Justice GORDON delivered the judgment of the court, with 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 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.
¶ 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.
¶ 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.
¶ 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.
¶ 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 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.
¶ 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.
¶ 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.
¶ 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 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,
¶ 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 plaintiff's "response" it stated that rent from the tenants, paid to the receiver, was only $1,500 a month.
¶ 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.
¶ 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.
¶ 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
¶ 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.
¶ 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.
¶ 34 On December 23, 2014, the trial court heard arguments regarding the motion for summary judgment on count II of the complaint:
¶ 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,
¶ 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 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.
¶ 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
¶ 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, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). "Mere speculation, conjecture, or guess is insufficient to withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc., 309 Ill.App.3d 313, 328, 242 Ill.Dec. 738, 722 N.E.2d 227 (1999). The party moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.App.3d 618, 624, 313 Ill.Dec. 448, 872 N.E.2d 431 (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 party's case.'" Nedzvekas, 374 Ill.App.3d at 624, 313 Ill.Dec. 448, 872 N.E.2d 431 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 176 Ill.Dec. 649, 601 N.E.2d 1347 (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, 331 Ill.Dec. 914, 911 N.E.2d 1144 (2009); Ralston v. Casanova, 129 Ill.App.3d 1050, 1059, 85 Ill.Dec. 76, 473 N.E.2d 444 (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, 308 Ill.Dec. 193, 861 N.E.2d 258 (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, 308 Ill.Dec. 193, 861 N.E.2d 258. 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, 303 Ill.Dec. 439, 851 N.E.2d 626 (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, 171 Ill.Dec. 824, 594 N.E.2d 1344 (1992).
¶ 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.
¶ 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, 220 Ill.Dec. 468, 673 N.E.2d 380 (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, 220 Ill.Dec. 468, 673 N.E.2d 380. 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, 220 Ill.Dec. 468, 673 N.E.2d 380. 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, 220 Ill.Dec. 468, 673 N.E.2d 380. 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 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, 220 Ill.Dec. 468, 673 N.E.2d 380 (citing In re J.D. Monarch Development Co., 153 B.R. 829 (Bankr.S.D.Ill.1993), and In 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, 220 Ill.Dec. 468, 673 N.E.2d 380. 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, 220 Ill.Dec. 468, 673 N.E.2d 380.
¶ 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, 313 Ill.Dec. 448, 872 N.E.2d 431 (quoting Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548). Specifically, there is no evidence that defendant was damaged by the alleged tortious interference, or
¶ 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, 176 Ill.Dec. 649, 601 N.E.2d 1347. 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, 220 Ill.Dec. 468, 673 N.E.2d 380. 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, 308 Ill.Dec. 193, 861 N.E.2d 258.
¶ 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, 180 Ill.Dec. 691, 607 N.E.2d 1204; 735 ILCS 5/2-1005(c) (West 2012).
¶ 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.
Presiding Justice PALMER and Justice REYES concurred in the judgment and opinion.
