IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT CHANCERY DIVISION

Harris, NA f/k/a Harris Trust and

and Savings Bank
Plaintiff
v.
Ernest Taylor; Rose Taylor; Harris, NA;
Unknown Owners and Record Claimants
Defendants.

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09 CH 43873
Judge Jesse G. Reyes

DEFENDANTS ERNEST TAYLOR AND ROSE TAYLORS

RESPONSE TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
Now come the Defendants, Ernest Taylor and Rose Taylor (The Taylors),
through their attorneys, the Legal Assistance Foundation of Metropolitan Chicago (LAF),
and respond to Plaintiffs Motion for Summary Judgment as follows:

I.

Introduction
The Taylors are the owners of the house at 229 Orchard Avenue, Hillside, Illinois

60102 (Property or Home). Plaintiff filed its foreclosure complaint against the
Taylors on the above-described Home on November 6, 2009. The Taylors subsequently
filed their Answer and Affirmative Defense on May 7, 2010. Plaintiffs current Motion
for Summary Judgment must be denied because there remains a question of material fact
as to the Taylors Affirmative Defensethat Plaintiff failed to provide notice required by
735 ILCS 5/15-1502.5 prior to filing the instant foreclosure action, as is evidenced by the
attached affidavits of Ernest Taylor and Rose Taylor. Plaintiff has failed to demonstrate
that they did provide that required notice. Additionally, Plaintiffs Motion for Summary

Judgment relies on the Affidavit of Gloria Leal, which is hearsay and thus not admissible
in support of a motion for summary judgment.
II.

Standard of Review
The purpose of summary judgment is to determine whether there are any triable

issues of fact. In determining whether the moving party is entitled to summary judgment,
the pleadings, depositions, admissions and affidavits should be construed strictly against
the movant and liberally in favor of the opponent. Robinson v. Builders Supply & Lumber
Co., 223 Ill.App.3d 1007, 1013, 586 N.E.2d 316, 320, (1st Dist.1991) citing Vincent
DiVito, Inc. v. Vollmar Clay Products Co., 179 Ill.App.3d 325, 534 N.E.2d 575 (1st Dist.
1989). Summary judgment is only appropriate if what is contained in the pleadings and
affidavits would constitute all of the evidence before the court, and upon such evidence
there would be nothing left to be decided by the trier of fact. Fooden v. Board of
Governors, 48 Ill.2d 580, 587, 272 N.E.2d 497 (1971), cert. denied 408 U.S. 943 (1972).
However, when the facts allow for more than one conclusion, including one unfavorable
to the movant, motion for summary judgment should be denied. Id. Moreover, summary
judgment is a drastic means of disposing of litigation and should be granted only when
"the right to it is clear and free from doubt." See Robinson, 223 Ill.App.3d at 1013 (citing
Allstate Insurance Co. v. Tucker (1989), 178 Ill.App.3d 809, 812).

III. Relevant Facts

The Taylors are the owners of the house at 229 Orchard Avenue, Hillside, Illinois
60102 (Property or Home). The Taylors purchased the Home for $244,000 on July
14, 2005. At that time, they obtained a mortgage loan from Harris T&S Bank for

$194,000. They have lived in the Home since 2005. Affidavit of Ernest Taylor (E.
Taylor and Affidavit of Rose Taylor (R. Taylor).
In April of 2009, due to increasing expenses, the Taylors began to have trouble
making their monthly mortgage payments. Affidavits of E. Taylor and R. Taylor. At that
time, the Taylors wrote a letter to Harris Bank explaining their financial situation and
asking the Bank to help them reduce their monthly payment. Id. The Taylors also called
Harris Bank several times to explain their financial situation and request that the Bank
help them find a way to lower their monthly mortgage payments or come to another
possible solution. Id. The Taylors were told repeatedly by representatives of Harris Bank
that the Bank was considering their request for help. Id. However, the Taylors never
received a response to these repeated requests for assistance. Id.
On November 6, 2009, Plaintiff, Harris Bank, filed its Complaint to Foreclose
Mortgage in this case. Prior to filing this foreclosure, the Plaintiff did not mail the Grace
Period Notice as required by 735 ILCS 5/15-1502.5 and thus, the Taylors never received
the Grace Period Notice they are entitled to under the statute. Affidavits of E. Taylor and
R. Taylor. The Taylors attest that they never received a Grace Period Notice. Id. Further,
Mr. Taylor keeps all statements, notices, and other correspondence he receives from
Harris Bank. Affidavit of E. Taylor. He files these materials in labeled folders in a filing
cabinet in his home. Id. In addition to having no recollection of receiving a Grace Period
Notice, Mr. Taylor has reviewed his files and found no such Notice in his files. Id.
On April 13, 2010, Plaintiff presented its Motions for default and judgment of
foreclosure and sale. At that date, Defendants appeared, via counsel, and were granted 28
days to answer or otherwise plead. On May 7, 2010, Defendants filed their Answer and

Affirmative Defense. On July 9, 2010, Plaintiff filed its Reply to Defendants Affirmative
Defense. On February 18, 2011, Plaintiff filed this Motion for Summary Judgment.
Plaintiff also filed the Affidavit of Gloria Leal from Harris Bank in support of its Motion.
See Leal Affidavit. In the Affidavit, Ms. Leal attests that Harris Bank maintains computer
generated records in the ordinary course of business. Leal Affidavit, p. 1. Additionally,
Leal states that she has reviewed those records and makes claims that the records indicate
that a Grace Period Notice was mailed to the Defendants on two separate dates June 26,
2009 and August 20, 2009. Id. at 2. Plaintiff attaches copies of each of the purported
Notices. See Exhibit 3 of Leal Affidavit. Plaintiff does not attach any sort of record,
computer-generated or otherwise, stating that the Notices were actually mailed.

IV.

Argument
Plaintiff is not entitled to summary judgment. Under 735 ILCS 5/15-1502.5, no

foreclosure action can proceed against a residential mortgage unless the mortgagee has
provided, by U.S. mail, the mortgagor with the appropriate Grace Period Notice. 735
ILCS 5/15-1502.5(c). The Taylors never received this Grace Period Notice. Affidavits of
E. Taylor and R. Taylor. As described above, Mr. Taylor retains all mail he receives from
Harris Bank and files it in labeled folders that he keeps in a filing cabinet in his home.
Affidavit of E. Taylor. Mr. Taylor reviewed these files to make sure he had not missed
this Notice and found no record of any Grace Period Notices. Id. Additionally, both Mr.
Taylor and Mrs. Taylor have attested that they never received a Grace Period Notice.
Affidavits of E. Taylor and R. Taylor.
If the Taylors had received a proper Grace Period Notice, they would have had
the opportunity to contact a housing counselor and work out a solution to their financial

situation. As evidenced by the Taylors repeated requests to Harris Bank to work out a
solution, the Taylors would have acted upon any notice that they had the right to work
with a housing counselor to avoid foreclosure.
In support of its Motion for Summary Judgment, Plaintiff provides an Affidavit
from Gloria Leal who states that she is employed by Harris Bank as a foreclosure
specialist. See Leal Affidavit, p. 1. The Leal Affidavit is not based on personal
knowledge but on inadmissible hearsay, referring to the contents of Harris Banks
computer-generated records. An out-of-court statement presented to prove the matter
asserted constitutes hearsay and is generally inadmissible. People v. Lawler, 142 Ill. 2d
548, 557 (1991). Evidence, such as hearsay, which is inadmissible at trial is not
admissible in support of or in opposition to a motion for summary judgment. Prodomos
v. Everen Securities, Inc., 341 Ill.App.3d 718, 728 (1st Dist. 2003).
In her affidavit, Ms. Leal states that she reviewed the computer generated
records for the Taylors loan file and that they indicate that two different Grace Period
Notices were mailed to the Defendantson June 26, 2009 and August 20, 2009. See Leal
Affidavit at p. 2. To her affidavit, Ms. Leal attached copies of those notices from Harris
Banks computer files. See Exhibit 3 Leal Affidavit. Plaintiff does not attach the
purported computer-generated records indicating the Notices were mailed.1 As such,
Plaintiff has not demonstrated that it actually sent the required Notices. In contrast, in the
Taylors Affidavits attached to this Response, the Taylors attest that they never received a
1

Those elements of the computer records (such as the two Grace Period Notices) which were
produced by Plaintiff, even if the Court were to determine that they were admissible as business records,
would be inadmissible because Plaintiff has not provided a proper foundation. Leal, as the declarant
purporting to lay the necessary foundation for the business record, may not attest to the contents of the
record or provide a summary of the record. The business record must speak for itself. See Smith v.
Williams, 34 Ill.App.3d 677 (1975); Topps v. Unicorn Ins. Co., 271 Ill.App.3d 111 (1995).

Grace Period Notice. Thus, a material question of fact remains at the heart of the Taylors
Affirmative Defense to this Foreclosure action.
Because a material question of fact remains as to Plaintiffs failure to send the
statutorily-required Grace Period Notice, summary judgment is inappropriate at this time.

WHEREFORE, the Defendants, Ernest Taylor and Rose Taylor request that this
Court deny Plaintiffs Motion for Summary Judgment and grant any other just and
equitable relief.

__________________________________________
One of the Defendants Attorneys
Susanne A. Pringle
Legal Assistance Foundation of Metropolitan Chicago
111 W. Jackson Blvd. 3rd Floor
Chicago, IL 60604
(312) 347-8318
Attorney No. 91017