PNC Mortg. v. Mikolajczyk

• Decision Date: 01 August 2013
• Docket Number: No. 1-12-2286,1-12-2286
• Citation: 2013 IL App (1st) 122286
• Parties: PNC MORTGAGE, a Division of PNC Bank, National Association Plaintiff-Appellee, v. ANDRZEJ MIKOLAJCZYK and UNKNOWN OWNERS AND NONRECORD CLAIMANTS, Defendants (Alina Mikolajczyk, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 122286

PNC MORTGAGE, a Division of PNC Bank, National Association Plaintiff-Appellee,

v. ANDRZEJ MIKOLAJCZYK and UNKNOWN OWNERS AND NONRECORD CLAIMANTS, Defendants(Alina Mikolajczyk, Defendant-Appellant).

No. 1-12-2286

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FOURTH DIVISION

August 1, 2013

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

No. 09 CH 10633

Hon. Jean Prendergast Rooney, Judge Presiding

JUSTICE EPSTEIN delivered the judgment of the court.

Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment.

ORDER

¶ 1 Held: The circuit court's denial of mortgagor's motion to vacate a judicial sale is affirmed where mortgagor failed to timely file the motion or otherwise comply with the requirements of section 2-1401 of the Illinois Code of Civil Procedure.

¶ 2 Defendant Alina Mikolajczyk¹ appeals the circuit court's denial of her motion to vacate the circuit court's order confirming the sale of real property. For the reasons stated herein, we affirm the judgment of the circuit court.

¶ 3 BACKGROUND

¶ 4 Andrzej Mikolajczyk signed a note dated October 31, 2007, in the principal amount of $375,000, payable to "National City Mortgage a division of National City Bank," the lender. The note provided for monthly payments in the amount of $2,401.17. In a mortgage executed on the same date, the Mikolajczyks granted the lender a security interest in real property located at 5181 N. Canfield Avenue in Norridge, Illinois (the Property).

¶ 5 On March 9, 2009, "National City Bank successor by merger to National City Mortgage Company" (NCB), filed a Complaint to Foreclose Mortgage in the circuit court of Cook county against the Mikolajczyks and "unknown owners and non record claimants." The complaint alleged that the Mikolajczyks were in default for the monthly payments due for and after November, 2008. The record on appeal indicates that the Mikolajczyks were served with the complaint on April 2, 2009.

¶ 6 NCB filed a motion for order of default on September 21, 2009. On October 1, 2009, Andrzej filed a pro se motion stating that his wife was abroad and asking that the "court date" bemoved to October 28, 2009.

¶ 7 On October 9, 2009, the trial court granted three motions filed by NCB on October 5, 2009: (i) a motion to appoint a selling officer; (ii) a motion seeking entry of a judgment of foreclosure and sale; and (iii) a motion for an order of default.

¶ 8 On October 28, 2009, the court considered the "Defendant's Pro Se Motion for Extension of Time" and entered an order: (i) vacating the judgment of foreclosure and sale; (ii) vacating all "default/orders entered against Movants" on October 9, 2009; and (iii) granting the Mikolajczyks 28 days to answer or otherwise plead.

¶ 9 On November 25, 2009, the Mikolajczyks filed a pro se "Verified Answer to Complaint to Foreclosure Mortgage,"² wherein they admitted the allegations in the foreclosure complaint except for two. They denied the allegation in paragraph 3(c) of the complaint that both Andrzej and Alina were the "mortgagors or grantors," stating that Alina was not on the mortgage. They also denied the allegations of paragraph 3(m) of the complaint, which indicated that the present owners of the Property were Andrzej and Alina.³

¶ 10 In their answer, the Mikolajczyks also stated the following, in part, as an "Other affirmative matter":

"* * * We would like to keep the house but due to the high mortgage we have been trying to sell it. It has been on a market/MLS. The bank did not want to cooperate - we weretrying to solve it with Nat'l City Mortgage."

¶ 11 In a summary judgment motion filed April 1, 2010, National City Bank contended, among other things, that (i) "Defendant has failed to offer a counter-affidavit or any other competent evidence the [sic] contradict Plaintiff's prima facie basis for recovery" and therefore the bank was entitled to judgment as a matter of law, and (ii) "Defendants' affirmative defense [alleging] that the Plaintiff did not cooperate with Defendants listing or selling the subject property" was an "unsupported conclusory statement" and did not constitute a valid defense.

¶ 12 On April 28, 2010, "PNC Mortgage, a division of PNC Bank, N.A." (PNC) filed a supplemental affidavit stating that the "subject mortgage was transferred from National City Mortgage, a Division of National City Bank to PNC Mortgage, a Division of PNC Bank, N.A." The supplemental affidavit refers to "PNC Mortgage" as the "current servicer" on the account and refers to the "Plaintiff" as the "agent for the holder and owner of" the note and mortgage "originally given as security to National City Mortgage, a Division of National City Bank." The supplemental affidavit refers to the real property given as security as "10489 Dutch Barn Street, Huntley, Illinois 60142."⁴ The note signed by Andrzej and the mortgage signed by the Mikolajczyks were appended as exhibits to the affidavit, as well as a certificate from the Ohio Secretary of State certifying that "National City Mortgage Co." was "merged out of existence." A print out of "payment history *** kept PNC Mortgage [sic]" was also appended to the affidavit. The notice of filing and proof of service attached to the affidavit indicates that Andrzej was served at the Property address.

¶ 13 On July 8, 2010, NCB filed a Motion to Substitute Plaintiff Due to Merger, seeking to substitute PNC as plaintiff. The motion provides, in part, that NCB merged with PNC after NCB filed the foreclosure action. On the same date, PNC filed: (i) a motion for judgment for foreclosure and sale; (ii) a motion seeking to dismiss "unknown owners and non record claimants"; and (iii) a motion to appoint a selling officer.

¶ 14 On July 14, 2010, the court entered a scheduling order on the motion for summary judgment, providing that any response to the motion was due on August 18, 2010. No such response is included in the record on appeal. On September 20, 2010, the court granted orders: (i) substituting PNC as plaintiff; (ii) dismissing unknown owners and non-record claimants as defendants; (iii) granting summary judgment in favor of PNC and against the Mikolajczyks; and (iv) appointing a selling officer. The court also entered a judgment for foreclosure and sale which, among other things, authorized a judicial sale of the Property.

¶ 15 On October 20, 2010, the Mikolajczyks were served by mail with a Notice of Sale Pursuant to Judgment of Foreclosure Under Illinois Mortgage Foreclosure Law. The notice of sale provided, among other things, the time, date - November 11, 2010 - and location - of a sale of the Property. On December 20, 2010, the Mikolajczyks were served by mail with another such notice, referencing a January 17, 2011 sale of the Property. On December 20, 2011, the Mikolajczyks were served by mail with another such notice, referencing a January 13, 2012 sale of the Property. The reason for the changing sale dates is not apparent from the record on appeal.

¶ 16 The record indicates that the Mikolajczyks were served by mail on February 9, 2012, with a notice of motion which referenced NCB as the plaintiff in the case caption; an amended noticeof motion was served by mail on the Mikolajczyks on February 21, 2012 that referenced PNC as the plaintiff. Each notice stated that the plaintiff would "move the Court for the entry of an Order approving the Foreclosure Report of Sale and Distribution and Order for Possession and eviction" on February 28, 2012. The court entered an order on February 28, 2012, approving the foreclosure report of sale and distribution and order for possession and deed.

¶ 17 On May 16, 2012, Alina filed a pro se motion to vacate the sale of the Property. In the motion, she stated the following:

"We are requesting to vacate the sale of our house which took place on January 13, 2012. This sale is obviously suspicious and possibly fraudulent: PNC sold my house to PNC for $503,000. I was there and saw it happen. This house would not sell for more than $150,000-$200,000. Do we have the right to ask if they are going to report losses and have them covered by the government? We were not served about the Court on Feb. 28, 2012 when the sale was confirmed. That is why we were absent. As the only legal owners, we never gave them consent to sell it. We bought it, invested our work and hard earned money, took care of it, acted in good faith. We live in it with our children, and seizing it would deprive us of our land and the roof over our heads. Also, the lender breached the contract in 2008 when we were still making regular payments and in fact induced us to stop making payments, so we could discuss possible modification or other relief. We followed their advice and then realized it was a setup with obvious intention to eventually deprive us of our property. Every time we filed for modification, they would refuse in spite of proper and sufficient documentation and in spite of President's bailoutwhich we supposed to help people like us. Can they tell us US Citizens where did the bailout money go? Why did the banks benefit, not people? This is a bigger problem than our family's and these practices are destroying our country, ruining people's lives. Many were maneuvered into this situation. There is a federal investigation against PNC and 7 other banks regarding foreclosures. We hope justice will prevail and cruel and fraudulent practices will stop."

On July 9, 2012, the circuit court denied the motion to vacate "for lack of jurisdiction, as the order approving sale was entered on February 28, 2012."

¶ 18 On August 8, 2012, Alina filed a pro se "Motion for Extension of Time to File an Appeal Late with this Court," which this court allowed on August 13, 2012. The late notice of appeal provides that the date of the order being appealed was July 9, 2012....