Fifth District sides with Stobbs in Highland foreclosure proceeding

The Fifth District Appellate Court has upheld a ruling by Madison County Associate Judge Stephen Stobbs in a foreclosure proceeding against a Highland homeowner.

The Court had granted summary judgment twice to Wells Fargo involving a mortgage obtained by Dennis L. Koch, first in 2007 and again in 2011 for a total amount of $173,532.28 for unpaid principal and interest, late charges, expenses and costs and attorney fees.

Koch appealed Stobbs’ denial of his motion to reconsider the 2011 summary judgment disputing the amount owed.

According to the record, Wells Fargo filed several motions for a summary judgment. On April 17, 2007, Stobbs granted Wells Fargo's request for a summary judgment in part. Stobbs found that Koch was in default but found that there was a genuine issue of material fact concerning the amount Koch owed. After the entry of the partial summary judgment, no additional activity took place in the case for nearly four years and the court dismissed the case for want of prosecution in March of 2011, but subsequently granted Wells Fargo's request to vacate the dismissal in May 2011.

After the case was reinstated, Wells Fargo filed another motion for summary judgment in June 2011, which was granted in March 2012.

 

On appeal, Koch argued that an affidavit supporting Wells Fargo’s motion for summary judgment was inadequate to establish the amounts he owed.

He also argued that the affidavit was improper because it consisted of conclusions instead of facts.

“We disagree,” wrote Justice Bruce Stewart. Justices Stephen Spomer and James Wexstten concurred.

The Rule 23 order was posted Jan. 15.

“Koch admitted in his answer that he owes Wells Fargo for these items, but he did not offer alternative totals for any category,” Stewart wrote. “The affidavit does not violate Rule 191's requirement that affidavits ‘shall not consist of conclusions but of facts admissible in evidence,’ and the circuit court properly considered the affidavit in entering its judgment.”

Koch further argued that the affidavit did not establish a sufficient foundation for the admission of computer-generated documents attached to it.

“However, Koch's response to Wells Fargo's motion for summary judgment did not specifically raise this objection... Instead, Koch's response to Wells Fargo's motion for summary judgment incorporated by reference a different response that he filed with respect to a previous motion for summary judgment.”

The Court held that the affidavit in support of the motion for summary judgment met the requirements of Rule 191 and supported a judgment in favor of Wells Fargo as a matter of law.