BAC Home Loans Servicing, LP v. Popa
| Decision Date | 31 March 2015 |
| Docket Number | No. 1–14–2053.,1–14–2053. |
| Citation | 30 N.E.3d 611 |
| Parties | BAC HOME LOANS SERVICING, LP, f/k/a, Countrywide Home Loans Servicing, LP, Plaintiff–Appellee, v. Michael E. POPA, Ligia Carmen Popa, 134–60 Glencoe Condominium Association, Unknown Owners and Nonrecord Claimants, Defendants–Appellants. |
| Court | United States Appellate Court of Illinois |
30 N.E.3d 611
BAC HOME LOANS SERVICING, LP, f/k/a, Countrywide Home Loans Servicing, LP, Plaintiff–Appellee
v.
Michael E. POPA, Ligia Carmen Popa, 134–60 Glencoe Condominium Association, Unknown Owners and Nonrecord Claimants, Defendants–Appellants.
No. 1–14–2053.
Appellate Court of Illinois, First District, Fifth Division.
March 31, 2015.
Cody J. Cocanig, of Winston & Strawn, LLP, of Chicago, for appellants.
Stephen D. Richek, of Chicago, for appellee.
OPINION
Justice McBRIDE delivered the judgment of the court, with opinion.
¶ 1 Plaintiff BAC Home Loans Servicing, LP (BAC), filed a complaint to foreclose mortgage against defendants Michael Popa and Ligia Popa pursuant to the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15–1101 et seq. (West 2012)) in September 2010. In December 2013, the circuit court granted BAC's motion for summary judgment and in June 2014, the circuit court granted BAC's motion for an order approving the report of sale and distribution and order for possession and eviction over Michael's objection. On appeal, defendants contend: (1) the circuit court erred by denying Michael's motion to vacate summary judgment; and (2) the circuit court erred by granting BAC's motion for an order approving the report of sale and distribution and an order for possession and eviction. We affirm.
¶ 2 In September 2010, BAC filed its complaint to foreclose mortgage against defendants and the 134–60 Glencoe Condominium Association (Condo Association), unknown owners, and nonrecord claimants. In the complaint, BAC alleged as follows: on November 20, 2007, defendants, as the mortgagors, executed a mortgage in the amount of $180,000 to Mortgage Electronic Registration Systems, Inc. (MERS), “as
nominee for Countrywide Bank, FSB,” for the property commonly known as 148 Green Bay Road, unit 2 in Glencoe, Illinois (Property). BAC further alleged that it was the legal holder of the mortgage and note and that defendants were in default for not making the monthly payments beginning in May 2010 through the present. BAC requested that a judgment of foreclosure and sale be entered against defendants.
¶ 3 Copies of the mortgage and note were attached to the complaint. The mortgage defined defendants as the borrowers, Countrywide Bank, FSB, as the lender, and MERS as the mortgagee “acting solely as a nominee for Lender and Lender's successors and assigns.” The mortgage was signed by both defendants, notarized on November 20, 2007, and recorded with the Cook County recorder of deeds on November 28, 2007.
¶ 4 According to the affidavit of the special process server, Ligia was served with summons and a copy of the complaint on October 12, 2010, and Michael was served by substitute service through Ligia on the same day.
¶ 5 On February 1, 2012, BAC filed a motion for order of default against defendants and the Condo Association and a motion for judgment for foreclosure and sale.
¶ 6 On March 9, 2012, Joel S. Alpert, as an attorney, filed his appearance on defendants' behalf and defendants' answer and affirmative defenses in response to BAC's complaint.
¶ 7 On March 15, 2012, BAC filed a motion for summary judgment, arguing that the responsive pleading filed by defendants failed to raise a genuine issue of material fact and that the pleadings on file and the affidavits submitted by BAC entitled BAC to judgment as a matter of law. BAC also responded to defendants' affirmative defenses, arguing that they were unsupported and conclusory and therefore “completely insufficient to establish the existence of an issue of material fact.” Attached to the motion was an assignment of mortgage, which stated that MERS, “as nominee for Countrywide Bank, FSB, its successors and/or assigns” did thereby “assign, transfer, convey without warranties and without recourse; set over and deliver” to BAC, its successors and assigns, the mortgage on the Property prior to September 15, 2010. The assignment was notarized on September 24, 2010, and recorded with the Cook County recorder of deeds on October 4, 2010.
¶ 8 On November 25, 2013, BAC filed a motion for judgment for foreclosure and sale, as well as a notice of motion for its motions for summary judgment and for judgment of foreclosure and sale (first notice). The notice stated that on December 17, 2013, BAC's counsel would appear before the judge in courtroom 2806 at the Daley Center and would move for an entry of an order of summary judgment, default, and judgment of foreclosure and sale. The notice also indicated that it had been mailed to defendants at the Property with proper postage prepaid.
¶ 9 On December 5, 2013, BAC filed a second notice of motion for its motions for summary judgment, judgment of foreclosure and sale (second notice). The second notice stated that on December 17, 2013, BAC's counsel would appear before the judge in courtroom 2806 at the Daley Center at 9:30 a.m. and would move for an entry of an order of summary judgment, default, and judgment of foreclosure and sale. The notice also indicated that on December 5, 2013, the notice was mailed to defendants at the Property with proper postage prepaid.
¶ 10 On December 17, 2013, the circuit court entered: an order of summary judgment in favor of BAC and against defendants; an order of default against the Condo Association, which also dismissed unknown owners and non-record claimants as parties; and a judgment for foreclosure and sale in the amount of $233,608.16, which included the principal, accrued interest, advances, and other amounts due to BAC ($215, 808.46), additional interested accrued from July 11, 2012 to December 17, 2013 at the rate of 27.72 per diem ($14,487.70), cost of the suit ($937) and attorney's fees ($2375).
¶ 11 On December 27, 2013, Leading Legal LLC filed its appearance on behalf of Michael and also filed a motion to vacate the summary judgment order pursuant to section 2–1301 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1301 (West 2012) ). In it, Michael alleged that notice for the motion for summary judgment, default, and judgment of foreclosure and sale were sent to defendants, but not to Joel Alpert, “who was the Attorney of record in the case despite being suspended.” Michael further alleged that the envelope in which the notice was sent was too large for his mail box and he was “advised by the post office to come and pick it up on 12/18/13.” Michael argued that notice had not been sent properly and was not received by the parties and, as a result, asked the court to enter an order vacating the summary judgment order.
¶ 12 On January 10, 2014, the circuit court denied Michael's motion.
¶ 13 On April 1, 2014, BAC filed a motion for order approving the report of sale and distribution and for possession. In it, BAC indicated that the property was sold on March 19, 2014, for $239,009.89. Attached to the motion was the report of sale, which noted: the amount due under the judgment ($233,608.16); the interest thereon calculated from the date the judgment of foreclosure was entered, December 17, 2013, through the date of sale, March 19, 2014, at 9% per annum ($5,245.50); publication costs ($575); and postjudgment advances not included in the judgment, including tax ($2,476.92), property preservation ($202), and mortgage insurance ($173.22).
¶ 14 On April 2, 2014, Leading Legal LLC filed its appearance on behalf of Ligia and also filed a motion to vacate the default judgment, which the circuit court denied on April 25, 2014, because an order for summary judgment, not default, had been entered against her.
¶ 15 On May 20, 2014, Michael filed a response in opposition to BAC's motion for an order approving the report of sale, arguing that the motion to confirm sale should be denied because BAC included taxes which it was not entitled to recover in the report of sale and that BAC improperly calculated the postjudgment interest rate in the report of sale at the rate pursuant to section 2–1303 of the Code (735 ILCS 5/2–1303 (West 2012) ) instead of at the rate of interest pursuant to the note.
¶ 16 On June 17, 2014, the circuit court granted BAC's motion for an order approving the report of sale and distribution and confirming the sale and order of possession (confirmation of sale).
¶ 17 On appeal, defendants first argue that the circuit court erred in denying Michael's motion to vacate summary judgment. Specifically, defendants contend that the circuit court's denial of Michael's motion was in error because they were denied due process where: the notice of the motion was not sent to the attorney of record, Joel Alpert; the notice did not indicate whether it was mailed first class; and the notice was too large for defendants
mailbox, requiring Michael to retrieve it from the post office.
¶ 18 We review the question of whether a court properly denied a motion to vacate for an abuse of discretion. Standard Bank & Trust Co. v. Madonia, 2011 IL App (1st) 103516, ¶ 8, 357 Ill.Dec. 755, 964 N.E.2d 118 ; see also Deutsche Bank National v. Burtley, 371 Ill.App.3d 1, 5–6, 308 Ill.Dec. 510, 861 N.E.2d 1075 (2006) (finding that a de novo...
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