Adler v. Bayview Loan Servicing, LLC


2020 IL App (2d) 191019 No. 2-19-1019 Opinion filed December 29, 2020 IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT RONALD ADLER and LISA ADLER, ) Appeal from the Circuit Court ) of Kendall County. Plaintiffs-Appellants, ) ) v. ) No. 19-L-31 ) BAYVIEW LOAN SERVICING, LLC, ) and THE BANK OF NEW YORK ) MELLON, ) Honorable ) Stephen L. Krentz, Defendants-Appellees. ) Judge, Presiding. JUSTICE BRENNAN delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion. OPINION ¶ 1 Defendant the Bank of New York Mellon (BONY), at a prior foreclosure proceeding against plaintiffs, Ronald and Lisa Adler, obtained a judgment of foreclosure and an order confirming the judicial sale of plaintiffs’ home. Plaintiffs then filed claims under the Real Estate Settlement Procedures Act of 1974, as amended (RESPA) (12 U.S.C. § 2605 (2012); 12 C.F.R. §§ 1024.36, 1024.41 (2014)) and the Consumer Fraud and Deceptive Business Practices Act (Fraud Act) (815 ILCS 505/2 (West 2014)) alleging that BONY and defendant Bayview Loan Servicing, LLC (Bayview), engaged in misconduct arising out of the foreclosure proceeding. Defendants filed a motion to dismiss under section 2-619 of the Code of Civil Procedure (735 2020 IL App (2d) 191019 ILCS 5/2-619 (West 2018)) on the grounds that plaintiffs’ claims were barred by section 15- 1509(c) of the Illinois Mortgage Foreclosure Law (id. § 15-1509(c)) and by res judicata. The trial court granted defendants’ motion to dismiss on both grounds. We affirm on the basis that plaintiffs’ claims are barred by section 15-1509(c), and we do not reach the res judicata arguments. ¶2 I. BACKGROUND ¶ 3 In 2005, plaintiffs executed a mortgage loan to purchase a home. The interest in the mortgage was eventually assigned to BONY. After plaintiffs defaulted, BONY filed a foreclosure action in 2010 and obtained a judgment of foreclosure in 2012. In February 2013, plaintiffs filed for Chapter 7 bankruptcy and, in May 2013, obtained a discharge of their obligation, forestalling the sale of their home by BONY. ¶ 4 In October 2013, Bayview acquired servicing rights to the mortgage loan and plaintiffs submitted a loan-modification application to Bayview. In July 2014, plaintiffs submitted a second loan-modification application to Bayview, which approved a “Trial Period Plan” requiring plaintiffs to pay three installments of $2590.93 from September 2014 to November 2014 prior to receiving a permanent loan-modification offer. Plaintiffs timely made the required three payments. ¶ 5 In December 2014, Bayview sent plaintiffs a permanent loan-modification offer that referenced a monthly escrow payment but did not mention plaintiffs’ bankruptcy discharge. Plaintiffs requested a breakdown of the proposed monthly payment and the addition of language in the modification offer “to the effect that Bayview will not attempt to re-establish any personal liability for the underlying debt as a result of the bankruptcy discharge.” ¶ 6 In April 2015, Bayview sent a letter indicating that the monthly payment amount in its offer included a private mortgage insurance (PMI) premium, property taxes, and …

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