Opinion
No. 1-16-1903
11-29-2016
WELLS FARGO BANK, N.A., Plaintiff-Appellee, v. ARTHUR ALEXANDER, Defendant-Appellant, State of Illinois, The Point at Gleneagle Trail Homeowner's Association, Unknown Owners and Non Record 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 Cook County, Illinois, Cook County, Illinois, County Department, Chancery Division. No. 13 CH 22573 The Honorable Robert Senechalle Judges Presiding. JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Presiding Justice Cobbs and Justice Howse concurred in the judgment.
ORDER
¶ 1 Held: The circuit court properly denied the defendant's motion to reconsider the confirmation of the judicial sale, where the defendant failed to challenge the bank's capacity to foreclose the mortgage prior to confirmation of the judicial sale, and the bank supported its motion for summary judgment with an affidavit that complied with Illinois Supreme Court Rule 191(a) (Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013)). ¶ 2 This cause of action arises from a mortgage foreclosure action filed by the plaintiff, Wells Fargo Bank, N.A., (Wells Fargo or the bank), against, inter alia, the defendant, Arthur Alexander (Alexander), to foreclose a mortgage on a property owned by Alexander. After Alexander filed an answer to the complaint, Wells Fargo filed a motion for summary judgment. In response, Alexander challenged the sufficiency of the prove-up affidavit offered in support of the summary judgment motion pursuant to Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013). The circuit court overruled Alexander's objection and granted summary judgment in favor of Wells Fargo. The circuit court also entered a judgment of foreclosure and sale. After the judicial sale was confirmed, Alexander, represented by new counsel, filed a posttrial motion for reconsideration of the summary judgment ruling, for the first time arguing that Wells Fargo had not demonstrated its capacity to foreclose. The circuit court denied the motion for reconsideration. On appeal, Alexander contends that the trial court erred when it entered summary judgment in favor of Wells Fargo, where the bank's affidavit failed to attach all the documents upon which the affiant relied and the affiant lacked personal knowledge. In addition, Alexander contends that the trial court erred in denying his motion to reconsider on the basis that he failed to object to the grant of summary judgment for lack of capacity before the confirmation of the judicial sale took place, where the bank's affidavit provided no testimony regarding capacity. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The record below reveals the following relevant facts and procedural history. On October 3, 2013, Wells Fargo filed a mortgage foreclosure action against Alexander to foreclose a mortgage on the property located at 662 Bridle Path Drive in Matteson, Illinois (the property). According to Wells Fargo's complaint on June 9, 2009, Alexander took out a loan with Gateway Funding Diverse Mortgage Services, L.P. (GFDMS) in the amount of $250,267. Alexander stopped paying his mortgage payments on October 2009, and the balance due on the note and mortgage amounted to $249,767.47 plus interest, costs and fees. The complaint further alleged that Wells Fargo had the "capacity" to bring the foreclosure action because it was the "holder of the indebtedness" secured by the mortgage being foreclosed. ¶ 5 In support of its mortgage foreclosure action, Wells Fargo attached to its complaint copies of: (1) the mortgage; (2) the recorded assignment of the mortgage from Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the original lender, GFDMS, to Wells Fargo, dated April 30, 2010; and (3) the original note with two stamped and signed but undated endorsements. It is unclear from the endorsements whether they are to Wells Fargo or to blank. Either there are two endorsements to blank, one by GFDMS and one by Wells Fargo, or there is one endorsement from GFDMS to Wells Fargo, and another from Wells Fargo to blank. ¶ 6 On January 9, 2014, Alexander filed an answer to the complaint. Relevant to this appeal, in his answer Alexander responded to Wells Fargo's capacity allegation by stating that it was a legal conclusion and that to the extent any factual response was required, he had insufficient information to either admit or deny it. In support, Alexander attached an affidavit swearing to his lack of information. ¶ 7 On May 14, 2015, Wells Fargo filed a motion for summary judgment and a motion for entry of a judgment of foreclosure and sale. Wells Fargo argued that there was no genuine issue about Alexander's breach of the mortgage contract and that it was entitled to judgment as a matter of law. In support of the motion, Wells Fargo attached, inter alia, two affidavits: (1) a loss mitigation affidavit; and (2) an affidavit of the amount due and owing, executed by William Banks, III (Banks). ¶ 8 In his affidavit, Banks asserted that as vice president of loan documentation for Wells Fargo as part of the regular performance of his job functions, he was familiar with the business records maintained by Wells Fargo for the purpose of servicing mortgage loans. He stated that it is the regular practice of Wells Fargo's mortgage servicing business to make these records, which include "data compilations, electronically imaged documents and others," which are "made at or near the time by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records, and are kept in the ordinary course of business activity conducted regularly by Wells Fargo." Banks further averred that in making his affidavit, he "acquired personal knowledge of the matters stated herein by examining these business records," and that if called to testify at trial he could do so competently. ¶ 9 In his affidavit, Banks further averred that Wells Fargo had possession of the promissory note, either directly or through an agent. According to the affidavit, Wells Fargo is "either the original payee of the promissory note or the promissory note has been duly endorsed." ¶ 10 In his affidavit, Banks also attested to the amount due and owing by Alexander. In that respect, Banks stated that he reviewed Wells Fargo's business records for Alexander's loan, a copy of which, together with a payment history, was attached as an exhibit to his affidavit. Banks explained that Wells Fargo uses "Mortgage Servicing Platform" to automatically record and track mortgage payments, and averred that, to the best of his knowledge, this type of tracking and accounting program is standard in the industry. According to Banks, when a mortgage payment is received the following procedure is used to process and apply the payment to create the records he reviewed. First, authorized persons receive and credit periodic payments at or near the time of the receipt of the payment. Next, the servicer utilizes its computer systems which are accessible and used by authorized persons to input and record account activity at or near the event or occurrence. Finally, the record generated identifies the transaction type. If the record relates to the application of a payment or disbursement, it will itemize the amounts applied. ¶ 11 Banks averred that the entries reflecting Alexander's payments were made in accordance with the aforementioned procedure at or near the time the payments were received, and to the best of Banks' knowledge the computer program generated accurate records of those payments. Based on these records, Banks averred that the amount due on the note through April 21, 2015, was $404,272.61, with the breakdown of the amounts as follows: (1) principal ($249,767.47); (2) interest ($84,493.44); (3) hazard insurance ($4940.33); and (4) taxes ($65,071.37). ¶ 12 On July 2, 2015, Alexander filed his response to Wells Fargo's motion for summary judgment asserting that summary judgment was improper because there remained a genuine issue of material fact with respect to whether Alexander was in default, and if so, by what amount. In doing so, Alexander attacked the sufficiency of Banks' affidavit and asked the court to strike it. He asserted that the affidavit did not comply with the requisites of Illinois Supreme Court Rules 191(a) (Ill. S. Ct. R. 191(a) (eff. Jan 4, 2013)) and 113 (Ill. S. Ct. R. 113 (eff. May 1, 2013)) because: (1) it was not based on Banks' personal knowledge and it did not attach all the documents upon which Alexander allegedly relied, including documents showing Alexander's payments prior to the default; and (2) it did not lay a sufficient foundation for the computer business records and therefore constituted inadmissible hearsay. Alexander did not make any argument about Wells Fargo's capacity to foreclose. ¶ 13 After a hearing,on August 5, 2015, the circuit court entered summary judgment in favor of Wells Fargo, and a judgment of foreclosure and sale. A judicial sale was held on November 6, 2015. A week after, on November 13, 2015, Alexander's counsel filed a motion to withdraw. On November 24, 2015, Wells Fargo filed a motion to confirm the judicial sale. On December 10, 2015, in an order setting the briefing schedule, the circuit court granted leave to Alexander's new counsel to file an appearance and gave Alexander until December 31, 2015, to file a response to Wells Fargo's motion for confirmation of sale. A few days later, on December 15, 2015, the circuit court granted Alexander's original counsel's motion to withdraw. Alexander never filed a response to the motion to confirm the sale. ¶ 14 On January 29, 2016, the circuit court granted Wells Fargo's motion and entered an order confirming the sale, including a deficiency judgment against Alexander in the amount of $260,735.23. ¶ 15 On February 29, 2016, Alexander filed a motion to reconsider the "final judgment" pursuant to section 2-1203 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West 2016)). Therein, Alexander attacked the trial court's order granting summary judgment in favor of Wells Fargo. Specifically, Alexander reiterated his argument that Banks' affidavit was defective because it failed to lay an adequate foundation for the loan records, and did not attach all the documents upon which he allegedly relied. In addition, for the first time, Alexander raised the argument that Wells Fargo failed to establish its capacity to foreclose. ¶ 16 After briefing and argument, on May 25, 2016, the circuit entered an order denying Alexander's motion to reconsider. In doing so the court found that: (1) pursuant to our supreme court's decision in Wells Fargo Bank v. McCluskey, 2013 IL 115469, Alexander had failed to assert a basis to vacate the judicial sale; and (2) no error was made in the application of law at the time summary judgment was entered. Alexander now appeals.
We are without a transcript from this proceeding.
We note that Alexander's notice of appeal was file stamped on July 6, 2016, which is 42 days after the circuit court denied his motion to reconsider. Nonetheless the record contains a copy of a certificate of mailing of the notice of appeal filed by Alexander's counsel, which states that it was mailed within thirty days. Wells Fargo, therefore, concedes, and we agree, that there is no jurisdictional bar to our review. See Ill. S. Ct. R. 373 (eff. Dec. 29, 2009) (quoting Ill. S. Ct. R. 12(b)(3) (eff. Jan. 4, 2013) (stating that if the notice of appeal is filed after the due date, then the "time of mailing" is deemed the "time of filing," and can be proved as articulated in Supreme Court Rule 12(b)(3) by "certificate of the attorney *** who deposited the document in the mail *** stating the time and place of mailing *** the complete address which appeared on the envelope or package and the fact that proper postage *** was prepaid."). --------
II. ANALYSIS
¶ 17 A. Capacity to Foreclose
¶ 18 On appeal, Alexander first contends that the trial court erred in denying his motion to reconsider the confirmation of the judicial sale where Wells Fargo lacked the requisite capacity to foreclose the mortgage. Wells Fargo, on the other hand, argues that Alexander forfeited this issue for purpose of review because he raised it for the first time in a motion to reconsider the confirmation of the judicial sale and not during the summary judgment proceedings. In addition, citing to McCluskey, 2013 IL 115469, Wells Fargo asserts that Alexander should be procedurally barred from seeking to unravel the foreclosure judgment after the confirmation of the judicial sale on the basis of lack of capacity because he did not show that Wells Fargo prevented him from raising this argument earlier. In the alternative, and regardless of forfeiture, Wells Fargo contends that the record affirmatively establishes that it had the capacity to bring the foreclosure action. For the reasons that follow, we agree. ¶ 19 In McCluskey, our supreme court held that when a debtor seeks to challenge the propriety of the foreclosure of his property, he must do so at the foreclosure stage of litigation and cannot wait until the sale of that property has already been confirmed by the court. In other words, when a defendant moves to vacate a default judgment of foreclosure after the judicial sale of the mortgaged property, he is also, inherently, seeking to set aside the judicial sale. See McCluskey, 2013 IL 115469, ¶ 18. However, at this late stage, the debtor is limited to asserting attacks related to defects in the sale proceedings; he cannot now raise or allege defects pertinent to how the foreclosure took place. See McCluskey, 2013 IL 115469, ¶ 18 (it is "far too late" to assert issues regarding foreclosure after the sale has been confirmed; even if such issues were meritorious, to allow this would be inconsistent with the need to establish stability in the judicial sales process). Accordingly, "after a motion to confirm the judicial sale has been filed, a [debtor] seeking to set aside a default judgment of foreclosure may only do so by filing objections to the confirmation of the sale under the provisions of section 15-1508(b)" of the Illinois Mortgage Foreclosure Law (Mortgage Foreclosure Law). McCluskey, 2013 IL 115469, ¶ 27 (citing 735 ILCS 5/15-1508(b) (West 2016)). ¶ 20 While Alexander is correct that McCluskey dealt with a motion to vacate a default judgment, contrary to his position, our appellate courts have since held that McCluskey applies with equal force to non-default judgment orders, such as the one here. See e.g., PNC Bank National Ass'n v. Krier, 2015 IL App (3d) 140639. As such, in the present case, after completion of the judicial sale, and under the holding of McCluskey, the trial court had the discretion to vacate the underlying judgment of foreclosure only if it denied the confirmation of the sale as provided by the mandatory provisions of section 15-1508(b) of the Mortgage Foreclosure Law (735 ILCS 5/15-1508(b) (West 2016)). ¶ 21 Under section 15-1508(b), "the court shall confirm the sale unless" the court finds that: (1) proper notice of the sale as not given; (2) the terms of the sale were unconscionable; (3) the sale was conducted fraudulently; or (4) "justice was otherwise not done." (Emphasis in original). McCluskey, 2013 IL 115469, ¶ 18 (citing 735 ILCS 5/15-1508(b) (West 2012)). With respect to "justice not otherwise done," a debtor must prove this occurred "because either the lender, through fraud or misrepresentation, prevented the [debtor] from raising his meritorious defenses to the complaint at an earlier time in the proceedings, or the borrower has equitable defenses that reveal he was otherwise prevented from protecting his property interests." McCluskey, 2013 IL 115469, ¶ 26. ¶ 22 A circuit court's decision to confirm the judicial sale of property is reviewed for an abuse of discretion. McCluskey, 2013 IL 115469, ¶ 25; see also Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008). The circuit court abuses its discretion if it committed an error of law or where no reasonable person would take the view adopted by the court. CitiMortgage, Inc. v. Johnson, 2013 IL App (2d) 120719, ¶ 18; McClandon v. Rosewell, 299 Ill. App. 3d 563, 567 (1998). ¶ 23 In the present case, the record does not include any indication that Wells Fargo, through fraud or misrepresentation prevented Krier from raising the capacity issue at any point prior to the entry of the judgment of foreclosure or otherwise prevented him from protecting his property interests. The record shows that Alexander had every opportunity to raise the issue of capacity, both at the summary judgment proceedings and when Wells Fargo filed its motion to confirm the judicial sale, but failed to do so. Notably, even after Alexander's counsel was given leave to file an appearance and weeks to respond to the motion to confirm the sale, Alexander failed to respond to the motion. Instead, he waited until the sale was confirmed to raise the issue in a motion to reconsider. As such, we find that the trial court did not abuse its discretion in finding that under the holding in McCluskey, Alexander was procedurally barred from raising the issue of capacity so late in the foreclosure proceedings. ¶ 24 In coming to this decision, we find Alexander's citation to portions of his response to the summary judgment motion as evidence of his attempt to raise the issue of capacity at the summary judgment stage unavailing. In his response to the summary judgment motion, Alexander only argued that Banks showed he lacked personal knowledge because he said Wells Fargo was either the original lender on the note or that the note had been endorsed. The note was mentioned only to argue that Banks lacked the requisite knowledge to lay a foundation for the loan records, not to show that any issue about Wells Fargo's capacity existed. Indeed, the word "capacity" does not appear anywhere in Alexander's response to Wells Fargo's motion for summary judgment. ¶ 25 Nonetheless even if we were to hold that the capacity issue was properly before the circuit court, we would find no error in the trial court's denial of Alexander's motion to reconsider the confirmation of the sale, because Wells Fargo established it had the capacity to foreclose. ¶ 26 An allegation of capacity as the mortgagee in a foreclosure proceeding is a material fact and must be proved whether admitted or denied by the debtor. Aurora Bank FSB v. Perry, 2015 IL App (3d) 130673. Under the Mortgage Foreclosure Law, a party may establish that it has the capacity as a mortgagee by showing it is: "(i) the holder of an indebtedness or oblige of a non-monetary obligation secured by a mortgage or any person designed or authorized to act on behalf of such holder and (ii) any person calming through mortgagee as successor." 735 ILCS 5/15-1208 (West 2016). ¶ 27 In Perry, our appellate court held that a bank established capacity by attaching a copy of a blankly endorsed note to its complaint and by swearing that it was the holder of the note. Perry, 2015 IL App (3d) 130673, ¶ 25. In doing so, the court explained that "the mere attachment of a note to a [foreclosure] complaint is prima facie evidence that plaintiff owns the note." (Internal quotation marks omitted.) Perry, 2015 IL App (3d) 130673, ¶ 25. The court then held that because a note "endorsed in blank is payable to the bearer," a bank that attaches a note with a blank endorsement presents a prima facie case that it is the bearer of the note and therefore the holder of the indebtedness. Perry, 2015 IL App (3d) 130673, ¶ 25. In addition, the court considered the fact that the bank presented an affidavit attesting that it was the holder of the note, and held that together with the endorsed note, the affidavit was sufficient to establish that it had the capacity to bring the foreclosure action. Perry, 2015 IL App (3d) 130673, ¶ 31. ¶ 28 In the present case, just as in Perry, Wells Fargo attached an endorsed note to its complaint, as well as provided an affidavit by Banks in which he swore that Wells Fargo had "possession of the promissory note." While the two endorsements on the note are susceptible to two readings, Wells Fargo is the holder of the indebtedness under either scenario, either as the bearer (of a blank endorsement) or as the payee of the endorsement. Contrary to Alexander's position, Banks averment that Wells Fargo is "either the original payee of the promissory note or the promissory note has been duly enforced" instead of showing Banks' lack of personal knowledge, directly establishes that he had the note in his possession and reviewed it. As such, Wells Fargo established a prima facie case that it was the legal holder of the indebtedness, so as to have the requisite capacity as mortgagee to bring the foreclosure suit. See Perry, 2015 IL App (3d) 130673, ¶ 31.
¶ 29 B. Sufficiency of Affidavit as to Amount due and Owing
¶ 30 On appeal, Alexander next contends that the circuit court erred in granting summary judgment in favor of Wells Fargo where Banks' affidavit lacked personal knowledge and constituted inadmissible hearsay because it failed to lay the proper foundation for the exhibits attached in violation of Illinois Supreme Court Rule 191(a) (Ill. S. Ct. R. 191 (a) (eff. Jan. 4, 2013)). ¶ 31 Before turning to the merits, we set forth the relevant standard of review. Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005 (West 2012); see also Carlson v. Chicago Transit Authority, 2014 IL App (1st) 122463, ¶ 21; Fidelity National Title Insurance Company of New York v. West Haven Properties Partnership, 386 Ill. App. 3d 201, 212 (2007) (citing Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004)); Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556 (2007). In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings and evidentiary material in the record in the light most favorable to the nonmoving party and strictly against the moving party. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002); see also Pearson v. DaimlerChrysler Corp., 349 Ill. App. 3d 688, 697 (2004). A genuine issue of material fact exists where the facts are in dispute or where reasonable minds could draw different inferences from the undisputed facts. Morrissey v. Arlington Park Racecourse, LLC, 404 Ill. App. 3d 711, 724 (2010). However, "[m]ere speculation, conjecture, or guess is insufficient to withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). Therefore, if a party moving for summary judgment introduces facts that, if not contradicted, would entitle it to judgment as a matter of law, the opposing party may not rely on her pleadings alone to raise issues of material fact. Klitzka v. Hellios, 348 Ill. App. 3d 594, 597 (2004) (citing Hermes v. Fischer, 226 Ill. App. 3d 820, 824 (1992)); see also ("To survive a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact. [Citation.] "The nonmoving party cannot simply deny the moving party's factual allegations."). Accordingly, facts contained in an affidavit in support of a motion for summary judgment that are not contradicted by a counteraffidavit must be taken as true for purposes of the motion. [Citation.]" CitiMortgage v. Sconyers, 2014 IL App (1st) 130023, ¶ 9. Our review of the circuit court's entry of summary judgment is de novo and we may affirm on any basis appearing in the record, whether or not the trial court relied on that basis or its reasoning was correct. See Village of Palatine v. Palatine Associates, LLC, 2012 IL App (1st) 102707, ¶ 43; see also Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349 (1998). ¶ 32 Turning to the merits, we begin by noting that Illinois Supreme Court Rule 191(a) sets forth the requirements of any affidavit used in support of a motion for summary judgment. That Rule states in pertinent part:
"Affidavits in support of and in opposition to a motion for summary judgment under section 2-1005 of the Code of Civil Procedure * * * shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).¶ 33 It is well-established that because a Rule 191(a) affidavit is a substitute for testimony given in open court, it must meet the same requirements as competent testimony. U.S. Bank, National Ass'n v. Avdic, 2014 IL App (1st) 121759, ¶ 22. Our courts have consistently held that an affidavit meets the requirements of Rule 191(a) (Ill. S. Ct. R. 191 (a) (eff. Jan. 4, 2013)) if it appears from the document "as a whole" that "the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial." Doria v. Village of Downers Grove, 397 Ill. App. 3d 752, 756 (2009) (citing Kugler v. Southmark Realty Partners III, 309 Ill. App. 3d 790, 795 (1999)); see also Avdic, 2014 IL App (1st) 121759, ¶ 22. ¶ 34 Contrary to Alexander's position, there can be no doubt that in the present case Banks' affidavit fully complied with Rule 191(a) (Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013). Banks explicitly stated in his affidavit that as "vice president of loan documentation" he "had authority" to make the affidavit because as part of the "regular performance of his job functions," he was "familiar with business records maintained by Wells Fargo for the purpose of servicing mortgage loans." He stated it was the regular practice of Wells Fargo's mortgage servicing business to make such business records, and explained that he acquired "personal knowledge" of the matters stated in the affidavit by examining those business records. In addition, as shall be discussed in more detail below, Banks' affidavit contained copies of all the business records upon which he relied in determining the amount due. As such, Banks provided a sworn statement as to his personal knowledge of the facts contained in his affidavit and that those statements were supported by the documents that were attached. See Avdic, 2014 IL App (1st) 121759, ¶¶ 26-27 (holding that the affiant established her personal knowledge of the records and procedures where she stated that her duties included reviewing and analyzing loan records for the loans of the plaintiff servicer and she was familiar with the books and records, including the records for the subject loan); see also Doria, 397 Ill. App. 3d at 756 (" 'If, from the document as a whole, it appears that the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial, Rule 191 is satisfied.' ") (quoting Kugler, 309 Ill. App. 3d at 795). ¶ 35 Moreover, Banks' affidavit laid ample foundation for those records. In that respect, in his affidavit, Banks stated that: (1) as part of his regular job functions he was familiar with the records; (2) that the records were made at or near the time by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records; and (2) were kept in the ordinary course of business activity conducted regularly by Wells Fargo. In addition, Banks averred that he calculated the amount due by reviewing Alexander's payment history, a copy of which was attached to his affidavit. Banks explained that Alexander's payment history was made using "Mortgage Servicing Platform," a computer program which automatically records and tracks mortgage payments and which, to the best of his knowledge, was standard in the industry. He added that those records were made in the regular course of Wells Fargo's business, with entries made at or near the time the payment was received, and that, to the best of his knowledge, the computer program generated accurate records related to Alexander's mortgage payments. ¶ 36 Illinois Supreme Court Rule 236, which permits the admission of business records into evidence, requires only that the party tendering the records satisfy the foundational requirements that: (1) the record was made in the regular course of business; and (2) at or near the time of the event or occurrence. Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 414 (2005) (citing In re Estate of Weiland, 338 Ill. App. 3d 585, 600, (2003)). "There is no requirement that [the affiant] be familiar with the records before litigation arose or have personally made the entries." Avdic, 2014 IL App (1st) 121759, ¶ 29. "Rather, "[a] sufficient foundation for admitting records may be established through testimony of the custodian of records or another person familiar with the business and its mode of operation." Kimble, 358 Ill. App. 3d at 414. Under the record before us, Banks has satisfied these requirements. See Avdic, 2014 IL App (1st) 121759, ¶ 29 (holding that the factual averments in a bank employee's affidavit provided in support of the bank's motion for summary judgment in a mortgage foreclosure action satisfied the foundational requirements for the admission of the bank's computer records into evidence where the employee's statements established that the attached payment histories were made in the regular course of the bank's business, the entries were made at or near the time of the payments, and the computer software system that generated the records was customarily used in the business, was used for the life of the loan at issue, and was regularly tested for reliability). ¶ 37 Contrary to Alexander's position, Banks did not rely on unattached documents to establish the amount due. Alexander argues that because at the beginning of his affidavit Banks noted that the total business records maintained by Wells Fargo include, "data complications, electronically imaged documents, and others," he was required to attach these "other" documents to his affidavit in order to lay the proper foundation. We disagree. ¶ 38 As already noted above, in his affidavit Banks explicitly stated that "[t]he amount due" was "based on his review of Wells Fargo's business records," and that together with the payment history, "a copy of the business records used to make this calculation [wa]s attached as an exhibit." Attached to his affidavit were: a judgment figures worksheet, a three-page breakdown of advances, an eleven-page loan payment history and an account history. The loan payment history detailed the transactions made on the loan from August 2009 through April 2015. Simply because Banks did not attach every business record maintained by Wells Fargo does not mean that he did not attach the records necessary to calculate the amount due. Indeed, he explicitly stated that he attached the business records used to make that calculation. ¶ 39 Having concluded that Banks' affidavit complied with Rule 191(a) (Ill. S. Ct. R. 191 (a) (eff. Jan. 4, 2013))), we necessarily also find that summary judgment here was proper. In doing so, we note that Alexander's response to Wells Fargo's motion for summary judgment did not contain a counteraffidavit. As such, any attempt by Alexander to oppose Wells Fargo's summary judgment motion, supported by Banks' affidavit, by standing on the verified answer attesting to the lack of information regarding capacity, was inevitably futile. See Avdic, 2014 IL App (1st) 121759, ¶¶ 31-32 (holding that the bank was entitled to summary judgment where bank employee's affidavit regarding loan default complied with Rule 191 "and there was no competing affidavit or evidence to contradict this evidence"); see also 1010 Lake shore Ass'n v. Deutsche Bank Nat. Trust Co., 2014 IL App (1st) 130962, ¶19 (" "[F]acts contained in an affidavit in support of motion for summary judgment which are not contradicted by a counteraffidavit are admitted and must be taken as true for purposes of the motion.' ") (quoting Purtill v. Hess, 111 Ill. 2d 229, 241 (1986)); see also Sacramento Crushing Corp. v. Correct/All Sewer, Inc., 318 Ill. App. 3d 571, 575 (2000) ("Failure to file counteraffidavits in opposition to a summary judgment motion supported by affidavits is fatal."); see also Kugler, 309 Ill. App. 3d at 795 ("Courts must accept an affidavit as true if it is uncontradicted by counteraffidavit or other evidentiary materials.")
¶ 40 III. ANALYSIS
¶ 41 For all the aforementioned reasons, we affirm the judgment of the circuit court. ¶ 42 Affirmed.