U.S. Bank National Association v. Luckett ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
U.S. Bank National Ass’n v. Luckett, 2013 IL App (1st) 113678
Appellate Court U.S. BANK NATIONAL ASSOCIATION, as Trustee for Credit Suisse
Caption First Boston HEAT 2005-5, Plaintiff-Appellee, v. MICHAEL
LUCKETT, RUBY WILSON, and UNKNOWN OCCUPANTS,
Defendants-Appellants.
District & No. First District, First Division
Docket No. 1-11-3678
Filed March 4, 2013
Held On appeal from the entry of a judgment and order of possession in the
(Note: This syllabus forcible entry and detainer action plaintiff bank filed following its action
constitutes no part of to foreclose the mortgage on the subject property, the appellate court
the opinion of the court affirmed the trial court’s actions and rejected defendants’ contentions that
but has been prepared plaintiff was not correctly named in the forcible entry complaint, that the
by the Reporter of preeviction notice was not properly served, that defendants’ postjudgment
Decisions for the motion to dismiss for lack of standing was improperly denied, and that
convenience of the sanctions should be imposed under Supreme Court Rule 137.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 11-M1-714759; the
Review Hon. James L. Kaplan and the Hon. George F. Scully, Jr., Judges,
presiding.
Judgment Affirmed as modified.
Counsel on Barbosa Law Group, PC, of Chicago (Raymond Barbosa, of counsel), for
Appeal appellants.
Locke Lord, LLP, of Chicago (Simon Fleischmann, Hugh S. Balsam, and
Ryan M. Holz, of counsel), for appellee.
Panel JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Cunningham and Rochford concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, U.S. Bank National Association, as trustee for Credit Suisse First Boston HEAT
2005-5 (U.S. Bank),1 filed a forcible entry and detainer action against defendants, Michael
Luckett, Ruby Wilson, and unknown occupants. In its complaint and accompanying notice,
which were properly served to defendants, U.S. Bank identified itself as “Bank National
Association, as Trustee for Credit Suisse First Boston HEAT 2005-5.” On October 31, 2011,
the circuit court entered an order of possession against defendants, which also identified U.S.
Bank as Bank National Association, as trustee for Credit Suisse First Boston HEAT 2005-5.
Defendants then moved to dismiss the case and stay the order of possession, claiming Bank
National Association, as trustee for Credit Suisse First Boston HEAT 2005-5, was not a
proper plaintiff and, thus, had no right to possession of the property. The court denied
defendants’ motion and ordered U.S. Bank to file a written motion to amend its complaint.
U.S. Bank filed its motion to amend the complaint and order of possession. On December
14, 2011, the court granted U.S. Bank’s motion and amended the complaint and October 31,
2011 order of possession nunc pro tunc “to reflect U.S. Bank National Association, as
Trustee for Credit Suisse First Boston HEAT 2005-5 as the proper party plaintiff.”
Defendants appeal from the December 14, 2011 order. We affirm the judgment of the circuit
1
The caption reflects the correct name of plaintiff-appellee, but it should be noted that
plaintiff initially filed its forcible complaint as “Bank National Association, as Trustee for Credit
Suisse First Boston HEAT 2005-5,” incorrectly naming itself in the complaint. Plaintiff’s motion
to amend its complaint nunc pro tunc was later granted by the circuit court to reflect the correct
name of plaintiff, which is the subject of this appeal. During oral argument, defendants-appellants
raised for the first time the issue of whether Bank National Association, as trustee for Credit Suisse
First Boston HEAT 2005-5, existed as an entity, asserting that research conducted two weeks prior
to oral argument revealed the real plaintiff in interest was an entity entitled “Home Equity Asset
Trust.” Plaintiff clarified both in its response during oral argument and in its reply brief that the word
“HEAT” in Bank National Association, as trustee for Credit Suisse First Boston HEAT 2005-5, is
simply an acronym for “Home Equity Asset Trust.”
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court and modify the court’s October 31, 2011 order to remove the nunc pro tunc language
so that the amendments relate back to the original documents in question.
¶2 BACKGROUND
¶3 About five years ago, Jean Prabhakaran fell into default on a mortgage held on her
property in Maywood, Illinois. The circuit court entered orders foreclosing on the mortgage
and confirming the sale of the property back to U.S. Bank, which was the original
mortgagee’s successor. After the foreclosure case had been completed, Prabhakaran filed a
flurry of motions to forestall U.S. Bank’s repossession of the property. The court denied
these motions, but Prabhakaran appealed. This court recently affirmed those rulings, finding
that the foreclosure and sale were valid. U.S. Bank National Ass’n v. Prabhakaran, 2013 IL
App (1st) 111224.
¶4 While the Prabhakaran appeal was pending, U.S. Bank discovered that Prabhakaran’s
relatives Michael Luckett and Ruby Wilson, were actually living at the Maywood property.
On July 8, 2011, U.S. Bank filed a new action under the Forcible Entry and Detainer Act
(735 ILCS 5/9-101 et seq. (West 2010)) claiming that it was entitled to possession of the
property from Luckett and Wilson. That case is the subject of the present appeal.
¶5 Before filing this case, attorneys for U.S. Bank issued a preeviction notice pursuant to
section 15-701 of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1701 (West 2010)).
The preeviction notice was on the law firm’s letterhead, which bore the firm’s name, address,
and phone number. It stated that the property was now owned by “Bank National
Association, as Trustee for Credit Suisse First Boston HEAT 2005-5” and that the same
entity demanded possession. The name of the owner in the preeviction notice deviated from
the correct name only through the omission of the characters “U.S.” Both the caption of the
complaint filed below and the original possession order now on appeal herein contain the
same omission. The complaint itself contains only three paragraphs, none of which reference
plaintiff by name. However, attached to the complaint was a copy of the order of
confirmation of sale entered in the Prabhakaran case, which correctly lists plaintiff’s name
with the additional characters “U.S.” in the caption, and a notice listing contact information
for the real estate management personnel responsible for the property, including their phone
numbers and email address.
¶6 Luckett and Wilson were served with summonses on August 24, 2011, requiring them
to appear “for trial” on August 31, 2011. The record is unclear on the point, but it appears
they did not appear in court that day. The court continued the case to October 31, 2011.
Again, the record does not make clear whether Luckett and Wilson appeared for trial. After
hearing the matter for trial, the court entered an order of possession in favor of U.S. Bank and
against Luckett and Wilson. The court stayed the order of possession until November 7,
2011. That order disposed of all issues in the case.
¶7 Through an attorney, Luckett and Wilson filed their first pleadings in the eviction case
on November 4, 2011. The attorney representing Luckett and Wilson in the case below is one
of the same attorneys who represented Prabhakaran in the later stages of the foreclosure case.
¶8 Instead of filing a motion to vacate or a motion for a new trial, counsel for Luckett and
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Wilson filed a notice of motion indicating he would present “Motions to Quash Service of
Process, Dismiss for Lack of Jurisdiction, and Stay Order for Possession.”2 The motion is
hardly a model of draftsmanship. First, despite the title in the notice of motion, nothing in
the motion seeks to quash service of process. The motion is divided into two parts. The first
part is labeled “Motion to Dismiss for Lack of Jurisdiction (Wrong Plaintiff).” This part does
contain a prayer for relief asking the court to vacate the order of possession, but cites none
of the usual statutory authority, such as section 2-1301 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-1301 (West 2010)), to support a request to vacate. Nor does it or defendants’
appellate briefs recite any of the usual standards applicable to motions to vacate, such as
“substantial justice between the parties.” See Northern Trust Co. v. American National Bank
& Trust Co. of Chicago, 265 Ill. App. 3d 406, 412 (1994).
¶9 The second part of the motion is labeled “Motion to Stay Order for Possession.” This part
begins with a citation to section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2010)),
which allows courts to grant new trials. However, nothing else in the motion requests a new
trial. This part of the motion simply cites the pendency of the Prabhakaran appeal as a
reason to stay the October 31 possession order.
¶ 10 The court below denied the defendants’ motions to dismiss and to stay possession. The
court did, however, order plaintiff to file a written motion to amend the complaint, and it set
a briefing schedule on that motion. In its written motion, U.S. Bank indicated that the “Bank
National Association” appellation was a misnomer created by a scrivener’s error. On
December 14, 2011, the court granted U.S. Bank’s motion to amend, and ordered that the
complaint and October 31, 2011 order of possession be amended nunc pro tunc to add “U.S.”
before “Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5.”
¶ 11 On December 15, 2011, defendants filed a timely notice of appeal. The notice of appeal
is also problematically drafted. The notice states that the only “judgment/order being
appealed from” is dated “12/14/11”–a date which refers only to Cook County Circuit Court
Judge George Scully’s order granting plaintiff’s motion to amend. One line below, the notice
of appeal contains a seemingly contradictory statement indicating that the relief sought from
this court includes not only reversing the December 14, 2011 order allowing the amendment,
but also reversing the November 17 order denying defendants’ motion to dismiss. Nowhere
does the notice indicate the November 17 date. The December 15 notice of appeal would be
timely as to both the December 14 and November 17 orders.
¶ 12 Most significantly, the notice of appeal mentions nothing about the October 31 trial order
which actually granted possession to plaintiff. Given the state of the record, we must
examine whether we have jurisdiction over the October 31 and November 17 orders.
¶ 13 Our supreme court has explained that notices of appeal in such circumstances should be
liberally construed:
“When an appeal is taken from a specified judgment only, or from a part of a specified
2
Although the notice of motion describes the motion filed as “Motions to Quash Service of
Process, Dismiss for Lack of Jurisdiction, and Stay Order for Possession,” the actual motion filed
is entitled “Motions to Dismiss for Lack of Jurisdiction and Stay Order for Possession.”
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judgment, the court of review acquires no jurisdiction to review other judgments or parts
thereof not so specified or not fairly to be inferred from the notice as intended to be
presented for review on the appeal. If from the notice of appeal itself and the subsequent
proceedings it appears that the appeal was intended, and the appellant and the appellee
so understood, to have been taken from an unspecified judgment or part thereof, the
notice of appeal may be construed as bringing up for review the unspecified part of the
order or judgment. Such a construction would be appropriate where the specified order
directly relates back to the judgment or order sought to be reviewed. Paraphrasing the
language of Elfman [(Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d
Cir. 1977))], the unspecified judgment is reviewable if it is a ‘step in the procedural
progression leading’ to the judgment specified in the notice of appeal.” Burtell v. First
Charter Service Corp., 76 Ill. 2d 427, 434-35 (1979).
Plaintiff here has not argued that we lack jurisdiction over the appeal from any of the three
underlying orders, and the parties have fully briefed them on the merits. The three orders–the
possession order closing the case, the order denying the “motion to dismiss,” and the order
granting the motion to amend–are all steps in the same procedural progression. Applying
Burtell, we find that we have jurisdiction over all three orders. Id. at 435-36.
¶ 14 ANALYSIS
¶ 15 Defendants argue on appeal that the complaint, as amended nunc pro tunc, is null and
void because U.S. Bank did not effect proper service of a preeviction notice pursuant to
section 15-1701(h)(4). Defendants challenge the October 31, 2011 order entered by the
circuit court, contending it should be rendered null and void because plaintiff could never
prove its right to possession. Defendants assert the court erred when it denied their
postjudgment motion to dismiss for lack of standing to bring suit. In addition, defendants
claim the court improperly ordered the October 31, 2011 order be amended nunc pro tunc.
Finally, defendants argue plaintiff should be required to pay sanctions under Illinois Supreme
Court Rule 137 (Ill. S. Ct. R. 137 (eff. Feb. 1, 1994)) for costs and expenses to defend and
appeal an action brought in the name of a nonexistent entity.
¶ 16 The October 31, 2011 order recites that the “issues thereof” were “heard and determined
by [the] court.” While there is no transcript of the hearing from that date, we must presume
that the circuit court conducted the trial as appropriate before entering the order of
possession. No transcript, or acceptable substitute (Ill. S. Ct. R. 323(c) (eff. Dec. 13, 2005))
of the hearing has been included in the record, and thus any doubts arising from the
incompleteness of the record will be resolved against the appellant. Foutch v. O’Bryant, 99
Ill. 2d 389, 391-92 (1984). Given the incomplete record on appeal, we must presume that the
court ruled or acted correctly (Moenning v. Union Pacific R.R. Co., 2012 IL App (1st)
101866, ¶ 38), and that the order was entered in conformity with the law and was properly
supported by the evidence. Foutch, 99 Ill. 2d at 393.
¶ 17 After the trial, defendants filed a motion seeking various forms of relief regarding the
possession order. For example, defendants claimed dismissal of the case was appropriate for
lack of jurisdiction because plaintiff did not have standing to bring suit. As noted above, this
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case was unnecessarily complicated by the confusing manner in which defendants’ motion
was prepared. It is elementary that once a case has been tried, the judgment order resulting
from the trial cannot be attacked by a belated motion to dismiss. See, e.g., Lyons v. Ryan, 324
Ill. App. 3d 1094, 1104 (2001) (although parties cannot waive an issue of subject matter
jurisdiction, other jurisdictional issues such as standing can be waived because the essence
of the standing inquiry is not the subject matter per se, but whether a litigant, either in an
individual or representative capacity, is entitled to have the court decide the merits of a
particular dispute). By failing to answer the complaint, defendants admitted all the
allegations of the complaint and forfeited their right to complain about the result or the
manner in which it was reached. 735 ILCS 5/2-1301(d) (West 2010); see also Roth v. Roth,
45 Ill. 2d 19, 23 (1970); In re Marriage of Epting, 2012 IL App (1st) 113727, ¶ 30;
Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362 Ill. App. 3d 56, 59-60 (2005). While
the motion uses the word “vacate” in the prayer for relief, it is clear that the motion seeks to
dismiss the case in its entirety, and in so doing, completely ignores the fact that the case had
already been tried to judgment.
¶ 18 The second part of the motion begins with a citation of the correct provision for a new
trial (735 ILCS 5/2-1203 (West 2010)), but instead of presenting any argument why a new
trial is warranted, the motion leaps into a completely unrelated request to stay possession
pending resolution of the Prabhakaran appeal.
¶ 19 Had defendants presented their motion to dismiss before trial, they would have been in
a better procedural posture to litigate their “wrong name” claim. Their brief characterizes the
misnomer issue as a standing issue, but standing can be forfeited if a defendant fails to
challenge the issue in a timely manner. Mortgage Electronic Registration Systems, Inc. v.
Barnes, 406 Ill. App. 3d 1, 6 (2010). Because they presented no explanation of why they did
not do so, the circuit court was correct to deny them any relief. The actual name of the entity
claiming possession is of little relevance here, because defendants had no business dealings
with it in the first place–only Prabhakaran presumably did. Additionally, the actual party in
interest is not U.S. Bank, which is merely a trustee, but rather is Credit Suisse, whose long
legal name was precisely set forth on both the preeviction notice and the forcible entry
complaint. Finally, a copy of the foreclosure court’s order, clearly specifying plaintiff as
“U.S. Bank, National Association,” and a notice listing contact persons were attached as
exhibits to the complaint which was served on defendants.
¶ 20 We turn, then, to the circuit court’s remedy for the difference between “Bank National
Association, as Trustee for Credit Suisse First Boston HEAT 2005-5” and “U.S. Bank
National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5.” The very
awkwardness of the former name itself suggests to the reader that it may be a misnomer,
which is the use of an incorrect name of a person in a pleading. Bristow v. Westmore
Builders, Inc., 266 Ill. App. 3d 257, 260 (1994) (citing Black’s Law Dictionary 1000 (6th ed.
1990)). The circuit court granted plaintiff’s motion to amend nunc pro tunc. While we agree
with defendants that the term “nunc pro tunc” was misused, we find that the amendment was
a valid exercise of the court’s authority to amend pleadings and to relate them back to the
original filing.
¶ 21 Defendants suggest that this case is not a misnomer case, but rather a mistaken identity
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case. Courts are much more reluctant to allow parties to easily correct parties’ names if they
are incorrect because of a mistaken identity than because of a misnomer. “Whether a case
involves mistaken identity or misnomer depends on the intent of the plaintiff as established
by the plaintiff’s objective manifestations of that intent as contained in the record.” Maggi
v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 24. We can take judicial notice that
courts across the nation are adjudicating a huge number of foreclosure cases and eviction
cases which stem from foreclosures, and that the lenders use law firms which litigate these
cases in high volume. That high volume, in turn, means that pleadings are generated through
“search and replace” word processing features. While efficient, this practice runs the risk of
a single error infecting an entire series of pleadings. Because of the very slight difference
between the two names at issue, and the fact that no one has suggested that the difference is
attributable to anything but a scrivener’s error, we look to the misnomer cases for guidance
here.
¶ 22 Section 2-401(b) of the Code provides in relevant part: “[m]isnomer of a party is not a
ground for dismissal but the name of any party may be corrected at any time, before or after
judgment, on motion, upon any terms and proof that the court requires.” 735 ILCS 5/2-
401(b) (West 2010). While “an opposing party may require that a misnomer be corrected, he
or she cannot force a dismissal for the misnomer.” Bristow, 266 Ill. App. 3d at 261 (citing
Sjostrom v. McMurray, 47 Ill. App. 3d 1040, 1043 (1977)). A misnomer can be corrected
through a motion to amend. Thompson v. Ware, 210 Ill. App. 3d 16, 18 (1991); 735 ILCS
5/2-616(c) (West 2010) (“[a] pleading may be amended at any time, before or after judgment,
to conform the pleadings to the proofs”). The purpose of the relation-back provision of
section 2-616(b) is to preserve causes of action against loss due to technical pleading rules,
“ ‘to allow the resolution of litigation on the merits and to avoid elevating questions of form
over substance.’ ” Santiago v. E.W. Bliss Co., 2012 IL 111792, ¶ 25 (quoting Boatmen’s
National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 102 (1995)).
¶ 23 Misnomers most frequently occur when plaintiffs misname defendants. However,
sometimes plaintiffs misname themselves. Illinois courts have consistently been reluctant to
dismiss cases because of minor variations in a plaintiff’s name, particularly where the
defendant suffered no prejudice because of the error. By doing so, the courts have placed
substance over form and promoted the efficient and prompt adjudication of disputes, interests
which are of primary importance in forcible entry cases.
¶ 24 The plaintiff in Bristow was a sole proprietor, but instead sued in the name of a
corporation. Bristow, 266 Ill. App. 3d at 258. Just as here, the Bristow defendant argued that
the complaint was a nullity because the named corporate plaintiff did not exist. Bristow, 266
Ill. App. 3d at 261-62. The court rejected that argument, and concluded that the case simply
involved a correctable misnomer. Bristow, 266 Ill. App. 3d at 261-62.
¶ 25 Similarly, in Calvert Distillers Co. v. Vesolowski, 14 Ill. App. 3d 634 (1973), the court
rejected the defendants’ contention that a lawsuit filed against them was a nullity because the
plaintiff was a nonexistent legal entity. The complaint listed the plaintiff’s name, in part, as
“House of Seagram, Inc.” The actual plaintiff, however, was “Joseph E. Seagram and Sons,
Inc.,” a successor corporation by merger to the House of Seagram, Inc. The court found that
there was not reason to render the suit a “nullity” due to this error. Calvert Distillers Co., 14
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Ill. App. 3d at 636.
¶ 26 Most recently, in Todd W. Musburger, Ltd. v. Meier, 394 Ill. App. 3d 781, 806-08 (2009),
we applied the misnomer rule when a plaintiff filed suit as “The Law Offices of Todd W.
Musburger, Ltd.” rather than “Todd W. Musburger, Ltd.,” its official corporate name. The
court rejected the defendant’s attempt to extricate itself from the judgment on the basis of
the incorrect name, stating: “we conclude that this case involves misnomer and, accordingly,
the trial court did not err when it struck defendant’s affirmative defense and denied
defendant’s section 2-1401 petition for relief from judgments arguing that plaintiff was a
nonentity lacking the legal capacity to sue.” Id. at 808. Therefore, the circuit court correctly
determined that the error was a correctable misnomer.
¶ 27 The circuit court allowed plaintiff’s name to be amended nunc pro tunc. The purpose of
a nunc pro tunc order is to correct the record for a clerical or inadvertent scrivener’s error,
not to alter the actual judgment of the court or correct judicial errors. In other words, a nunc
pro tunc order allows the record to express, in writing, what the court actually intended to
occur. Krilich v. Plencer, 305 Ill. App. 3d 709, 712 (1999). When the court entered the
October 31, 2011 order, the plaintiff of record was, in fact, listed as “Bank National
Association” rather than “U.S. Bank National Association.” Accordingly, the court should
have stated that the amendments related back rather than they operated nunc pro tunc. In
misnomer cases, the relation-back doctrine automatically applies, so the amended complaint
and order would be considered as filed upon the filing date of their original counterparts.
Maggi, 2011 IL App (1st) 091955, ¶ 23. Because the nunc pro tunc language was merely
superfluous, we affirm the judgment of the court, but modify the court’s October 31, 2011
order to remove that language and hold that it related back so as to modify the original
documents in question. Ill. S. Ct. R. 366 (eff. Feb. 1, 1994).
¶ 28 Even if the circuit court properly allowed the complaint and order to be amended,
defendants argue that they should still prevail because the preeviction notice was flawed, and
the court had no authority to amend it. The preeviction notice is prepared and served long
before a complaint is filed, so the regular pleading rules do not apply to it. Nonetheless, it
is a creation of statute, and we look to the governing statute for guidance regarding it. Section
15-1701(h)(4) of the Illinois Mortgage Foreclose Law requires the notice. It states, in
pertinent part:
“No mortgagee-in-possession, receiver or holder of a certificate of sale or deed, or
purchaser who fails to file a supplemental petition under this subsection during the
pendency of a mortgage foreclosure shall file a forcible entry and detainer action against
an occupant of the mortgaged real estate until 90 days after a notice of intent to file such
action has been properly served upon the occupant.” 735 ILCS 5/15-1701(h)(4) (West
2010).
¶ 29 The statute specifies no particular language or content of the preeviction notice, but only
provides that it should be “properly served.” In particular, there is no requirement that the
notice contain the name of the owner. Here, the same law firm which brought the forcible
entry and detainer case served a notice, written on its letterhead. The notice lists the name
of the owner, save for the missing characters; provides the property address; states that “my
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client” has terminated the lease; and otherwise contains sufficient information that anyone
confused about the notice could contact a knowledgeable individual for further information.
See, e.g., Prairie Management Corp. v. Bell, 289 Ill. App. 3d 746, 750 (1997); Housing
Authority of City of Bloomington v. Ray, 258 Ill. App. 3d 384, 386 (1994).
¶ 30 Defendants also ask this court to impose sanctions under Supreme Court Rule 137 (Ill.
S. Ct. R. 137 (eff. Feb. 1, 1994)) for what it considers to be plaintiff’s filing of a complaint
in the name of a nonexistent entity. “The purpose of Rule 137 is to prevent parties from
abusing the judicial process by imposing sanctions on litigants who file vexatious and
harassing actions based upon unsupported allegations of fact or law.” Dismuke v. Rand Cook
Auto Sales, Inc., 378 Ill. App. 3d 214, 217 (2007). Because Supreme Court Rule 137 is penal
in nature, it will be strictly construed. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 487
(1998). A circuit court’s ruling on Supreme Court Rule 137 sanctions will not be reversed
absent an abuse of discretion. Id.
¶ 31 Defendants correctly note that the misnomer was the result of carelessness and inattention
to detail on the part of plaintiff’s attorneys, but then they improperly analogize what is a
minor, nonprejudicial clerical error to the practice of making up imaginary clients and suing
people in the name of those clients for no reason whatsoever. Obviously, the latter would be
sanctionable, but the former is hardly so. Above, we explained why the misnomer was not
fatal. Because the judgment below in favor of plaintiff was correct, there can be no reason
to impose any sanctions on plaintiff.
¶ 32 Along the same line, we pause to comment on the tone of defendants’ brief in this court.
As noted above, defendants have presented no defense to the underlying eviction action other
than the technical one which we have rejected. The loan signed by Prabhakaran has been in
default now for about five years. Both Prabhakaran and her tenants, using the same set of
attorneys, have used the legal system to delay the inevitable as long as possible, losing at
every stage. In the meantime, we can only presume that they are enjoying the use of the
property essentially free of charge, and at great cost to the lender and its successors.
Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755, ¶ 34 (noting “the
fact that defendant was living on the subject property for nearly two years without making
a mortgage payment cannot be ignored”).
¶ 33 In their brief before this court, defendants state that plaintiff’s attorney “unwittingly
conspired with the judge [in the circuit court] to save an unjust order for possession and
eviction,” and complain that the judge, who sits in a high-volume courtroom, made their
attorney wait a half hour until plaintiff’s counsel arrived and excused them from complying
with his courtesy copy rule. None of these accusations are, of course, exhibited in the record.
See Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶¶ 12, 15 (admonishing
appellant counsel’s lack of professionalism in complying with supreme court rules for briefs
on appeal); Burmac Metal Finishing Co. v. West Bend Mutual Insurance Co., 356 Ill. App.
3d 471, 478 (2005) (same).
¶ 34 CONCLUSION
¶ 35 For these reasons, we affirm the judgment of the circuit court and modify the court’s
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October 31, 2011 order to remove the nunc pro tunc language so that the amendments relate
back to the original documents in question.
¶ 36 Affirmed as modified.
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