Parkway Bank and Trust Company v. Korzen , 2 N.E.3d 1052 ( 2013 )

2013 IL App (1st) 130380FIRST DIVISION
September 23, 2013
No. 1-13-0380
PARKWAY BANK AND TRUST COMPANY, ) On Appeal from the Circuit Court
) of Cook County
Plaintiff-Appellee, )
)
v. ) No. 10 CH 36598
)
VICTOR KORZEN and TOMAS ZANZOLA, )
)
Defendants-Appellants )
)
)
(Unknown Owners and Nonrecord Claimaints, ) Honorable
) Robert Senechalle,
Defendants). ) Judge Presiding.
JUSTICE DELORT delivered the judgment of the court, with opinion.
Presiding Justice Connors and Justice Cunningham concurred in the judgment and
opinion.
OPINION
¶1 This appeal of a mortgage foreclosure case involving an empty lot is so groundless that
we would normally dispose of it with a brief summary order. However, it provides us an
opportunity to review a number of tactics a small number of debtors use both to delay the
ultimate resolution of cases against them and to use the legal system for improper purposes.
Some people might classify those who engage in these tactics as “sovereign citizens,” but
regardless of the nomenclature, their methods are not only counterproductive, but detrimental to
the efficient and fair administration of justice. A recent New York Times article noted the FBI
has labeled the strategy as “ ‘paper terrorism.’ ” Erica Goode, In Paper War, Floor of Liens Is
the Weapon, N.Y. Times, Aug. 23, 2013, at A1.
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¶2 Because of the growing number of these cases, we issue this opinion to provide guidance
to the many courts confronted with similar matters.1 We affirm the judgment below and retain
jurisdiction to award additional attorney fees as provided by the underlying contract and to
consider the imposition of sanctions under Illinois Supreme Court Rule 375 (Ill. S. Ct. R. 375
(eff. Feb. 1, 1994)).
¶3 BACKGROUND
¶4 Defendants-appellants, Victor Korzen and Tomas Zanzola, who are the owners of the
subject property, raise no less than 15 points in their pro se appeal. Establishing a framework to
properly analyze these contentions requires us to set out the chronology of the case in unusually
excruciating detail, as follows:
¶5 Date Event
January 5, 2007 Defendant Zanzola signs a promissory note to borrow
$100,000 from Parkway Bank & Trust Company (Parkway).
The note matures six months later, on July 5, 2007. The note
provides that Zanzola will be responsible to pay Parkway’s
attorney fees, court costs, and expenses, including for
appeals, if Zanzola fails to repay the note on time. The note
states that it is secured by a January 5, 2007 mortgage,
assignment of rents, and “commercial security agreement”
between Zanzola and defendant Korzen for property located
at 1527 East Thomas Street in Palatine (the property). The
note was thereafter renewed in like form for six successive
six-month terms, the last terminating on July 5, 2010.
1
“Precisely because the substantive claims are so weak, and the opinions are therefore
unpublished, litigants may be unaware of our practice. The routine use of sanctions does not
deter unless people know what lies in store.” Coleman v. Commissioner of Internal Revenue, 791
F.2d 68, 72 (7th Cir. 1986).
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January 5, 2007 Zanzola and Korzen sign a mortgage on the Thomas Street
property with Parkway. The mortgage contains a standard
“due on sale” clause providing that Parkway may declare the
note immediately due and payable if the mortgagors transfer
any of their interest in the property. The mortgage also
provides that if the note is not paid on time, Parkway may
obtain a court order foreclosing the mortgagors’ interest in
the property. Like the note, the mortgage provides that the
mortgagors shall pay Parkway’s “reasonable” attorney fees
and court costs “at trial and upon any appeal.”
In the mortgage, Zanzola and Korzen waived their rights of
redemption and reinstatement in case of a foreclosure, a
waiver which is only valid if the property is not “residential”
as defined by the Illinois Mortgage Foreclosure Law
(Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West
2010)). Under the Foreclosure Law, the property is only
“residential” if the borrower actually lives in a residence
constructed on the property. 735 ILCS 5/15-1219 (West
2010).
January 5, 2007 Zanzola and Korzen sign an assignment of rents in favor of
Parkway, another act which suggests that the property is not
“residential” under section 15-1219 of the Foreclosure Law.
January 22, 2007 Korzen signs and records a deed quitclaiming his interest in
the property to himself and Zanzola as joint tenants. Korzen
signs a certificate with the deed asserting that the transaction
between Zanzola and him is exempt from real estate transfer
taxes.
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August 26, 2010 Parkway files this mortgage foreclosure lawsuit, along with a
civil cover sheet indicating that the property is “vacant land.”
The lawsuit names both Korzen and Zanzola as defendants.
The lawsuit contains two counts. Count I seeks a mortgage
foreclosure and follows the standard statutory format.
Parkway attached three exhibits to the complaint to support
its allegations in count I: (a) a copy of the January 5, 2007
promissory note, whose most recent renewal matured on July
5, 2010; (b) a copy of the January 5, 2007 mortgage; and (c)
a copy of the January 5, 2007 assignment of rents. Count I,
paragraph 3, alleges that the default on the note and
mortgage occurred through failure to pay amounts due under
the note on and after March 8, 2010, and that the amount
currently due is about $106,377.23 plus continuing per diem
interest of $28.39.
Count II is a claim for breach of the promissory note against
Zanzola.
September 1, 2010 The circuit court appoints a special process server to serve
defendants.
September 12, 2010 The special process server personally serves Zanzola at an
address in Prairie Grove, McHenry County, Illinois.
September 14, 2010 The Cook County sheriff’s deputy assigned to serve
defendants reports that he could not serve Korzen at 410
South Warner in Palatine, because he moved from that
address “five years ago.”
October 20, 2010 Both defendants file motions in the circuit court to defend as
poor persons without paying filing fees. The court grants the
motions.
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October 28, 2010 Zanzola files an appearance, listing his Prairie Grove
address; Korzen also files an appearance, listing an address
in Chicago. The two defendants jointly file a fill-in-the-
blank form answer, denying the allegations of count I,
paragraph 3 of the complaint, and claiming that they have
insufficient knowledge to admit or deny count I, paragraph 2.
Under the portion of the answer labeled “Other affirmative
matter,” defendants state the following:
“Missing:
4.1 Proof of claim accompanied with the evidence of debt;
4.2 Original Wet Script ink Promissory Note;
4.3 Original Title;
4.4 Current complete copy of the Bank’s Original
Application and the CUSIP number of the Application.”
January 31, 2011 The special process server personally serves Korzen at his
address in Chicago.
February 22, 2011 Defendants fail to appear for the case management
conference.
August 16, 2011 Parkway issues a request to admit facts to defendants,
seeking admission of various basic facts regarding the
transaction. These include genuineness of the documents
signed by defendants and the default created by the missed
payments.
August 31, 2011 On Parkway’s motion, the circuit court strikes the
affirmative matter contained in paragraph 4 of defendants’
answer. Defendants never amended these statements, nor
filed traditional affirmative defenses at any later date.
September 15, 2011 Korzen recasts the “other affirmative matter” material which
the circuit court struck from his answer and files it as a
request for production of documents on Parkway. Included
in the request is a demand for an “Original Wet Script ink
Promissory Note [sic].”
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October 12, 2011 Parkway responds to defendants’ request for production of
documents, acknowledging that Parkway will produce the
original note for inspection. Parkway responds to the other
requests by generally stating that they held no responsive
documents or that the requests were vague.
December 7, 2011 Parkway presents a motion for summary judgment which
relies, in part, on defendants’ failure to respond to Parkway’s
request to admit facts. Defendants file a written motion for a
continuance on Parkway’s motion for summary judgment.
December 8, 2011 The circuit court grants a briefing schedule on Parkway’s
motion for summary judgment, and sets hearing on the
motion for February 9, 2012. The court also orders Parkway
to produce the original note for inspection at its office by
December 29, 2011.
December 15, 2011 Parkway’s attorneys send Zanzola and Korzen letters stating
as follows:
“This letter will serve to confirm our telephone conversation
earlier today. You previously requested that Parkway Bank
produce the original Note at issue in the above-captioned
case for inspection by you at a Parkway Bank location. As
discussed in our telephone conversation, Parkway Bank shall
produce the Note for your inspection upon setting up an
appointment with your loan officer.
Your loan officer is Loukas Rogaris. Mr. Rogaris can be
reached at [phone number]. The Order entered on December
8, 2011, requires that you inspect the original Note by
December 29, 2011, so please be sure to contact Mr. Rogaris
promptly.
Please feel free to contact me should you have any
questions.”
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January 4, 2012 Defendants file responses to Parkway’s request to admit
facts, about four months late. Defendants’ response includes
a request to “toll the statute of limitations.” The response is
laden with objections and nonsense legalistic jargon. The
record does not indicate that defendants ever: (1) requested a
conference pursuant to Illinois Supreme Court Rule 201(k)
(Ill. S. Ct. R. 201(k) (eff. July 1, 2002)) to resolve the
objections; (2) filed any motion to request a ruling on the
objections; or (3) filed or presented a motion asking the
circuit court to extend the time to respond to the request to
admit facts. See Ill. S. Ct. R. 216(c) (eff. Jan. 1, 2011)
(“Any objection to a request or to an answer shall be heard
by the court upon prompt notice and motion of the party
making the request.”).
January 12, 2012 Defendants file a pleading objecting to Parkway’s motion for
summary judgment. In the objection, defendants refer to
themselves as “alleged defendants.” The only point raised in
the objection is that the alleged failure of Parkway to
produce the original note for inspection creates a material
issue of genuine fact preventing summary judgment. The
objection is unverified. It contains no supporting affidavit,
nor it is executed under section 1-109 of the Illinois Code of
Civil Procedure (Code of Civil Procedure) (735 ILCS 5/1-
109 (West 2010)). In particular, the objection also contains
no affidavit pursuant to Illinois Supreme Court Rule 191(b)
(Ill. S. Ct. R. 191(b) (eff. July 1, 2002)), explaining why the
lack of the original note prevented them from fully
responding to the motion for summary judgment.
Defendants also file a similar pleading objecting to
Parkway’s motion to default unknown owners and non-
record claimants, even though they have no standing to do so
since that motion was not directed against them.
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January 19, 2012 Parkway files a reply in support of its motion for summary
judgment. The reply asserts that Parkway’s attorneys sent
defendants a letter on December 15, 2011, offering
defendants an opportunity for them to inspect the original
notes by making an appointment to see them at Parkway’s
office (not its attorneys’ offices). It also states that
defendants admitted all the relevant facts by failing to timely
respond to plaintiff’s request to admit facts.
February 7, 2012 Defendants file a motion to dismiss the case with prejudice,
based on Parkway’s alleged failure to respond to the demand
to produce the original note. The motion consists merely of
fact-based assertions, and is not accompanied by any
affidavit. In the motion, defendants admit receiving the
December 15, 2011 letter from Parkway, but state that they
left messages to establish an appointment to which Parkway
did not respond. In particular, defendants assert that when
they did reach a representative of Parkway on January 19,
2012, he incorrectly claimed that Parkway had until February
9, 2012 to produce the note. The record does not show that
defendants scheduled this motion for hearing on any
particular date, nor that they ever visited Parkway to view
the original note.
February 9, 2012 The circuit court grants Parkway’s motion for summary
judgment of foreclosure and orders that the property be sold
at auction to satisfy the debt. The order finds that defendants
waived their rights to redeem the property pursuant to
section 15-1601 of the Foreclosure Law (735 ILCS 5/15-
1601 (West 2010)), which indicates that the property is non-
residential. The order contains no language pursuant to
Illinois Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff.
Feb. 26, 2010)) indicating that the order is final or
appealable.
February 16, 2012 Defendants file a notice of appeal from the February 9, 2012
order of foreclosure, which is premature because such orders
are interlocutory and not appealable until the court has
confirmed the sale. EMC Mortgage Corp. v. Kemp, 2012 IL
113419, ¶ 11. The appeal is assigned docket number 1-12-
0556 in this court.
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February 22, 2012 Parkway’s attorneys send a letter to defendants, advising
them that their notice of appeal is premature. The letter cites
two precedential cases so holding, and requests that
defendants dismiss the appeal. If they do not, the attorneys
state that they will file an emergency motion to dismiss the
appeal and seek sanctions against them under Illinois
Supreme Court Rule 375 (Ill. S. Ct. R. 375 (eff. Feb. 1,
1994)).
February 22, 2012 Defendants file a “motion and declaration” which asks the
circuit court to vacate the order of foreclosure and sale, and
various other orders, and to dismiss the case. The pleading
is supported by no affidavits, and was filed both in the circuit
court and in this court. It raises a first group of entirely new
issues. The main arguments in, and elements of, this
confusingly drafted document are:
1. Parkway improperly objected to defendants’ request for
production of the “original title,” “Parkway Bank’s original
application and CUSIP number,” and “documents evidence
Bank’s Right to Ownership of Victor Korzen’s property,”
claiming these requests were “vague.”
2. A recitation of various telephone and other
communications between the parties regarding inspection of
the note.
3. Only Korzen owns the subject property. However,
Parkway did not serve Korzen but instead only mailed
Korzen’s service copy to Zanzola. Defendants claim this
was “in violation of process service requirements.” The
motion does not address, in any way, the apparently valid
service on Korzen by the special process server on January
31, 2011.
4. The trial judge “blatantly” issued the foreclosure order “in
clear violation and ignorance” of the allegedly nonproduced
documents and that he “engaged himself in fraud ***
possibly in conspiracy with” Parkway.
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February 22, 2012 5. The foreclosure violated a laundry list of various statutes.
(continued) This list is, like the 15 points in defendants’ brief now before
us, presented in conclusory fashion without explaining what
occurred that actually violated the particular statutes. In
addition, many of the cited statutes are utterly inapplicable.
The claims include: (a) Parkway failed to provide proof of
debt as required by the federal Fair Debt Collection Practices
Act (15 U.S.C. § 1692 et seq. (2006)); (b) there was a
“genuine issue of material fact” under section 2-615 of the
Code of Civil Procedure (a provision which has nothing to
do with genuine issues of material fact); (c) there are
applicable “exceptions” under section 15-1506 of the
Foreclosure Law, a provision which sets forth the evidence
required to obtain a foreclosure judgment; (d) there was a
“lack of evidence that the property belongs to the claimant”
under section 12-204 (735 ILCS 5/12-204 (West 2010)) (a
statute which deals with personal property, not real estate);
and (e) violation of owner protection provisions, workout
options, and a meditation program (none of which apply to
vacant land).
February 29, 2012 Defendants file a “clarification letter” in both the appellate
and circuit courts stating that Parkway’s attorneys have sent
them a “threat letter *** blackmailing them with
‘sanctions.’” The letter states that they have filed a “motion
and declaration to vacate the order for summary judgment,”
and that because the circuit court’s failure to act on the
motion within seven days renders the foreclosure order
appealable, they request to amend the notice of appeal to be
a notice of interlocutory appeal.
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March 12, 2012 A motion panel of this court denies Parkway’s motion to
dismiss the appeal in case No. 1-12-0556, without
explanation.2 By separate order, the same panel construes
the February 29, 2012 “clarification letter” as a motion to
amend the notice of appeal, and then denies that motion.
2
This court frequently receives premature appeals from foreclosure defendants, and just
as frequently dismisses them because the underlying order is not yet appealable. We cannot
discern why a different result occurred here. Perhaps defendants’ disorganized opposition papers
made it doubtful that the unappealability of the order was as clear-cut as it actually was. Perhaps
the motion panel felt it better to review the briefs before summarily dismissing the case. Even
so, it was proper for Parkway’s attorneys to threaten defendants with sanctions if they did not
withdraw their appeal. Decades of binding precedent make it perfectly clear that a judgment of
foreclosure is not appealable unless the circuit court specifically makes the order appealable by
adding language pursuant to Illinois Supreme Court Rule 304(a). See EMC Mortgage Corp.,
2012 IL 113419, ¶ 11 (calling the issue “well settled,” based on In re Marriage of Verdung, 126
Ill. 2d 542, 555 (1989), Deutsche Bank National Trust Co. v. Snick, 2011 IL App (3d) 100436,
¶ 8, and GMB Financial Group, Inc. v. Marzano, 385 Ill. App. 3d 978, 982 (2008)).
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March 16, 2012 Korzen and Zanzola sign and record two documents with the
Cook County Recorder of Deeds as document number
1207622015.
The first is entitled “GRANTEE/ASSIGNEE’S NOTICE OF
UPDATE OF LAND PATENT.” The recorded document
claims to operate nunc pro tunc to October 24, 2006. It is
laden with nonsense legal jargon, cites at least 21 ancient
laws and treaties, and concludes that the new land patent is
“prima facie conclusive evidence of title.” It also states that
if the land patent is not challenged within 90 days “with
lawfully documented proof to the contrary,” all claims
against the property will be “forever” estopped. Attached to
the recorded document are copies of original land patents,
apparently covering a larger parcel containing the underlying
property, from the United States of America, signed by
President James K. Polk in 1848.
The second, labeled “NOTICE OF ACKNOWLEDGMENT,
DELIVERY AND ACCEPTANCE OF DEED,” states that
Korzen and Zanzola accepted a copy of “our acknowledged
deed” from the recorder of deeds, “thereby perfecting and
correcting the deed, without any intent of granting or
assigning *** to any person other than ourselves.”
March 23, 2012 Korzen records his own affidavit with the recorder of deeds
as document number 1208318023, stating that he is a
“living, breathing, sentient being on the land, a Natural
Person and therefore is not and cannot be any ARTIFICIAL
PERSON and, therefore, is exempt from any and all
identifications, treatments, and requirements as such
pursuant to any process, law, code, or statute or any color
thereof.” The affidavit proceeds to essentially disclaim the
authority of the American court system.
Zanzola records a similar affidavit with the recorder of deeds
of McHenry County, apparently his home county, as
document number 2012R0011749.
Neither of these affidavits makes any specific reference to
the subject property.
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March 26, 2012 Defendants file an “emergency motion for admission of
public records” and to stay the foreclosure sale (“emergency
motion”). The motion inconsistently asserts that only
Korzen owns the property, but also claims that both Korzen
and Zanzola do. In large part, it relies on the land patent and
“artificial person” documents, claiming that the documents
make them the “rightful owners” of the property. No facts in
the motion are supported by any affidavit. The motion
includes, as exhibits, the various documents defendants
recorded on March 16 and 23, 2012.
March 29, 2012 The circuit court enters an order finding it has no jurisdiction
to consider defendants’ emergency motion because of the
pending appeal.
March 30, 2012 On its own motion, the circuit court vacates its March 29,
2012 order, and finds that it does have jurisdiction because
the appeal was premature and an appeal of an unappealable
order does not divest the court of jurisdiction. The order
relies on King City Federal Savings & Loan Ass’n v. Ison, 80
Ill. App. 3d 900, 902 (1980).
The court sets a briefing schedule on the emergency motion
and a hearing date for May 14, 2012, and stays the sale
pending that hearing.
April 3, 2012 The property is sold at auction, but the sale is later vacated
because it was in violation of the March 30 stay order.
April 20, 2012 Parkway responds to the emergency motion, and includes a
voluminous 21-part assemblage of prior orders and pleadings
illustrating the history of the case.
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May 4, 2012 Defendants reply in support of their emergency motion, and
combine the reply with yet another motion to dismiss the
case. The reply repeats many of the arguments defendants
made earlier, but includes a second group of new arguments.
These claims, none of which are supported by affidavit, are:
1. Parkway’s attorneys are third-party debt collectors
operating on their own behalf and interest.
2. Parkway’s attorneys have no “corporate resolution or
other lawfully recognizable notarized contract and/or a
specific, detailed, and binding agreement between” Parkway
and themselves.
3. The summary judgment was entered without consideration
of the land patent. (Defendants do not explain how the land
patent could have been so considered, since it was created a
month after the court entered the foreclosure order.)
4. By asserting that defendants had admitted various facts by
failing to timely respond to the request to admit facts,
plaintiffs’ attorneys lied and engaged in misconduct.
Similarly, the foreclosure judgment was “conspiratorial” and
“done with prejudice and with bias.”
5. Because the subject property is a “private section, a
backyard, of the household located in a residential area, it is
not commercial, and the provisions of the Fair Debt
Collection Practices Act do, in fact, apply to it.”
6. One particular attorney for Parkway “undertook unlawful
action *** with her intent to snatch Victor Korzen’s property
for her wanton personal monetary enrichment.”
7. Because Parkway did not “reveal” in the notes that it
would “claim to be ‘the true owner’ ” of the property, the
assignment of rents is invalid and the court itself is
“constitutionally defective and without lawful jurisdiction.”
8. The land patent trumps all claims by Parkway with respect
to the property.
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May 14, 2012 The court denies defendants’: (1) emergency motion, which
the order calls the “motion for admission of public records”;
(2) motion to stay sale; and (3) motion to vacate the
foreclosure. The court also vacates the April 3, 2012 sale.
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June 6, 2012 Defendants file a motion to reconsider the May 14, 2012
order. Again, the motion is not supported by any affidavit.
The motion is more than merely a motion to reconsider, as it
adds the following third group of new issues:
1. The complaint violates Federal Rule of Civil Procedure
17(a) (Fed. R. Civ. P. 17(a)) because it was not brought by
the real party in interest.
2. Parkway violated the Truth in Lending Act (15 U.S.C. §
1601 et seq. (2006)) because it is not the owner of the loan.
Rather, it is a servicer for the true owner and therefore has
committed fraud, theft, and extortion.
3. Federal Rule of Evidence 1002 (Fed. R. Evid. 1002)
required Parkway to produce the original note.
4. Parkway failed to produce a “debt validation notice”
within five days of contacting defendants to collect the debt,
in violation of the Fair Debt Collection Practices Act.
5. The circuit court failed to act on its own motion to hold
Parkway’s attorney in contempt for only serving one of the
two defendants.
6. Parkway’s attorneys violated section 15-1104 of the
Foreclosure Law (735 ILCS 5/15-1104 (West 2010)) by
wrongfully inducing the court into making a finding of
abandonment regarding the subject property. (The court
made no such finding, however.)
7. Parkway violated various federal rules by not making
certain disclosures at the closing.
In the motion, defendants repeat two particular arguments on
which we specially remark below, because it is this motion
upon which defendants rely in this court. These arguments
are:
1. Because defendants hold a land patent, no one else can
claim any ownership interest in the property.
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June 6, 2012 2. Korzen was not named as a defendant in the original
(continued) complaint.
July 3, 2012 The circuit court sets a briefing schedule on the motion to
reconsider, stays the sale pending the hearing, and sets the
motion for hearing on August 22, 2012.
July 19, 2012 Parkway files a motion for sanctions against defendants.
August 22, 2012 The circuit court denies defendants’ motion to reconsider
and enters and continues plaintiff’s motion for sanctions
“generally.”
The record contains a transcript of the proceedings this day.
The transcript shows that Zanzola confronted the judge with
demands to show Zanzola his oath of office. Zanzola also
confirmed that the property was a backyard with a shed, but
otherwise vacant. After the judge ruled, Zanzola objected,
stating that plaintiff, as a “corporation cannot otherwise
contend with a living natural man or woman,” and mis-citing
Rundle v. Delaware, 55 U.S. (14 How.) 80 (1852), for that
proposition. Korzen requested leave of court to take
depositions.
August 22, 2012 Defendants file a motion for leave to take discovery
depositions of Parkway’s attorneys, requesting that they
bring, among other things, a copy of the visas that allowed
the attorneys to enter the United States. Defendants set the
depositions, apparently without any permission from the
presiding judge to do so, for the Third Municipal District
courthouse in Rolling Meadows, Illinois.
September 10, 2012 This court dismisses defendants’ appeal in case No. 1-12-
0556 for want of prosecution.
October 23, 2012 Defendants serve a subpoena directly on Parkway Bank
requesting production of materials regarding the contract
between Parkway and its attorneys. Included are demands
that Parkway produce the “bona fide” written contract
between it and its law firm; documentation that the person
who signed the contract for Parkway was authorized to do so
by Parkway’s board of directors, and law licenses, oaths of
office, bonds, and malpractice insurance for the attorneys.
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October 26, 2012 Parkway files a motion to quash the subpoena, noting that
discovery is inappropriate because the case is essentially
over, the materials sought are irrelevant, and that it was
inappropriate to subpoena documents directly from it rather
than making a request through its attorneys of record.
November 9, 2012 The circuit court grants Parkway’s motion to quash the
subpoena.
November 9, 2012 The circuit court sets a briefing schedule on plaintiff’s
motion to confirm the sale, with a hearing date of January
10, 2013.
November 30, 2012 Defendants file a response to the motion to confirm sale,
raising a host of the same issues they raised in their earlier
pleadings. The response raises a fourth group of new issues,
claiming that the sale should not be confirmed because the
bank’s attorneys failed “to prove they are attorneys licensed”
in Illinois. It also claims that the attorneys’ letter asking
them to withdraw their premature appeal was “pertinacious
and frivolous.” The response does not, however, invoke any
of the statutory bases applicable to judicial confirmation of
foreclosure sales. See, e.g., NAB Bank v. LaSalle Bank,
N.A., 2013 IL App (1st) 121147, ¶¶ 8-21 (applying standards
in section 15-1508(b) (735 ILCS 5/15-1508(b) (West 2010)).
The response is not supported by any affidavit.
January 10, 2013 The circuit court enters an order confirming the sale, finding
that Parkway purchased the property for a credit bid of a sum
less than what was owed, resulting in a deficiency of
$50,958.09. The court awards Parkway an additional
$17,058.15 in postforeclosure judgment attorney fees, but
denies Parkway’s motion for sanctions.
February 7, 2013 Defendants file a notice of appeal from the foreclosure order
and the order confirming sale.
¶6 ANALYSIS
¶7 Violation of Appellate Rules
¶8 Before we discuss the merits of the appeal, we address Parkway’s complaint regarding
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various errors and omissions in defendants’ brief, and defendants’ failure to file a docketing
statement. It asks us to dismiss the appeal based on these errors and omissions.
¶9 Defendants’ brief contains: (1) a table of contents containing no citations to authority as
required by Illinois Supreme Court Rule 341(h) (Ill. S. Ct. R. 341(h) (eff. Sept. 1, 2006)); (2) a
five-page list of 15 issues for appeal, many of which are barely comprehensible; (3) a
jurisdictional statement saying that the circuit court judge was ignorant; (4) a three-page
cavalcade of citations to mostly irrelevant statutes, including some never relied on in the court
below; (5) a four-line statement of facts referring the reader to an attached exhibit which is
actually an affidavit signed by one of the defendants haranguing the judge and Parkway’s
attorneys; (6) a half-page argument section merely incorporating a particular pleading filed in the
court below and not citing the record in any manner; (7) a “standard of review” paragraph citing
an inapplicable federal court rule; (8) a two-page conclusion repeating much of the same material
already presented; and (9) a short appendix containing a few selected documents from the record,
but not including copies of the orders actually being appealed from as required by Illinois
Supreme Court Rule 342 (Ill. S. Ct. R. 342 (eff. Jan. 1, 2005)).
¶ 10 We agree that defendants’ brief fails to comply with virtually all of the requirements of
Illinois Supreme Court Rule 341. This court is entitled to be presented with clearly defined
issues, citations to pertinent authority and cohesive arguments. U.S. Bank v. Lindsey, 397 Ill.
App. 3d 437, 459 (2009). The court “is not merely a repository into which an appellant may
‘dump the burden of argument and research.’ ” Id. (quoting Obert v. Saville, 253 Ill. App. 3d
677, 682 (1993)). The rules of procedure concerning appellate briefs are rules, not mere
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suggestions, and it is within our discretion to strike a brief and dismiss the appeal for failure to
comply with those rules. See Niewold v. Fry, 306 Ill. App. 3d 735, 737 (1999). However,
despite defendants’ manifest disregard for the appellate rules, we believe that plenary review of
this particular case is important to provide guidance to lower courts faced with similar improper
litigation tactics. Accordingly, we decline to dismiss the appeal and find that defendants’ lack of
compliance with Supreme Court Rule 341(h) does not preclude our review. See In re Estate of
Jackson, 354 Ill. App. 3d 616, 620 (2004) (reviewing court has choice to review merits, even in
light of multiple Rule 341 mistakes).
¶ 11 We turn to the merits of defendants’ appeal, so much as we can discern them from their
brief. See Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001)
(pro se briefs failed to clearly articulate the errors relied upon for reversal or present an organized
and cohesive argument in compliance with supreme court rules, but reviewing court nevertheless
addressed the merits); A.J. Maggio Co. v. Willis, 316 Ill. App. 3d 1043, 1048 (2000) (“the waiver
rule is a limitation on the parties and not on the courts”); Village of Maywood v. Health, Inc., 104
Ill. App. 3d 948, 952 (1982) (in the interest of justice, reviewing court exercised its discretionary
authority to consider portions of the defendants’ brief where the points cited were not argued).3
¶ 12 Standard of Review
¶ 13 Despite the numerous points of alleged error, the case hinges on the circuit court’s
3
Defendants also did not comply with Illinois Supreme Court Rule 312 (Ill. S. Ct. R. 312
(eff. Dec. 13, 2005)), which provides all appellants “shall file a docketing statement with the
clerk of the reviewing court.” On July 26, 2013, this court ordered defendants to file a docketing
statement by August 15, 2013. Defendants filed their motion for leave to file late docketing
statement on August 15, 2013. We have granted that motion.
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approval of two key orders: the order granting Parkway’s summary judgment motion, which
resulted in an order of foreclosure and sale; and the order confirming the judicial sale of the
subject property. The standards for our review of each of these orders is well established.
¶ 14 Summary judgment is appropriate “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). Summary judgment is a drastic measure and should only be granted when the
moving party’s right to judgment is “clear and free from doubt.” Outboard Marine Corp. v.
Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). “Where a reasonable person could
draw divergent inferences from undisputed facts, summary judgment should be denied.” Id.However, “summary judgment requires the responding party to come forward with the evidence
that it has -- it is ‘ “the put up or shut up moment in a lawsuit.” ’ ” Eberts v. Goderstad, 569 F.3d
757, 767 (7th Cir. 2009) (quoting Koszola v. Board of Education of the City of Chicago, 385
F.3d 1104, 1111 (7th Cir. 2004), quoting Schacht v. Wisconsin Department of Corrections, 175
F.3d 497, 504 (7th Cir. 1999)). We review a circuit court’s entry of summary judgment de novo.
Outboard Marine Corp., 154 Ill. 2d at 102.
¶ 15 With respect to the order confirming sale, we note that section 15-1508(b) of the
Foreclosure Law (735 ILCS 5/15-1508(b) (West 2010)) grants broad discretion to courts in
approving or disapproving judicial sales. We review approval of judicial sales for abuse of
discretion. Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008).
¶ 16 With these standards in mind, we will review the 15 points of error, some of which we
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have aggregated due to relatedness.
¶ 17 Service of Process on Defendant Korzen
¶ 18 Defendants claim that Parkway violated “process service requirements” by mailing the
complaint and summons to Zanzola but not to Korzen. Korzen asserts that the mailing of the
summons to Zanzola and naming Zanzola as a defendant was particularly wrong because only he,
not Zanzola, is the owner of the subject property. Korzen’s sole ownership assertion is belied by the
January 22, 2007 postmortgage deed in which Korzen quitclaimed his interest to himself and
Zanzola as joint tenants. It is also refuted by the fact that both Korzen and Zanzola signed the
underlying mortgage. Because they did so, both are proper defendants in the case. 735 ILCS 5/15-
1501(a) (West 2010). Additionally, Korzen never “interven[ed]” into the case as he claims. Both
Korzen and Zanzola were named as defendants in the original complaint and that complaint was
never amended.
¶ 19 The record demonstrates that Korzen was personally served on January 31, 2011, and that
Zanzola was personally served on September 12, 2010. This was all that was necessary; any
additional copies that may have been mailed by virtue of a later request he made to Parkway’s
attorneys were superfluous. Korzen never filed a motion to quash the January 31 service. In fact,
the January 31 service was itself unnecessary because Korzen had already appeared in the case and
filed an answer on October 28, 2010. By doing so, he waived his right to contest service. Under
section 2-301(a-5) of the Code of Civil Procedure (735 ILCS 5/2-301(a-5) (West 2010)), a defendant
who voluntarily files an answer waives all objections to the court’s jurisdiction. See Poplar Grove
State Bank v. Powers, 218 Ill. App. 3d 509, 515 (1991) (holding that a defendant “may not, by his
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voluntary action, invite the court to exercise its jurisdiction over him while he simultaneously denies
that the court has such jurisdiction”). Accordingly, the manner of service of process in this case
provides no basis for us to disturb the judgments below.
¶ 20 Parkway’s Standing to Foreclose and the Sufficiency of its Proof –
“Show Me the Note”
¶ 21 Defendants claim that Parkway did not demonstrate its standing to foreclose because it did
not establish the fact that it was the true holder of its own loan. The linchpin of this argument is that
defendants requested Parkway to produce the “original title” or original note(s) on numerous
occasions but that Parkway did not do so.
¶ 22 The first part of this argument is easy to resolve. Defendants do not explain what an “original
title” is. They also fail to cite any authority as to why such a document would either be a necessary
element of proof in a foreclosure case, nor why it might be relevant here. Parkway responded to this
request by saying that it was “vague.”
¶ 23 An “original title” is “[a] title that creates a right for the first time” such as the title held by
a fisherman who catches a particular fish for the first time. Black’s Law Dictionary 1623 (9th ed.
2009). The term is used only once in the entire Illinois Compiled Statutes, and then merely in
connection with an automobile title certificate. 625 ILCS 5/3-116(e) (West 2010). Our supreme
court has not referred to an “original title” for land for over 40 years, but in that context, it apparently
referred it as the type of ownership held by the sovereign nation or state in land before it was first
deeded to private owners. Hickey v. Illinois Central R.R. Co., 35 Ill. 2d 427, 446-47 (1966)
(referring to the State of Illinois’ original title to the bed of Lake Michigan). So understood, an
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“original title” for land is not a written document that can be produced, but merely a characteristic
or classification of ownership. Therefore, it is not something that Parkway could have produced.
¶ 24 The second part of this argument, dealing with production of the original notes, is more
complicated. Preliminarily, we note that Parkway was free to ignore the document request which
defendants slid into their answer. Discovery requests do not belong in the middle of answers, and
the court struck the request anyway. Defendants did renew the same request later, however. While
defendants frame the lack of production under the rubric of standing, it is really a discovery dispute.
We examine it under both characterizations. The standards applicable to standing in a foreclosure
case are well settled. Standing is an affirmative defense and, as such, it is the defendant’s burden
to prove that the plaintiff does not have standing. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d
217, 252 (2010). It is not the plaintiff’s burden to prove it does have standing. Wexler v. Wirtz
Corp., 211 Ill. 2d 18, 22 (2004); Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill.
App. 3d 1, 7 (2010) (foreclosure case). The mere fact that a copy of the note is attached to the
complaint is itself prima facie evidence that the plaintiff owns the note. U.S. Bank, N.A. v. Dunn,
No. 12 CV 1963, 2013 WL 1222054, at *3 (N.D. Ill. Mar. 25, 2013).
¶ 25 During the peak of the recent mortgage foreclosure crisis, a member of the United States
House of Representatives, Marcy Kaptur, of Ohio, led the “show-me-the-note” charge, suggesting
that borrowers could halt foreclosure cases and squat for free in their homes until the bank shows
them the original note. Becky Yerak, Distressed Homeowners Fight Foreclosure By Taking Their
Lenders To Court, Chicago Tribune, Feb. 22, 2009, § C, at 1. This tactic, however, does not work
in Illinois.
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¶ 26 For over 25 years, the Foreclosure Law has been interpreted as not requiring plaintiffs’
production of the original note, nor any specific documentation demonstrating that it owns the note
or the right to foreclose on the mortgage, other than the copy of the mortgage and note attached to
the complaint.4 First Federal Savings & Loan Ass’n v. Chicago Title & Trust Co., 155 Ill. App. 3d
664, 665-67 (1987). First Federal interpreted former section 15-201 of the Code of Civil Procedure
(Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201), a predecessor to the current section 15-1506(b) of the
Foreclosure Law (735 ILCS 5/15-1506(b) (West 2010)). To ensure that First Federal is still good
law, we must examine the statute in effect at the time the First Federal court interpreted it and
compare it to the current statute.
¶ 27 The primary aim of statutory construction is to determine the legislature’s intent, beginning
with the plain language of the statute. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 180 (2011).
“Where the language is clear and unambiguous, the statute must be given effect as written without
resort to further aids of statutory construction.” Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008).
¶ 28 Section 15-201 of the Code of Civil Procedure (then Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201),
interpreted in First Federal, provided as follows:
“In the trial of a foreclosure action, the evidence shall be taken in open court.
Where any fact alleged in the complaint is not denied by the answer filed
4
We note that Illinois Supreme Court Rule 113(b) (Ill. S. Ct. R. 113(b) (eff. May 1,
2013)) now requires that the copy of the note attached to a foreclosure complaint must be a copy
of the note as it currently exists, together with indorsements and allonges, but not necessarily
assignments. There is no issue raised here about assignments or transfer of the note, as this case
was brought by the original lender. Even so, because the rule only applies to cases filed after
May 1, 2013, it is not relevant to our analysis.
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thereto, a sworn verification of the complaint or a separate affidavit filed in the case
setting forth such fact, is sufficient evidence thereof and no further evidence of such
fact shall be required.
Where none of the facts alleged in the complaint are denied, upon motion
supported by an affidavit stating the amount which is due the plaintiff, the court shall
enter a judgment for the relief prayed in the complaint.
In such cases the evidence of the indebtedness and security foreclosed shall
be exhibited to the court and appropriately marked and such exhibits or copies
thereof shall be filed in the case.” Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201.
¶ 29 Public Act 84-1462 (Pub. Act 84-1462, § 7 (eff. July 1, 1987)) was a major recodification
of our state’s foreclosure laws.5 It repealed section 15-201, but retained its basic principles and
moved most of its original language into new Foreclosure Law sections 15-1506(a) and (b). Section
15-1506 has basically remained the same since the 1987 recodification, with the exception of some
changes to subsections (f) and (i) made by Public Act 85-907 (Pub. Act 85-907, art. I, § 1 (eff. Nov.
23, 1987)), which are not relevant here.
¶ 30 Sections 15-1506(a) and (b) now provide as follows:
“(a) Evidence. In the trial of a foreclosure, the evidence to support the allegations of
the complaint shall be taken in open court, except:
5
See In re Jones, 219 B.R. 1013, 1019 (N.D. Bankr. Ill. 1998), abrogated on other
grounds by Colon v. Option One Mortgage Corp. 319 F.3d 912, 916 (7th Cir. 2003) (citing
Illinois legislative history). See also Steven C. Lindberg & Wayne F. Bender, The Illinois
Mortgage Foreclosure Law, 76 Ill. B.J. 800 (1987); Eric T. Freyfogle, The New Judicial Roles in
Illinois Mortgage Foreclosures, 19 Loyola Chi. L.J. 933 (1988).
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(1) where an allegation of fact in the complaint is not denied by a party’s
verified answer or verified counterclaim, or where a party pursuant to subsection (b)
of Section 2-610 of the Code of Civil Procedure states, or is deemed to have stated,
in its pleading that it has no knowledge of such allegation sufficient to form a belief
and attaches the required affidavit, a sworn verification of the complaint or a separate
affidavit setting forth such fact is sufficient evidence thereof against such party and
no further evidence of such fact shall be required; and
(2) where all the allegations of fact in the complaint have been proved by
verification of the complaint or affidavit, the court upon motion supported by an
affidavit stating the amount which is due the mortgagee, shall enter a judgment of
foreclosure as requested in the complaint.
(b) Instruments. In all cases the evidence of the indebtedness and the
mortgage foreclosed shall be exhibited to the court and appropriately marked, and
copies thereof shall be filed with the court.” (Emphasis added.) 735 ILCS 5/15-
1506(a), (b) (West 2010).
¶ 31 None of the versions of the statute use the word “original,” nor does any specifically provide
that originals must be produced in open court. With respect to production of original loan
documents, the former law interpreted in First Federal is substantially the same as the current law.
Both laws provide: (a) that the evidence to support the allegations of the complaint shall be taken
in open court; and (b) in cases of default or nondenial, the evidence of the indebtedness and security
foreclosed shall be exhibited to the court and appropriately marked, and the exhibits or copies thereof
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shall be filed in the case. The only changes to the statute are merely stylistic, including one
clarification that evidence of the indebtedness and security now must be exhibited in “all” cases. See
735 ILCS 5/15-1506(b) (West 2010).
¶ 32 The First Federal court held that former section 15-201 of the Code of Civil Procedure,
which provided that “[i]n such cases the evidence of the indebtedness and security foreclosed shall
be exhibited to the court and appropriately marked, and such exhibits or copies thereof shall be filed
in the case,” did not mandate production of an original mortgage or note. Ill. Rev. Stat. 1985, ch.
110, ¶ 15-201. The portion of section 15-201 at issue in First Federal is substantially identical to
the parallel provision of section 15-1506(b) at issue here. Accordingly, the First Federal decision
governs, and we again hold that in Illinois, production of the original note in open court, rather than
simply relying on the copy attached to the complaint, is not a required element of proof in a
foreclosure case. 735 ILCS 5/15-1506(b) (West 2010); McFatridge v. Madigan, 2013 IL 113676,
¶ 24 (“we will not read language into a statute which conflicts with the clearly expressed legislative
intent”).
¶ 33 Defendants rely on Federal Rules of Evidence, which are inapplicable to these proceedings.
The newly adopted Illinois Rules of Evidence, which largely track the federal rules, actually support
the validity of Parkway’s proofs. Rule 1003 states that a duplicate of a document is admissible to
the same extent as an original unless: “(1) a genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”
Ill. R. Evid. 1003 (eff. Jan. 1, 2011).
¶ 34 That still leave the issue of defendants’ allegedly unsuccessful discovery request to view the
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original note. Given the amount of strife between the parties over this issue, Parkway should not
have short-cutted the process by telling defendants to make an appointment to visit Parkway Bank
to see the note. Defendants provide no explanation as to why the original note was so necessary
when they had a copy of it. They do not contend that they even suspect that the note is a forgery, that
its existence a mystery to them, or that the copy was altered from the original in some way.
Nonetheless, the discovery request was fair game, as it sought disclosure of relevant evidence. It was
Parkway’s obligation to produce the note at the place and by the time specified by the notice to
produce, and by the court order – not through its bank officials, but through its attorneys. The matter
could also have been easily resolved by simply bringing the note to open court along with a court
reporter to make a record that it had been duly produced. It was not, and we are confronted with a
record replete with conflicting accusations about who told what to whom. Defendants have spent
a considerable amount of time complaining about their inability to view the note, but they pointedly
do not claim that the copies attached to the complaint are forgeries, or that they never signed a note
in the first place. Faced with defendants’ clamor for the note, endlessly exhibited throughout the
voluminous pleadings, the better course would have been for the circuit judge to stay proceedings
on Parkway’s summary judgment motion until the note was produced. Even if, however, we assume
the bank did not produce the note, the foreclosure order was perfectly valid. We must, of course,
give great deference to the trial judge’s resolution of this discovery issue and his apparent
determination that Parkway had fulfilled its obligations, and the record gives us little on which to
overturn that finding. See Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002) (the circuit
court’s rulings on discovery matters will not be disturbed on appeal absent an abuse of discretion).
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More crucially, though, defendants’ reliance on this issue fails because of four fatal mistakes they
made.
¶ 35 Failure to Submit Want of Knowledge Affidavit
¶ 36 Unlike criminal defendants, who can remain mute and require the State to prove them guilty,
civil defendants must answer a complaint truthfully and in good faith, even if that means
undermining their own interests. See Ill. S. Ct. R. 137 (eff. Feb. 1, 1994) (The signature of a party
on a pleading constitutes a certificate by him that he has read the pleading and “that to the best of
his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact
and is warranted by existing law or a good-faith argument,” and “that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost
of litigation.”). A civil complaint and a proper truthful answer delimit the factual disputes which the
court must adjudicate. A common error by defendants, made even by seasoned foreclosure defense
attorneys, is to answer with language such as: “the defendant neither admits nor denies paragraph
x, but demands strict proof thereof.” Defendants in civil lawsuits are not allowed to “demand strict
proof” of facts they know are true, and so the words “demand strict proof” do not belong anywhere
in a properly drafted answer.
¶ 37 A proper answer to a complaint must contain an explicit admission or an explicit denial of
each allegation in the complaint. 735 ILCS 5/2-610(a) (West 2010). An allegation not explicitly
denied is admitted unless: (1) the allegation is about damages, (2) the party states that it lacks
knowledge of the matter sufficient to form a belief and supports this statement with an affidavit, or
(3) the party has not had the chance to deny the allegation. 735 ILCS 5/2-610(b) (West 2010). “The
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failure of a defendant to explicitly deny a specific allegation in the complaint will be considered a
judicial admission and will dispense with the need of submitting proof on the issue.” Gowdy v.
Richter, 20 Ill. App. 3d 514, 520 (1974).
¶ 38 In this case, defendants stated that they lack knowledge sufficient to answer an allegation,
but did not include the required lack of knowledge affidavit. Accordingly, they have admitted the
allegation. Hoxha v. LaSalle National Bank, 365 Ill. App. 3d 80, 85 (2006); see also 735 ILCS
5/1-109 (West 2010). Because the verified answer contains no “want of knowledge” affidavit as
required by section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2010)),
defendants admitted the allegations of count I, paragraph 2, of the complaint, which establish the
authenticity of the notes and mortgage.
¶ 39 Failure to Deny Authenticity of Commercial Documents under Oath
¶ 40 Modern banking practices, along with the inventions of the photocopier, fax machine, word
processor, and computer, have made disputes regarding the authenticity of written contracts and
business documents extraordinarily rare. This is particularly true in foreclosure cases. Mortgages are
closed at title insurance company offices. Borrowers leave the closings with photocopies of their
mortgage documents in large file folders, and they are admonished to securely keep the files with
their most important papers and possessions. The title company immediately records a copy of the
mortgage with the recorder of deeds, whose records forever memorialize the image of the mortgage
as it existed on the day of the closing. See 55 ILCS 5/3-5010 (West 2010) (duties of recorder); 55
ILCS 5/3-5013 (West 2010) (transcription or reproduction of written instruments to be recorded);
Solomon Gutstein, Illinois Practice, § 12:77 (2d ed. 2000).
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¶ 41 Our legislature has enacted a special rule which discourages debtors from unduly prolonging
collection lawsuits with obdurate denials. If a defendant truly wishes to deny the authenticity of a
mortgage or note, he must do so under oath so as to subject himself to a criminal perjury charge if
his denial is knowingly false. Defendants merely stated lack of knowledge regarding the mortgage
and note. By doing so, they automatically admitted these allegations. See 735 ILCS 5/2-605(b)
(West 2010) (providing that the “allegation of the execution or assignment of any written instrument
is admitted unless denied in a pleading verified by oath”).
¶ 42 Failure to Deny Authenticity of Signatures
¶ 43 As noted immediately above, defendants also did not specifically deny the authenticity of
their signatures on the note. Section 3-308 of the Illinois Uniform Commercial Code (810 ILCS 5/3-
308 (West 2010)) applies to this situation. It provides that “the authenticity of, and authority to
make, each signature on the instrument is admitted unless specifically denied in the pleadings.”
(Emphasis added.) 810 ILCS 5/3-308 (West 2010).
¶ 44 Failure to Submit Rule 191(b) Affidavit
¶ 45 Court rules provide an avenue of relief for defendants like Korzen and Zanzola, who contend
that crucial evidence necessary to oppose the motion is in the hands of the movant or other adverse
parties, who have not responded to a discovery request for that evidence.
¶ 46 Illinois Supreme Court Rule 191(b) allows them to respond to the summary judgment motion
with an affidavit explaining the situation. See Ill. S. Ct. R. 191(b) (eff. July 1, 2002). The affidavit
might explain why only the original note, and not the photocopy, can provide the information
necessary to form a valid defense. These defendants filed numerous pleadings complaining about
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discovery, but never filed a Rule 191(b) affidavit. The rule provides, in pertinent part:
“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, either granting or refusing the motion, or granting a
continuance to permit affidavits to be obtained, or for submitting interrogatories to
or taking the depositions of any of the persons so named, or for producing papers or
documents in the possession of those persons or furnishing sworn copies thereof.”
Id.
Parties who fail to file Rule 191(b) affidavits cannot complain that the “discovery process was
insufficient or limited.” Kane v. Motorola, Inc., 335 Ill. App. 3d 214, 225 (2002).
¶ 47 Somewhat related to the Rule 191(b) issue is the actual substance of defendants’ response
to Parkway’s summary judgment motion. This case is simply about whether a $100,000 note was
paid on time. Even assuming that Parkway’s efforts to produce the note were insufficient, Parkway
did submit an affidavit establishing the basic facts regarding the loan, its documentation, and
defendants’ default. Defendants presented nothing in opposition to create an issue of triable fact
regarding the payment of the note. Denials in a defendant’s answer do not create a material issue
of genuine fact to prevent summary judgment. Epstein v. Yoder, 72 Ill. App. 3d 966, 972 (1979).
When a party moves for summary judgment files supporting affidavits containing well-pleaded facts,
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and the party opposing the motion files no counteraffidavits, the material facts set forth in the
movant’s affidavits stand as admitted. See Patrick Media Group, Inc. v. City of Chicago, 255 Ill.
App. 3d 1, 6-7 (1993). The opposing party may not stand on his or her pleadings in order to create
a genuine issue of material fact. Fitzpatrick v. Human Rights Comm’n, 267 Ill. App. 3d 386, 391
(1994).
¶ 48 Request to Admit Facts
¶ 49 Parkway also argues that defendants’ failure to timely respond to its request to admit facts
itself established the relevant facts and requires us to affirm the court below. Although we have
determined the foreclosure order was valid for other reasons, we address this additional issue to
explain why we believe it is not well-taken.
¶ 50 After receiving defendants’ answer, Parkway served them with a request to admit facts. In
summary, the facts included a request related to the authenticity of the copies of the note and
mortgage attached to the complaint, the default on the note created by the failure to pay on time, and
other basic facts related to the lawsuit. Under Illinois Supreme Court Rule 216 (Ill. S. Ct. R. 216
(eff. Jan. 1, 2011)), defendants’ answers to the request were due 28 days later, or September 13,
2011. Defendants argue strongly that they preserved their rights by filing a motion to “toll the statute
of limitations” on January 4, 2012, more than three months after the original due date, but the circuit
court never granted that motion. Their belated attempt for an extension of time was never granted,
but even so, it is not dispositive because the request to admit facts itself was defective. The request
to admit did not conform to Rule 216(g), which became effective January 1, 2011, and requires that
requests to admit facts contain an admonition in a prominent place on the first page in 12-point or
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larger boldface type stating: “WARNING: If you fail to serve the response required by Rule 216
within 28 days after you are served with this paper, all the facts set forth in the requests will
be deemed true and all the documents described in the requests will be deemed genuine.” Ill.
S. Ct. R. 216(g) (eff. Jan. 1, 2011). The committee comments to amended Rule 216(g) state that,
“[c]onsistent with Vision Point of Sale Inc. v. Haas, 226 Ill. 2d 334 (2007), trial courts are vested
with discretion with respect to requests for admission.” Ill. S. Ct. R. 216(g), Committee Comments
(adopted October 1, 2010). Because our supreme court has suggested the bold print rule might not
be mandatory, and because the parties here have not briefed the applicability of Rule 216(g) here,
we do not specifically hold that failure to include this notice automatically invalidates a request to
admit facts. In light of the particular facts before us, we simply decline to uphold the foreclosure
judgment solely on defendants’ failure to timely respond to the request.
¶ 51 Contempt Penalties Against Parkway’s Attorneys
¶ 52 Defendants also complain that the circuit court should have held Parkway’s attorneys “in civil
contempt” because Parkway did not produce the original note for their inspection and because they
consistently asserted, to the contrary, that they made appropriate efforts to do so. As noted above,
there is a factual dispute regarding whether Parkway provided a valid opportunity for the inspection.
“The use of discovery sanctions as a general deterrent ‘provides a strong incentive for all litigants
to fully and accurately comply with discovery rules.’ ” Byrnes v. Fiscella, 217 Ill. App. 3d 831, 839
(1991) (quoting Mitchell v. Wayne Corp., 180 Ill. App. 3d 796, 802 (1989)). “A court of review
must give considerable deference to the circuit court’s decision to impose sanctions; its decision will
not be reversed absent an abuse of discretion.” Cirrincione v. Westminster Gardens Ltd.
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Partnership, 352 Ill. App. 3d 755, 761 (2004); see also Sullivan v. Edward Hospital, 209 Ill. 2d 100,
110 (2004); Sbarboro v. Vollala, 392 Ill. App. 3d 1040, 1053 (2009). More importantly, defendants
waived their claim for discovery of the original note by failing to include a Supreme Court Rule
191(b) affidavit in opposition to Parkway’s motion for summary judgment.
¶ 53 Violation of the Federal Fair Debt Collection Practices Act
¶ 54 The argument in defendants’ brief on the next point is somewhat incomprehensible. We
believe that defendants intend to assert as follows: by finding that the property was not residential,
the circuit court created a false premise, which led it to incorrectly find that the federal Fair Debt
Collection Practices Act (15 U.S.C. § 1692 et seq. (2006)) was inapplicable to the underlying
transaction. Defendants’ brief claims the property is a backyard of an adjoining residence and, thus,
is “residential” property. However, Zanzola admitted in open court that the property was a backyard
with a shed, but otherwise vacant. At one point, his reply brief6 frankly states that the parcel is “not
buildable,” but a few pages later, the reply brief contradictorily states that ruling in favor of Parkway
will render a family homeless. It is clear that the property is, in fact, “non-residential” under the
6
The reply brief also contains additional factual material from the Village of Palatine,
which is dated in July 2013, after Parkway had already filed its brief in this court. It was not
included in the record below, nor, of course, mentioned in the opening brief, since it did not even
exist when that brief was filed. On our own motion, we strike this additional factual material,
because it violates Illinois Supreme Court Rule 341(j), which provides the reply brief “shall be
confined strictly to replying to arguments presented in the brief of the appellee and need contain
only Argument.” Ill. S. Ct. R. 341(j) (eff. Feb. 6, 2013). Moreover, points not argued in the
opening brief are forfeited and cannot be raised for the first time in the reply brief. Ill. S. Ct. R.
341(h)(7) (eff. Feb. 6, 2013) (“Points not argued are waived and shall not be raised in the reply
brief ***.”); see also Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855 (2007). In
addition, “[a]ttachments to briefs that are not included in the record are not properly before this
court and cannot be used to supplement the record.” McGee v. State Farm Fire & Casualty Co.,
315 Ill. App. 3d 673, 679 (2000).
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Foreclosure Law, a classification which is sometimes nicknamed “commercial,” even though no
business enterprise is actually located on the subject property. 735 ILCS 5/15-1219 (West 2010)
(defining “residential” property under the Foreclosure Law).
¶ 55 The same issue under the Fair Debt Collection Practices Act is not as clear-cut as Parkway
suggests. The Fair Debt Collection Practices Act applies to debt transactions where a consumer is
obliged to pay money for something used “primarily for personal, family, or household purposes.”
15 U.S.C. § 1692a(5) (2006). Whether a debt is incurred “ ‘primarily for personal, family, or
household purposes’ ” is a fact driven one to be decided on a case-by-case basis looking at all
relevant factors. Hansen v. Ticket Track, Inc., 280 F. Supp. 2d 1196, 1204 (W.D. Wash. 2003). It
is undisputed that the property is vacant in the sense that no one resides on it. If, however, as
defendants assert, the subject property is “the backyard” of their home, a plausible argument could
be made that the transaction was for “household purposes” and, thus, is protected by the Fair Debt
Collection Practices Act. We need not reach that factual issue, however, because defendants provide
nothing in their brief to explain exactly what Parkway did that violated the Fair Debt Collection
Practices Act. As they have done throughout their pleadings both here and in the circuit court,
defendants simply throw out citations to statutes without setting forth any facts whatsoever of how
they might apply. Neither the circuit court nor the reviewing court has the duty to dig through this
dross to discern some relevant point.
¶ 56 Arguments that fail to comply with Supreme Court Rule 341(h)(7) do not merit consideration
on appeal (Maun v. Department of Professional Regulation, 299 Ill. App. 3d 388, 399 (1998)) and
may be rejected for that reason alone (Calomino v. Board of Fire & Police Commissioners, 273 Ill.
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App. 3d 494, 501 (1995)). Accordingly, defendants have forfeited this issue. Ill. S. Ct. R. 341(h)(7)
(eff. Feb. 6, 2013) (“Points not argued are waived and shall not be raised in the reply brief ***.”).
¶ 57 Postjudgment Discovery
¶ 58 In Illinois, mortgage foreclosure cases are bifurcated. The main part of the case is resolved
when the circuit court enters a judgment of foreclosure and sale. While that order is not appealable,
it disposes of virtually every issue in this case. The only remaining tasks are for the sale to take
place and the court to confirm the sale. 735 ILCS 5/15-1508(b) (West 2010). Accordingly, when
the foreclosure has been entered, the defendant has lost the case for all intents and purposes. That
being so, discovery is generally not available because it becomes irrelevant, except as it may relate
to some narrow issue regarding the conduct of the actual sale. See One West Bank, FSB v.
Hawthorne, 2013 IL App (5th) 110475, ¶¶ 21-25 (affirming order approving sale of foreclosed
property and rejecting defendant’s request to engage in further discovery to determine if fraud
occurred in the course of the foreclosure proceedings); Mortgage Electronic Registration Systems,
Inc. v. Barnes, 406 Ill. App. 3d 1, 6 (2010) (holding that defenses to foreclosure may not be asserted
at sale stage). After losing this case, however, defendants suddenly undertook aggressive discovery,
including serving subpoenas on Parkway Bank officers without going through their attorneys of
record. They also served requests to produce documents on Parkway’s attorneys, demanding that
they produce documents showing that they were licensed to practice law and that they reveal
attorney-client privileged information regarding their contractual relationship with Parkway. These
tactics — turning the tables by demanding that the attorneys actually prove who they are and that
they bring in ironclad written documentation that they represent plaintiff – have no purpose other
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than to waste time of judges, court staff, and opposing parties. Attorneys who file lawsuits or appear
for parties in litigation have no burden to tender their oaths of office on request or to provide written
proof to an opposing party that they actually were hired by their clients. See Gray v. First National
Bank of Chicago, 388 Ill. 124, 129 (1944) (“where an attorney appears of record for a party, the
presumption is that his appearance in such a capacity was duly authorized by the person for whom
he is appearing”).
¶ 59 On appeal, defendants assert that the circuit court’s decision to quash the subpoena was in
error.7 They also contend that Parkway’s attorneys “admitted” they were not licensed by failing to
deny they were unlicensed. However, defendants did not issue their own request to admit facts,
failure to respond to which would result in an admission. A party that fails to respond to a subpoena
for documents does not automatically admit that the documents requested do not exist.
¶ 60 The use of subpoenas is a judicial process, and courts have broad and flexible powers to
prevent abuses of their process. People v. Walley, 215 Ill. App. 3d 971, 974 (1991). “For good
cause shown, the court on motion may quash or modify any subpoena or, in the case of a subpoena
duces tecum, condition the denial of the motion upon payment in advance by the person in whose
behalf the subpoena is issued of the reasonable expense of producing any item therein specified.”
735 ILCS 5/2-1101 (West 2010). We review a circuit court’s decision to quash a subpoena for abuse
7
Among the authorities defendants cite on this point are deposition rules for internal
administrative hearings conducted by the Illinois Auditor General. Defendants do not cite the
auditor general’s rules for comparative purposes. They cite them as binding authority in this
case, claiming that the circuit judge somehow violated these rules. We note this merely to
further illustrate defendants’ apparent desire to complicate the record as much as possible by
stuffing it with irrelevant points and arguments.
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of discretion. People v. Paris, 295 Ill. App. 3d 372, 378 (1998).
¶ 61 Since the information sought was manifestly irrelevant or related, if at all, to issues that had
already been adjudicated, we find no abuse of discretion here. Nor do we find that the failure, if any,
of the attorneys to respond to subpoenas requesting the production of documents created any error
in the record. The case was essentially over and none of the information sought was relevant to the
remaining issues in the case. Defendants’ issuance of the subpoenas was the legal equivalent of
stepping back on the court to shoot free throws to increase their score after the game buzzer had
sounded and the opposing team had returned to the locker room. More importantly, the subpoenas
were themselves quashed, relieving the recipients of any obligation to respond to them. We can
discern no conceivable purposes for defendants’ postjudgment discovery, whether through subpoena
or deposition, other than to harass Parkway and its attorneys and create additional work for the
judiciary. Reda, 199 Ill. 2d at 54 (circuit court’s rulings on discovery matters will not be disturbed
on appeal absent a manifest abuse of discretion); Profesco Corp. v. Dehm, 196 Ill. App. 3d 127, 130
(1990) (the circuit court’s exercise of discretion regarding discovery violations should be afforded
considerable deference).
¶ 62 Truth in Lending Act
¶ 63 Like the Fair Debt Collection Practices Act, the federal Truth in Lending Act applies to
consumer credit transactions in which the extension of credit is “primarily for personal, family, or
household purposes.” 15 U.S.C. § 1602(i) (2006). Defendants claim, without explanatory detail or
citation to the record, that Parkway Bank was not the owner of the loan because its attorneys were
acting as third-party debt collectors regulated under the Truth in Lending Act. It seems that
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defendants’ Truth in Lending Act claim bootstraps on their claim that Parkway does not own the loan
because it did not produce the note. Under that view, Parkway would have violated the Truth-in-
Lending Act by trying to collect on a loan it did not own. We explained previously why failure to
produce the note did not prevent the circuit court from granting a foreclosure order. Even if the
attorneys could be so classified, defendants’ brief fails to explain exactly what the attorneys did that
violated the Truth-in-Lending Act. Therefore, defendants have forfeited this issue by failing to
develop their argument properly. See Sexton v. City of Chicago, 2012 IL App (1st) 100010, ¶ 79;
see also People ex rel. Madigan v. Lincoln, Ltd., 383 Ill. App. 3d 198, 208 (2008) (holding that a
party forfeited the argument for purposes of appeal where it “merely state[d] [a] proposition and
[made] no attempt to support it with analysis or authority”).
¶ 64 Homeowner Workout Options
¶ 65 Defendants argue that the circuit court failed to offer them “owner protection, modification,
workout options, and/or Mediation Program” as required by sections 15-1502.5 and 15-1401 of the
Foreclosure Law (735 ILCS 5/15-1502.5, 15-1401 (West 2010)). This argument is manifestly
erroneous. Neither of the cited statutes gives the court an obligation to do anything. The first statute
requires lenders to send a “grace period notice” to certain borrowers before filing for foreclosure.
735 ILCS 5/15-1502.5 (West 2010). It applies only where the subject property is “residential” real
estate as that term is defined in the Foreclosure Law. See 735 ILCS 5/15-1219 (West 2010). As we
explained above, the Foreclosure Law defines “residential” property as property containing an actual
borrower’s residence – not merely a shed or a backyard. Therefore, Parkway was not required to
send a grace period notice before foreclosing on this property, and section 15-1502.5 was not
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applicable.
¶ 66 The second cited statute, section 15-1401 of the Foreclosure Law, establishes a procedure
whereby a borrower can resolve his foreclosure lawsuit by granting a deed to the property in lieu of
foreclosure. 735 ILCS 5/15-1401 (West 2010). However, acceptance of such a deed is at the
lender’s sole option, and nothing in this record suggest that defendants offered such a deed.
¶ 67 Neither of the two cited statutes establishes any sort of program for loan modification or
mediation of foreclosure disputes. Defendants were free to apply for such programs to the extent
they existed in the general marketplace, or to file a motion asking the circuit court to refer the case
for mediation under its own program. Those requests may have been futile, since most of the
programs are limited to properties on which the mortgagor actually lives. However, having failed
to do so, they cannot complain here that the court did not do so on its own.
¶ 68 Deficiency Judgment
¶ 69 Defendants also attack the deficiency judgment and claim, without citing authority, that
Parkway should absorb the remaining amount due on the note as a cost of doing business because
at least one of the defendants is, allegedly, receiving food stamps and depending on benefits from
a healthcare and family services office. The deficiency judgment stems from the court’s confirmation
of the sale. Under section 15-1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 2010)),
the circuit court cannot refuse to confirm the sale once a judicial sale is actually held unless: (1)
notice of the sale was not properly given; (2) the terms of the sale were unconscionable; (3) the sale
was conducted fraudulently; or (4) “justice was otherwise not done.” Defendants presented
absolutely no evidence, such as an appraisal, that the property sold at an unconscionable price.
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“When there is no fraud or other irregularity in the foreclosure proceeding, the price at which the
property is sold is the conclusive measure of its value.” Nationwide Advantage Mortgage Co. v.
Ortiz, 2012 IL App (1st) 112755, ¶ 35 (citing Loeb v. Stern, 198 Ill. 371, 383 (1902)); see also NAB
Bank, 2013 IL App (1st) 121147, ¶ 20. The inability of the borrower to repay has no bearing on
whether the sale should be confirmed, and defendants have provided nothing suggesting that the sale
price was unconscionable.
¶ 70 Judgment Obtained by Fraud
¶ 71 Defendants’ final argument, contained in a single sentence, is that the judgments below are
void based on Federal Rule of Civil Procedure 60(b)(3) (Fed. R. Civ. P. 60(b)(3)). The rule provides
that judgments obtained by fraud, misrepresentation, or misconduct by an opposing party can be
vacated. Because the federal rules of civil procedure apply only in federal courts, the rule does not
provide a mechanism to vacate the orders at issue here. Even if we were to apply the applicable
similar Illinois court rules, however, it would not change the result. As explained above, we find
that the record does not demonstrate the judgment below was obtained through fraud,
misrepresentation, or misconduct by Parkway.
¶ 72 Land Patent
¶ 73 The “argument” section of defendants’ appellate brief incorporates arguments by reference
which they made to the circuit court. The section begins: “Arguments have been submitted to the
Circuit Court of Cook County, Illinois, on August 14, 2012, in a format of DEFENDANTS’ REPLY
TO PARKWAY BANK’S RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER.” No
such document with that filing date is in the record. The record does contain a document with a very
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similar name, filed on May 4, 2012, and we believe that is the document referred to in the argument.
Although not separately listed among the 15 points for appeal, the argument incorporates a document
in the record which contains a variety of arguments relating to the “land patent.” Additionally,
defendants more specifically raise the land patent defense in their reply brief. For sake of
completeness, and particularly because it relates to the sanctions we impose, we will briefly discuss
defendants’ land patent argument.
¶ 74 In Wisconsin v. Glick, 782 F.2d 670, 671-72 (7th Cir. 1986), the court began its opinion with
the following summary of its view on land patents:
“People saddled with mortgages may treasure the idea of having clean title
to their homes. The usual way to obtain clean title is to pay one’s debts. Some have
decided that it is cheaper to write a ‘land patent’ purporting to convey unassailable
title, and to file that ‘patent’ in the recording system. For example, Samuel Misenko,
one of the appellants, drafted a ‘declaration of land patent’ purporting to clear the
title to an acre of land of all encumbrances. He recorded that ‘patent’ with the
appropriate officials of Manitowoc, Wisconsin. He attached to his ‘patent’ a genuine
patent, to a quarter section of land, signed by President Fillmore in 1851.
The theory of Misenko’s new ‘patent’ is that because the original patent from
the United States conveyed a clear title, no state may allow subsequent encumbrances
on that title. The patent of 1851 grants title to ‘Christian Bond and to his heirs and
assigns forever.’ Misenko apparently thinks that this standard conveyancers’
language for creating a fee simple ‘forever’ bars all other interests in the land. We
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have held to the contrary that federal patents do not prevent the creation of later
interests and have nothing to do with claims subsequently arising under state law.”
Id. (citing Hilgeford v. Peoples Bank, 776 F.2d 176 (7th Cir. 1985)).
The Glick court held that the land patent arguments were frivolous, and awarded damages as a
sanction under Federal Rule of Appellate Procedure 38 (Fed. R. App. P. 38), the counterpart to our
Illinois Supreme Court Rule 375 (Ill. S. Ct. R. 375 (eff. Feb. 1, 1994)). Glick, 782 F. 2d at 673-74.
¶ 75 Another court described land patents this way:
“It is, quite simply, an attempt to improve title by saying it is better. The court
cannot conceive of a potentially more disruptive force in the world of property law
than the ability of a person to get ‘superior’ title to land by simply filling out a
document granting himself a ‘land patent’ and then filing it with the recorder of
deeds. Such self-serving, gratuitous activity does not, cannot, and will not be
sufficient by itself to create good title.” (Emphasis omitted.) Hilgeford v. Peoples
Bank, 607 F. Supp. 536, 538 (N.D. Ind. 1985).
¶ 76 Authority from this court similarly holds that one cannot make a mortgage disappear by filing
a land patent. Pathway Financial v. Beach, 162 Ill. App. 3d 1036, 1039-40 (1987) (rejecting land
patent defense in foreclosure case). Needless to say, the tactic is never successful, as it is
not based in American law. See generally Bernard J. Sussman, Idiot Legal Arguments: A Casebook
for Dealing with Extremist Legal Arguments, The Militia Watchdog (Aug. 29, 1999),
http://archive.adl.org/mwd/suss1.asp (last visited Aug. 27, 2013). Accordingly, the land patent does
nothing to protect defendants’ interest in the subject real estate.
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¶ 77 Sanctions
¶ 78 At the beginning of this opinion, we noted that we could have easily dismissed this appeal
for multiple violations of court rules. However, we find the words of a distinguished presiding judge
of the chancery division of the circuit court of Cook County, Judge Richard Curry, quite relevant
here. Upon imposing sanctions in a frivolous lawsuit, Judge Curry said: “ ‘the proper response to
malicious prosecution or careless lawyering is not to respond in-kind with slovenly preparation or
half-hearted advocacy; *** but rather to validate our profession’s righteous outrage and indignation
over such conduct with meticulous research, careful analysis, expansive writing and aggressive
advocacy.’ ” (Emphasis in original.) Singer v. Brookman, 217 Ill. App. 3d 870, 882 (1991) (quoting
Judge Curry from the record below).
¶ 79 Although defendants papered the record with voluminous pleadings, nowhere do they
actually deny that they had a valid loan secured by property they own, which they failed to pay, and
which requires the property to be sold to pay the debt. Above, we have explained why virtually
every one of their arguments is abjectly frivolous and/or presented in such a confusing manner,
perhaps deliberately so, to make it as laborious as possible to resolve them. These tactics often
appear in courts hearing debt cases, generated by defendants engaging in an organized program of
filing frivolous pleadings, lawsuits, and claims in an effort to harass judges, creditors, and even court
staff.
¶ 80 An Illinois law adopted in response to some of these tactics makes it a crime to record
documents that cloud the title to property knowing that the theory upon which the purported cloud
on title is based is not recognized as a legitimate legal theory by the courts of this State or of the
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United States. 720 ILCS 5/32-13 (West 2010). Our General Assembly recently amended that law
to make unlawful clouding of title a Class 4 felony if the amount involved is over $10,000. See Pub.
Act. 98-98 (eff. Jan. 1, 2014) (amending 720 ILCS 5/32-13). The General Assembly also created
an administrative process for persons to void fraudulent encumbrances on their property. The type
of encumbrances listed include land patents. See Pub. Act. 98-99, §5 (eff. July 19, 2013) (enacting
the new 55 ILCS 5/3-5010.5). When signing the bill, the Governor highlighted that the increased
penalty would trigger the possibility of jail time for persons who record fraudulent documents.
Illinois Government News Network, Governor Quinn Announces Major Progress Helping Families
Stay in Their Homes Through Hardest Hit Program, (July 19, 2013), available at
http://www3.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=1&RecNum=11365 (last
visited Aug. 27, 2013). This background provides yet another predicate for the sanctions we discuss
below.
¶ 81 Attorney Fees for Appeal
¶ 82 The underlying mortgage and note contain standard fee-shifting provisions stating that the
borrower must pay the lender’s attorney fees in debt collection litigation. The court below awarded
$6,373.90 in fees for work done up to and including the entry of the foreclosure order. When it
confirmed the sale, the court awarded an additional $17,058.15 in attorney fees for work occasioned
by the defendants’ postforeclosure efforts to tie the case into knots by proffering land patents,
subpoenas and related material. We hold that Parkway is entitled to additional fees for its work on
this appeal, and direct it to file a fee petition within 14 days of the date of issuance of this opinion.
¶ 83 In the pages above, we set forth the background in unusual detail so as to establish a
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framework for our imposition of sanctions under Supreme Court Rule 375(b) (Ill. S. Ct. R. 375(b)
(eff. Feb. 1, 1994)). This court is especially solicitous of self-represented parties who do not display
punctilious compliance with our rules, particularly in cases where the issues are clear even though
the brief is deficient. However, when the line is crossed, we have enforced our sanction rules. See
Kim v. Alvey, Inc., 322 Ill. App. 3d 657, 673-74 (2001) (invoking Rule 375(b) sua sponte and
ordering appellant to show cause why a sanction should not be imposed on the ground that the appeal
was frivolous); Amadeo v. Gaynor, 299 Ill. App. 3d 696, 705-06 (1998) (imposing Rule 375(b)
sanctions because the appeal was not well grounded and fact or law and would not have been filed
by a reasonable and prudent attorney); First Federal Savings Bank of Proviso Township v. Drovers
National Bank of Chicago, 237 Ill. App. 3d 340, 346-47 (1992) (requiring debtors to show cause as
to why sanctions under Rule 375(b) should not be imposed on the ground that the appeal was
frivolous).
¶ 84 In addition to the facts above, we note the following additional facts which support our
findings: (1) defendants obtained a fee waiver in the court below on the basis they had insufficient
funds to pay filing fees, but spent money to record lengthy documents which they then used as the
basis for motions below and arguments here; (2) after defendants had already filed their own brief
and Parkway had also filed its brief in this court, defendants filed a motion asking us to appoint an
attorney for them, a request which was truly bizarre since the appointed pro bono attorney would
have had the sorry task of taking on a case that defendants had already done their level best to
sabotage; (3) while Parkway was, and will be, awarded its attorney fees, the award may be merely
a Pyrrhic victory for it since defendants apparently have insufficient funds to pay them and might
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discharge them through bankruptcy; (4) they apparently chose to ignore the ample free legal
resources available for them through the Cook County circuit court in favor of pursuing tactics which
disregarded the legal system and were clearly intended to harass others; (5) defendants go to great
lengths in their pleadings to impugn the integrity, intelligence, and impartiality of the able circuit
judge,8 accusations which are wholly unsupported by the record; (6) defendants devoted a large
portion of their briefs in this court not to citation of applicable law or the record below, but to
mentioning the name of one of Parkway’s attorneys in the context of countless ad feminam attacks9
on her; and (7) adding a fillip to frivolousness, they filed numerous pleadings in this court with an
incorrect caption naming the attorney, in her personal capacity, as a party to the case. She is not, and
never has been, a party to the case, and we have corrected the caption accordingly.
¶ 85 Supreme Court Rule 375 provides sanctions for frivolous appeals that are not taken in good
faith. A reviewing court applies an objective standard to determine whether an appeal is frivolous;
“the appeal is considered frivolous if it would not have been brought in good faith by a reasonable,
prudent attorney.” Dreisilker Electric Motors, Inc. v. Rainbow Electric Corp., 203 Ill. App. 3d 304,
312 (1990). Sanctions may be awarded against pro se litigants under sufficiently egregious
circumstances. Wittekind v. Rusk, 253 Ill. App. 3d 577, 581 (1993); see also Sterling Homes, Ltd.
v. Raspberry, 325 Ill. App. 3d 703, 709 (2001) (invoking Rule 375 to impose sanctions upon pro se
8
At the very end of the case, Parkway asked the circuit judge to impose sanctions on
defendants. The judge did not do so, and Parkway has not cross-appealed from that ruling.
9
One example is found in the reply brief, where defendants indicate that the attorney is a
“proven, notorious, and misleading deceiver,” and advise us that the they will be “happy to
elaborate on that aspect, upon request.” We decline the invitation.
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defendants). The imposition of Rule 375 sanctions is left entirely to the discretion of the reviewing
court. Kheirkhahvash v. Baniassadi, 407 Ill. App. 3d 171, 182 (2011). We constantly remind
attorneys that they should maintain civility even though they must act as zealous advocates. Zealous
advocacy, however, must not deteriorate into zealotry, regardless of whether the advocate is a lawyer
or a self-represented litigant.
¶ 86 We find that this appeal, viewed as a whole, was frivolous, that it was taken for an improper
purpose, and that it was filed specifically to harass and to cause unnecessary delay and needlessly
increase the cost of litigation. We choose to impose sanctions for this conduct, finding that cases
like this drain valuable resources intended to benefit those who accept the social contract of living
under a law-based system of government.
¶ 87 We then turn to what sanction is appropriate. Supreme Court Rule 375(a) deals with failure
to follow appellate rules and specifically allows “an order to pay a fine, where appropriate, may also
be ordered against any party.” Ill. S. Ct. R. 375(a) (eff. Feb. 1, 1994). Rule 375(b), which addresses
frivolous appeals, does not specifically mention fines as a possible penalty. It states: “Appropriate
sanctions for violations of this section may include an order to pay to the other party or parties
damages, the reasonable costs of the appeal or other action, and any other expenses necessarily
incurred by the filing of the appeal or other action, including reasonable attorney fees.” (Emphasis
added.) Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). The committee comments to the rule make it clear,
however, that the penalties for violation of Rule 375(b) may also include a fine: “Under paragraph
(b), a penal fine may be imposed if the conduct in a particular case also constitutes a violation of the
civil appeals rules as set forth in paragraph (a) above.” ” Ill. S. Ct. R. 375(b), Committee Comments
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(Aug. 1, 1989).
¶ 88 The committee comments also note that Rule 375 is based on federal appellate rules which
themselves have been interpreted as allowing federal courts to impose fines for frivolous appeals.
See, e.g., Glick, 782 F.2d at 673-74 (imposing “damages” as sanction for sovereign citizen land
patent appeal). The committee comments also note: “Moreover, appeals courts have been
recognized to have inherent authority to impose sanctions for taking a frivolous appeal or for abusive
tactics in the conduct of the appeal,” citing Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980),
in support. Ill. S. Ct. R. 375(b), Committee Comments (Aug. 1, 1989).
¶ 89 One court dealing with a similar problem noted that computing the penalty is an art, not a
science, but that the penalty should reflect, among other things, the “indirect costs of this litigation
-- including the costs that befall serious litigants, who must wait longer for their cases to receive
judicial attention. *** There should be no weeping over this imprecision, however. [Defendants]
could have avoided the penalty, and other people should avoid it, by the most minimal concern for
settled rules. They knew or should have known that their claims are frivolous, and they (rather than
their adversary) must pay the cost of their self-indulgent litigation.” (Emphasis in original.)
Coleman v. Commissioner, 791 F.2d 68, 73 (7th Cir. 1986).
¶ 90 The tactics employed by defendants in this case caused the expenditure of significant time
and resources not only by the court below, but by the judges, law clerks, librarians, and clerk’s office
of this court. By imposing a fine in this case, we seek not only to deter similar conduct by future
litigants, but to provide some measure of compensation for the public fisc for that needless
expenditure. The complexity of our court system makes it impossible to assess the cost, down to the
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penny, of adjudicating this appeal. The court below determined the reasonable attorney fees for the
case below were $23,432.05. The fees for the appeal may or may not be in the same range.
Parkway’s fees provide a valid starting point for the computation of a fine in this case. See, e.g.,
Szopa v. United States, 460 F.3d 884, 886-87 (7th Cir. 2006).10 Mindful that we should not assess
fines so great that they would chill possibly meritorious litigation, we believe a fine of $10,000 is
likely appropriate in this case. The fine, which will not be dischargeable in bankruptcy (see 11
U.S.C. §523(a)(7) (2006)), is high enough that it will discourage future tactics in debt collection
cases, and punish defendants for their conduct in litigating this case in the manner they have.
¶ 91 The rule provides that: “If the reviewing court initiates the sanction, it shall require the party
or attorney, or both, to show cause why such a sanction should not be imposed before imposing the
sanction.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). Accordingly, we issue a rule to show cause why
we should not impose a sanction of $10,000 pursuant to Supreme Court Rule 375(a) and (b) on
defendants, jointly and severally. See Kim, 322 Ill. App. 3d at 673-74; Amadeo, 299 Ill. App. 3d at
705-06; First Federal Savings Bank of Proviso Township, 237 Ill. App. 3d at 346-47.
¶ 92 If defendants have pressed some other issues upon us in their somewhat disorganized
10
Along this line, a commentator noted that our local federal appellate court imposes most
of its sanctions on two groups: “public fanatics and private fanatics. The public fanatics include
such crusaders as tax protesters and a group that concocts bogus land titles. The court has been
resorting to fixed fines for such litigation, in order to save the government the trouble of
calculating its attorneys fees for opposing them.” (Emphasis added.) Linda R. Hirshman,
Foreword: Tough Love: The Court of Appeals Runs the Seventh Circuit the Old Fashioned Way,
63 Chi.-Kent L. Rev. 191, 201 (1987). Unlike defendants here, the offending party in Szopa did
not sign a fee-shifting agreement. The opposing side was the United States government, so
awarding fees as to the government created the same result as imposing a fine payable to the
government. Szopa, 460 F.3d at 887. Here, the opposing side is a private party which already
benefits from a fee-shifting agreement, so awarding Parkway attorney fees as a sanction adds
nothing to what is already routinely granted and therefore has no deterrent effect.
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presentation, we have reviewed them and find them to be meritless.
¶ 93 CONCLUSION
¶ 94 We affirm the judgments of the circuit court of Cook County. The underlying documents
provide that the lender is entitled to its attorney fees in case of a successful appeal. We also direct
defendants to show cause why we should not impose a fine on them, jointly and severally, under
Illinois Supreme Court Rule 375 in an amount of $10,000. We have issued a separate order setting
a briefing schedule on any petition for attorney fees and on the rule to show cause. We will issue
a supplement to this opinion upon review of the materials submitted regarding the fee petition and
rule to show cause.
¶ 95 Affirmed.
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