HSBC Bank USA, NA v. Howey et al

Filing 36

MOTION by Plaintiff HSBC Bank USA, NA for judgment with Damages (Attachments: # 1 Affidavit of Debt by Donovan L. Pitterson, # 2 Affidavit of Attorney Fees by Julia M. Bochnowski)(Bochnowski, Julia)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HSBC BANK USA, N.A., AS INDENTURE
TRUSTEE FOR THE REGISTERED
NOTEHOLDERS OF RENAISSANCE HOME
EQUITY LOAN TRUST 2007-2
PLAINTIFF
VS.

CASE NUMBER:1:12-cv-3321
DISTRICT JUDGE: Charles R. Norgle, Sr.

PAUL D. HOWEY, CHICAGO TITLE AND TRUST MAGISTRATE JUDGE: Martin C. Ashman
COMPANY, AN ILLINOIS CORPORATION,
JPMORGAN CHASE BANK, NA, SUCCESSOR IN
INTEREST TO GREAT WESTERN BANK,
KAREN HOWEY,
DEFENDANT(S).
PLAINTIFF’S MOTION FOR ENTRY OF JUDGMENT WITH DAMAGES
Plaintiff, by counsel, for its Motion for Entry of Judgment with Damages, states as follows:
1. Judgment Affidavit Establishes the Facts Stated Therein and that Defendant is Indebted to
Plaintiff in the amount of $280,638.48.
Plaintiff’s Affidavit of Debt itemizes that amounts that Plaintiff claims are due and owing under
the Note and Mortgage, including the unpaid principal balance, escrow charges for taxes and
insurance disbursed by Plaintiff on behalf of Defendant1, late charges2, interest on the unpaid
principal balance at the rate of 10.34%3, and other reimbursable advances made by Plaintiff including
property inspections, property valuations, costs of title searches and costs of certified mailings to the
Defendants4.
Plaintiff’s Affidavit of Debt includes proof that the records that the affiant reviewed were made
at or near the time of the transactions and kept in the ordinary course of the business activity
regularly conducted by the loan servicer and that it is its regular practice to make and keep those
records.5 This meets the requirements to admit the records as a hearsay exception under Rule 803(6).
There is no requirement that the affiant be the “maker” of the records.6 He has attached a “print-out
1

Doc. #1-3, ¶ 1, 3.
Doc. #1-4, ¶ 6(A)
3
Doc. #1-4, ¶ 2
4
Doc. #1-4, ¶ 6(E) and Doc. #1-3, ¶ 9.
2

5

Doc. #17-3, P. 1.
See United States v. Rose, 562 F.2d 409, 410 (7th Cir. 1977) (“We reaffirmed an earlier decision of this
court in Peter Ekrich and Sons, Inc. v. Selected Meat Co., 7 Cir., 512 F.2d 1158 (1975) when we held that
“ . . . the person who makes the records need not testify.” Id. at 1159. Further, Rule 803(6) of the Federal
Rules of Evidence refers only to “the custodian or other qualified witness” without any suggestion that the
foundation for introduction of a record must be laid by its maker.”).
6

generated from Ocwen Loan Servicing, LLC (the servicer and attorney-in-fact for Plaintiff)’s
regularly maintained Servicing Records pertaining to Defendant’s account,” along with the actual
attachment that designates P. Howey by name and includes his loan number and a summary of
amounts due. This shows sufficient familiarity with Defendants’ loan and a connection between the
facts of the affidavit and the supporting Servicing Records.
2. Plaintiff is Also Entitled to Recover Attorney’s Fees and the Costs Required to
Prosecute this Action and Preserve its Interests in the Amount of $2,255.50.
The Note and Mortgage provide that, in the event of default, the Plaintiff is entitled to recover the
attorney’s fees and costs necessary to protect its interests in the property. 7 Plaintiff incurred costs in
protecting and prosecuting this action, including a $285.00 cost for hiring a special process server to
serve the Defendant’s in this action with the Summons and Complaint, a $350.00 filing fee, $70.50
recording fees for the recording of an Assignment of the Mortgage and a Lis Pendens, and $1,550.00
attorney’s fees as broken down in the Amended Affidavit of Attorney Fees.
WHEREFORE, Plaintiff, by counsel, respectfully requests that the Court enter a Judgment of
Foreclosure including damages in the amount of $282,893.98.
Respectfully submitted,
By: _____/s/ Julia M. Bochnowski
JULIA M. BOCHNOWSKI #6301499
Burke Costanza & Carberry LLP
150 N. Michigan, 8th Floor, Chicago, IL 60601
[phone]
CERTIFICATE OF SERVICE
I certify that on the 11th day of October, 2013, service of a true and complete copy of the
above and foregoing pleading or paper was made upon each party or attorney of record herein by
depositing the same in the United States Mail in envelopes properly addressed to each of them and
with sufficient first class postage affixed.
Service List
Christopher S. Fowler
Crowley & Lamb, PC
221 N. LaSalle St., Ste. 1550
Chicago, IL 60601
Chicago Title and Trust Company, an Illinois Corporation
c/o C T Corporation System
208 S. LaSalle St., Suite 814
Chicago, IL 60604
JPMorgan Chase Bank, NA
1111 Polaris Parkway
Columbus, OH 43240

7

Doc. #1-4, ¶ 6(E) and Doc. #1-3, ¶ 9

2