Justice WEXSTTEN delivered the judgment of the court, with opinion.
¶ 2 In July 2011, the plaintiff, Bank of America, N.A. (BOA), commenced a foreclosure action against the defendants,
¶ 3 In October 2011, after unsuccessfully moving to dismiss BOA's complaint for foreclosure, the Lands filed an answer with affirmative defenses and counterclaims. In November 2011, BOA filed a motion to strike the affirmative defenses and counterclaims. In March 2012, the circuit court entered a modified order striking the Lands' affirmative defenses without prejudice and dismissing their counterclaims without prejudice. Three weeks later, BOA filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). The cause proceeded to a hearing on BOA's motion for summary judgment in June 2012.
¶ 4 On the day of the hearing on BOA's motion for summary judgment, the Lands filed a response to the motion and a motion for leave to amend their answer with affirmative defenses and counterclaims. At the commencement of the hearing, BOA objected to the untimely filing of the Lands' response and motion for leave to amend, and the circuit court entertained arguments on the matter. Suggesting that the pleadings should have been filed "before walking in the courtroom" on the day of the scheduled hearing, the court ultimately struck the Lands' response to BOA's motion for summary judgment and denied their motion for leave to amend their answer with affirmative defenses and counterclaims. The court nevertheless allowed the Lands to file an affidavit in which they attested to having made a $489.80 payment on the loan in September 2009. See 735 ILCS 5/2-1005(c) (West 2010) (providing that a party in opposition to a motion for summary judgment "may prior to or at the time of the hearing on the motion file counteraffidavits").
¶ 5 In support of its motion for summary judgment, BOA submitted an affidavit from Jennifer Lynn Cherks, an assistant vice president of BOA. The affidavit included a record of all payments that the Lands had made on the aforementioned mortgage and stated the total "amount of the default" as of December 23, 2011. In response, the Lands objected to the admission of Cherks' affidavit, arguing, inter alia, that it included information that preceded BOA's acquisition of the loan.
¶ 6 At the conclusion of the hearing, the circuit court granted BOA's motion for summary judgment. The court subsequently entered a written judgment for foreclosure and sale and awarded BOA $3,654 in attorney fees and costs. The judgment included an express written finding that it was a final and appealable order and that there was "no just cause for delaying the enforcement of [the] judgment or appeal therefrom." See Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010). The Lands subsequently filed a notice of appeal, which noted that it was timely filed "pursuant to Supreme Court Rule[s] 303 and 304."
¶ 8 On appeal, the Lands argue that the circuit court erred in (1) granting BOA's motion for summary judgment, (2) striking their response to the motion and denying their motion for leave to amend their answer,
¶ 10 Because summary judgment is a drastic means of disposing of litigation, it should only be used where the pleadings and other evidentiary material in the record, when viewed in a light most favorable to the nonmoving party, demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Sardiga v. Northern Trust Co., 409 Ill.App.3d 56, 61, 350 Ill.Dec. 372, 948 N.E.2d 652 (2011). "The purpose of summary judgment is not to try a question of fact but to determine whether one exists." Tannehill v. Costello, 401 Ill.App.3d 39, 42, 340 Ill.Dec. 785, 929 N.E.2d 89 (2010). We review the circuit court's granting of summary judgment de novo. Id. at 41, 340 Ill.Dec. 785, 929 N.E.2d 89.
¶ 11 The Lands maintain that Cherks' affidavit was insufficient to support BOA's motion for summary judgment. Noting that other entities had assumed their mortgage prior to BOA, the Lands suggest that Cherks' purported testimony "as to records kept by another company" would be inadmissible hearsay if offered at trial. The Lands thus suggest that Cherks' affidavit did not sufficiently demonstrate that BOA was entitled to judgment as a matter of law. See Skipper Marine Electronics, Inc. v. United Parcel Service, Inc., 210 Ill.App.3d 231, 236, 155 Ill.Dec. 55, 569 N.E.2d 55 (1991) ("An affidavit in support of a motion for summary judgment is actually a substitute for testimony taken in open court and should meet the same requirements as competent testimony."); Loveland v. City of Lewistown, 84 Ill.App.3d 190, 192-93, 39 Ill.Dec. 700, 405 N.E.2d 453 (1980) ("It is true that if the evidence is not admissible at trial, it would not be admissible in an affidavit accompanying a motion for summary judgment."). We disagree.
¶ 12 Illinois Supreme Court Rule 236, which codifies the business-records exception to the hearsay rule, provides as follows:
Notably, "Rule 236 expressly provides that lack of personal knowledge by the maker may affect the weight of the evidence but not its admissibility." In re Estate of Weiland, 338 Ill.App.3d 585, 601, 273 Ill.Dec. 220, 788 N.E.2d 811 (2003).
¶ 13 "The theory upon which entries made in the regular course of business are admissible as an exception to the hearsay rule is that `since their purpose is to aid in the proper transaction of the business and they are useless for that purpose unless accurate, the motive for following a routine of accuracy is great and the motive to falsify nonexistent.'" Kimble v. Earle M. Jorgenson
"Thus, it makes no difference whether the records are those of a party or of a third person authorized by the business to generate the record on the business's behalf." Id. A party may therefore establish a foundation for admitting business records through the testimony of a records custodian or "another person familiar with the business and its mode of operation." In re Estate of Weiland, 338 Ill.App.3d at 600, 273 Ill.Dec. 220, 788 N.E.2d 811. The admission of business records is reviewed for an abuse of discretion. Id.
¶ 14 Here, in her affidavit, Cherks attested that she was personally familiar with BOA's procedures for creating and maintaining its business records and that its records pertaining to the Lands' mortgage were "made at or near the time of the occurrence of the matters set forth therein by persons with personal knowledge of the information in the business record." She further attested that the records were kept in the course of BOA's regularly conducted business activities and that it was BOA's regular practice to make and keep such records. Cherks' affidavit was thus admissible pursuant to Rule 236 and provided a sufficient basis upon which to conclude that BOA was entitled to judgment as a matter of law. See Independent Trust Corp. v. Hurwick, 351 Ill.App.3d 941, 950, 286 Ill.Dec. 669, 814 N.E.2d 895 (2004) (business records offered in support of motion for summary judgment properly considered where affidavits established that the records were made in the regular course of business and that it was the regular course of business to prepare such records); Farm Credit Bank of St. Louis v. Biethman, 262 Ill.App.3d 614, 622, 199 Ill.Dec. 958, 634 N.E.2d 1312 (1994) (trust deed and promissory note established prima facie case of foreclosure); Miller v. Swanson, 66 Ill.App.2d 179, 185, 213 N.E.2d 294 (1965) (promissory notes, trust deed, and "proof of default in the performance of their terms" established right of recovery and foreclosure); see also 735 ILCS 5/15-1506(a)(2) (West 2010) ("[W]here 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.").
¶ 15 The Lands also argue that granting BOA's motion for summary judgment was improper because there remains a question of material fact as to the balance of their loan, which Cherks' affidavit stated was $139,620.95, as of December 23, 2011. Noting that in 2009 and 2010, they made a series of $489.80 payments pursuant to a loan-modification agreement with BOA, the Lands maintain that the modified payments were not timely applied to the principal of their loan and that the accrued interest on the loan was thus improperly calculated. They further suggest that the private mortgage insurance (PMI) on the loan might have somehow "served to reduce" the total amount owed. At the hearing on BOA's motion for summary judgment, these claims were addressed, and the circuit court implicitly rejected them.
¶ 16 The loan-modification agreement stated that the Lands' $489.80 payments would be held "in a non-interest bearing account until they total an amount that is enough to pay [the] oldest delinquent monthly payment on [the] loan in full." At the hearing on BOA's motion for summary judgment, the Lands complained that when their modified payments totaled
¶ 17 Here, the Lands did not submit a counteraffidavit contradicting BOA's affidavit regarding the balance of the loan, and under the circumstances, the circuit court rightfully relied on BOA's calculations when entering summary judgment. See In re Marriage of Palacios, 275 Ill.App.3d 561, 568, 211 Ill.Dec. 915, 656 N.E.2d 107 (1995) ("The mere suggestion that a genuine issue of material fact exists without supporting documentation does not create an issue of material fact precluding summary judgment."). With respect to the Lands' claim that the PMI might have somehow reduced the balance of their loan, we agree with BOA's assessment that this argument amounts to theoretical speculation that the Lands have no standing to make. "PMI protects the mortgage lender in the event the mortgage borrower defaults" (Perez v. Citicorp Mortgage, Inc., 301 Ill.App.3d 413, 415, 234 Ill.Dec. 657, 703 N.E.2d 518 (1998)), and a third party cannot claim rights under a contract unless "the contract was entered into for the party's direct benefit" (Alaniz v. Schal Associates, 175 Ill.App.3d 310, 312, 124 Ill.Dec. 851, 529 N.E.2d 832 (1988)).
¶ 18 Here, the Lands' mortgage agreement required them to pay the premiums for the PMI, but the agreement specifically stated that they were "not a party" to the insurance. The Lands therefore lack standing to raise a claim with respect to the PMI. We also note that at the hearing on BOA's motion for summary judgment, BOA maintained that it could not even "make a claim on [the] PMI until there [was] actually a [j]udgment for [f]oreclosure and a sale [of the property]."
¶ 20 As noted above, on the day of the hearing on BOA's motion for summary judgment, the Lands filed a response to the motion and a motion for leave to amend their answer with affirmative defenses and counterclaims. Suggesting that the pleadings were untimely brought, the circuit court struck the former and denied the latter. The Lands assert that the circuit court abused its discretion in this regard. We disagree.
¶ 21 The right to amend pleadings is not absolute or unlimited, and the circuit court's decision to grant or deny that right will not be disturbed absent an abuse of discretion. Resolution Trust Corp. v. Holtzman, 248 Ill.App.3d 105, 110, 187 Ill.Dec. 827, 618 N.E.2d 418 (1993). When deciding whether to allow a party to
¶ 22 Here, the Lands filed their answer with affirmative defenses and counterclaims in October 2011, and their alleged defenses and counterclaims sounded in fraud, breach of contract, and lack of standing. In November 2011, BOA filed a motion to strike the defendant's affirmative defenses and counterclaims, maintaining that they were either inapplicable or insufficiently pled. In January 2012, the circuit court entered an order striking the Lands' affirmative defenses with prejudice and dismissing their counterclaims without prejudice. In March 2012, on the Lands' motion, the circuit court entered a modified order striking the affirmative defenses without prejudice and dismissing the counterclaims without prejudice. Three weeks later, BOA filed its motion for summary judgment.
¶ 23 In June 2012, on the day of the hearing on BOA's motion for summary judgment, the Lands tendered their motion for leave to amend their answer with affirmative defenses and counterclaims. The motion for leave suggested that BOA lacked standing to bring its forfeiture action and that the Lands had been "misled" with respect to the application of their modified loan payments. Along with their motion for leave to amend, the Lands also filed their response to BOA's motion for summary judgment. The Lands' response alleged that Cherks' affidavit was insufficient to support BOA's motion for summary judgment and that the PMI payments and untimely application of their modified loan payments raised a question of material fact as to the balance of the loan. The response contained an affidavit in which the Lands attested to having made a $489.80 payment on the loan in September 2009.
¶ 24 The circuit court has the discretion to manage its docket to ensure that there is no undue delay in the resolution of the proceedings before it (Scentura Creations, Inc. v. Long, 325 Ill.App.3d 62, 73, 258 Ill.Dec. 469, 756 N.E.2d 451 (2001)), and here, the circuit court did not abuse its discretion in denying the Lands' motion for leave to amend their answer and striking their response to BOA's motion for summary judgment. The Lands' contention that BOA lacked standing was previously resolved against them when the circuit court denied their motion to dismiss BOA's complaint for foreclosure upon proof that BOA had assumed the Lands' mortgage as a holder in due course. The Lands' assertion that they were somehow "misled" was a mere conclusion, and their motion for leave to amend did not reference or reiterate the allegations of fraud and breach of contract that were alleged in their previously dismissed answer to BOA's complaint. Moreover, the Lands did not submit a proposed amended answer. "Where the party seeking to amend does not attach a proposed amended pleading to its motion or otherwise specify the new allegations that it would include, a trial court has no basis on which to consider whether the amendment would cure the defects in the current pleading," which is
¶ 26 The Lands lastly argue that the circuit court improperly awarded BOA attorney fees and costs. BOA counters that the Lands' "argument about attorney fees was not raised at the trial court level" and should thus be "disregarded." BOA further maintains that the argument is without merit.
¶ 27 In its complaint for foreclosure, BOA's request for relief included attorney fees and costs, "if sought." In its motion for summary judgment, BOA specifically requested that the circuit court enter a judgment for foreclosure and sale. At the conclusion of the hearing on BOA's motion for summary judgment, BOA's attorney tendered a draft order that the circuit court adopted and entered as its written judgment order for foreclosure and sale. BOA's attorney also submitted a certificate of prove-up of attorney fees and costs, which listed itemized expenses totaling $3,654. In its written judgment order, the circuit court referenced the certificate of prove-up and granted BOA the requested award. The court's order noted that pursuant to the terms of the Lands' mortgage agreement, BOA was entitled to both attorney fees and foreclosure costs. The judgment order for foreclosure and sale was filed the same day as the hearing. As indicated, the Lands challenge the circuit court's judgment awarding BOA attorney fees and costs for the first time on appeal. They do not contest that BOA was entitled to recover its attorney fees and costs, however, nor do they claim that the fees were unreasonable.
¶ 28 To preserve an alleged error for purposes of appellate review, a party must raise an objection in the circuit court, or the issue is deemed waived on appeal. LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill.App.3d 806, 826, 323 Ill.Dec. 475, 893 N.E.2d 949 (2008). The Lands assert that their failure to object to the attorney fees award in the present case should be excused, however, because they were not served with proper notice
¶ 29 Relatedly, Illinois Supreme Court Rule 272, which was adopted to resolve issues regarding the timeliness of an appeal by removing "any doubt" as to the date that a final judgment was entered (Stoermer v. Edgar, 104 Ill.2d 287, 293, 84 Ill.Dec. 440, 472 N.E.2d 400 (1984)), states, in pertinent part:
¶ 30 Here, the record indicates that BOA's attorney submitted her certificate of prove-up along with BOA's draft order of the judgment for foreclosure and sale in open court at the conclusion of the hearing on BOA's motion for summary judgment. On appeal, BOA does not dispute that the Lands were not personally served with copies of these documents prior to their filing. Noting that circuit court rule 1.12 requires proof of service "[u]nless the court directs otherwise" (1st Judicial Cir. Ct. R. 1.12 (Sept. 1, 2010)), however, BOA argues that the circuit court "directed a procedure other than the one contemplated by the local rule." We agree, and we note that the rule's directive that the prevailing party "promptly prepare and present a draft to the court" seemingly envisions a period of time that is nonexistent where a draft is tendered instanter, as was done in the present case. See Morgan v. Department of Financial & Professional Regulation, 388 Ill.App.3d 633, 673, 328 Ill.Dec. 139, 903 N.E.2d 799 (2009) (noting that the word "promptly" has "been defined as `without appreciable delay'" (quoting Barry v. Barchi, 443 U.S. 55, 66, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979)) and that "`[t]o do something "promptly" is to do it without delay and with reasonable speed'" (quoting Black's Law Dictionary 1214 (6th ed. 1990))); In re Estate of Davison, 21 Ill.App.3d 1043, 1044, 316 N.E.2d 187 (1974) (noting that the word "instanter" means "`at once, or immediately'" (quoting Hamilton v. People, 163 Ill.App. 541, 544 (1911))). We thus agree with BOA's intimation that the Lands are unable to establish that circuit court rule 1.12 was violated in the present case.
¶ 31 "Courts in Illinois have held that a party waives his right to a hearing on attorney fees where he did not request a hearing before the trial court and is thereby left with the judge's ruling on the basis of the fee petition and affidavits alone." In re Marriage of Jones, 187 Ill.App.3d 206, 231, 134 Ill.Dec. 836, 543 N.E.2d 119 (1989). Here, in light of their mortgage agreement and BOA's complaint for foreclosure, the Lands were on notice that the circuit court might award BOA attorney fees and costs as part of its final judgment, but they did not object. That alone supports a finding that the Lands' instant objection has been waived. See Coldwell Banker Havens, Inc. v. Renfro, 288 Ill.App.3d 442,
¶ 32 The circuit court "has broad discretionary powers in awarding attorney fees and its decision will not be reversed on appeal unless the court abused its discretion." In re Estate of Callahan, 144 Ill.2d 32, 43-44, 161 Ill.Dec. 339, 578 N.E.2d 985 (1991). Here, the Lands have waived their objection to the circuit court's judgment awarding BOA attorney fees and costs, and the court did not otherwise abuse its discretion in determining that BOA was entitled to the same. See Sterling Homes, Ltd. v. Rasberry, 325 Ill.App.3d 703, 708, 259 Ill.Dec. 683, 759 N.E.2d 163 (2001) (circuit court properly awarded attorney fees on submitted affidavit where the fees were reasonable and warranted).
¶ 34 For the foregoing reasons, the judgment of the circuit court of Johnson County is hereby affirmed.
¶ 35 Affirmed.
Presiding Justice SPOMER and Justice STEWART concurred in the judgment and opinion.