Encore Credit Corp. v. Noble
Decision Date | 15 June 2017 |
Docket Number | No. 1-15-3276,1-15-3276 |
Citation | 2017 IL App (1st) 153276 -U |
Parties | ENCORE CREDIT CORPORATION, Plaintiff, and MIDWEST FIRST FINANCIAL, Plaintiff-Appellee, v. RANDALL A. NOBLE, et al 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 Cook County
Honorable Allen Price Walker, Judge Presiding
Held: Appeal was untimely and dismissed where successive post-judgment motion did not extend time to appeal; and frivolous nature of appeal warranted sanctions.
¶ 1 Defendant-borrower Randall A. Noble, whose single family home in Lynwood, Illinois was foreclosed upon in 2013 and sold pursuant to judicial order to 2014, appeals from an order granting the motion of Midwest First Financial Limited Partnership IV, as assignee of lender Encore Credit Corporation (Midwest), to strike Noble's successive motion for reconsideration. Noble contends the trial court erred in determining it lacked jurisdiction over his second post-judgment motion. He also contends that notices of pro se appeals that he filed while the case was still proceeding in the circuit court deprived the court of jurisdiction at the time it approved the sale of the Lynwood property and because he is now "not quite sure what this would mean" to the validity of the judicial deed that was issued to the buyer, this "would appear to need resolution" and he "ask[s] this court to determine the status of the property." Midwest responds that the appeal should be dismissed as untimely and seeks sanctions against Noble and his attorney, Margaret A. Lundahl, for filing a frivolous appeal.
¶ 2 We briefly summarize the key events in this proceeding. Noble bought 2094 Tyler Drive, Lynwood, Illinois, 60411-8561 in October 2005 with the proceeds of a $324,800 mortgage loan. He has never made a payment on the note. His lender filed suit in February 2006. The circuit court granted a default judgment to the lender in 2007 but in 2009 granted Noble's motion to quash service of process and vacate the judgment of foreclosure and sale.
¶ 3 For the next 29 months, the lender tried to personally serve Noble, until finally, with leave of the court, the lender accomplished service by posting at the subject property in March 2012. Represented by attorney S. Steven Proutsos, Noble appeared, answered, and requested a settlement amount. Noble then personally issued a "Private Registered Bonded Promissory Note" in the amount of $500,000, in which he stated the United States Department of Treasury would be paying his mortgage and litigation expenses. The lender declined to exchange the property title for the document that Noble created and instead moved for summary judgment on its complaint. On May 24, 2013, the circuit court granted a judgment of foreclosure and sale for the second time.
¶ 4 Noble next spindled a motion for reconsideration in which he contended judgment was improper while there was a material question as to whether his $500,000 "negotiable instrument" satisfied his debts.
¶ 5 The foreclosure proceedings, including a judicial sale scheduled for August 26, 2013, were automatically stayed when Noble filed a pro se Chapter 13 bankruptcy petition on August 23, 2013. After Noble failed to file statements required of bankruptcy petitioners, the bankruptcy trustee and Midwest filed motions for dismissal of the petition. At the hearing, Noble requested and was given additional time to respond. Noble then filed a motion for turnover of funds, indicating that he owned treasury and mutual fund accounts that would cover his debt to the lender, however, when his motion was heard, Noble produced no evidence of the accounts, and the bankruptcy court denied the motion. The dismissal motions were then rescheduled for hearing, but Noble did not file a response or appear at the hearing. The lender then filed a different motion to dismiss the bankruptcy petition in which it argued Noble had petitioned in bad faith with a sole purpose of obstructing the property sale and should be barred for 180 days from repetitioning. The lender pointed out that it was the only listed creditor, Noble had not filed a proposed repayment plan and other documents required of a petitioner, Noble had not made any payments to the lender despite living in the Lynwood home for eight years, and Noble could not feasibly repay a debt which had doubled from the original loan to over $649,000, due to the addition of the lender's property tax and insurance payments, late fees, litigation expenses, and interest. On November 14, 2013, the bankruptcy court granted the lender's motion to dismiss the case and barred Noble from refiling for 180 days.
¶ 6 The lender then scheduled a judicial sale for December 27, 2013, sent notice on November 22, 2013, to Noble's attorney(s) of record, S. Steven Proutsos and/or Spike S. Proutsos, and sold the property on the scheduled date.
¶ 7 On December 23, 2013, attorney Lundahl filed a general appearance as Noble's "additional," not substitute, counsel and a "motion for ruling" on Noble's motion for reconsideration of his $500,000 document, and scheduled the motion for presentment on February 10, 2014.
¶ 8 Midwest filed a motion seeking an order approving the property sale, an order approving the report of sale and distribution of the proceeds, confirming the sale, and ordering possession.
¶ 9 The circuit court denied Noble's motion to reconsider on February 10, 2014.
¶ 10 On March 11, 2014, the circuit court entered a briefing schedule on the lender's motions regarding the sale and scheduled the matter for hearing on April 7, 2014. Lundahl filed a written response arguing that Noble had not received prior notice of the sale scheduled for December 27, 2013, and the sale had proceeded despite Noble's pending motion for reconsideration. The lender replied that Noble had received proper and effective notice of the judicial sale, in accordance with 735 ILCS 5/15-1507 (West 2012), when the lender mailed notice to Noble's attorney of record on November 22 2013. The lender also pointed out that if Noble's new, additional counsel had reviewed the court file and/or conferred with the lender on or before appearing on December 23, 2013, she would have discovered the judicial sale scheduled for December 27, 2013. The lender also argued that Noble had created confusion and invited error regarding his motion for reconsideration, when he filed for bankruptcy solely to delay, disrupt, confound, and extend the foreclosure process, and that he could not rely on his own acts to defeat the judicial sale.
¶ 11 Although there was no final and appealable order in the foreclosure case, on the same day that Lundahl was in court obtaining a briefing schedule on the lender's motions regarding the sale, March 11, 2014, Noble filed a notice of pro se appeal. Noble failed to file any other documents and we dismissed his pro se appeal for want of prosecution. Encore Credit Corp. v. Noble, 2014 IL App (1st) 140746-U. Noble's pro se notice of appeal was ineffective and did not confer jurisdiction on this court, because it was taken from a non-final order. See F.H. Prince & Co., Inc. v. Towers Financial Corp., 266 Ill. App. 3d 977, 982, 640 N.E.2d 1313, 1316 (1994) ( ); EMC Mortgage Co. v. Kemp, 2012 IL 113419, ¶¶ 11-12, 982 N.D.2d 152 (absent a specific finding by the circuit court, that is the entry of Rule 304(a) language, the foreclosure of a mortgage is not a final and appealable judgment because it does not dispose of all issues and terminate the litigation; it is the subsequent order which confirms the sale of the property and directs the distribution of the sale proceeds that is final and appealable).
¶ 12 On August 18, 2014, after considering the parties' written and oral arguments, the trial court issued a final order approving the report of sale and distribution, confirming the sale, and ordering Noble's eviction 30 days later. EMC Mortgage Co., 2012 IL 113419, ¶¶ 11-12, 982 N.D.2d 152 (indicating this type of order is final and appealable).
¶ 13 On August 22, 2014, Noble filed notice of another pro se appeal, however, he again failed to file any other documents in the appellate court and we dismissed the appeal for want of prosecution. Encore Credit Corp. v. Noble, 2014 IL App (1st) 142636-U. This notice of appeal did not confer jurisdiction on this court because Noble next filed a timely post-judgment motionin the circuit court and did not subsequently amend the notice of appeal. See 735 ILCS 5/2-1203 (West 2012) ( ); Ill. S. Ct. R. 303(a)(2) () ( how a timely filed post-judgment motion affects a notice of appeal); Chand v. Schlimme, 138 Ill. 2d 469, 478, 563 N.E.2d 441, 445 (1990) ( ).
¶ 14 More specifically, on September 17, 2014, Noble pro se filed a "Motion by Randall A. Noble for [(sic)] Vacate Sale." Other than this title, the September motion stated...
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