ELGIN — A state appeals court has ordered U.S. Bank to offer more proof it actually notified a couple of its intent to foreclose on their home mortgage, saying a FedEx shipping label is not enough to prove a lender actually sent the notices, as required under federal regulations.
In October, a three-justice panel of the Illinois Second District Appellate Court in west suburban Elgin reversed a Lake County judge's summary judgment in the challenge brought by the couple to the bank's attempt to foreclose, highlighting the importance of laying a proper foundation of proof for lenders in foreclosure cases.
The decision stems from a complaint filed in 2014 by U.S. Bank National Trust, seeking to foreclose a mortgage on a couple identified as Jose and Maria Hernandez.
In February 2016, U.S. Bank moved for a summary judgement, attaching several documents, including a computer-generated FedEx label and a letter addressed to the defendants saying that a representative would attempt to visit them.
Lake County Circuit Judge Luis A. Berrones granted the bank's request, and entered a judgment of foreclosure and sale of the property. The defendants filed a motion to reconsider, and the court denied the request, prompting the defendants to appeal.
The defendants contended the bank lacked standing to foreclose the mortgage because it had failed to comply with regulations promulgated by the U.S. Department of Housing and Urban Development, which, among other things, require a mortgage lender to provide prior notice of foreclosure via U.S. Postal Service certified mail. The defendants argued that the bank violated the regulations because the letter, which they claim they never received, was shipped via FedEx.
The appellate court found no merit in the defendants’ argument that the plaintiff lacked the proper standing, but it did reverse course over the letter.
Though the court did not rule on whether using FedEx was a violation of HUD rules, it concluded that the FedEx label by itself did not prove that the letter was sent.
“The user might or might not actually ship the item,” the court brief said. “The plaintiff offered no such proof... The summary judgement was improper.”
The appeals court vacated the summary judgement and remanded the case for further proceedings.
The opinion was authored by Justice Joseph E. Birkett with justices Donald C. Hudson and Mary S. Schostok concurring.