Deutsche Bank Nat. v. Burtley

• Decision Date: 26 December 2006
• Docket Number: No. 1-04-3470.,1-04-3470.
• Citation: 308 Ill.Dec. 510,861 N.E.2d 1075
• Parties: DEUTSCHE BANK NATIONAL, Plaintiff-Appellee, v. Anthony BURTLEY, Defendant-Appellant (Nenad Bozilovic and Anthony Diaz, Intervening Appellees).
• Court: United States Appellate Court of Illinois

861 N.E.2d 1075

308 Ill.Dec. 510

DEUTSCHE BANK NATIONAL, Plaintiff-Appellee, v. Anthony BURTLEY, Defendant-Appellant (Nenad Bozilovic and Anthony Diaz, Intervening Appellees).

No. 1-04-3470.

Appellate Court of Illinois, First District, First Division.

December 26, 2006.

Rehearing Denied February 9, 2007.

The Bilal Law Firm, Chicago (Karris A. Bilal, of counsel), for Appellant, Anthony Burtley.

Pierce & Associates, P.C., Chicago (Diana Athanasopoulos and David Rhodes, of counsel), for Appellee.

Noonan & Lieberman, Ltd., Chicago (Patrick J. McCann, of counsel), for Intervening Appellees.

Justice GARCIA delivered the opinion of the court:

The plaintiff, Deutsche Bank National, filed its second foreclosure action against the defendant, Anthony Burtley, on September 27, 2002, in the Cook County circuit court. The circuit court entered an order confirming the sale of Burtley's property on June 1, 2004. Burtley then filed an amended motion to vacate, which the trial court denied. Burtley appeals, contending the trial court erred when it denied his amended motion to vacate without conducting an evidentiary hearing. Burtley also contends that the trial court erred in confirming the sale of the property because the trial court lacked personal jurisdiction over him. For the following reasons, we affirm the decision of the trial court.

BACKGROUND

On June 26, 2000, Burtley borrowed $180,000 on a mortgage of his property at 4016 South Indiana Avenue, Chicago, Illinois, from the Ames Fund Corporation. Deutsche Bank eventually acquired the mortgage. In March 2001, Deutsche Bank filed a foreclosure complaint regarding that mortgage. To avoid foreclosure, on April 26, 2002, Burtley made a payment of $47,587.14 for monthly payments due between October 2000 and April 2002. On May 7, 2002, Burtley made his monthly payment in the amount of $2,083.01, which was returned as not paid for insufficient funds on May 15, 2002. On May 17, 2002, Burtley made his monthly payment for May 2002 in the amount of $2,187.16, including late fees. On June 17, 2002, Burtley made his monthly payment on his mortgage for June 2002 in the amount of $3,104.00, which was returned as not paid for insufficient funds on June 24, 2002.

On July 2, 2002, Deutsche Bank sent a "default letter" to Burtley, notifying him of his missed payment for June 2002. Burtley, however, made no further payments on the mortgage.

On September 27, 2002, Deutsche Bank filed a second complaint for foreclosure under case number 02 CH 17665, which is the subject of this appeal.

On December 17, 2002, the trial court entered an order giving Anthony Burtley until January 14, 2003, to file an appearance and otherwise plead to the complaint. On January 21, 2003, with defendant Burtley appearing pro se, the court entered and continued the plaintiff's motions for default and for judgment of foreclosure.

On March 4, 2003, the trial court entered a default order based on defendant Burtley's failure to plead to the foreclosure complaint. The certificate of service filed on March 4, 2003, shows Anthony R. Burtley was served on October 13, 2002. The trial court also entered a judgment for foreclosure and sale with an expiration date of July 5, 2003, of the rights of redemption.

On June 20, 2003, a notice of public sale was sent to defendant Burtley, among others, that a sale of the foreclosure property would proceed on July 7, 2003, with a judgment amount of $215,477.31.

On July 3, 2003, defendant Burtley filed his "Emergency Motion" to stay the sale of the property contending that he would soon have the funds to satisfy the mortgage. The motion was heard and denied on July 7, 2003. Thereafter, a second notice of public sale was issued with a sale date of October 27, 2003. A third notice of public sale was issued with a sale date of February 9, 2004. On February 6, 2004, defendant Burtley filed a motion to stay the sale contending that he had a buyer for the property.

On February 9, 2004, the trial court entered an order staying the sale and setting a status date of February 20, 2004, based on a real estate sale contract Burtley presented in open court with a selling price of $301,000 and a closing date of February 17, 2004. The order noted that defendant Burtley waived republication of the sale. On February 20, 2003, an order was entered continuing the stay through March 2, 2003, with a status date of March 3, 2004, based on Burtley's representation that the sale of the property had been reset to February 27, 2003. On March 3, 2004, an order was entered staying the sale of the property through March 11, 2003, with a status date of March 16, 2003, with defendant Burtley once again waiving republication of the sale. On March 16, 2003, with defendant Burtley present, the stay of the sale was continued to March 30, 2004, with a status hearing on that date. This time defendant Burtley objected to the waiving of the publication of sale notice.

On March 30, 2004, with defendant Burtley present, the trial court denied any further stay of the sale and ordered that the sale go forward on April 9, 2004, "as scheduled." The court noted that the real estate sale contract defendant Burtley presented on that date (apparently different from the one presented on February 9, 2004) was for an amount "substantially less" than the payoff amount.

On April 8, 2004, defendant Burtley filed a motion to stay the sale of the property contending there was "no publication on file." On April 9, 2004, the trial court denied the defendant's motion and allowed the sale to go forward without republication.

On April 28, 2004, defendant Burtley presented his motion to vacate the sale of the property, which the trial court denied.

On June 1, 2004, the trial court entered an order approving the foreclosure report of sale and distribution and an order of possession.

On June 30, 2004, defendant Burtley filed a motion contending that he was never properly served with the foreclosure complaint and therefore the trial court did not have jurisdiction over his person. The motion sought dismissal of the foreclosure suit. In a second motion filed that same day, defendant Burtley alleged that the purchaser at the sale wrongfully entered the property on June 25, 2004, and he was damaged thereby.

On July 1, 2004, counsel filed an appearance on behalf of Burtley along with a motion to vacate the confirmation of sale order entered on June 1, 2004. On the same date, the trial court entered an order granting counsel leave to file his appearance on behalf of Burtley and denying his motion to dismiss based on a lack of personal jurisdiction and his motion for damages based on the allegedly wrongful entry to the property.

On July 15, 2004, Burtley's counsel on appeal was granted leave to substitute his appearance for Burtley's initial counsel and granted leave to file an amended motion to vacate the sale with a ruling set for September 22, 2004. Through counsel, Burtley filed his motion entitled "Amended Motion to Stay and Vacate Order Confirming Sale and Possession" on August 4, 2004. In Deutsche Bank's response, filed on September 7, 2004, Deutsche Bank asserted that Burtley had filed two bankruptcy petitions to stave off the foreclosure, both of which were dismissed. Exhibit K to Deutsche Bank's response is a "broker price opinion" setting the market value of the property at $169,000 with a qualification that it is "hard to determine repair cost without viewing inside." Following the intervention of the buyer at the foreclosure sale, a hearing was held October 1, 2004, on Burtley's amended motion to vacate sale.

On October 29, 2004, the trial court entered an order denying Burtley's motion to stay and vacate the order confirming the sale and possession after "having heard oral argument and considered all briefs presented" by the parties, ruling that it found "no reason * * * justice would require the sale to be vacated."

On December 3, 2004, Burtley was granted leave to file a late notice of appeal and "granted a stay of enforcement of judgment and possession."

ANALYSIS

I. Standard of Review

We first address the parties' disagreement concerning our standard of review.

Deutsche Bank contends that the standard of review is whether the trial court abused its discretion by failing to promote substantial justice between the parties when it denied Burtley's motion to vacate without an evidentiary hearing. In support of its position, Deutsche Bank cites Mann v. Upjohn Co., 324 Ill.App.3d 367, 377, 257 Ill.Dec. 257, 753 N.E.2d 452 (2001), and Northern Trust Co. v. American National Bank & Trust Co. of Chicago, 265 Ill.App.3d 406, 412, 202 Ill.Dec. 119, 637 N.E.2d 658 (1994).

Burtley responds in his reply brief that this court should review the trial court's decision using either a de novo standard of review or what he labels an "ends of justice" standard of review. To support his position that we should apply a de novo standard of review, Burtley states that a court applies a de novo standard of review when the court reviews a motion to dismiss, (Owens v. Midwest Tank & Manufacturing Co., 192 Ill.App.3d 1039, 1042 140 Ill.Dec. 123, 549 N.E.2d 774 (1989)), or a motion for summary judgment (Continental Casualty Co. v. McDowell & Colantoni, Ltd., 282 Ill.App.3d 236, 241, 217 Ill.Dec. 874, 668 N.E.2d 59 (1996)). To support his claim that we should apply an "ends of justice" standard of review, Burtley cites to certain language in Baltz v. McCormack, 66 Ill.App.3d 76, 22 Ill.Dec. 835, 383 N.E.2d 643 (1978), and People ex rel Reid v. Adkins, 48 Ill.2d 402, 406, 270 N.E.2d 841 (1971).

We agree with Deutsche Bank. We review a trial court's decision to deny a motion to vacate for an abuse of discretion. In our review, we determine whether the trial court's decision to deny a motion to vacate "was a fair and just result, which did not deny [the moving party] substantial justice." Mann v. Upjohn, 324 Ill. App.3d at 377, 257...