Bayview Loan Servicing v Nelson (IL)

382 Ill App 3d 1184, 890 NE2d 940, 322 Ill Dec 21 (5th D 2008).

Facts: Jeffrey Nelson (Nelson) had executed and delivered a mortgage and promissory note secured by a parcel of real estate with Old National Bank (ONB). On June 22, 2004, ONB assigned its interest in the subject mortgage and note to Bayview Financial Trading Group, LP (the Partnership). In November, 2004, Bayview Loan Servicing, LLC (Bayview) filed a complaint to foreclose a mortgage against Jeffrey Nelson (Nelson), alleging that it was ONB's assignee for the subject mortgage and note and that Nelson had defaulted payment. Bayview alleged that Nelson's default entitled it to foreclose the mortgage.

In his answer to the complaint, Nelson admitted that Bayview was ONB's assignee for the subject mortgage and note. However, Nelson eventually filed an amended complaint alleging that documents submitted during discovery contained new information. In the amended answer, Nelson denied that he executed a mortgage to Bayview. The circuit court entered a summary judgment, finding that Bayview was the owner of the mortgage and note and entitled to foreclosure. Nelson appealed.

Holding: Reversed and remanded. The appellate court found only one assignment from ONB. That assignment was to the Partnership, which is a legal entity separate and distinct from Bayview. Even though Nelson initially agreed that Bayview was the assignee, the amended complaint sufficiently raised the question of whether Bayview was the proper party to bring suit. Because Bayview is not ONB's assignee, it is not the correct legal entity to have brought the foreclosure action. Accordingly, the appellate court found the trial court's entry of summary judgment and orders for foreclosure and sale were improper as matter of law. The court reversed and remanded for further proceedings.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Wed, 11/05/2008 - 1:11pm