                                       2015 IL App (1st) 143956
                                            No. 1-14-3956
                                                                                      Fifth Division
                                                                                      June 26, 2015


     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

                                                    )
     BANK FINANCIAL, FSB,                           )   Appeal from the Circuit Court
                                                    )   of Cook County.
            Plaintiff-Appellee,                     )
                                                    )   No. 13 CH 10316
     v.                                             )
                                                    )   The Honorable
     BARRY BRANDWEIN,                               )   Sanjay Tailor,
                                                    )   Judge Presiding.
            Defendant-Appellant                     )
                                                    )
     (5628 North Broadway, LLC,                     )
            Defendant).                             )
                                                    )
     ______________________________________________________________________________

               JUSTICE GORDON delivered the judgment of the court, with opinion.
               Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.


                                              OPINION

¶1             On August 27, 2009, 5628 North Broadway, LLC, received a $275,000 loan from

        plaintiff, Bank Financial, FSB, in exchange for a mortgage on a commercial property that

        rented space to an auto repair shop. Defendant, Barry Brandwein, who is the manager of the

        limited liability company, signed a promissory note to plaintiff for the amount of the loan.

        On April 17, 2013, plaintiff sought to foreclose the mortgage, as a result of unpaid loan
     No. 1-14-3956


        payments and unpaid real estate taxes. The property was sold at a judicial sale, still leaving

        $73,459.61 of the loan unpaid. Plaintiff then sought to hold defendant liable for this amount,

        pursuant to the promissory note. Defendant filed a counterclaim for tortious interference and

        filed an affirmative defense in count II only, and did not file an answer to count I. On

        September 9, 2014, plaintiff moved for summary judgment on the basis of section 2-1005(c)

        of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2012)). Defendant's response to

        the motion for summary judgment argued that plaintiff had attempted to collect rents from

        the tenants of the property, and this action made it difficult for defendant to collect rent and

        bring the loan payments current. The trial court granted plaintiff's motion for summary

        judgment, and this appeal followed.

¶2             On appeal, defendant makes one claim: that the trial court erred in granting plaintiff's

        motion for summary judgment, because defendant raised a genuine issue of material fact that

        supported his claim that plaintiff committed tortious interference with his collection of the

        rent. For the following reasons, we do not find persuasive defendant's claim that the trial

        court erred in granting plaintiff's motion for summary judgment.

¶3                                          BACKGROUND

¶4                                          I. Pretrial Filings

¶5                                            A. Complaint

¶6             On April 17, 2013, plaintiff, Bank Financial, FSB, filed a complaint in the chancery

        division of the circuit court of Cook County against defendants, Barry Brandwein and 5628

        North Broadway, LLC (the LLC). While Brandwein and the LLC are both named as

        defendants in the complaint, the answer was filed solely on behalf of Brandwein, and

        Brandwein is the sole defendant on appeal.


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       No. 1-14-3956


¶7                Count I of the complaint sought to foreclose a mortgage on property located on North

          Broadway Street, in Chicago, Illinois (the property). The mortgagor was the LLC, the

          mortgagee was plaintiff, and the mortgage was for $275,000. 1 The complaint alleged that the

          LLC did not make their monthly payments to plaintiff and did not make the payments for real

          estate taxes as of April 15, 2013, and that, as a result, plaintiff had accelerated the payments

          due under the mortgage, pursuant to an acceleration clause in the mortgage where plaintiff

          reserved the "right at its option without notice to Borrower or Grantor to declare the entire

          indebtedness immediately due and payable, including any prepayment penalty that Borrower

          would be required to pay." The total due from the LLC was $279,122.43. The complaint

          sought, in part, to foreclose the mortgage, shorten redemption, and appoint a receiver to

          possess the property,

¶8                Count II of the complaint stated that defendant and the LLC had signed a promissory

          note for the amount of the mortgage, and that they had breached the promissory note by

          failing to make monthly payments on the mortgage. The complaint sought to hold defendant

          and the LLC jointly and severally liable for the total amount of $279,122.43, as well as

          continually accruing interest, attorney fees, and costs.

¶9                                     B. Petition to Appoint Receiver

¶ 10              On June 18, 2013, plaintiff filed a petition to appoint a receiver. Defendant and the

          LLC did not respond to count I of the complaint or the petition to appoint a receiver. On


              1
               In plaintiff's motion for summary judgment and on appeal, plaintiff asserts that it loaned
       defendant and the LLC $550,000. However, in its complaint, plaintiff states that it loaned
       defendant and the LLC $275,000. Both the promissory note and mortgage state that the original
       loan was for $275,000. Plaintiff's confusion might arise from the line in the mortgage stating
       "MAXIMUM LIEN. At no time shall the principal amount of Indebtedness secured by the
       Mortgage, not including sums advanced to protect the security of the Mortgage, exceed
       $550,000."
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       No. 1-14-3956


          September 3, 2013, the court entered an order appointing a receiver for the property and an

          order of default against defendant and the LLC. The court later entered an order of judgment

          of foreclosure and sale, foreclosing on the mortgage and approving the sale of the property at

          public auction.

¶ 11                   C. Motion to Transfer to Law Division and to Confirm Judicial Costs

¶ 12             On November 5, 2013, plaintiff filed two motions, a "motion to confirm judicial sale;

          approve post judgment costs; enter deficiency judgment; and award immediate possession"

          and a motion to transfer the case to the law division. In the first motion, plaintiff stated that it

          had fairly auctioned the property for $220,000 on October 21, 2013, at the judicial sale, and

          requested the court to confirm the sale. After the judicial sale, there was a deficiency due

          from defendant and the LLC of $73,459.61. The second motion requested that the chancery

          court transfer the case to the law division, so that plaintiff could recover the remaining debt

          from defendant and the LLC, pursuant to count II of the complaint.

¶ 13             On January 21, 2014, the chancery court entered an order granting plaintiff's motion

          to confirm the sale of the property with postjudgment costs and transferred the case to the

          law division to allow plaintiff to pursue count II of the complaint.

¶ 14                            D. Motion for Order of Default and Judgment

¶ 15             On April 16, 2014, plaintiff filed a motion in the trial court seeking a default

          judgment against defendant and the LLC. The motion alleged that defendant and the LLC

          were personally served on March 14, 2014. Defendant and the LLC did not file their required

          answer by April 14, 2014. Plaintiff sought a default judgment against defendant and the LLC

          for $77,771.14. This amount reflected the previous deficiency in judgment along with

          accrued interest and additional court and attorney fees.


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       No. 1-14-3956


¶ 16                     E. Defendant's Motion to Dismiss and Plaintiff's Response

¶ 17             On May 5, 2014, defendant filed a motion to dismiss. The motion alleged that

          defendant was not properly served in the foreclosure case and, therefore, the chancery court

          did not have personal jurisdiction over him. The motion further alleged that there were

          defects in the pleadings. Specifically, defendant stated that the "motion to confirm sale"

          referred to the property as a 12-unit nonresidential building, and the "order appointing

          receiver" referred to the property as a "three unit mixed commercial/residential building."

          Defendant asserted that the property is a single-unit garage used as an auto repair shop.

¶ 18             On June 6, 2014, plaintiff filed a response to defendant's motion to dismiss. The

          response stated that any defects in the motions and orders, which plaintiff noted are not

          "pleadings," were not substantial. Rather, the important detail was that the property was

          commercial and not residential. Plaintiff also stated that defendant was attempting to attack

          count I of the complaint, claiming that the chancery court did not have personal jurisdiction.

          However, plaintiff argued that this was improper, as a final judgment in that case had been

          entered. Plaintiff also asserted that the motion to dismiss should be stricken because

          defendant's counsel had not entered her written appearance and filed the appropriate fee.

¶ 19             On June 27, 2014, the trial court struck defendant's motion because his counsel had

          failed to enter her written appearance and pay the appropriate fee. Defendant and the LLC

          were granted 21 days to answer count II of the complaint.

¶ 20                          F. Defendant's Answer and Plaintiff's Response

¶ 21             On July 17, 2014, defendant filed an answer and affirmative defense to count II of

          plaintiff's complaint. The LLC did not file an answer to the complaint. Defendant stated that

          he is the manager of the LLC, which was the former owner of the property. Defendant's


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       No. 1-14-3956


          answer stated that immediately following the filing of plaintiff's complaint on April 17, 2013,

          Gordana Jovanovic, a commercial banking officer for plaintiff, appeared on the property at

          which time she told defendant's tenants, 2 Carlos and Filiae Carreto, the owners of an auto

          repair shop located in the property, not to pay the monthly rent under their lease to defendant,

          but instead to pay the rent to plaintiff. Defendant stated that the monthly rent was $3,000.

          Plaintiff did not have constructive possession of the property until September 3, 2013.

          Defendant also claimed:

                       "8. That by its demand for payment of rent, BANKFINANICAL, LLC [sic]

                  effectively prevented Defendants from paying the delinquent amounts due under the

                  Note.

                       9. That as a result of its wrongful demand for rent from Defendant's tenant, and

                  the resulting inability of Defendant to use the rent to bring the loan current, the

                  property was foreclosed and sold at the judicial sale to Plaintiff.

                       ***

                       11. That the allegations contained in this Affirmative Defense would have

                  allowed him to properly defend the foreclosure action and prevent the judicial sale

                  from proceeding."

¶ 22              Defendant also claimed that the court did not have personal jurisdiction over him,

          because he was not properly served in the foreclosure case.

¶ 23              On August 7, 2014, plaintiff filed a "response" (reply) to defendant's answer. In the

          "response," plaintiff denied wrongfully demanding rent from the tenant, but agreed that

          defendant failed to bring the loan current and that the property was sold at a judicial sale. In
              2
                Defendant's answer refers to the tenants as "his" tenants, however; they were actually
       tenants of the LLC.
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       No. 1-14-3956


           plaintiff's "response" it stated that rent from the tenants, paid to the receiver, was only $1,500

           a month.

¶ 24                              G. Plaintiff's Motion for Summary Judgment

¶ 25               On September 9, 2014, plaintiff filed a motion for summary judgment for count II of

           the complaint. In the motion, plaintiff stated that defendant's affirmative defense failed to

           create a genuine issue of material fact. Plaintiff claimed that pursuant to the loan documents,

           plaintiff was entitled to collect and receive rents "at any time, and even though no default

           shall have occurred." Plaintiff exercised those rights on February 27, 2013, when it informed

           the tenants of the auto shop of plaintiff's right to collect rent. 3 That right came from the

           mortgage, which stated "Lender shall have the right, without notice to Borrower or Grantor,

           to take possession of the Property and collect the Rents, including amounts past due and

           unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness.

           In furtherance of this right, Lender may require any tenant or other user of the Property to

           make payments of rent or use fees directly to Lender. *** Lender may exercise its right

           under this subparagraph either in person, by agent, or through a receiver."

¶ 26               In its motion, plaintiff also stated that the chancery court did have personal

           jurisdiction over defendant and the LLC because service by publication was used after

           numerous attempts to personally serve defendant and the LLC had failed. Further, plaintiff

           argued that a final judgment was entered, so it was improper for defendant to assert claims

           relative to count I.

               3
                 Plaintiff's motion for summary judgment states only that it informed the tenants of its
       right to collect rent. However, the letter sent to the tenants on February 27, 2013, does instruct
       the tenants to begin paying rent to plaintiff. Plaintiff does not claim in its motion for summary
       judgment that as a result of this letter the tenants ever paid rent to plaintiff. In plaintiff's response
       to defendant's answer, plaintiff does state that the receiver was paid rents by tenants, after being
       judicially appointed on September 3, 2013.
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       No. 1-14-3956


¶ 27                      H. Defendant's Response to Motion for Summary Judgment

¶ 28              On October 14, 2014, defendant filed a response to plaintiff's motion for summary

          judgment. In his response, defendant asserted that Illinois law required a receiver to be

          appointed by the foreclosure court before any rent could be collected on behalf of a creditor.

          Defendant asserted that plaintiff did not deny that it demanded rent from the property's

          tenants before a receiver was appointed. The response does not claim that the tenants ever

          paid this rent to plaintiff.

¶ 29              Defendant further claimed that he received a default notice from plaintiff on January

          9, 2013, which stated that the principal payment of the note was $795.71 behind. Defendant

          stated that within one week after plaintiff filed its complaint, on April 17, 2009, Gordana

          Jovanovic, representing plaintiff, arrived on the property and demanded that tenants pay rent

          to plaintiff. 4 This interference of defendant's landlord-tenant business relationship prevented

          tenant from paying the deficient amount of $795.71. 5

¶ 30              Finally, defendant claimed that through plaintiff's demand that the tenants pay it rent,

          plaintiff failed its duty to mitigate damages by interfering with defendant's ability to collect

          rent and reinstate the note.




              4
                 In defendant's answer and his response to the motion for summary judgment, defendant
       does not claim that the letter sent on February 27, 2013, instructing the tenants to pay their rent
       to defendant, was tortious interference. Defendant claims only that he had "difficulty" collecting
       rents from the tenants following Jovanovic's contact with the tenants in person after the
       complaint was filed on April 17, 2013.
               5
                 The letter being referred to actually listed defendant and the LLC as $8,555.92 behind
       on their payments, and gave defendant and the LLC until January 23, 2013, to bring the loan
       current. After April 17, 2013, once the complaint was filed, plaintiff accelerated the payments,
       pursuant to provisions in the mortgage and note, and the actual amount due was $279,122.43.
                                                        8
       No. 1-14-3956


¶ 31             An affidavit, signed by defendant, was attached to the response. In the affidavit,

          defendant stated "[t]hat the interference of Gordana Jovanovich [sic] made it difficult to

          collect the rent that was needed to reinstate the loan."

¶ 32             Defendant also attached a lease for the property to the response. The lease listed Z&B

          Properties, LLC, as the landlord of the property, not 5638 North Broadway, LLC. The lease

          listed Angel Gonzalez as the tenant, not the Carretos. The lease also terminated on May 31,

          2008, almost a year before plaintiff gave a loan to 5628 North Broadway, LLC.

¶ 33                          II. Hearing on the Motion for Summary Judgment

¶ 34             On December 23, 2014, the trial court heard arguments regarding the motion for

          summary judgment on count II of the complaint:

                       "THE COURT: You know, I read the papers. There's a defense pled that the bank

                 improperly collected rents when it didn't have possession—actual, constructive, or

                 otherwise—of the premises. And Illinois law does not permit that.

                       ***

                       PLAINTIFF'S COUNSEL: Right. They just make this allegation that an agent of

                 the bank went to the property and demanded those rents. But there's no allegation that

                 those rents were actually paid to the bank.

                       THE COURT: So if there's no allegation that the rents were actually paid, there's

                 no defense is what you're saying, I think.

                       ***

                       THE COURT: So paragraph 10 actually says that, quote, 'That the interference of

                 Gordana, last name spelled Jovanovich, [sic] made it difficult to collect the rent that

                 was needed to reinstate the loan.'

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No. 1-14-3956


                That kind of suggests that the tenant may not have actually paid the bank. It's

         ambiguous at best.

                PLAINTIFF'S COUNSEL: It is. And just to reiterate the timeline, your honor, this

         all occurred approximately three months after they were required to cure the default

         anyway.

                So the default was in existence, and the note had already been accelerated before

         any of these allegations even arise.

                THE COURT: So what am I to make of this allegation that Miss Jovanovich, of

         the bank, told the tenants to pay the bank and not the borrower?

                DEFENSE COUNSEL: Well, I think, as it's set out in the brief, that the

         defendants allege that that event occurred within a week of filing the complaint for

         the foreclosure. So there was no appointment of receiver. And she went in and said,

         you're to pay me now.

                THE COURT: Right. But what does it matter if there's no allegation that the

         tenants, in fact, paid the bank rather than the borrower?

                ***

                THE COURT: *** The only evidence that I have before me is an affidavit of the

         defendant in which he avers that a representative of the bank told the tenants to pay

         the bank rather than the borrower.

                But short of the tenants actually paying the bank, as opposed to the borrower, I

         don't know what you do with that defense. I don't know whether it's a legally

         cognizable defense. There's no authority that's been offered.

                ***

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       No. 1-14-3956


                       THE COURT: Is there any allegation that the tenants, in fact, did not pay the

                  borrower and that they paid the bank?

                       DEFENSE COUNSEL: I don't see that.

                       ***

                       THE COURT: Okay. Here's what I'm going to do.

                       It would appear to me that in order for the defense to be viable and the claim to be

                  viable—and, again, I'm talking about the defense of tortious interference and the

                  affirmative claim for tortious interference—the defendant would have to allege that

                  the tenants, in fact, did not pay the borrower and, instead, paid the bank as requested

                  by the bank. But I don't have that allegation here.

                       So I will grant the Plaintiff's Motion for Summary Judgement and deny the

                  Motion for Leave to File the Counterclaim."

¶ 35              The trial court granted plaintiff's motion for summary judgment, and entered

          deficiency judgments against defendant and the LLC in the amount of $91,524.21. This

          amount was based on $79,544.57 due under the promissory note, 6 and attorneys fees and

          costs. This appeal followed.

¶ 36                                              ANALYSIS

¶ 37              On appeal, defendant makes one claim: that the trial court erred in granting plaintiff's

          motion for summary judgment because defendant raised a genuine issue of material fact that

              6
                 Since interest was still accruing, the amount sought by plaintiff has steadily increased
       during the length of the litigation. On November 5, 2013, when plaintiff filed a motion with the
       chancery court to enter a deficiency judgment, plaintiff sought only $73,459.61, pursuant to the
       promissory note. On April 16, 2014, when plaintiff moved for a default judgment, plaintiff
       sought $77,771.14, pursuant to the promissory note. However, on December 23, 2014, when the
       trial court entered summary judgment, the order reflected $79,544.52 due under the promissory
       note. The accrual of interest explains the steady increase of these amounts.
                                                        11
       No. 1-14-3956


          supported his claim that plaintiff committed tortious interference with his ability to collect

          rent. For the following reasons, we do not find persuasive defendant's claim that the trial

          court erred in granting plaintiff's motion for summary judgment.

¶ 38                                          I. Standard of Review

¶ 39             Summary judgment is appropriate where the pleadings, depositions, and admissions

          on file, together with any affidavits and exhibits, when viewed in the light most favorable to

          the nonmoving party, indicate that there is no genuine issue of material fact and the moving

          party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012). When a

          court determines whether the moving party is entitled to summary judgment, the pleadings

          and evidentiary material in the record must be construed strictly against the movant. Happel

          v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002). We review a circuit court's decision on

          a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual

          Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo consideration means the reviewing court

          performs the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP,

          408 Ill. App. 3d 564, 578 (2011).

¶ 40              "Summary judgment is a drastic measure and should only be granted if the movant's

          right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual

          Insurance Co., 154 Ill. 2d 90, 102 (1992). "Mere speculation, conjecture, or guess is

          insufficient to withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc., 309 Ill.

          App. 3d 313, 328 (1999). The party moving for summary judgment bears the initial burden of

          proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The movant may meet its burden

          of proof either by affirmatively showing that some element of the case must be resolved in its

          favor or by establishing " 'that there is an absence of evidence to support the nonmoving


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       No. 1-14-3956


          party's case.' " Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S.

          317, 325 (1986)). To prevent the entry of summary judgment, the nonmoving party must

          present a bona fide factual issue and not merely general conclusions of law. Caponi v.

          Larry's 66, 236 Ill. App. 3d 660, 670 (1992). Therefore, while the party opposing the motion

          is not required to prove her case at the summary judgment stage, she must provide some

          factual basis to support the elements of her cause of action. Illinois State Bar Ass'n Mutual

          Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036 (2009); Ralston v. Casanova, 129 Ill.

          App. 3d 1050, 1059 (1984). On a motion for summary judgment, the court cannot consider

          any evidence that would be inadmissible at trial. Brown, Udell & Pomerantz, Ltd. v. Ryan,

          369 Ill. App. 3d 821, 824 (2006). Thus, the party opposing summary judgment must produce

          some competent, admissible evidence which, if proved, would warrant entry of judgment in

          her favor. Brown, Udell & Pomerantz, 369 Ill. App. 3d at 824. Summary judgment is

          appropriate if the nonmoving party cannot establish an element of her claim. Willett v.

          Cessna Aircraft Co., 366 Ill. App. 3d 360, 368 (2006). We may affirm on any basis appearing

          in the record, whether or not the trial court relied on that basis, and even if the trial court's

          reasoning was incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).

¶ 41                                        II. Tortious Interference

¶ 42             Defendant claims that the trial court erred in granting plaintiff's motion for summary

          judgment because defendant raised a genuine issue of material fact that supported his claim

          that plaintiff committed tortious interference with his ability to collect rents.

¶ 43             "Recovery under an action for tortious interference with a contractual relation

          requires that a plaintiff plead and prove (1) the existence of a valid and enforceable contract

          between the plaintiff and a third party, (2) that defendant was aware of the contract, (3) that


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       No. 1-14-3956


          defendant intentionally and unjustifiably induced a breach of the contract, (4) that the

          wrongful conduct of defendant caused a subsequent breach of the contract by the third party,

          and (5) that plaintiff was damaged as a result." Poulos v. Lutheran Social Services of Illinois,

          Inc., 312 Ill. App. 3d 731, 742 (2000) (citing Strosberg v. Brauvin Realty Services, Inc., 295

          Ill. App. 3d 17, 32-33 (1998)).

¶ 44             We first note that, on appeal, plaintiff claims that defendant cannot assert an

          affirmative defense of tortious interference because the property was owned by the LLC, and,

          therefore, defendant was not a party to any rental contract between the LLC and the tenants.

          Plaintiff also states that defendant has not provided a lease proving otherwise. However, we

          need not make a finding on whether defendant has standing to assert tortious interference,

          because his claim fails for other reasons.

¶ 45             Defendant's claim of tortious interference relies on Comerica Bank-Illinois v. Harris

          Bank Hinsdale, 284 Ill. App. 3d 1030 (1996). In Comerica Bank-Illinois, a mortgagor

          defaulted on its mortgage and the mortgagee, Comerica, began to exercise its assignment of

          rents, granted by the mortgagor as security for the loan, without foreclosing the mortgage,

          seeking the appointment of a receiver, or seeking approval from a court. Comerica Bank-

          Illinois, 284 Ill. App. 3d at 1031-32. Chicago Title and Trust Company, which had issued a

          second mortgage on the property, filed an action to foreclose on the second mortgage and a

          return of rents from Comerica. Comerica Bank-Illinois, 284 Ill. App. 3d at 1032. The trial

          court found that the rents properly belonged to the possessor of the property and returned the

          rents collected by Comerica to the mortgagor. Comerica Bank-Illinois, 284 Ill. App. 3d at

          1032. On appeal, the Appellate Court of the First District held that the assignment of rents

          agreement was against public policy, holding "[t]he possession requirement reflects the


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       No. 1-14-3956


          public policy in Illinois that seeks to prevent mortgagees from stripping the rents from the

          property and leaving the mortgagor and the tenants without resources for maintenance or

          repair." Comerica Bank-Illinois, 284 Ill. App. 3d at 1033 (citing In re J.D. Monarch

          Development Co., 153 B.R. 829 (Bankr. S.D. Ill. 1993), and re Michigan Avenue National

          Bank, 2 B.R. 171, 185-86 (Bankr. N.D. Ill. 1980)). The court then held that, even with an

          assignment of rents, a mortgagee must have actual or constructive possession of a property in

          order to collect rents. Comerica Bank-Illinois, 284 Ill. App. 3d at 1034. This constructive

          possession could be obtained through the judicial appointment of a receiver, but merely

          requesting the appointment of a receiver is not enough, the court must have actually ordered

          the appointment. Comerica Bank-Illinois, 284 Ill. App. 3d at 1035.

¶ 46              However, in the case at bar, plaintiff has shown " 'that that there is an absence of

          evidence to support the nonmoving party's case.' " Nedzvekas, 374 Ill. App. 3d at 624

          (quoting Celotex Corp., 477 U.S. at 325). Specifically, there is no evidence that defendant

          was damaged by the alleged tortious interference, or even that the tenants broke their contract

          with defendant by not paying rent. Poulos, 312 Ill. App. 3d at 742. The only evidence

          provided by defendant was his own affidavit where he stated that, after Jovanovic

          approached the tenants, it became "difficult" to collect the rent. However, defendant does not

          state in his affidavit that the tenants actually paid rent to plaintiff, or even that the tenants did

          not pay rent to defendant. Even if the rent was "difficult" to collect, if the tenants did pay

          defendant, then there was no breach of contract, no cognizable harm, and thus no tortious

          interference. Poulos, 312 Ill. App. 3d at 742. By not providing any support that the tenants

          actually paid plaintiff, or that they failed to pay defendant, defendant has not shown a factual




                                                         15
       No. 1-14-3956


          basis to support the elements of tortious interference. Illinois State Bar Ass'n Mutual

          Insurance Co., 392 Ill. App. 3d at 1036.

¶ 47             We also note that defendant claims that Jovanovic contacted the tenants within a

          week after plaintiff filed its complaint, and that her demand that the tenants pay rent to

          plaintiff prevented defendant from bringing the loan current. However, at that time,

          defendant no longer had the option of bringing the loan current. The opportunity to bring the

          loan current, referred to in the letter sent by plaintiff to defendant on January 9, 2013, had

          expired, and the total due from defendant was $279,122.43, not the $795.71 defendant claims

          was due. Thus, the idea that plaintiff could have used the rent from the period between when

          Jovanovic contacted the tenants and when the court appointed a receiver, approximately five

          months, to bring the loan current is not a bona fide factual issue. Caponi, 236 Ill. App. 3d at

          670. If defendant stated in his affidavit or provided documents showing that rents were paid

          to plaintiff, plaintiff still would have been entitled to summary judgment, but the deficiency

          judgment would have been lessened by the rent collected by plaintiff. See, e.g., Comerica

          Bank-Illinois, 284 Ill. App. 3d at 1035. Because these rents would not have allowed

          defendant to bring the loan current, even if defendant had provided an affidavit or documents

          showing the rents were not paid to him, which he failed to do, it would not warrant a

          judgment in his favor. Brown, Udell & Pomerantz, 369 Ill. App. 3d at 824.

¶ 48             For the foregoing reasons, we cannot find, as a matter of law, that the trial court erred

          in granting summary judgment to plaintiff. Outboard Marine Corp., 154 Ill. 2d at 102; 735

          ILCS 5/2-1005(c) (West 2012).




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       No. 1-14-3956


¶ 49                                         CONCLUSION

¶ 50             For the foregoing reasons, we do not find persuasive defendant's claim that the trial

          court erred in granting plaintiff's motion for summary judgment. We affirm.

¶ 51             Affirmed.




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