Ditech Fin. v. Sellers
| Decision Date | 11 October 2019 |
| Docket Number | NO. 4-19-0119,4-19-0119 |
| Citation | 2019 IL App (4th) 190119 -U |
| Parties | DITECH FINANCIAL, LLC, f/k/a Green Tree Servicing, LLC, Plaintiff-Appellee, v. PHILIP L. SELLERS, Unknown Owners and Nonrecord Claimants, Defendants (Philip L. Sellers, Defendant-Appellant). |
| Court | United States Appellate Court of Illinois |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Champaign County
Honorable Jason M. Bohm, Judge Presiding.
Presiding Justice Holder White and Justice Cavanagh concurred in the judgment.
¶ 1 Held: The circuit court did not err by (1) granting summary judgment in favor of plaintiff on its complaint to foreclose mortgage and (2) denying defendant's motion for sanctions under Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018).
¶ 2 In May 2017, plaintiff, Ditech Financial, LLC, formerly known as Green Tree Servicing, LLC, filed a complaint to foreclose mortgage against defendant, Philip L. Sellers, and unknown owners and nonrecord claimants, on the property commonly known as 608 West Clark Street in Champaign, Illinois (hereinafter Clark Street property). In October 2018, plaintiff filed a motion for summary judgment and a motion for entry of judgment for foreclosure and sale. Along with the motions, plaintiff filed (1) a certificate of prove-up of attorney fees and costs, (2) a loss mitigation affidavit, and (3) an affidavit of amounts due and owing. In response, defendant filed pro se a document entitled "defense documents one thru four." After an October 22, 2018, hearing, the Champaign County circuit court entered an order granting summary judgment in favor of plaintiff and against defendant and a judgment for foreclosure and sale for the Clark Street property. In November 2018, defendant filed a motion to vacate the summary judgment and judgment for foreclosure and sale. In the motion, he also asked for sanctions under Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018). At a January 2019 hearing, the court denied defendant's postjudgment motion in its entirety.
¶ 3 Defendant appeals pro se, asserting (1) plaintiff's loss mitigation affidavit did not comply with Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013), (2) plaintiff's loss mitigation affidavit did not comply with Illinois Supreme Court Rule 114 (eff. Jan. 1, 2018), (3) the circuit court failed to enforce Illinois Supreme Court Rule 273 (eff. Jan. 1, 1967), (4) plaintiff's admission it was not an injured party violated judicial standing requirements, and (5) the case should be dismissed as a sanction under Rule 137 for plaintiff's alleged errors. We affirm.
¶ 5 Plaintiff attached a copy of the mortgage and note for the Clark Street property to its May 2017 complaint. Both documents listed the lender as First Mid-Illinois Bank and Trust and the borrower as defendant. With the complaint, plaintiff also filed a verification pursuant to section 15-1504.1(a-5)(3) of the Code of Civil Procedure (735 ILCS 5/15-1504.1(a-5)(3) (West 2016)). After the complaint was filed, the parties engaged in mediation. In February 2018, a final mediation report was filed, indicating the parties had not reached an agreement. The document stated loan servicer was present at the mediation but not the servicer's counsel. The report also noted (1) plaintiff had denied defendant's loan modification application and (2) defendant's hardest hit application with the State was still pending. The report was signed by both defendant and plaintiff's counsel.
¶ 6 Defendant filed pro se an answer and affirmative defense in March 2018. Plaintiff filed a motion to strike defendant's affirmative defenses. On May 21, 2018, the circuit court held a hearing on plaintiff's motion to strike defendant's affirmative defenses. During the hearing, plaintiff's counsel presented the original note for defendant's loan and allowed defendant to inspect it. After hearing the parties' arguments, the court granted the motion to strike and provided defendant with additional time to file another pleading.
¶ 7 In June 2018, defendant filed a motion for a bill of particulars and an answer and counterclaim. In his answer, defendant challenges plaintiff's standing to bring the cause of action because it was not an injured party. Plaintiff again filed motions to strike the bill of particulars and defendant's counterclaim. After a September 2018 hearing, the court struck defendant's request for a bill of particulars and defendant's counterclaim.
¶ 8 In October 2018, plaintiff filed a motion for entry of a judgment for foreclosure and sale and a motion for summary judgment. Along with the two motions, plaintiff filed (1) a certificate of prove-up of attorney fees and costs, (2) a loss mitigation affidavit, and (3) an affidavit of amounts due and owing. In response, defendant filed pro se a document entitled "defense documents one thru four." The documents defendant references are the following: (1) an August 6, 2016, loan modification offer; (2) plaintiff's September 25, 2018, response letter; (3) a January 2016 property inspection report for the Clark Street property; and (4) a 2004 appraisal of the Clark Street property. Defendant seemed to argue in his responsive document plaintiff lacked standing to bring the cause of action and the property inspection report ordered by plaintiff contained false information.
¶ 9 On October 22, 2018, the circuit court held a hearing on plaintiff's motion for summary judgment. Defendant noted Rule 114 and contended it is not known whether plaintiffcomplied with loss mitigation programs. Also, plaintiff noted false information had been presented regarding the condition of the property at issue. After hearing the parties' arguments, the court granted summary judgment in favor of plaintiff. That same day, the court entered a written order for summary judgment and a judgment for foreclosure and sale of the Clark Street property. The latter order stated the following: "This is a final and appealable order and there is no just cause for delaying the enforcement of this judgment or appeal therefrom."
¶ 10 In November 2018, defendant filed a timely motion to vacate the summary judgment and judgment for foreclosure and sale, as well as a request for sanctions under Rule 137. In his motion, defendant argued (1) plaintiff's loss mitigation affidavit did not comply with Rule 191, (2) plaintiff's loss mitigation affidavit did not comply with Rule 114, (3) plaintiff's loss mitigation affidavit fails to mention any participation in federal loss mitigation programs, (4) violations of Rules 191 and 114 were grounds for sanctions under Rule 137, (5) the circuit court erred by accepting an erroneous final mediation report, (6) genuine issues of material fact existed with plaintiff's affidavit of amounts due and owing, (7) the court erred by allowing costs and fees associated with mandatory mediation, (8) plaintiff's motion to strike defendant's affirmative defenses was overbroad, (9) plaintiff's motion to strike defendant's bill of particulars contradicts plaintiff's judicial admission Fannie Mae is the investor of the subject loan, (10) plaintiff did not comply with the doctrine of standing, (11) the court erred by striking his counterclaim, (12) the court's striking of his counterclaim operated as an adjudication on the merits under Rule 273, and (13) he was entitled to sanctions under Rule 137. He also filed a document entitled "defense documents five and six." Document five was an assignment of mortgage from First Mid-Illinois to ABN-AMRO, and document six was an assignment of mortgage from CitiMortgage to plaintiff. The court held a hearing on defendant's postjudgment motion on January 22, 2019. Afterhearing the parties' arguments, the court denied defendant's postjudgment motion.
¶ 11 On February 19, 2019, respondent filed a timely notice of appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. July 1, 2017), and thus this court has jurisdiction under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
¶ 14 Plaintiff argues defendant failed to timely raise a majority of his issues in the circuit court. Our supreme court has noted the two most important tasks of an appellate court panel when beginning the review of a case is to ascertain its own jurisdiction and determine which issue or issues, if any, have been forfeited. People v. Smith, 228 Ill. 2d 95, 106, 885 N.E.2d 1053, 1059 (2008). Thus, we begin by determining if any of defendant's issues are forfeited.
¶ 15 It is well-established a party who fails to raise an argument in the circuit court forfeits the opportunity to do so on appeal. Vantage Hospitality Group, Inc. v. Q Ill Development, LLC, 2016 IL App (4th) 160271, ¶ 49, 71 N.E.3d 1. Moreover, "[a]rguments raised for the first time in a motion for reconsideration in the circuit court are forfeited on appeal." Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 36, 5 N.E.3d 158.
¶ 16 First, we note motions for Rule 137 sanctions may be filed within 30 days of the entry of final judgment. Ill. S. Ct. R. 137(b) (eff. Jan. 1, 2018). Thus, defendant raised his Rule 137 request for sanctions in a timely manner and that issue is not forfeited. In his answer and response to plaintiff's summary judgment motion, defendant raised an objection to plaintiff's standing, contending plaintiff failed to allege any injury and raised. Accordingly, defendant also preserved the standing issue for appellate review.
¶ 17 However, defendant did not raise any issues of noncompliance with IllinoisSupreme Court Rule 191 and Rule 273. Thus, those any issues related to those rules are clearly forfeited. As to defendant's argument regarding compliance with Rule 114, the only issue he raised related to Rule 114 before the court entered summary...
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