Merchants Bank v. Roberts

• Citation: 686 N.E.2d 1202,292 Ill.App.3d 925,227 Ill.Dec. 46
• Decision Date: 31 October 1997
• Docket Number: No. 2-97-0100,2-97-0100
• Parties: , 227 Ill.Dec. 46 MERCHANTS BANK, as Assignee of Great Northern Mortgage, Plaintiff-Appellee, v. William Guy ROBERTS, Jr., et al., Defendants-Appellants (American General Finance Inc., et al., Defendants).
• Court: United States Appellate Court of Illinois

Page 1202

686 N.E.2d 1202

292 Ill.App.3d 925, 227 Ill.Dec. 46

MERCHANTS BANK, as Assignee of Great Northern Mortgage Plaintiff-Appellee, v. William Guy ROBERTS, Jr., et al., Defendants-Appellants (American General Finance Inc., et al., Defendants).

No. 2-97-0100.

Appellate Court of Illinois Second District.

Oct. 31, 1997.

Aldo E. Botti, Andrew Y. Acker, Botti, Marinaccio & DeLongis, Ltd., Oak Brook, for Dolores J. Roberts, Joy M. Roberts, William G. Roberts, Sr., William Guy Roberts, Jr.

Paul A. Lewis, Lisa M. Nyuli, Lewis & Nyuli, P.C., Aurora, for Merchants Bank.

Justice RATHJE delivered the opinion of the court:

On April 4, 1996, the plaintiff, Merchants Bank, filed a mortgage foreclosure action naming as defendants William Guy Roberts, Jr., Joy M. Roberts, his wife, and Merchants National Bank, as trustee of trust No. 2882. Additional defendants are not parties to this appeal. The above-named defendants were defaulted, and, on July 19, 1996, the trial court entered a judgment of foreclosure. The order provided that the last day to redeem the property was November 4, 1996. Thereafter, on November 22, 1996, the property was sold at a sheriff's sale. At the December 6, 1996, hearing to confirm the sale, an attorney for William Guy Roberts, Jr., appeared seeking a continuance of the confirmation hearing. The motion for continuance was denied.

Thereafter, on January 3, 1997, new counsel, representing William Guy Roberts, Jr., Joy M. Roberts, and trust No. 2882, appeared and presented an emergency motion to reconsider the order denying the motion to continue and/or motion to vacate the order confirming the sale. The motion for reconsideration was accompanied by exhibits, affidavits of the defendants, and a memorandum of law. The plaintiff filed a motion to strike the emergency motion. William Miller, the buyer of the defendants' property at the sheriff's sale, filed a motion to strike the appearances of Joy M. Roberts and trust No. 2882. Following a hearing on January 10, 1997, the trial court granted Miller's motion to strike the appearances of Joy M. Roberts and trust No. 2882 and denied the emergency motion for reconsideration and/or to vacate the confirmation of sale. This appeal followed.

On appeal, the defendants raise the following issues: (1) whether the trial court erred in denying William Guy Roberts, Jr.'s motion to continue the confirmation of sale hearing; and (2) whether the trial court erred in denying the defendants' emergency motion for reconsideration and/or motion to vacate.

A litigant has no absolute right to have a case continued. Sinram v. Nolan, 227 Ill.App.3d 241, 243, 169 Ill.Dec. 248, 591 N.E.2d 128 (1992). A decisive factor is whether the party asking for the continuance has shown diligence in proceeding with the cause. Sinram, 227 Ill.App.3d at 243, 169 Ill.Dec. 248, 591 N.E.2d 128. The trial court has broad discretion in ruling on motions for continuance but that discretion must not be exercised arbitrarily. Sinram, 227 Ill.App.3d at 243, 169 Ill.Dec. 248, 591 N.E.2d 128. A reviewing court must balance the prompt disposition of the case with the equally compelling interest in obtaining justice to determine whether an abuse of discretion occurred. O'Neill v. Brown, 242 Ill.App.3d 334, 343, 182 Ill.Dec. 301, 609 N.E.2d 835 (1993). The granting or denying of a motion for continuance will not be disturbed on appeal unless there has been a manifest abuse of discretion or a palpable injustice. Maslanka v. Blanchett, 239 Ill.App.3d 548, 553, 179 Ill.Dec. 103, 605 N.E.2d 1117 (1992).

Section 15--1508(b) of the Code of Civil Procedure (735 ILCS 5/15--1508(b) (West 1996)) provides that the trial court shall conduct a hearing to confirm the sheriff's sale of a foreclosed property and shall enter an order confirming the sale unless it finds that "(i) a notice required in accordance with subsection (c) of Section 15--1507 was not given, (ii) the terms of sale were unconscionable, (iii) the sale was conducted fraudulently or (iv) that justice was otherwise not done." 735 ILCS 5/15--1508(b) (West 1996).

In his motion for continuance, William Guy Roberts, Jr., alleged specifically that the purchase price from the sheriff's sale was inadequate; that the parcels sold at the sheriff's sale should not have been encumbered by the mortgage and therefore should not have been sold at the sale; and that justice and equity required that the sale should be set aside. Mr. Roberts, Jr., further alleged that, subsequent to the sale, his prior counsel had informed him that he was unable to represent Mr. Roberts, Jr., due to a conflict of interest and that, as a result, Mr. Roberts, Jr., had to obtain new counsel.

In his brief, Mr. Roberts, Jr., asserts that the purpose of seeking the continuance was to permit his new counsel time to present a written motion to void or otherwise set aside the sale.

The record before us establishes that Mr. Roberts, Jr., failed to exercise diligence in seeking to challenge the confirmation of the sheriff's sale in this case. The foreclosure suit in this case was filed on April 4, 1996, and the judgment of foreclosure was entered on July 19, 1996. At that point, Mr. Roberts, Jr., was, or should have been, aware via the notices he received of the identity of the parcels that were foreclosed upon. However, he was still not prepared to challenge that alleged mistake some five months later. Although the sheriff's sale was held November 22, 1996, some 14 days prior to the confirmation hearing, Mr. Roberts, Jr., failed to establish in his motion why he was not prepared on the day of the confirmation hearing to challenge the sale price as inadequate. Finally, it is left to the reader's imagination as to why justice and equity require that the sale be set aside.

Finally, Mr. Roberts, Jr.'s need to obtain new counsel to present the motion for continuance appears not to be the cause of his lack of diligence but rather a product of Mr. Roberts Jr.'s own "foot dragging" where this case is concerned. The allegation regarding the wrong parcels being encumbered by the mortgage should have been known to Mr. Roberts, Jr., at the very least as of July 19 1996, the day the trial court entered the judgment of foreclosure.

We conclude therefore that the trial court did not err in denying a continuance of the hearing on the confirmation of the sheriff's sale.

The defendants then contend that the trial court erred in denying their emergency motion for reconsideration of the order denying the continuance and/or motion to vacate the order confirming the sale. The defendants style the emergency motion as brought pursuant to section 2--1301(e) of the Code of Civil Procedure (735 ILCS 5/2--1301(e) (West 1996)). Section 2--1301(e) provides in pertinent part as follows:

"The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable." 735 ILCS 5/2--1301(e) (West 1996).

The emergency motion in this case is actually two different motions, in that it seeks reconsideration of the court's order denying William Guy Roberts, Jr.'s motion to continue the confirmation hearing, and it also seeks vacation of the order confirming the sale on behalf of all of the defendants. Different standards of review apply to each motion and will be discussed in turn.

First, however, we must address that part of the January 10, 1997, order which struck the appearances of Joy M. Roberts and trust No. 2882. The defendants concede in their brief that, as to that part of the motion seeking reconsideration of that part of the order of December 6, 1996, denying the motion for continuance, the appearances of Joy M. Roberts and trust No. 2882 were properly stricken as the motion for continuance was brought solely on behalf of William Guy Roberts, Jr. However, as to that portion of the emergency motion seeking to vacate the order confirming the sale, we agree with the defendants that the trial court erred in striking the appearances of Joy M. Roberts and trust No. 2882. Both Joy M. Roberts and trust No. 2882 were parties to the foreclosure action in this case and received notice of the hearing to confirm the sheriff's sale. Under section 2--1301(e), they were entitled to bring a motion, within 30 days, to set aside the order of December 6, 1996. Therefore, the trial court erred in striking the appearances of Joy M. Roberts and trust No. 2882 as to that part of the emergency motion seeking to vacate the order confirming the sheriff's sale in this case. See Nicholson v. St. Anne Lanes, Inc., 158 Ill.App.3d 838, 842, 111 Ill.Dec. 223, 512 N.E.2d 127 (1987).

We first address the motion for reconsideration of that portion of the December 6, 1996, order denying a continuance of the confirmation hearing. We agree with the plaintiff that the standard of review on a motion for reconsideration is set forth in John Alden Life Insurance Co. v. Propp, 255 Ill.App.3d 1005, 194 Ill.Dec. 366, 627 N.E.2d 703 (1994). The defendants argue that the standard in Propp does not apply since it does not appear that the motion for reconsideration in Propp was brought under section 2--1301(e). We reject that argument because it is clear that, in the case before us, only that portion of the emergency motion seeking to vacate the order confirming the sale is properly brought under section 2--1301(e). In and of itself, an order denying a continuance is neither a final order nor a judgment subject to being vacated under section 2--1301(e).

In Propp, the court explained the purpose of a motion for reconsideration as follows:

" 'The intended purpose of a [motion] to reconsider is to bring to the court's attention (1) newly discovered evidence which was not available at the time of the first hearing, (2) changes in the law, or (3) errors in the court's previous...