Aurora Loan Servs., LLC v. Pajor

• Decision Date: 16 July 2012
• Docket Number: No. 2–11–0899.,2–11–0899.
• Citation: Aurora Loan Servs., LLC v. Pajor, 2012 IL App (2d) 110899, 973 N.E.2d 437, 362 Ill.Dec. 337 (Ill. App. 2012)
• Parties: AURORA LOAN SERVICES, LLC, Plaintiff–Appellee, v. Jadwiga PAJOR, Defendant–Appellant (Bogdan Pajor, Harris National Association, f/k/a Harris Trust and Savings Bank, Mortgage Electronic Registration Systems, Inc., as Nominee for First Magnus Financial Corporation, Unknown Occupants, Unknown Owners, and Nonrecord Claimants, Defendants).
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 110,899

973 N.E.2d 437

362 Ill.Dec. 337

AURORA LOAN SERVICES, LLC, Plaintiff–Appellee,

v.Jadwiga PAJOR, Defendant–Appellant (Bogdan Pajor, Harris National Association, f/k/a Harris Trust and Savings Bank, Mortgage Electronic Registration Systems, Inc., as Nominee for First Magnus Financial Corporation, Unknown Occupants, Unknown Owners, and NonrecordClaimants, Defendants).

No. 2–11–0899.

Appellate Court of Illinois, Second District.

July 16, 2012.

Lucas M. Fuksa, Thomas D. Carroll, Fuksa Khorshid LLC, Chicago, for appellant.

Ralph T. Wutscher, Jeffrey T. Karek, McGinnis Tessitore Wutscher LLP, Chicago, for appellee.

OPINION

Justice SCHOSTOKdelivered the judgment of the court, with opinion.

[362 Ill.Dec. 338]¶ 1The defendant, Jadwiga Pajor, appeals the denial of her petition under section 2–1401 of the Code of Civil Procedure(Code)(735 ILCS 5/2–1401(West 2010)), in which she sought vacatur of a judgment of an order of possession in favor of the plaintiff, Aurora Loan Services, LLC(Aurora).Pajor asserts that the trial court erred when it denied the petition on the basis that she had not sufficiently shown diligence.She further argues that Aurora's alleged failure to comply with section 15–1502.5 of the Code (735 ILCS 5/15–1502.5(West 2010))(as it applies to notice of a grace period) caused the subsequent proceeding to be “invalid under Illinois law.”We hold that Pajor's section 2–1401 petition was of the type authorized by Collins v. Collins,14 Ill.2d 178, 151 N.E.2d 813(1958), and therefore was not subject to the requirement to show diligence.However, because the alleged violation of section 15–1502.5 did not, under the facts established in the record, invalidate the foreclosure action, the trial court did not err in denying her petition.

¶ 2 I. BACKGROUND

¶ 3 Pajor fell behind in paying the mortgage on her home at 201 East Foster Avenue in Roselle.The original holder of the mortgage on the property was First Magnus Financial Corporation.On April 22, 2010, Aurora filed a complaint for foreclosure on the property.Aurora identified itself as the assignee of Mortgage Electronic Registration Systems, Inc.(MERS), which in turn was nominee for First Magnus.The complaint's exhibits included a “Corporate Assignment of Mortgage” from MERS to Aurora dated July 22, 2009, and a “grace period notice” mailed by Aurora to Pajor dated April 21, 2009.Pajor does not dispute that she received the grace-period notice more than 30 days before the foreclosure action was filed.

¶ 4 The record on appeal contains a notice filed July 23, 2010, of a chapter 7(11 U.S.C. § 701 et seq.(2006)) bankruptcy filing by Pajor and her husband, Bogdan Pajor.According to the notice, the Pajors filed for protection on July 15, 2010, and had counsel in the bankruptcy.In response to the Pajors' bankruptcy filing, the foreclosure case was repeatedly continued.

¶ 5 On February 14, 2011, Aurora moved for entry of a default judgment of foreclosure and for an order for sale.The court entered judgment on February 18, 2011.

¶ 6 On May 19, 2011, Aurora filed a motion for approval of the report of the sheriff's sale and distribution and for an order of possession.The same day, the court denied the Pajors' motion to stay the sheriff's sale.The colloquy at the hearing implies that there was a written motion, but no copy of the motion appears in the record.No one appeared for the Pajors on this motion, and Aurora told the court that the Pajors' attorney had said that he would not be going forward with the motion.The transcript of the hearing that day shows that Aurora represented that the Pajors' motion was based on a proposal for a short sale that Aurora did not intend to accept.

¶ 7 On June 6, 2011, the court approved the report of sale.The report showed a deficiency of $208,499.51, described as in rem, suggesting that the Pajors had discharged the in personam obligation in the bankruptcy.

¶ 8 On August 10, 2011, the court entered an order denying Pajor's “Motion to Vacatethis court's Order of June 6, 2011.”However, the record does not contain a copy of this motion.A transcript of the hearing on the motion makes clear that Aurora and the court each had a copy of the filing.The argument and discussion also show that Pajor asserted that cancer treatment had delayed her in responding to the foreclosure.Further, the discussion shows that she asserted that Aurora had violated section 15–1502.5 of the Code.Section 15–1502.5 requires a “mortgagee” to send mortgagors a notice of the existence of a grace period at least 30 days before it files a foreclosure suit.Aurora's exhibits to the complaint show that it had sent the notice before it was formally the assignee of the mortgage.Pajor argued that, “based on the uncertainty regarding the grace period in light of the assignment,” Aurora had not “followed the proper procedure in bringing this action to judgment.”

¶ 9The court ruled against Pajor on the basis that she had not acted with sufficient diligence.It noted that the Pajors had had the benefit of counsel for the bankruptcy and that the deficiency was in rem only.The court also noted that someone had been present for the Pajors on the day it “approv[ed] the sale date” and that it had given the Pajors additional time for possession.Pajor filed a timely notice of appeal.

¶ 10 II.ANALYSIS

¶ 11 On appeal, Pajor argues that the trial court erred in denying her motion to vacate(which the parties agree should be viewed as a petition under section 2–1401 of the Code) because she was diligent and had a meritorious defense.Specifically, Pajor contends that section 15–1502.5 requires the “mortgagee” to send the notice of grace period before commencing a foreclosure action, that Aurora was not the mortgagee when it sent the notice and was thus incapable of sending an effective notice, and that, without effective notice, the proceedings were unauthorized.Aurora responds that Pajor did not adequately show either diligence or a meritorious defense.

¶ 12 Before considering these arguments, we pause to resolve an issue regarding the record on appeal.As noted, the record on appeal does not contain a copy of Pajor's petition.In an effort to remedy this lack, Pajor has included an alleged copy of that petition in the appendix to her brief.She did not move for leave to supplement the record on appeal, however, and so the inclusion of the petition was improper.MJ Ontario, Inc. v. Daley,371 Ill.App.3d 140, 150–51, 308 Ill.Dec. 596, 861 N.E.2d 1161(2007).We therefore do not consider the improperly appended material.Nevertheless, the record adequately conveys the arguments raised by Pajor in her petition and the trial court's rulings.Thus, we reject Aurora's contention that, lacking a proper copy of the petition, we must presume that the trial court's rulings had a sufficient legal and factual basis.Instead, we examine the merits of the parties' arguments.

¶ 13We start by noting that Pajor bases her claim of a meritorious defense on documents that Aurora filed with its complaint.Under the most familiar section 2–1401 standard, a proper petition “ ‘serves to bring before the court that rendered judgment “facts not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition.” ’ ”In re Marriage of Johnson,339 Ill.App.3d 237, 241, 273 Ill.Dec. 949, 790 N.E.2d 91(2003)(quotingIn re Marriage of Broday,256 Ill.App.3d 699, 705, 195 Ill.Dec. 326, 628 N.E.2d 790(1993), quotingIn re Marriage of Travlos,218 Ill.App.3d 1030, 1035, 161 Ill.Dec. 621, 578 N.E.2d 1267(1991)).Under this standard, Pajor's petition (both as she describes it on appeal and as the transcripts imply that it was) would fail because it was not based on new facts.However, as we will explain, section 2–1401 also allows relief based on errors of law apparent on the face of the record.This section 2–1401 theory encompasses the kind of claim that Pajor has made.Nevertheless, even assuming for the sake of argument that Aurora's section 15–1502.5 notice was technically defective, that defect would not preclude entry of the judgment of foreclosure and related judgments under the facts shown in the record here.Therefore, there was no error on the face of the record, and Pajor's claim for relief could not succeed under this second theory.

¶ 14Section 2–1401, Illinois's primary statutory source for relief from final judgments, has an unusual structure in that it sets out no standards for the availability of relief.Instead, it adopts the standards for relief under a heterogeneous collection of old forms of action:

“(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section.Writs of error coram nobis and coram vobis, bills of review and bills in the nature of bills of review are abolished.All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered.Except as provided in Section 6 of the Illinois Parentage Act of 1984, there shall be no distinction between actions and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief or the relief obtainable.

* * *

(f) Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.”735 ILCS 5/2–1401(a), (f)(West 2010).

Because of the section's structure, “to know the scope of the section, one needs to know the scope of the old forms of action.”Hanson v. De Kalb County State's Attorney's Office,391 Ill.App.3d 902, 908, 330 Ill.Dec. 881, 909 N.E.2d 903(2009).

¶ 15 Current...