Opinion
No. 2-14-0331
11-12-2014
BAYVIEW LOAN SERVICING, LLC, Plaintiff-Appellee, v. DOMINIK SZPARA and LIDIA SZAREK, Defendants-Appellants (Unknown Owners and Nonrecord Claimants, Defendants.)
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Du Page County. No. 11-CH-3939 Honorable Robert G. Gibson, Judge, Presiding. JUSTICE SPENCE delivered the judgment of the court.
Presiding Justice Burke and Justice Zenoff concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly struck defendants' amended affirmative defenses and entered summary judgment in favor of plaintiff. Therefore, we affirmed. ¶ 2 Plaintiff, JPMorgan Chase Bank, NA, filed a complaint to foreclose the mortgage on defendants', Dominik Szpara and Linda Szarek's, property at 122 East Lincoln Avenue, Glendale Heights, Illinois (the "Property"). Defendants answered the complaint and raised four affirmative defenses and one counterclaim. Plaintiff moved to strike three of the affirmative defenses and the counterclaim; one affirmative defense and the counterclaim were struck with prejudice, and two affirmative defenses were struck without prejudice. Defendants filed amended affirmative defenses for those two defenses that were struck without prejudice. The two amended affirmative defenses were subsequently struck. ¶ 3 Plaintiff moved for summary judgment, and defendants responded by attacking the sufficiency of plaintiff's prove-up affidavit for the Property's loan documents. The court granted summary judgment in plaintiff's favor. Defendants now appeal the entry of summary judgment, the order approving sale, and the striking of their amended affirmative defenses. For the reasons stated herein, we affirm.
Bayview Loan Servicing, LLC, was substituted for JPMorgan Chase Bank, NA, as the party plaintiff in this action in a March 11, 2014, order. For simplicity's sake, this order shall refer to the two entities collectively as plaintiff.
¶ 4 I. BACKGROUND
¶ 5 Defendants obtained a mortgage on the Property on June 22, 2006, from Washington Mutual Bank, FA. On March 29, 2011, defendants filed a Chapter 7 bankruptcy petition in the Northern District of Illinois, case 11-12966. On April 15, 2011, the district court granted plaintiff relief from the automatic stay. ¶ 6 On August 17, 2011, plaintiff filed a complaint to foreclose the mortgage securing the Property. The complaint alleged that defendants had failed to pay monthly installments due for July 1, 2010, through the time of filing. ¶ 7 Defendants filed their answer on June 7, 2012. The answer contained four affirmative defenses: (1) plaintiff failed to send defendants an acceleration letter prior to filing its complaint, a condition precedent to foreclosure; (2) plaintiff violated the Illinois mortgage and foreclosure code by failing to send a grace period letter prior to filing its complaint, which voided the foreclosure and sale; (3) the broker, who was also the appraiser, committed fraud in the inducement by inflating the appraisal price in order to obtain a larger commission as well as inflating defendants' assets, thereby voiding the mortgage lien; and (4) equitable estoppel as an alternative legal theory applied to the alleged facts of the third affirmative defense. Defendants further included a counterclaim to quiet title, alleging again that the appraiser/broker inflated the appraisal for personal gain, falsely inflated defendants' assets, and that defendants were not fluent in English and therefore could not understand that the broker was acting dishonestly. ¶ 8 On August 31, 2012, plaintiff replied to defendants' first affirmative defense, denying that they failed to send an acceleration letter. It also filed a motion to strike defendants' second, third, and fourth affirmative defenses and their counterclaim to quiet title. After the matter was briefed, the trial court entered a November 7, 2012, order striking defendants' second affirmative defense and counterclaim with prejudice, and striking defendants' third and fourth affirmative defenses without prejudice. ¶ 9 On December 6, 2012, defendants filed amended third and fourth affirmative defenses. In defendants' amended third affirmative defense, they alleged the following to support fraud in the inducement: the broker was also the appraiser of the mortgage loan, creating a conflict of interest with the loan; defendants never received a copy of the appraisal; the broker inflated defendants' assets; defendants did not speak fluent English; and therefore plaintiff was estopped from enforcing their lien. The amended fourth affirmative defense, equitable estoppel, contained identical allegations to the amended third affirmative defense. ¶ 10 On December 26, 2012, plaintiff filed a motion to strike defendants' amended affirmative defenses. Plaintiff argued that, again, the amended affirmative defenses were not well pleaded, containing insufficient conclusory allegations to support fraud in the inducement or equitable estoppel. Furthermore, plaintiff argued that under the terms of the purchase and assumption agreement (PAA), which it entered into with the Federal Deposit Insurance Corporation (FDIC) on September 25, 2008, it explicitly disclaimed liability to defendants arising from Washington Mutual Bank's prior conduct, even if defendants raised their claims affirmatively or defensively. ¶ 11 On January 8, 2013, the trial court entered an order stating that it took judicial notice of the PAA between the FDIC, as receiver for Washington Mutual Bank, and plaintiff. The court therein also granted plaintiff's motion to strike, striking the third and fourth amended affirmative defenses with prejudice. ¶ 12 On August 30, 2013, plaintiff filed its motion for summary judgment. Defendants responded, arguing primarily that plaintiff's prove-up affidavit of amounts due and owing on the mortgage loan was insufficient. They argued that the affidavit of plaintiff's vice president, Rosalva Cardenas, lacked a foundation as a business record because she lacked personal knowledge of the pertinent records and that the affidavit thus relied on inadmissible hearsay. Plaintiff replied that there was proper foundation for the affidavit and that defendants did not challenge anything else in the affidavit, such as the actual amounts owing. ¶ 13 On November 6, 2013, the trial court granted summary judgment and judgment of foreclosure and sale in plaintiff's favor. ¶ 14 Judicial sale of the property occurred on February 11, 2014. Plaintiff filed its motion for an order approving report of sale and distribution on February 19, 2014. On March 11, 2014, the trial court granted the motion, ordering confirmation of sale of the Property. ¶ 15 Defendants timely appealed.
Also on this date was the motion to substitute Bayview Loan Servicing, LLC, as party plaintiff for JPMorgan Chase Bank, NA, which the court granted.
The notice of appeal stated that the appeal was being taken from "the following Order or Judgment: 1/8/13 Order Striking Affirmative Defenses, 11/6/13 Order granting Summary Judgment for Plaintiff, and 3/11/14 Order Approving Sale."
¶ 16 II. ANALYSIS
¶ 17 1. Standard of Review
¶ 18 Defendants' affirmative defenses and counterclaim were struck pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2012)). We review dismissals under these sections of the Code de novo. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). ¶ 19 We also review appeals from orders of summary judgment de novo. Chatham Foot Specialists, P.C. v. Health Care Service Corp., 216 Ill. 2d 366, 376 (2005). Plaintiff argues, however, that because a trial court's determination whether business records are admissible, and thus whether the prove-up affidavit is based on admissible evidence, is within its sound discretion, we should review the summary judgment issue for an abuse of discretion. We reject this argument because although "[i]n general, the court reviews a circuit court's decision on a motion to strike an affidavit for an abuse of discretion, *** when the motion 'was made in conjunction with the court's ruling on a motion for summary judgment,' we employ a de novo standard of review with respect to the motion to strike." US Bank, NA v. Avdic, 2014 IL App (1st) 121759, ¶ 18 (quoting Jackson v. Graham, 323 Ill. App. 3d 766, 773 (2001)). Here, there was no specific motion to strike the affidavit, but in substance the argument is that the affidavit could not support summary judgment because it failed to comply with Illinois Supreme Court Rule 191 (eff. Aug 1, 1992) and thus should not have been considered. Accordingly, our review of summary judgment in conjunction with the trial court's consideration of the prove-up affidavit is de novo. See Jackson, 323 Ill. App. 3d at 774 ("[W]hen the trial court rules on a motion to strike a Rule 191 affidavit in conjunction with a summary judgment motion, we review de novo the trial court's ruling on the motion to strike.").
¶ 20 2. Motions to Strike
¶ 21 Defendants argue that the trial court erred in striking their second, third, and fourth affirmative defenses, as well as striking their counterclaim to quiet title. We address the affirmative defenses and the counterclaim in turn.
¶ 22 a. Second Affirmative Defense
¶ 23 Defendants first argue that the trial court improperly struck their second affirmative defense that plaintiff violated the Illinois mortgage and foreclosure code by failing to send a grace period notice to them prior to filing its complaint. They argue as follows. ¶ 24 Defendants never received a grace period notice, as required by section 15-1502.5 of the Code (735 ILCS 5/15-1502.5 (West 2010)). Section 15-1502.5 requires a mortgagee to send notice via US mail advising the mortgagor to seek approved housing counsel if the mortgage becomes more than 30 days delinquent, "[e]xcept for mortgages secured by residential real estate in which any mortgagor has filed for relief under the United States Bankruptcy Code." 735 ILCS 5/15-1502.5(c) (West 2010). ¶ 25 Here, defendants claim that they filed for bankruptcy on March 29, 2011, after the date that plaintiff initiated its foreclosure action on March 23, 2011. Therefore, the exception to section 15-1502.5(c), quoted above, did not apply, and plaintiff was required to have sent them notice. ¶ 26 Plaintiff responds as follows. First, this court does not have jurisdiction to entertain an appeal of the dismissal of their second affirmative defense (and for the same reasons, the dismissal of their counterclaim). Defendants appealed from three specific orders in their leave for appeal: the January 18, 2013, order, in which the court dismissed their third and fourth affirmative defenses with prejudice; the November 6, 2013, order granting summary judgment; and the March 11, 2014, order approving sale of the Property. Under Supreme Court Rule 303(b)(2) (eff. June 4, 2008), we lack jurisdiction to review other judgments or parts of judgments not specified or inferred from the notice of appeal. See Fitch v. McDermott, Will and Emery, LLP, 401 Ill. App. 3d 1006, 1014 (2010). The January 18, 2013, order was separate from the prior order dismissing defendants' second affirmative defense and counterclaim with prejudice. Defendants replead their third and fourth affirmative defenses, which were struck with prejudice on January 18, 2013. Moreover, the striking of the counterclaim and the second affirmative defense was not a step in the procedural progression of the main complaint. See Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc., 78 Ill. 2d 56, 61 (1979) (holding that appellate court properly ruled that dismissal of appellant's counterclaim in December 1977 was not before it when appellant only appealed from entry of summary judgment in April 1978, which did not mention the earlier dismissal order). ¶ 27 We agree with plaintiff that consideration of defendants' second affirmative defense is not properly before us on appeal. The order striking defendants' second affirmative defense (and counterclaim) with prejudice was entered on November 7, 2012. That order also struck their third and fourth affirmative defenses without prejudice, after which defendants filed amended third and fourth affirmative defenses. The January 8, 2013, order—the order specified in defendants' notice of appeal—disposed of the amended third and fourth affirmative defenses. While an unspecified judgment is reviewable if it is a step in the procedural progression leading to the judgment actually specified in the notice of appeal (Village of Lisle v. Village of Woodridge, 192 Ill. App. 3d 568, 572 (1989)), dismissal of the second affirmative defense was not part of the procedural progression here (see Edward E. Gillen Co. v. City of Lake Forest, 221 Ill. App. 3d 5, 11 (1991) (dismissal of earlier counts of a complaint is not a step in "procedural progression"); Dalen v. Ozite Corp, 230 Ill. App. 3d 18, 24 (1992) (matters outside the scope of the cause at issue are not part of the procedural progression)). The second affirmative defense alleged a violation of the Illinois mortgage and foreclosure code by failing to send notice. This was an isolated issue outside of the procedural progression of either summary judgment or dismissal of the third and fourth affirmative defenses; resolution of the issue had no bearing on the subsequent determinations made in resolving the second motion to strike and the motion for summary judgment. ¶ 28 Regardless, the dispute over dismissal of the second affirmative defense comes down to a disagreement over when plaintiff instituted its action for foreclosure. Defendants argue that plaintiff filed its action on March 23, 2011, which was before they filed for bankruptcy on March 29, 2011. As plaintiff argues, and the record supports, it filed its foreclosure action against defendants on August 17, 2011, which is almost five months after defendants filed for bankruptcy. Accordingly, even if the issue were properly before us, plaintiff had no obligation to send defendants notice under section 15-1502.5 of the Illinois Mortgage and Foreclosure Code (735 ILCS 5/15-1502.5 (West 2010)).
In defendants' response to the motion for summary judgment, they did not argue that their second affirmative defense or counterclaim should preclude summary judgment.
¶ 29 b. Third and Fourth Affirmative Defenses
¶ 30 Defendants argue that they pled their third and fourth affirmative defenses—fraud in the inducement and equitable estoppel, respectively—with sufficient specificity and particularity. Regarding fraud in the inducement, defendants argue that they properly pled the defense by stating: they were led to believe the appraiser of the Property was an independent contractor, not an employee of the mortgage broker's office; plaintiff knew of this misrepresentation; plaintiff failed to disclose this conflict of interest; defendants trusted plaintiff despite not receiving a copy of the appraisal; and defendants were injured when they found out the Property was worth less than its appraised value. Regarding equitable estoppel, defendants reiterate the aforementioned allegations and additionally cite to First Mortgage Co., LLC v. Dina, 2014 IL App (2d) 130567, ¶ 62, to say that where a public policy reason supports voiding a mortgage, a technical flaw in the way a defendant waived a defense does not result in forfeiture of the defense. ¶ 31 Plaintiff responds that defendants' third and fourth affirmative defenses, as well as their counterclaim, were barred by the PAA. Moreover, plaintiff argues that the third and fourth defenses were properly stricken for failure to meet the appropriate pleading standard. ¶ 32 We agree with plaintiff with respect to both the PAA and the sufficiency of defendants' pleadings. The trial court took judicial notice of the PAA, which is a public document, and we do so as well. See Country Companies v. Universal Underwriters Insurance Co., 343 Ill. App. 3d 224, 229 (2003) (the appellate court may take judicial notice of public records regardless of whether the records were before the trial court). Article II, section 2.5, of the PAA reads:
"Borrower Claims. Notwithstanding anything to the contrary in this Agreement, any liability associated with borrower claims for payment of or liability to any borrower for monetary relief, or that provide for any other form or relief to any borrower *** whether asserted affirmatively or defensively, related in any way to any loan or commitment to
lend made by the Failed Bank prior to failure *** or otherwise arising in connection with the Failed Bank's lending or loan purchase activities are specifically not assumed by the Assuming Bank."The "Failed Bank" here was Washington Mutual Bank, and the "Assuming Bank" was plaintiff. ¶ 33 The plain language of the PAA states that plaintiff did not assume any liability to defendants arising from their original loan with Washington Mutual Bank, including claims asserted defensively or affirmatively, and other courts have found that such language in a purchase and assumption agreement bars borrower claims against the purchasing bank. See Baginski v JP Morgan Chase Bank, NA, 2012 WL 5989295, at *5 (N.D. Ill. Nov. 29, 2012) (section 2.5 of the purchase and assumption agreement between Chase and the FDIC broadly excluded borrower claims from the liabilities assumed by Chase, and thus borrower could not pursue a fraud claim against Chase that arose before Chase assumed the loan); see also Yeomalakis v. F.D.I.C., 562 F.3d 56, 60 (1st Cir. 2009) (plaintiff-borrower's motion to substitute Chase as a party failed because the agreement Chase signed with the FDIC when it acquired the relevant assets excluded assumption of liability for borrower claims). Defendants acquired their mortgage loan in June 2006, and plaintiff purchased Washington Mutual Bank's assets in September 2008. Defendants' original third and fourth affirmative defenses were based on allegations of wrongdoing at the origination of the mortgage loan in 2006, and the amended affirmative defenses did not specify a time but instead referenced an unspecified "refinancing." Given defendants' sparse allegations, the record does not support that their claim for fraud or equitable estoppel arose, if at all, after the PAA. Accordingly, the PAA bars defendants' affirmative defenses from being asserted against plaintiff. ¶ 34 Moreover, we agree with plaintiff that the allegations of the amended third and fourth affirmative defenses were properly stricken because they were conclusory. The amended third defense, fraud in the inducement, alleged:
"1. Defendants were current on their previous loan.¶ 35 Fraud in the inducement is a form of common-law fraud. Lagen v. Balcor Co., 274 Ill. App. 3d 11, 17 (1995). The elements of fraud are: (1) a false statement of material fact; (2) knowledge or belief of the statement's falsity; (3) intent to induce the plaintiff to act or refrain from action on the falsity of the statement; (4) the plaintiff reasonably relied on the false statement; and (5) damage from such reliance. Id. Moreover, there is "a high standard of specificity for pleading claims for fraud." Janowiak v. Tiesi, 402 Ill. App. 3d 997, 1006 (2010). "A complaint for common-law fraud 'must allege, with specificity and particularity, facts from which fraud is the necessary or probable inference, including what misrepresentations were made, when they were made, who made the misrepresentations and to whom they were made.' " Aasonn, LLC v. Delaney, 2011 IL App (2d) 101125, ¶ 28 (quoting Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496-97 (1996)). "Conclusory allegations are insufficient." Aasonn, LLC, 2011 IL App (2d) 101125, ¶ 28. ¶ 36 Here, defendants' allegations in the third affirmative defense were conclusory and thus properly stricken. Defendants did not specify with particularity what misrepresentations plaintiff made but only stated that the broker "inflated Defendants' assets." They did not specify what the appraisal value was, what it should have been, what the appraiser valued defendants' assets at, or what defendants' assets should have been valued at. The allegations failed to name the broker and failed to state when the alleged misrepresentation took place. The allegations only hinted that defendants relied on the representations made by the broker because they were not fluent in English, but such intimations do not comport with fraud's heightened pleading standards. The allegations finally failed to allege that the broker knew or believed the alleged misrepresentation was false when she made it. ¶ 37 Turning to the amended fourth affirmative defense, equitable estoppel, defendants made the identical 10 allegations as for fraud in the inducement. Equitable estoppel is an equitable doctrine "invoked to prevent fraud and injustice," (Carey v. City of Rockford, 134 Ill. App. 3d 217, 219 (1985)), "by precluding a party from benefiting from its own wrongdoing" (Tegeler v. Industrial Comm'n, 173 Ill. 2d 498, 505 (1996)). The elements of equitable estoppel are:
2. Defendants were approached by a mortgage broker to re-finance their home loan.
3. Another lender agreed to use said mortgage broker to lend money to Defendants pursuant to a refinancing of their home.
4. Before closing, it became apparent to lender that the broker was also the appraiser of the new home loan.
5. Therefore there was a conflict of interest with this loan.
6. Defendants were never given a copy of their appraisal.
7. Broker also inflated Defendants' assets.
8. Defendants are not fluent in English.
9. Due to said broker's actions in creating this bogus lien, Plaintiff is estopped from enforcing their bogus lien.
10. Defendants specifically deny the deemed allegations of 735 ILCS 5/15-1504(c)(1) and 735 ILCS 5/15-1504(c)(7)."
"(1) the other person misrepresented or concealed material facts; (2) the other person knew at the time he or she made the representations that they were untrue; (3) the party
claiming estoppel did not know that the representations were untrue when they were made and when they were acted upon; (4) the other person intended or reasonably expected that the party claiming estoppel would act upon the representations; (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment; and (6) the party claiming estoppel would be prejudiced by his or her reliance on the representations if the other person is permitted to deny the truth thereof." Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 313-14 (2001).For the same reasons that defendants failed to properly plead fraud, defendants did not plead sufficient facts that would demonstrate all the elements of equitable estoppel, including failure to plead facts demonstrating whether the broker knew the representations were untrue when made and whether defendants had knowledge of the misrepresentations. Moreover, while defendants argue that where a public policy reason exists to void a mortgage, technical flaws in waiver of a defense should not forfeit the defense, defendants have not identified any public policy reason for voiding the mortgage, and we do not further consider this argument.
¶ 38 c. Counterclaim
¶ 39 We have already decided that defendants' second affirmative defense was not properly before us because the notice of appeal did not specify the order striking the second affirmative defense, or an order in which striking of the second affirmative defense was a step in the procedural progression of that order. Likewise, defendants' counterclaim is not properly before us. The trial court disposed of the counterclaim with prejudice in the same November 7, 2012, order as the second affirmative defense. Defendants' counterclaim was also an isolated issue outside of the procedural progression of either summary judgment or dismissal of the third and fourth affirmative defenses. The counterclaim to quiet title, while based on similar allegations of fact as the third and fourth affirmative defenses (primarily, the allegation that the broker was also the appraiser), was likewise unrelated to the ruling to dismiss the amended third and fourth affirmative defenses or to grant the motion for summary judgment. ¶ 40 Because the counterclaim is not properly before us, we need not consider whether defendants had standing to bring their counterclaim after filing for bankruptcy.
Even if properly before us, we have already decided that the amended third and fourth affirmative defenses, based on the allegations that the broker inflated defendants' assets, were properly stricken for failing to allege sufficient facts and were barred by the PAA. Likewise, the counterclaim, based on the same sparse allegations, was both properly stricken as conclusory and barred by the PAA.
¶ 41 3. Motion for Summary Judgment
¶ 42 Defendants next argue that entry of summary judgment against them was inappropriate because plaintiff's prove-up affidavit was insufficient, and thus there was a material issue of fact. Defendants attack the sufficiency of the prove-up affidavit as follows. Rosa Cardenas, a vice president for plaintiff, stated she "had access" to the business records related to defendants' loan and had personal knowledge of how the records were made and maintained. The affidavit did not mention how the records were maintained, by whom, or how records were maintained or created. Under Illinois Supreme Court Rule 236 (eff. Aug. 1, 1992), a business record is admitted into evidence as an exception to hearsay if the record was made in the regular course of business, and a foundation must be laid establishing the affiant's personal knowledge of the records. See In re Estate of Teall, 329 Ill. App. 3d 83, 92 (2002). An affidavit must not state facts on information and belief (see Fooden v. Board of Governors of State Colleges &;; Universities, 48 Ill. 2d 580, 587 (1971)), and an affidavit must contain facts stated with particularity that support its conclusions (Steiner Electric Co. v. NuLine, 364 Ill. App. 3d 876, 881 (2006)). Here, because plaintiff's affidavit failed to include a proper foundation and specific facts, but rather contained "bald assumptions" and assertions of facts, the business records exception should not have applied and the motion for summary judgment should have been denied. ¶ 43 Plaintiff responds as follows. Rule 236 states:
"(a) Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be
shown to affect its weight, but shall not affect its admissibility." (Emphasis added.) (Ill. S. Ct. R. 236 (eff. Aug. 1, 1992)).The foundation necessary under Rule 236 is only that the party tendering the record demonstrates that the record was made in the regular course of business and at or near the time of the transaction. In re Estate of Weiland, 338 Ill. App. 3d 585, 600 (2003). The affiant need not have personally made the entry sought to be introduced; rather, the entry must be shown to have been made in the regular course of business, and that the affiant is familiar with the entry into the records and is acquainted with the business and procedure at issue. Lecroy v. Miller, 272 Ill. App. 3d 925, 936 (1995). Here, the affidavit was admissible because the affiant averred that the loan records were kept and maintained by plaintiff in the regular course of business activities and were made at or near the time of the event, based on information from a person with knowledge. She further averred that it was regular practice to keep the loan records, that she personally reviewed the records, and that she had personal knowledge of how the records were kept and maintained. ¶ 44 We agree with plaintiff. Rosalva Cardenas's affidavit averred the following pertinent information: she was a vice president with plaintiff; in her capacity as vice president, she had access to plaintiff's business records relating to the loan; she reviewed the loan records and had personal knowledge of how they were kept and maintained; the loan records were maintained by plaintiff in the course of its regularly conducted business activities and were made near the time of the event, which she was informed of by a person with knowledge; and it was regular practice to keep records such as the loan records in the ordinary course of plaintiff's business activity. She also provided the specific monetary breakdowns owing on the loan. ¶ 45 In Bank of America, NA v Land, 2013 IL App (5th) 120283, ¶ 14, we held that the plaintiff-bank's affidavit provided by its assistant vice president, used to prove the balance due on the defendants' mortgage loan, was admissible under Rule 236 where: affiant attested that she was familiar with the bank's procedures for creating and maintaining business records; the loan records were made at or near the time of the relevant occurrence by persons with personal knowledge of the information in the business record; the records were kept in the course of the bank's regularly conducted business activities; and it was the bank's regular practice to keep such records. Accordingly, the admissible affidavit provided a sufficient basis upon which to conclude the bank was entitled to judgment as a matter of law. Id. ¶ 46 In Avdic, 2014 IL App (1st) 121759, ¶ 26, we held that the affidavit of a bank employee was admissible in support of summary judgment where she averred that she had duties reviewing and analyzing loan records for the bank, that she maintained records for each loan serviced, that she was familiar with defendant's loan, that she had personal knowledge that it was within the regular course of business to record the information at issue at or near the time of the occurrence, and that she identified the specific amounts owing on the loan. The foundational requirements for the records were twofold: (1) that the records were made in the regular course of business, and (2) that the records were made at or near the time of the event or occurrence. Id. ¶ 23. These averments were sufficient to satisfy these foundational requirements for the admission of business records, and the records were thus properly considered by the trial court in the entry of summary judgment in favor of the plaintiff-bank. Id. ¶ 30. ¶ 47 Here, Cardenas made virtually identical averments as the affiants in Land and Avdic where we found loan records admissible: that she had access to the loan records, that she personally reviewed the loan records, that she had personal knowledge about how the records were kept and maintained, and that the records were created and maintained in the regular course of business and were made at or near the time of the relevant occurrence. Her averments clearly satisfy the two-part foundational requirement under Rule 236. See, e.g., Gulino v. Economy Fire & Casualty Co., 2012 IL App (1st) 102429, ¶ 27 (Rule 236 requires the proponent of a business record to establish that the record was: (1) made in the regular course of business, and (2) made at or near the time of the event or occurrence). Because plaintiff's prove-up affidavit contained averments satisfying the foundational requirements of Rule 236, the trial court properly considered the affidavit and the attached loan documents, and thus did not face an issue of material fact regarding the amounts owing on the loan. Accordingly, we affirm the trial court's entry of summary judgment for plaintiff.
We note that as of January 1, 2011, the Illinois Rules of Evidence became effective, and they contain a hearsay exception for "Records of Regularly Conducted Activity." Ill. R. Evid. 803(6) (eff. April 26, 2012). Nonetheless, we have held that the adoption of the rules of evidence relating to the admission of business records did not make any substantive changes to the requirements of Rule 236 and that the case law developed under Rule 236 is still applicable to the admission of business records. JPMorgan Chase Bank, N.A. v. East-West Logistics, LLC, 2014 IL App (1st) 121111, ¶ 99; see also Illinois Rules of Evidence, Committee Commentary (noting that Ill. R. Evid. 803(6) retains the exception to hearsay for business records found in Rule 236 but removes the difference between civil and criminal business and public records).
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¶ 48 III. CONCLUSION
¶ 49 For the aforementioned reasons, we affirm the judgment of the Du Page County circuit court. ¶ 50 Affirmed.