Mortgages; Deed of Trusts

Mitchell v Star Financial Bank, 726 NE2d 895 (Ind Ct App 2000).

Facts: In January 1987, Mitchell mortgaged her real property in Marion, Indiana. She did not make the April 1, May 1, and June 1, 1993, payments and entered into an extension agreement with Star Financial Bank (Star) concerning these payments. In June 1998, Star filed a complaint to foreclose on Mitchell's mortgage alleging that she was in default of her monthly payments and subsequently filed a motion for summary judgment. Mitchell filed a response to the motion along with affidavits in opposition to the motion and in support of her statement of genuine issue of fact. At the summary judgment hearing, the judge struck Mitchell's affidavits and statement as untimely filed and granted Star's motion for summary judgment. Mitchell appealed.

Holding: Reversed. Star filed to foreclose almost five years after the date of the alleged missed mortgage payments. Star's amended complaint alleged that Mitchell's payments were late. Mitchell's answer denied the default. Star provided no evidence to support its allegation. The extension agreement extended the due date for the three payments in question, but failed to identify the length of the extension or a new due date for the payments. The agreement stipulated that "MAXIMUM EXTENSIONS GRANTED" and provided that no further extensions would be granted. The underlying promissory note and mortgage provided that monthly installments of the principal and interest must be paid by January 1, 2002. By granting a "maximum extension" and failing to specify a due date, it is reasonable to conclude that the payments were extended for the term of the loan and were not past due at the time that Star declared a default. Therefore, Star failed to show the absence of a material fact; more specifically, Star failed to prove that Mitchell was actually in default under her mortgage and extension agreement. The trial court erred in granting summary judgment in favor of Star.

EDITOR'S NOTE: Under Illinois law, affidavits in support of a motion for summary judgment "shall set forth with particularity the facts upon which the claim...is based [and] shall not consist of conclusions but of facts admissible in evidence." Supreme Court Rules, Rule 191(a). "Unsupported assertions, opinions, and self-serving or conclusory statements do not comply with Rule 191(a)." Jones v Dettro, 308 Ill App 3d 494, 499, 720 NE2d 343, 347, 241 Ill Dec 888, 892 (4th D 1999). When there is evidence that the parties have modified the due date as to the subject mortgage installments, whether a default exists is an issue of fact precluding summary judgment. Land of Lincoln Sav and Loan v Michigan Ave Nat'l Bank of Chicago, 103 Ill App 3d 1095, 432 NE2d 378, 59 Ill Dec 794 (3rd D 1982).

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