalidate the notice of motion for approval of the
sale: (1) their attorney never received the notice; (2) First Bank sent the notice by mail, not by
email; and (3) the notice identified the wrong judge and the wrong courtroom. We review the
circuit court’s ruling on a motion to vacate a sale for abuse of discretion. Deutsche Bank National
v. Burtley, 371 Ill. App. 3d 1, 5 (2006). The circuit court abuses its discretion when its ruling rests
on an error of law. CitiMortgage, Inc. v. Johnson, 2013 IL App (2d) 120719, ¶ 18, 993 N.E.2d
563.
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No. 1-19-2270
¶ 25 “Service of a document by mail is not invalid merely because the party to be served denies
receiving it.” Ingrassia v. Ingrassia, 156 Ill. App. 3d 483, 501, 509 N.E.2d 729 (1987). The
certificate of First Bank’s attorney attesting to posting the notice suffices to prove notice by mail.
See Crum v. Gulf Oil Corp., 12 Ill. App. 3d 988, 990, 299 N.E.2d 820 (1973).
¶ 26 Supreme Court Rule 11 Provides:
“(b) E-mail Address. An attorney must include on the appearance and on all
pleadings filed in court an e-mail address to which documents and notices will be
served ***.
(c) Method. Unless otherwise specified by rule or order of court, documents shall
be served electronically.” Ill. S. Ct. R. 11 (eff. July 1, 2021).
¶ 27 The attorney for the Heimans complains that First Bank did not email him notice of the
motion to approve the sale. However, the attorney for the Heimans violated Rule 11(b) by failing
to include his email address on the Heimans’ pleadings filed in court. We find notice by mail
sufficient for an attorney who failed to include his email address on the pleadings.
¶ 28 The Heimans argue that the misidentification of the judge and courtroom invalidates the
notice, but the Heimans knew Judge Simko no longer presided over the case. They also knew that
the court had reassigned the case to Judge Curry and how to find Judge Curry’s courtroom. First
Bank’s notice appears to substantially comply with the notice requirement as it adequately
informed the Heimans and their attorney of the nature of the motion and the time for the hearing.
See Vole, Inc. v. Georgacopoulos, 181 Ill. App. 3d 1012, 1019 (1989); Prairie Vista, Inc. v. Central
Illinois Light Co., 37 Ill. App. 3d 909, 912, 346 N.E.2d 72 (1976). Moreover, the Heimans cite no
statute, rule, or case law for their argument concerning the misidentifications. This court "is not
merely a repository into which an appellant may dump the burden of argument and research."
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No. 1-19-2270
(Internal quotation marks omitted) U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459, 920 N.E.2d
515 (2009). The Heimans have not shown the errors in the notice that require reversal.
¶ 29 Attorney Fees
¶ 30 Finally, the Heimans argue the circuit court awarded excessive attorney fees. We review
the award of fees for abuse of discretion. 3432 West Henderson Building, LLC v. Gizynski, 2017
IL App (1st) 160588, ¶ 40, 81 N.E.3d 94. The Heimans complain the fee petition clumps too many
tasks under single entries. They show one example of a single entry for which the attorney billed
2.8 hours:
“Review of email from Ken Kreisel regarding status; preparation of response to
same; preparation of all documents for initial case management conference per
local administrative Orders; electronic filing of same with Clerk of the Circuit
Court of Cook County; preparation of letter to Judge transmitting courtesy copies
of same.”
¶ 31 Judge Curry made all substantial rulings in this case. "The trial court's determination as to
an appropriate award of attorney fees must be considered in light of the principle that the trial
judge is permitted to use his own knowledge and experience to assess the time required to complete
particular activities, and a court of review may not reverse an award of attorney fees merely
because it may have reached a different conclusion." Chicago Title & Trust Co v. Chicago Title &
Trust Co., 248 Ill. App. 3d 1065, 1074, 618 N.E.2d 949 (1993). We find no abuse of discretion by
awarding First Bank $30,104.50 in attorney fees in this case.
¶ 32 CONCLUSION
¶ 33 The circuit court correctly denied the Heimans’ motion for leave to file a counterclaim, as
the statute of limitations for the counterclaim expired before First Bank’s cause of action arose.
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No. 1-19-2270
The Heimans’ failure to file a Rule 191(b) affidavit in support of their motion for a deposition of
O’Connor justified the court’s denial of the motion. O’Connor presented an adequate foundation
for the documents appended to her affidavit. The Heimans have not shown a lack of adequate
notice for the motion to approve the sale of their home. They also have not shown an abuse of
discretion in the award of attorney fees. Accordingly, we affirm the circuit court’s judgment.
¶ 34 Affirmed
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