U.S. Bank Nat'l Ass'n v. Miller

2020 IL App (1st) 191029

156 N.E.3d 1203

441 Ill.Dec. 454

U.S. BANK NATIONAL ASSOCIATION, as Successor Trustee to Bank of America, N.A., as Successor by Merger to LaSalle Bank N.A., as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificate, Series 2007-5, Plaintiff and Counterdefendant-Appellee,

v.John MILLER, a/k/a John L. Miller, a/k/a Jon L. Miller; Roosjati Miller; Newberry Plaza Condominium Association ; Unknown Owners and Nonrecord Claimants, Defendants

(John Miller and Roosjati Miller, Defendants and Counterplaintiffs-Appellants).

No. 1-19-1029

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed March 20, 2020

Rehearing denied June 8, 2020

John L. Miller, of Naperville, appellant pro se.

Harry N. Arger and Rosa M. Tumialán, of Dykema Gossett, PLLC, of Chicago, for appellee.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 The defendants-appellants, John and Roosjati Miller, appeal from the judgment of the circuit court of Cook County in this mortgage foreclosure action dismissing their counterclaim alleging that plaintiff-appellee U.S. Bank National Association (U.S. Bank) violated their right of rescission under the Truth in Lending Act (TILA) ( 15 U.S.C. § 1601 et seq. (2006) ), on the ground that it was barred by the statute of limitations. The Millers also challenge the denial of their motion for substitution of judge. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 On July 2, 2007, the Millers refinanced their mortgage, which encumbered the property located at 1030 North State Street, Unit 9D, in Chicago, and secured a note reflecting a $210,000 loan.

¶ 4 Two years later, on August 14, 2009, U.S. Bank filed a complaint seeking to foreclose the mortgage. After 19 unsuccessful attempts to serve the Millers, U.S. Bank finally served them by publication in November 2009.

¶ 5 The parties proceeded to engage in extensive motion practice beginning in 2010 and continuing through 2011. During that time, U.S. Bank filed an amended complaint attaching the mortgage and note as exhibits (which it had failed to do in its initial complaint). Additionally, in November 2011, the Millers answered the complaint after their motion to dismiss was denied. The Millers' answer included affirmative defenses and counterclaims, one of which alleged that the initial lender violated TILA by materially changing the terms and type of the loan on the date of closing and also failing to provide John with a Real Estate Settlement Procedures Act of 1974 ( 12 U.S.C. § 2601 et seq. ) statement at the closing. The counterclaim further alleged that the Millers rescinded the loan, in writing, on June 28, 2010, but U.S. Bank never responded to the rescission.

¶ 6 The record reflects that no action was taken on the case following the filing of the Millers' answer and, on June 12, 2013, the circuit court entered an order striking the case from the court's docket.

¶ 7 Almost one year later, on May 5, 2014, U.S. Bank moved to dismiss the Millers' affirmative defenses and counterclaims. With regard to the rescission claim, U.S. Bank argued that it was time-barred. In response, the Millers filed a motion to dismiss U.S. Bank's foreclosure complaint for want of prosecution and to default U.S. Bank for its failure to answer their counterclaims and affirmative defenses. No copy of either motion appears in the record on appeal.

¶ 8 The circuit court denied the Millers' motions on September 9, 2014. Following that denial, on October 7, 2014, the Millers responded to U.S. Bank's motion to dismiss. At the same time, the Millers moved to reconsider the denial of their motion to dismiss and their motion for default.

¶ 9 On October 23, 2014, more than five years after U.S. Bank filed its initial foreclosure complaint, the Millers moved to substitute judge as of right, arguing that the current judge had yet to make a substantive ruling.

¶ 10 On November 13, 2014, the court entered an order that, in relevant part, (1) denied the Millers' motion to substitute judge; (2) denied their motion to reconsider; and (3) dismissed, without prejudice, their counterclaim and affirmative defense regarding the violation of their right to rescind the loan.

¶ 11 Several rounds of amendments of the Millers' counterclaim followed, and the Millers filed their third amended counterclaim—the operative pleading in this case—on October 27, 2016. In that counterclaim, the Millers alleged that despite executing six copies of a "Notice of Right to Cancel" at the closing, John did not receive a copy to keep, which was a material violation of TILA. According to the Millers, this violation enabled them to exercise their right of rescission pursuant to section 1635(f) of TILA ( 15 U.S.C. § 1635(f) (2006) ), within three years from the date the loan was executed. On June 30, 2010, the Millers, through counsel, mailed a notice of rescission to the original lender, First Franklin Corporation (First Franklin), as well as U.S. Bank. But neither First Franklin nor U.S. Bank responded to the rescission or terminated their security interest in the property, as required by section 1635(b) of TILA ( 15 U.S.C. § 1635(b) (2006) ). The Millers' counterclaim therefore sought rescission of the transaction, termination of the security interest, return of money given by them in connection with the transaction, and reasonable attorney fees.

¶ 12 U.S. Bank initially answered the Millers' counterclaim but then sought and was granted leave to withdraw its answer and file a motion to dismiss. U.S. Bank's motion to dismiss, filed on March 28, 2017, argued that the TILA rescission claim was time-barred. Following briefing and a hearing, the circuit court agreed with U.S. Bank and dismissed the counterclaim with prejudice as untimely. The court went on to deny the Millers' motion to reconsider and later denied the Millers' motion to amend their answer to include the TILA rescission claim as an affirmative defense.

¶ 13 On March 13, 2018, U.S. Bank moved for summary judgment on its foreclosure complaint. While there is no order in the record granting the motion, a judgment of foreclosure and sale of the property was entered on July 10, 2018. A judicial sale of the property was held, and the court subsequently entered an order confirming that sale on April 17, 2019. The Millers timely appealed.

¶ 14 ANALYSIS

¶ 15 We note that we have jurisdiction to review this matter, as the Millers filed a timely notice of appeal following the order confirming the sale of the property. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).

¶ 16 We turn first to the Millers' challenge to the circuit court's denial of their motion for substitution of judge as of right. A party is entitled to a single substitution of judge, without cause, as of right if the court has not held a hearing and the judge hearing the motion has not yet ruled on a "substantial issue." 735 ILCS 5/2-1001(a)(2)(ii) (West 2016). The purpose of these limitations on the right to request a substitution of judge is to preclude judge shopping. See Bowman v. Ottney , 2015 IL 119000, ¶¶ 18, 25, 400 Ill.Dec. 640, 48 N.E.3d 1080. A "substantial issue" is one that relates to the merits of the case. In re Marriage of Crecos , 2015 IL App (1st) 132756, ¶ 25, 395 Ill.Dec. 203, 38 N.E.3d 80. But even in the absence of a substantial ruling, a court may deny a motion to substitute if the movant had an opportunity to form an opinion on the judge's reaction to his claims. In re D.M. , 395 Ill. App. 3d 972, 976-77, 335 Ill.Dec. 278, 918 N.E.2d 1091 (2009). We review a trial court's ruling on a motion to substitute judge as of right de novo . Id. at 977, 335 Ill.Dec. 278, 918 N.E.2d 1091.

¶ 17 Here, the Millers moved for substitution of judge in October 2014, over five years after U.S. Bank filed its complaint seeking foreclosure of the property and almost three years after the Millers filed their counterclaims and affirmative defenses. Significantly, at the time the Millers filed their motion for substitution, the court had already denied their motion to dismiss U.S. Bank's complaint for want of prosecution as well as their motion to default U.S. Bank for failure to answer their counterclaims and affirmative defenses. Contrary to the Millers' contention, these were substantive rulings. See Antkiewicz v. Pax/Indianapolis, Inc. , 254 Ill. App. 3d 723, 727, 194 Ill.Dec. 69, 627 N.E.2d 185 (1993) (holding that denial of motion for default judgment constitutes a resolution of a "substantial issue" for purposes of motion to change venue); City of Quincy v. Weinberg , 363 Ill. App. 3d 654, 662, 300 Ill.Dec. 387, 844 N.E.2d 59 (2006) (finding that grant of motion for default judgment directly related to merits of case such that defendant's motion to substitute judge as of right, filed after the circuit court's ruling on the motion for default, was not timely filed). Accordingly, we conclude that the trial court did not err in denying the Millers' belated motion for substitution of judge as of right.

¶ 18 Next, we turn to the Millers' challenge to the court's dismissal of their third amended counterclaim pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2016) ). A section 2-619 motion to dismiss admits the legal sufficiency of the complaint but asserts that an affirmative matter bars the plaintiff's claim. Id. ; see also Lake Point Tower Condominium Ass'n v. Waller , 2017 IL App (1st) 162072, ¶ 11, 415 Ill.Dec. 515, 82 N.E.3d 719. Here, U.S. Bank brought its motion pursuant to section 2-619(a)(5) of the Code, which provides that an action may be dismissed if it was not "commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2016); see also Johnson v. The Augustinians , 396 Ill. App. 3d 437, 439, 335 Ill.Dec. 773, 919 N.E.2d 492 (2009). We review de novo the circuit court's decision on a ...