CitiMortgage, Inc. v. Moran

• Decision Date: 29 August 2014
• Docket Number: No. 1–13–2430.,1–13–2430.
• Parties: CITIMORTGAGE, INC., as Assignee of Union Federal Bank of Indianapolis, Plaintiff–Appellee, v. John B. MORAN, Defendant–Appellant (John J. Reid III, Camille Reid, and the United States of America, Defendants).
• Court: United States Appellate Court of Illinois

29 N.E.3d 50

CITIMORTGAGE, INC., as Assignee of Union Federal Bank of Indianapolis, Plaintiff–Appellee

v.John B. MORAN, Defendant–Appellant (John J. Reid III, Camille Reid, and the United States of America, Defendants).

No. 1–13–2430.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 29, 2014.

Rehearing Denied April 3, 2015.

Theodore A. Woerthwein, John Miller, and Ashley Schwartz, all of Woerthwein & Miller, of Chicago, for appellant.

Ira T. Nevel and Greg Elsnic, both of Law Offices of Ira T. Nevel, LLC, of Chicago, for appellee.

OPINION

Presiding Justice GORDON

delivered the judgment of the court, with opinion.

¶ 1 CitiMortgage, Inc., filed a complaint against John B. Moran (Moran)¹ , John J. Reid III, and Camille Reid, seeking to foreclose a mortgage after they failed to make payments due on a note given in exchange for a loan from Union Federal Bank of Indianapolis (Bank). Basically, Moran argues that CitiMortgage did not produce a valid assignment of the note and mortgage, and claims that the trial court: (1) “lacked the discretion to enter an order of default against Moran when Moran had a pending motion to dismiss”; (2) erred by not vacating the order of default; and (3) erroneously confirmed the sale and refused to vacate the confirmation of the sale. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Moran filed in his brief before this court a half-page statement of facts giving the dates that he filed a motion to dismiss, that CitiMortgage presented its motions for a default order and to deny Moran's motion to dismiss, that the order of default was entered, that Moran filed a motion to vacate and the trial court denied the motion, that the trial court confirmed the sale, and that the trial court denied Moran's motion to reconsider the confirmation of the sale. Moran failed to provide this court with a transcript of proceedings or a bystander's report. CitiMortgage in its response brief filed no statement of facts. The background of this case will be taken from the complaint filed by CitiMortgage and the pleadings.

¶ 4 On August 24, 2001, the Reid defendants and Moran borrowed $281,327 from the bank secured by a mortgage on residential property. The bank assigned the note and mortgage to a nominee of CitiMortgage, Inc.

¶ 5 On September 24, 2010, CitiMortgage filed a complaint to foreclose the mortgage against defendants alleging that they were in default in the amount of $243,363.18 in unpaid principal and interest. The complaint states that a “copy of the assignment of the Mortgage and Note is attached.” In the record on appeal, there is an assignment of the note and mortgage from the bank to a nominee of CitiMortgage, all of which was attached to the complaint. The assignment states that Union Federal Bank “does convey, grant, sell, assign, transfer and set over the described mortgage/deed of trust together with certain note(s) described therein” to Mortgage Electronic Registration Systems, Inc., “as nominee for CitiMortgage.”

¶ 6 On December 21, 2010, CitiMortgage filed a motion for an order of default against defendants for their failure to appear or otherwise plead. However, the record on appeal does not contain a resolution of that motion.

¶ 7 On June 30, 2011, CitiMortgage filed another motion for an order of default against defendants for their failure to appear or otherwise plead. Moran was granted until August 15, 2011, to file an appearance, answer or otherwise plead, but he did not file his appearance until August 17, 2011, and did so without leave of court.

¶ 8 On August 19, 2011, Moran filed a motion to dismiss the foreclosure complaint for lack of standing pursuant to section 2–619 of the Illinois Code of Civil Procedure

(735 ILCS 5/2–619 (West 2010) ), claiming that (1) CitiMortgage did not loan money to him and (2) that he received no assignment from Union Federal Bank because CitiMortgage did not have a valid assignment. However, Moran did not set the motion for a hearing.

¶ 9 On March 9, 2012, CitiMortgage moved for a hearing on Moran's motion to dismiss, claiming that Moran failed to call his motion for hearing within the designated time period under Rule 2.3 of the circuit court of Cook County rules. Rule 2.3 of the circuit court of Cook County places “[t]he burden of calling for hearing any motion previously filed * * * on the party making the motion. If any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying the motion by reason of the delay.” Cook Co. Cir. Ct. R. 2.3 (eff. July 1, 1976).

¶ 10 On May 4, 2012, the trial court entered an order of default against defendants and entered an order of foreclosure and sale. The record contains no evidence that Moran's motion to dismiss was adjudicated.

¶ 11 On June 4, 2012, Moran filed a motion to reconsider the default order and a motion to vacate the default under section 2–1301 of the Illinois Code of Civil Procedure

(735 ILCS 5/2–1301 (West 2010) ). Moran claimed that the trial court erroneously entered a default when his motion to dismiss was pending and that he was entitled to the opportunity to answer the complaint if the trial court denied his motion. The trial court denied the motion to reconsider and vacate on July 17, 2012.

¶ 12 On August 20, 2012, CitiMortgage filed a motion for an order confirming the sale, which occurred at a public auction on August 8, 2012, and for an order of possession against defendants. CitiMortgage was the highest bidder at the public auction and purchased the property for $298,064.52. On October 9, 2012, Moran filed a response to CitiMortgage's motion to confirm the sale, contesting the validity of the assignment and claiming that the “assignee of the Mortgage attached to the Complaint * * * is [Mortgage Electronic Registration Systems],” not CitiMortgage.

¶ 13 On October 30, 2012, the trial court entered an order confirming the sale and possession to CitiMortgage and found that all claims of the defendants were terminated under section 15–1509(c) of the Illinois Code of Civil Procedure

(735 ILCS 5/15–1509(c) (West 2010)).

¶ 14 On November 27, 2012, Moran filed a motion to reconsider the order confirming the sale, contesting the validity of the assignment and claiming that the “assignment is not to [CitiMortgage] but to [Mortgage Electronic Registration Systems] as nominee for Plaintiff.” Moran also admitted in his motion to reconsider the order confirming the sale that CitiMortgage “pled in Paragraph 3(n) of the Complaint that it is the holder of the Note * * * by virtue of an assignment attached to the Complaint as Exhibit C.” The trial court denied this motion on June 28, 2013. This appeal follows.

¶ 15 ANALYSIS

¶ 16 On appeal, Moran seeks reversal of: (1) the order of default entered on May 4, 2012; (2) the denial on July 17, 2012, of his motion to reconsider and vacate the order of default; (3) the confirmation of the sale on October 30, 2012; and (4) the denial on June 28, 2013, of his motion to reconsider the confirmation of the sale. He argues that the trial court erred: (1) because it lacked discretion to enter an order of default against him due to his pending motion to dismiss, (2) by not vacating the order of default, and (3) by erroneously confirming the sale and then not vacating it.

¶ 17 I. Jurisdiction

¶ 18 “[T]he order confirming the sale * * * operates as the final and appealable order in a foreclosure case.” EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11, 367 Ill.Dec. 474, 982 N.E.2d 152

. “At the hearing [to confirm the sale], a defendant may contest the sale's validity, though on limited grounds. [Citation.] Only after confirmation of the sale and payment of the purchase price may the purchaser obtain a deed.” EMC Mortgage Corp., 2012 IL 113419, ¶ 40, 367 Ill.Dec. 474, 982 N.E.2d 152.

¶ 19 Moran appeals from the denial of his motion to reconsider the confirmation of sale pursuant to Illinois Supreme Court Rule 301

(eff. Feb. 1, 1994), which provides that “[e]very final judgment of a circuit court in a civil case is appealable as of right.”

¶ 20 Therefore, this court has jurisdiction pursuant to Illinois Supreme Court Rule 301

to review (see DLJ Mortgage Capital, Inc. v. Frederick, 2014 IL App (1st) 123176, ¶¶ 1–3, 382 Ill.Dec. 499, 12 N.E.3d 778 ): (1) the order of default entered on May 4, 2012; (2) the denial on July 17, 2012, of Moran's motion to reconsider and vacate the order of default; (3) the confirmation of the sale on October 30, 2012; and (4) the denial on June 28, 2013, of Moran's motion to reconsider the confirmation of the sale.

¶ 21 II. Standard of Review

¶ 22 Moran contests the trial court's order of default and order of confirmation. We review the entry of the order of default for abuse of discretion or denial of substantial justice. Jackson v. Bailey, 384 Ill.App.3d 546, 548, 323 Ill.Dec. 266, 893 N.E.2d 280 (2008)

. “[A]n order of default is simply an interlocutory order that precludes the defaulting party from making any additional defenses to liability but in itself determines no rights or remedies.” Fidelity National Title Insurance Co. of New York v. Westhaven Properties Partnership, 386 Ill.App.3d 201, 211, 325 Ill.Dec. 772, 898 N.E.2d 1051 (2007). An order of default “may be entered for want of an appearance, or for failure to plead” (735 ILCS 5/2–1301(d) (West 2010)) and is within the sound discretion of the circuit court to enter (Wilkin Insulation Co. v. Holtz, 186 Ill.App.3d 151, 155, 134 Ill.Dec. 157, 542 N.E.2d 157 (1989) ).

¶ 23 Courts have applied different standards when reviewing a vacation of an order of default. In Jackson, we held that “[w]hether to grant or deny a motion under section 2–1301

is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion or a denial of substantial justice.” Jackson, 384 Ill.App.3d at 548, 323 Ill.Dec. 266, 893 N.E.2d 280. Similarly, in Venzor v. Carmen's Pizza Corp., ...