Illinois First District Appellate Court
CHICAGO - A state appeals panel has tossed out a foreclosure judgment issued against a Wilmette couple, saying their lender never proved they received the required so-called "acceleraton notice" the bank claimed it had sent.
On Dec. 2, a three-justice panel of the Illinois First DIstrict Appellate Court reversed and remanded a summary judgment by Cook County Judge Michael F. Otto in favor of Deutsche Bank against defendants Chai and Jintana Roongseang.
The 14-page ruling was delivered by Justice Daniel J. Pierce; Justices Michael B. Hyman and Carl A. Walker concurred.
In the ruling, the justices agreed with the Roongseangs that Deutsche Bank had not provided evidence of delivery of an acceleration notice to the defendants. The acceleration notice is sent following default, when the lender notifies borrowers the full balance and interest on their loan is due immediately.
The Roongseangs had argued that Deutsche Bank “was required to provide proof of actual delivery, not proof of mailing, in order to establish compliance with the notice of condition precedent.”
The Roongseangs had defaulted in August 2009 on a mortgage that they took out on a property in Wilmette. They had acquired the property in June 2005. Deutsche Bank had held the mortgage and when it went into default, the bank sued to foreclose.
The bank, operating with Specialized Loan Servicing, provided evidence that they had mailed the accelerated notice to the Roongseangs.
However, the Roongseangs “denied receiving the notice, and argued that there is no presumption of delivery for certified mail.” The justices noted that in the mortgage agreement that notices sent to a borrower “will be deemed given” when the notice is “mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.”
The justices said that this provision is considered to be the “mailbox rule.” This is when “properly addressed letters sent via regular mail carry a presumption of delivery when they are deposited in the mail with postage prepaid.” However, the justices said that “various jurisdictions” have ruled that there is a difference between first-class mail and certified mail, which requires a signature by the recipient to acknowledge delivery.
Deutsche Bank via Specialized Loan Servicing “chose to send the acceleration notice via certified mail.” The bank cannot assume that the document was delivered unless it could provide a receipt for the delivery, the justices found.