Bank Financial, FSB v. Brandwein

2015 IL App (1st) 143956No. 1-14-3956
Fifth Division
June 26, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
BANK FINANCIAL, FSB, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
) No. 13 CH 10316
v. )
) The Honorable
BARRY BRANDWEIN, ) Sanjay Tailor,
) Judge Presiding.
Defendant-Appellant )
)
(5628 North Broadway, LLC, )
Defendant). )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 On August 27, 2009, 5628 North Broadway, LLC, received a $275,000 loan from
plaintiff, Bank Financial, FSB, in exchange for a mortgage on a commercial property that
rented space to an auto repair shop. Defendant, Barry Brandwein, who is the manager of the
limited liability company, signed a promissory note to plaintiff for the amount of the loan.
On April 17, 2013, plaintiff sought to foreclose the mortgage, as a result of unpaid loan
No. 1-14-3956
payments and unpaid real estate taxes. The property was sold at a judicial sale, still leaving
$73,459.61 of the loan unpaid. Plaintiff then sought to hold defendant liable for this amount,
pursuant to the promissory note. Defendant filed a counterclaim for tortious interference and
filed an affirmative defense in count II only, and did not file an answer to count I. On
September 9, 2014, plaintiff moved for summary judgment on the basis of section 2-1005(c)
of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2012)). Defendant's response to
the motion for summary judgment argued that plaintiff had attempted to collect rents from
the tenants of the property, and this action made it difficult for defendant to collect rent and
bring the loan payments current. The trial court granted plaintiff's motion for summary
judgment, and this appeal followed.
¶2 On appeal, defendant makes one claim: that the trial court erred in granting plaintiff's
motion for summary judgment, because defendant raised a genuine issue of material fact that
supported his claim that plaintiff committed tortious interference with his collection of the
rent. For the following reasons, we do not find persuasive defendant's claim that the trial
court erred in granting plaintiff's motion for summary judgment.
¶3 BACKGROUND
¶4 I. Pretrial Filings
¶5 A. Complaint
¶6 On April 17, 2013, plaintiff, Bank Financial, FSB, filed a complaint in the chancery
division of the circuit court of Cook County against defendants, Barry Brandwein and 5628
North Broadway, LLC (the LLC). While Brandwein and the LLC are both named as
defendants in the complaint, the answer was filed solely on behalf of Brandwein, and
Brandwein is the sole defendant on appeal.
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No. 1-14-3956
¶7 Count I of the complaint sought to foreclose a mortgage on property located on North
Broadway Street, in Chicago, Illinois (the property). The mortgagor was the LLC, the
mortgagee was plaintiff, and the mortgage was for $275,000. 1 The complaint alleged that the
LLC did not make their monthly payments to plaintiff and did not make the payments for real
estate taxes as of April 15, 2013, and that, as a result, plaintiff had accelerated the payments
due under the mortgage, pursuant to an acceleration clause in the mortgage where plaintiff
reserved the "right at its option without notice to Borrower or Grantor to declare the entire
indebtedness immediately due and payable, including any prepayment penalty that Borrower
would be required to pay." The total due from the LLC was $279,122.43. The complaint
sought, in part, to foreclose the mortgage, shorten redemption, and appoint a receiver to
possess the property,
¶8 Count II of the complaint stated that defendant and the LLC had signed a promissory
note for the amount of the mortgage, and that they had breached the promissory note by
failing to make monthly payments on the mortgage. The complaint sought to hold defendant
and the LLC jointly and severally liable for the total amount of $279,122.43, as well as
continually accruing interest, attorney fees, and costs.
¶9 B. Petition to Appoint Receiver
¶ 10 On June 18, 2013, plaintiff filed a petition to appoint a receiver. Defendant and the
LLC did not respond to count I of the complaint or the petition to appoint a receiver. On
1
In plaintiff's motion for summary judgment and on appeal, plaintiff asserts that it loaned
defendant and the LLC $550,000. However, in its complaint, plaintiff states that it loaned
defendant and the LLC $275,000. Both the promissory note and mortgage state that the original
loan was for $275,000. Plaintiff's confusion might arise from the line in the mortgage stating
"MAXIMUM LIEN. At no time shall the principal amount of Indebtedness secured by the
Mortgage, not including sums advanced to protect the security of the Mortgage, exceed
$550,000."
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No. 1-14-3956
September 3, 2013, the court entered an order appointing a receiver for the property and an
order of default against defendant and the LLC. The court later entered an order of judgment
of foreclosure and sale, foreclosing on the mortgage and approving the sale of the property at
public auction.
¶ 11 C. Motion to Transfer to Law Division and to Confirm Judicial Costs
¶ 12 On November 5, 2013, plaintiff filed two motions, a "motion to confirm judicial sale;
approve post judgment costs; enter deficiency judgment; and award immediate possession"
and a motion to transfer the case to the law division. In the first motion, plaintiff stated that it
had fairly auctioned the property for $220,000 on October 21, 2013, at the judicial sale, and
requested the court to confirm the sale. After the judicial sale, there was a deficiency due
from defendant and the LLC of $73,459.61. The second motion requested that the chancery
court transfer the case to the law division, so that plaintiff could recover the remaining debt
from defendant and the LLC, pursuant to count II of the complaint.
¶ 13 On January 21, 2014, the chancery court entered an order granting plaintiff's motion
to confirm the sale of the property with postjudgment costs and transferred the case to the
law division to allow plaintiff to pursue count II of the complaint.
¶ 14 D. Motion for Order of Default and Judgment
¶ 15 On April 16, 2014, plaintiff filed a motion in the trial court seeking a default
judgment against defendant and the LLC. The motion alleged that defendant and the LLC
were personally served on March 14, 2014. Defendant and the LLC did not file their required
answer by April 14, 2014. Plaintiff sought a default judgment against defendant and the LLC
for $77,771.14. This amount reflected the previous deficiency in judgment along with
accrued interest and additional court and attorney fees.
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No. 1-14-3956
¶ 16 E. Defendant's Motion to Dismiss and Plaintiff's Response
¶ 17 On May 5, 2014, defendant filed a motion to dismiss. The motion alleged that
defendant was not properly served in the foreclosure case and, therefore, the chancery court
did not have personal jurisdiction over him. The motion further alleged that there were
defects in the pleadings. Specifically, defendant stated that the "motion to confirm sale"
referred to the property as a 12-unit nonresidential building, and the "order appointing
receiver" referred to the property as a "three unit mixed commercial/residential building."
Defendant asserted that the property is a single-unit garage used as an auto repair shop.
¶ 18 On June 6, 2014, plaintiff filed a response to defendant's motion to dismiss. The
response stated that any defects in the motions and orders, which plaintiff noted are not
"pleadings," were not substantial. Rather, the important detail was that the property was
commercial and not residential. Plaintiff also stated that defendant was attempting to attack
count I of the complaint, claiming that the chancery court did not have personal jurisdiction.
However, plaintiff argued that this was improper, as a final judgment in that case had been
entered. Plaintiff also asserted that the motion to dismiss should be stricken because
defendant's counsel had not entered her written appearance and filed the appropriate fee.
¶ 19 On June 27, 2014, the trial court struck defendant's motion because his counsel had
failed to enter her written appearance and pay the appropriate fee. Defendant and the LLC
were granted 21 days to answer count II of the complaint.
¶ 20 F. Defendant's Answer and Plaintiff's Response
¶ 21 On July 17, 2014, defendant filed an answer and affirmative defense to count II of
plaintiff's complaint. The LLC did not file an answer to the complaint. Defendant stated that
he is the manager of the LLC, which was the former owner of the property. Defendant's
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No. 1-14-3956
answer stated that immediately following the filing of plaintiff's complaint on April 17, 2013,
Gordana Jovanovic, a commercial banking officer for plaintiff, appeared on the property at
which time she told defendant's tenants, 2 Carlos and Filiae Carreto, the owners of an auto
repair shop located in the property, not to pay the monthly rent under their lease to defendant,
but instead to pay the rent to plaintiff. Defendant stated that the monthly rent was $3,000.
Plaintiff did not have constructive possession of the property until September 3, 2013.
Defendant also claimed:
"8. That by its demand for payment of rent, BANKFINANICAL, LLC [sic]
effectively prevented Defendants from paying the delinquent amounts due under the
Note.
9. That as a result of its wrongful demand for rent from Defendant's tenant, and
the resulting inability of Defendant to use the rent to bring the loan current, the
property was foreclosed and sold at the judicial sale to Plaintiff.
***
11. That the allegations contained in this Affirmative Defense would have
allowed him to properly defend the foreclosure action and prevent the judicial sale
from proceeding."
¶ 22 Defendant also claimed that the court did not have personal jurisdiction over him,
because he was not properly served in the foreclosure case.
¶ 23 On August 7, 2014, plaintiff filed a "response" (reply) to defendant's answer. In the
"response," plaintiff denied wrongfully demanding rent from the tenant, but agreed that
defendant failed to bring the loan current and that the property was sold at a judicial sale. In
2
Defendant's answer refers to the tenants as "his" tenants, however; they were actually
tenants of the LLC.
6
No. 1-14-3956
plaintiff's "response" it stated that rent from the tenants, paid to the receiver, was only $1,500
a month.
¶ 24 G. Plaintiff's Motion for Summary Judgment
¶ 25 On September 9, 2014, plaintiff filed a motion for summary judgment for count II of
the complaint. In the motion, plaintiff stated that defendant's affirmative defense failed to
create a genuine issue of material fact. Plaintiff claimed that pursuant to the loan documents,
plaintiff was entitled to collect and receive rents "at any time, and even though no default
shall have occurred." Plaintiff exercised those rights on February 27, 2013, when it informed
the tenants of the auto shop of plaintiff's right to collect rent. 3 That right came from the
mortgage, which stated "Lender shall have the right, without notice to Borrower or Grantor,
to take possession of the Property and collect the Rents, including amounts past due and
unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness.
In furtherance of this right, Lender may require any tenant or other user of the Property to
make payments of rent or use fees directly to Lender. *** Lender may exercise its right
under this subparagraph either in person, by agent, or through a receiver."
¶ 26 In its motion, plaintiff also stated that the chancery court did have personal
jurisdiction over defendant and the LLC because service by publication was used after
numerous attempts to personally serve defendant and the LLC had failed. Further, plaintiff
argued that a final judgment was entered, so it was improper for defendant to assert claims
relative to count I.
3
Plaintiff's motion for summary judgment states only that it informed the tenants of its
right to collect rent. However, the letter sent to the tenants on February 27, 2013, does instruct
the tenants to begin paying rent to plaintiff. Plaintiff does not claim in its motion for summary
judgment that as a result of this letter the tenants ever paid rent to plaintiff. In plaintiff's response
to defendant's answer, plaintiff does state that the receiver was paid rents by tenants, after being
judicially appointed on September 3, 2013.
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No. 1-14-3956
¶ 27 H. Defendant's Response to Motion for Summary Judgment
¶ 28 On October 14, 2014, defendant filed a response to plaintiff's motion for summary
judgment. In his response, defendant asserted that Illinois law required a receiver to be
appointed by the foreclosure court before any rent could be collected on behalf of a creditor.
Defendant asserted that plaintiff did not deny that it demanded rent from the property's
tenants before a receiver was appointed. The response does not claim that the tenants ever
paid this rent to plaintiff.
¶ 29 Defendant further claimed that he received a default notice from plaintiff on January
9, 2013, which stated that the principal payment of the note was $795.71 behind. Defendant
stated that within one week after plaintiff filed its complaint, on April 17, 2009, Gordana
Jovanovic, representing plaintiff, arrived on the property and demanded that tenants pay rent
to plaintiff. 4 This interference of defendant's landlord-tenant business relationship prevented
tenant from paying the deficient amount of $795.71. 5
¶ 30 Finally, defendant claimed that through plaintiff's demand that the tenants pay it rent,
plaintiff failed its duty to mitigate damages by interfering with defendant's ability to collect
rent and reinstate the note.
4
In defendant's answer and his response to the motion for summary judgment, defendant
does not claim that the letter sent on February 27, 2013, instructing the tenants to pay their rent
to defendant, was tortious interference. Defendant claims only that he had "difficulty" collecting
rents from the tenants following Jovanovic's contact with the tenants in person after the
complaint was filed on April 17, 2013.
5
The letter being referred to actually listed defendant and the LLC as $8,555.92 behind
on their payments, and gave defendant and the LLC until January 23, 2013, to bring the loan
current. After April 17, 2013, once the complaint was filed, plaintiff accelerated the payments,
pursuant to provisions in the mortgage and note, and the actual amount due was $279,122.43.
8
No. 1-14-3956
¶ 31 An affidavit, signed by defendant, was attached to the response. In the affidavit,
defendant stated "[t]hat the interference of Gordana Jovanovich [sic] made it difficult to
collect the rent that was needed to reinstate the loan."
¶ 32 Defendant also attached a lease for the property to the response. The lease listed Z&B
Properties, LLC, as the landlord of the property, not 5638 North Broadway, LLC. The lease
listed Angel Gonzalez as the tenant, not the Carretos. The lease also terminated on May 31,
2008, almost a year before plaintiff gave a loan to 5628 North Broadway, LLC.
¶ 33 II. Hearing on the Motion for Summary Judgment
¶ 34 On December 23, 2014, the trial court heard arguments regarding the motion for
summary judgment on count II of the complaint:
"THE COURT: You know, I read the papers. There's a defense pled that the bank
improperly collected rents when it didn't have possession—actual, constructive, or
otherwise—of the premises. And Illinois law does not permit that.
***
PLAINTIFF'S COUNSEL: Right. They just make this allegation that an agent of
the bank went to the property and demanded those rents. But there's no allegation that
those rents were actually paid to the bank.
THE COURT: So if there's no allegation that the rents were actually paid, there's
no defense is what you're saying, I think.
***
THE COURT: So paragraph 10 actually says that, quote, 'That the interference of
Gordana, last name spelled Jovanovich, [sic] made it difficult to collect the rent that
was needed to reinstate the loan.'
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No. 1-14-3956
That kind of suggests that the tenant may not have actually paid the bank. It's
ambiguous at best.
PLAINTIFF'S COUNSEL: It is. And just to reiterate the timeline, your honor, this
all occurred approximately three months after they were required to cure the default
anyway.
So the default was in existence, and the note had already been accelerated before
any of these allegations even arise.
THE COURT: So what am I to make of this allegation that Miss Jovanovich, of
the bank, told the tenants to pay the bank and not the borrower?
DEFENSE COUNSEL: Well, I think, as it's set out in the brief, that the
defendants allege that that event occurred within a week of filing the complaint for
the foreclosure. So there was no appointment of receiver. And she went in and said,
you're to pay me now.
THE COURT: Right. But what does it matter if there's no allegation that the
tenants, in fact, paid the bank rather than the borrower?
***
THE COURT: *** The only evidence that I have before me is an affidavit of the
defendant in which he avers that a representative of the bank told the tenants to pay
the bank rather than the borrower.
But short of the tenants actually paying the bank, as opposed to the borrower, I
don't know what you do with that defense. I don't know whether it's a legally
cognizable defense. There's no authority that's been offered.
***
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No. 1-14-3956
THE COURT: Is there any allegation that the tenants, in fact, did not pay the
borrower and that they paid the bank?
DEFENSE COUNSEL: I don't see that.
***
THE COURT: Okay. Here's what I'm going to do.
It would appear to me that in order for the defense to be viable and the claim to be
viable—and, again, I'm talking about the defense of tortious interference and the
affirmative claim for tortious interference—the defendant would have to allege that
the tenants, in fact, did not pay the borrower and, instead, paid the bank as requested
by the bank. But I don't have that allegation here.
So I will grant the Plaintiff's Motion for Summary Judgement and deny the
Motion for Leave to File the Counterclaim."
¶ 35 The trial court granted plaintiff's motion for summary judgment, and entered
deficiency judgments against defendant and the LLC in the amount of $91,524.21. This
amount was based on $79,544.57 due under the promissory note, 6 and attorneys fees and
costs. This appeal followed.
¶ 36 ANALYSIS
¶ 37 On appeal, defendant makes one claim: that the trial court erred in granting plaintiff's
motion for summary judgment because defendant raised a genuine issue of material fact that
6
Since interest was still accruing, the amount sought by plaintiff has steadily increased
during the length of the litigation. On November 5, 2013, when plaintiff filed a motion with the
chancery court to enter a deficiency judgment, plaintiff sought only $73,459.61, pursuant to the
promissory note. On April 16, 2014, when plaintiff moved for a default judgment, plaintiff
sought $77,771.14, pursuant to the promissory note. However, on December 23, 2014, when the
trial court entered summary judgment, the order reflected $79,544.52 due under the promissory
note. The accrual of interest explains the steady increase of these amounts.
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No. 1-14-3956
supported his claim that plaintiff committed tortious interference with his ability to collect
rent. For the following reasons, we do not find persuasive defendant's claim that the trial
court erred in granting plaintiff's motion for summary judgment.
¶ 38 I. Standard of Review
¶ 39 Summary judgment is appropriate where the pleadings, depositions, and admissions
on file, together with any affidavits and exhibits, when viewed in the light most favorable to
the nonmoving party, indicate that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012). When a
court determines whether the moving party is entitled to summary judgment, the pleadings
and evidentiary material in the record must be construed strictly against the movant. Happel
v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002). We review a circuit court's decision on
a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual
Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo consideration means the reviewing court
performs the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP,
408 Ill. App. 3d 564, 578 (2011).
¶ 40 "Summary judgment is a drastic measure and should only be granted if the movant's
right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual
Insurance Co., 154 Ill. 2d 90, 102 (1992). "Mere speculation, conjecture, or guess is
insufficient to withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc., 309 Ill.
App. 3d 313, 328 (1999). The party moving for summary judgment bears the initial burden of
proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The movant may meet its burden
of proof either by affirmatively showing that some element of the case must be resolved in its
favor or by establishing " 'that there is an absence of evidence to support the nonmoving
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No. 1-14-3956
party's case.' " Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986)). To prevent the entry of summary judgment, the nonmoving party must
present a bona fide factual issue and not merely general conclusions of law. Caponi v.
Larry's 66, 236 Ill. App. 3d 660, 670 (1992). Therefore, while the party opposing the motion
is not required to prove her case at the summary judgment stage, she must provide some
factual basis to support the elements of her cause of action. Illinois State Bar Ass'n Mutual
Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036 (2009); Ralston v. Casanova, 129 Ill.
App. 3d 1050, 1059 (1984). On a motion for summary judgment, the court cannot consider
any evidence that would be inadmissible at trial. Brown, Udell & Pomerantz, Ltd. v. Ryan,
369 Ill. App. 3d 821, 824 (2006). Thus, the party opposing summary judgment must produce
some competent, admissible evidence which, if proved, would warrant entry of judgment in
her favor. Brown, Udell & Pomerantz, 369 Ill. App. 3d at 824. Summary judgment is
appropriate if the nonmoving party cannot establish an element of her claim. Willett v.
Cessna Aircraft Co., 366 Ill. App. 3d 360, 368 (2006). We may affirm on any basis appearing
in the record, whether or not the trial court relied on that basis, and even if the trial court's
reasoning was incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).
¶ 41 II. Tortious Interference
¶ 42 Defendant claims that the trial court erred in granting plaintiff's motion for summary
judgment because defendant raised a genuine issue of material fact that supported his claim
that plaintiff committed tortious interference with his ability to collect rents.
¶ 43 "Recovery under an action for tortious interference with a contractual relation
requires that a plaintiff plead and prove (1) the existence of a valid and enforceable contract
between the plaintiff and a third party, (2) that defendant was aware of the contract, (3) that
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No. 1-14-3956
defendant intentionally and unjustifiably induced a breach of the contract, (4) that the
wrongful conduct of defendant caused a subsequent breach of the contract by the third party,
and (5) that plaintiff was damaged as a result." Poulos v. Lutheran Social Services of Illinois,
Inc., 312 Ill. App. 3d 731, 742 (2000) (citing Strosberg v. Brauvin Realty Services, Inc., 295
Ill. App. 3d 17, 32-33 (1998)).
¶ 44 We first note that, on appeal, plaintiff claims that defendant cannot assert an
affirmative defense of tortious interference because the property was owned by the LLC, and,
therefore, defendant was not a party to any rental contract between the LLC and the tenants.
Plaintiff also states that defendant has not provided a lease proving otherwise. However, we
need not make a finding on whether defendant has standing to assert tortious interference,
because his claim fails for other reasons.
¶ 45 Defendant's claim of tortious interference relies on Comerica Bank-Illinois v. Harris
Bank Hinsdale, 284 Ill. App. 3d 1030 (1996). In Comerica Bank-Illinois, a mortgagor
defaulted on its mortgage and the mortgagee, Comerica, began to exercise its assignment of
rents, granted by the mortgagor as security for the loan, without foreclosing the mortgage,
seeking the appointment of a receiver, or seeking approval from a court. Comerica Bank-
Illinois, 284 Ill. App. 3d at 1031-32. Chicago Title and Trust Company, which had issued a
second mortgage on the property, filed an action to foreclose on the second mortgage and a
return of rents from Comerica. Comerica Bank-Illinois, 284 Ill. App. 3d at 1032. The trial
court found that the rents properly belonged to the possessor of the property and returned the
rents collected by Comerica to the mortgagor. Comerica Bank-Illinois, 284 Ill. App. 3d at
1032. On appeal, the Appellate Court of the First District held that the assignment of rents
agreement was against public policy, holding "[t]he possession requirement reflects the
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No. 1-14-3956
public policy in Illinois that seeks to prevent mortgagees from stripping the rents from the
property and leaving the mortgagor and the tenants without resources for maintenance or
repair." Comerica Bank-Illinois, 284 Ill. App. 3d at 1033 (citing In re J.D. Monarch
Development Co., 153 B.R. 829 (Bankr. S.D. Ill. 1993), and re Michigan Avenue National
Bank, 2 B.R. 171, 185-86 (Bankr. N.D. Ill. 1980)). The court then held that, even with an
assignment of rents, a mortgagee must have actual or constructive possession of a property in
order to collect rents. Comerica Bank-Illinois, 284 Ill. App. 3d at 1034. This constructive
possession could be obtained through the judicial appointment of a receiver, but merely
requesting the appointment of a receiver is not enough, the court must have actually ordered
the appointment. Comerica Bank-Illinois, 284 Ill. App. 3d at 1035.
¶ 46 However, in the case at bar, plaintiff has shown " 'that that there is an absence of
evidence to support the nonmoving party's case.' " Nedzvekas, 374 Ill. App. 3d at 624
(quoting Celotex Corp., 477 U.S. at 325). Specifically, there is no evidence that defendant
was damaged by the alleged tortious interference, or even that the tenants broke their contract
with defendant by not paying rent. Poulos, 312 Ill. App. 3d at 742. The only evidence
provided by defendant was his own affidavit where he stated that, after Jovanovic
approached the tenants, it became "difficult" to collect the rent. However, defendant does not
state in his affidavit that the tenants actually paid rent to plaintiff, or even that the tenants did
not pay rent to defendant. Even if the rent was "difficult" to collect, if the tenants did pay
defendant, then there was no breach of contract, no cognizable harm, and thus no tortious
interference. Poulos, 312 Ill. App. 3d at 742. By not providing any support that the tenants
actually paid plaintiff, or that they failed to pay defendant, defendant has not shown a factual
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No. 1-14-3956
basis to support the elements of tortious interference. Illinois State Bar Ass'n Mutual
Insurance Co., 392 Ill. App. 3d at 1036.
¶ 47 We also note that defendant claims that Jovanovic contacted the tenants within a
week after plaintiff filed its complaint, and that her demand that the tenants pay rent to
plaintiff prevented defendant from bringing the loan current. However, at that time,
defendant no longer had the option of bringing the loan current. The opportunity to bring the
loan current, referred to in the letter sent by plaintiff to defendant on January 9, 2013, had
expired, and the total due from defendant was $279,122.43, not the $795.71 defendant claims
was due. Thus, the idea that plaintiff could have used the rent from the period between when
Jovanovic contacted the tenants and when the court appointed a receiver, approximately five
months, to bring the loan current is not a bona fide factual issue. Caponi, 236 Ill. App. 3d at
670. If defendant stated in his affidavit or provided documents showing that rents were paid
to plaintiff, plaintiff still would have been entitled to summary judgment, but the deficiency
judgment would have been lessened by the rent collected by plaintiff. See, e.g., Comerica
Bank-Illinois, 284 Ill. App. 3d at 1035. Because these rents would not have allowed
defendant to bring the loan current, even if defendant had provided an affidavit or documents
showing the rents were not paid to him, which he failed to do, it would not warrant a
judgment in his favor. Brown, Udell & Pomerantz, 369 Ill. App. 3d at 824.
¶ 48 For the foregoing reasons, we cannot find, as a matter of law, that the trial court erred
in granting summary judgment to plaintiff. Outboard Marine Corp., 154 Ill. 2d at 102; 735
ILCS 5/2-1005(c) (West 2012).
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No. 1-14-3956
¶ 49 CONCLUSION
¶ 50 For the foregoing reasons, we do not find persuasive defendant's claim that the trial
court erred in granting plaintiff's motion for summary judgment. We affirm.
¶ 51 Affirmed.
17