Deutsche Bank Nat'l Trust Co. v. Ivicic

• Decision Date: 23 December 2015
• Docket Number: No. 2–14–0970.,2–14–0970.
• Citation: 46 N.E.3d 395
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the Indymac INDX Mortgage Trust 2007–AR17, Mortgage Pass–Through Certificates, Series 2007–AR17 Under the Pooling and Servicing Agreement Dated June 1, 2007, Plaintiff, v. Steve IVICIC, the United States of America, and Woodcreek of Clarendon Hills Condominium Association, Inc., Defendants (Law Offices of Ira T. Nevel, LLC, Appellant; Steve Dweydari, Intervenor–Appellee).
• Court: United States Appellate Court of Illinois

46 N.E.3d 395

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the Indymac INDX Mortgage Trust 2007–AR17, Mortgage Pass–Through Certificates, Series 2007–AR17 Under the Pooling and Servicing Agreement Dated June 1, 2007, Plaintiff

v.Steve IVICIC, the United States of America, and Woodcreek of Clarendon Hills Condominium Association, Inc., Defendants (Law Offices of Ira T. Nevel, LLC, Appellant; Steve Dweydari, Intervenor–Appellee).

No. 2–14–0970.

Appellate Court of Illinois, Second District.

Dec. 23, 2015.

Ira T. Nevel, of Law Offices of Ira T. Nevel, LLC, Chicago, for appellant.

Jack Kozar, Jay D. Kostecki, and Justin J. Shlensky, all of Kozar Law Office, LLC, Elmhurst, for appellee.

OPINION

Presiding Justice SCHOSTOK

delivered the judgment of the court, with opinion.

¶ 1 This case arises from a mortgage foreclosure action. After the property was sold at a sheriff's sale, the plaintiff, Deutsche Bank National Trust Company, filed a motion in the circuit court of Du Page County to vacate the sale. The trial court granted the motion. Steve Dweydari, the high bidder at the sheriff's sale, then filed motions (1) to intervene; (2) to reconsider the order vacating the sale; and (3) for sanctions against the plaintiff's attorneys, the Law Offices of Ira T. Nevel (Nevel), for filing a false pleading. The trial court denied Dweydari's motions to intervene and to reconsider its prior order. However, the trial court granted Dweydari's motion for sanctions. Nevel appeals from that order. For the reasons that follow, we reverse.

¶ 2 BACKGROUND

¶ 3 On November 2, 2012, the plaintiff filed a complaint to foreclose a mortgage against the defendants, Steve Ivicic, the United States of America (which had a tax lien on the property), and Woodcreek of Clarendon Hills Condominium Association, Inc. (Woodcreek). On February 13, 2013, after the trial court entered judgment against the United States, and after Ivicic and Woodcreek defaulted, the trial court entered a judgment of foreclosure in the plaintiff's favor. A sheriff's sale was scheduled for June 4, 2013. However, the June 4, 2013, sheriff's sale never took place as it was canceled by the plaintiff just before the sale. The sale was eventually rescheduled.

¶ 4 On January 23, 2014, the property was sold at a sheriff's sale to Dweydari. He bid one dollar over the plaintiff's opening bid of $112,500.

¶ 5 On January 28, 2014, the plaintiff filed a motion to vacate the sale. In its motion, the plaintiff stated:

“In preparation for the January 23, 2014 sale, Plaintiff submitted publication notices and other documents concerning the originally-set June 4, 2013 sale. Accordingly, the amount due pursuant to the judgment and proof that notice of the sale was given in accordance with 735 ILCS 5/15–1507

were not accurate.”

The plaintiff further asserted that, pursuant to Household Bank, FSB v. Lewis, 229 Ill.2d 173, 181, 322 Ill.Dec. 15, 890 N.E.2d 934 (2008)

, a plaintiff is ordinarily the master of its cause of action and therefore is entitled to vacate a sale prior to the trial court's confirmation of that sale. On February 7, 2014, the trial court granted the plaintiff's motion to vacate the sale.

¶ 6 On March 3, 2014, Dweydari filed a motion to intervene and a motion to reconsider the order vacating the January 23, 2014, sheriff's sale. Dweydari asserted that he should be allowed to intervene to protect his interests as the successful bidder at the sheriff's sale. He also argued that the sale should not have been vacated, because “mere inadequacy of price is not a sufficient reason to disturb a judicial sale.”

¶ 7 On March 7, 2014, at a status hearing, the plaintiff indicated that its justification for vacating the sale was that the documents it submitted for the sale were related to the canceled June 4, 2013, sheriff's sale, not the January 23, 2014, sheriff's sale. The plaintiff indicated that its desire to vacate the sale had “nothing to do with the sale price.”

¶ 8 On March 28, 2014, at a hearing on Dweydari's motion to intervene and motion to reconsider, the plaintiff indicated that some of the documents sent to the sheriff's office in anticipation of the January 23, 2014, sheriff's sale were proper (the notice) but others were not (the opening bid amount). In response, the trial court ordered the plaintiff to file a response to Dweydari's motion to reconsider. The trial court explained that it wanted to know the plaintiff's actual justification for seeking to vacate the sheriff's sale.

¶ 9 On April 4, 2014, the plaintiff filed a response, attaching a copy of the bid package for the canceled June 4, 2013, sheriff's sale that the plaintiff erroneously sent for the January 23, 2014, sale.

¶ 10 On April 9, 2014, Dweydari filed a motion for sanctions against the plaintiff pursuant to Illinois Supreme Court Rule 137

(eff. July 1, 2013). Dweydari asserted that the plaintiff had given contradictory justifications for vacating the sale. He argued that the plaintiff's abuse of the judicial process had caused him to incur needless attorney fees, including those to prepare and file a response to the plaintiff's “frivolous motion to vacate the sale.” He asserted that, because the plaintiff's motion to vacate was not grounded in fact or law, he should be awarded attorney fees of $4,500.

¶ 11 On April 17, 2014, following a hearing, the trial court denied both Dweydari's motion to intervene and his motion to reconsider. The trial court explained that it had properly granted the plaintiff's motion to vacate the sale, because the plaintiff had presented sufficient evidence that it “came in with a bid from a prior Sheriff's Sale, didn't update that bid; and, ultimately, the bid was lower than what should have been made.” The trial court scheduled Dweydari's motion for sanctions for a hearing on May 29, 2014.

¶ 12 On May 8, 2014, the plaintiff filed a response to Dweydari's motion for sanctions. The plaintiff argued that, since the trial court had denied Dweydari's motion to intervene, he was not a party to the case and therefore was not entitled to sanctions. The plaintiff further argued that certain documents related to a foreclosure are filed in the clerk's office but are not necessarily filed with the sheriff's office. Thus, its assertion that the proper documents had not been submitted to the sheriff's office was not contradicted by the fact that the proper documents were in the clerk's file. Thus, its motion to vacate the sale did not contain a false assertion.

¶ 13 On May 29, 2014, the trial court conducted a hearing on Dweydari's motion. The trial court sua sponte reconsidered its April 17, 2014, order. The trial court entered a written order providing that its prior order was “hereby amended nunc pro tunc thereby granting Steve Dweydari leave to intervene.” The trial court then granted Dweydari's motion for sanctions. The trial court explained that the plaintiff's initial justification for vacating the sale was that the publication notice was improper. However, a review of the court file indicated that the publication notice was fine. The trial court found that this constituted a frivolous pleading, warranting the imposition of sanctions against Nevel. The trial court then set the matter for a prove-up.

¶ 14 On July 11, 2014, the trial court imposed as a sanction against Nevel and in favor of Dweydari the amount of attorney fees incurred by Dweydari, $4,500. Nevel subsequently filed a motion to reconsider.

Following the denial of its motion to reconsider, Nevel filed a timely notice of appeal.

¶ 15 ANALYSIS

¶ 16 Nevel's first contention on appeal is that the trial court erred when it sua sponte reconsidered and changed its decision so as to allow Dweydari to intervene in the proceedings. The plaintiff argues that the trial court improperly used a nunc pro tunc order to alter its prior order.

¶ 17 The purpose of a nunc pro tunc order is “ ‘to supply some omission in the record of an order which was really made but omitted from the record.’ ” Gill v. Gill, 56 Ill.2d 139, 142, 306 N.E.2d 281 (1973)

(quoting People v. Rosenwald, 266 Ill. 548, 554, 107 N.E. 854 (1915) ). It does not alter the actual judgment of the court. Dauderman v. Dauderman, 130 Ill.App.2d 807, 809, 263 N.E.2d 708 (1970). Rather, “it merely corrects inadvertent omissions from the judgment order, and should not be entered if the omission is the result of either a deliberate decision by the judge or relates to an issue that was not presented to the judge.” Z.R.L. Corp. v. Great Central Insurance Co., 201 Ill.App.3d 843, 845, 147 Ill.Dec. 259, 559 N.E.2d 259 (1990). Upon a motion for a nunc pro tunc order, “ ‘[t]he court is not called on to construe the judgment, but only to enter of record such judgment as was formerly rendered and not entered of record as rendered.’ ” (Emphasis omitted.) In re Marriage of Breslow, 306 Ill.App.3d 41, 53–54, 239 Ill.Dec. 111, 713 N.E.2d 642 (1999) (quoting 49 C.J.S. Judgments § 128a, at 201 (1997)). A nunc pro tunc order must be based on some note, memorandum, or memorial in the record indicating that the omission was an inadvertent clerical error. Z.R.L. Corp., 201 Ill.App.3d at 845, 147 Ill.Dec. 259, 559 N.E.2d 259. Any document in the record may serve as evidence of the inadvertent nature of the omission, including hearing transcripts, but the evidence must be definite and certain. Id.

¶ 18 There are many examples that illustrate the difference between clerical errors, which may be corrected nunc pro tunc, and judicial errors, which may not be corrected nunc pro tunc. For example, in Brody v. Hess, 75 Ill.App.3d 402, 403–04, 31 Ill.Dec. 368, 394 N.E.2d 570 (1979)

, the parties to a divorce decree had agreed to a joint waiver of alimony, and the trial court failed to incorporate this waiver into the decree. The reviewing court found that the trial court could properly amend the decree nunc pro tunc to reflect the parties' joint waiver because the prove-up proceedings established that the parties had...