U.S. Bank, N.A. v. Coe

• Decision Date: 15 December 2017
• Docket Number: No. 1–16–1910,1–16–1910
• Citation: U.S. Bank, N.A. v. Coe, 2017 IL App (1st) 161910, 98 N.E.3d 399 (Ill. App. 2017)
• Parties: U.S. BANK, N.A., Plaintiff–Appellee, v. Derrick COE and Kimberly Wilson, Defendants–Appellants.
• Court: Appellate Court of Illinois

2017 IL App (1st) 161910

98 N.E.3d 399

U.S. BANK, N.A., Plaintiff–Appellee,

v.Derrick COE and Kimberly Wilson, Defendants–Appellants.

No. 1–16–1910

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed December 15, 2017

Rehearing denied January 11, 2018

Robert D. Shearer, Jr., & Associates, of Chicago (Robert D. Shearer, Jr., of counsel), for appellants.

Dykema Gossett PLLC, of Chicago (Harry N. Arger, Rosa M. Tumialán, and Margaret M. Rhiew, of counsel), for appellee.

OPINION

PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Defendants Derrick Coe and Kimberly Wilson appeal the circuit court's order approving the foreclosure sale of their property. On appeal, they raise only one claim: that plaintiff failed to send them a grace period notice as required by section 15–1502.5 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) ( 735 ILCS 5/15–1502.5 (West 2012) ).¹ It is for this reason alone that they request this court reverse the judgment of the circuit court and remand the matter for an evidentiary hearing in compliance with Bank of America, N.A. v. Adeyiga , 2014 IL App (1st) 131252, 390 Ill.Dec. 431, 29 N.E.3d 60. Because section 15–1502.5 of the Foreclosure Law was a special remedial measure that was expressly repealed by our state legislature, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 Section 15–1502.5 of the Foreclosure Law, which is commonly known as the Homeowner Protection Act (Act) ( 735 ILCS 5/15–1502.5 (West 2012) ), became effective on April 6, 2009 (Pub. Act 95–1047, § 35 (eff. Apr. 6, 2009) (adding 735 ILCS 5/15–1502.5 )). The Act was written to provide owners of single-family, owner-occupied properties an additional opportunity to rescue their mortgage before the lender filed a complaint in foreclosure. Lenders were required by the Act to provide the borrower with a grace period notice prior to the institution of a foreclosure action. 735 ILCS 5/15–1502.5(c) (West 2012). The grace period notice directed the borrower to various resources for counseling and loan modification assistance. Id.

¶ 4 In April 2012, plaintiff filed the instant foreclosure action. After lengthy litigation, defendants filed a motion to dismiss alleging that plaintiff did not forward to them, and they had not received, a grace period notice as required by the Act. The circuit court denied the motion as well as the motion to reconsider that followed. At the hearing for the confirmation of the foreclosure sale, defendants again raised their claim that plaintiff never sent them a grace period notice. The circuit court did not find defendants' argument compelling and ultimately entered the order confirming the sale of the property on June 8, 2016. The Act was repealed on July 1, 2016, by express statute. 735 ILCS 5/15–1502.5(k) (West Supp. 2013). Defendants appealed on July 7, 2016.

¶ 5 ANALYSIS

¶ 6 On appeal, defendants renew their sole claim that plaintiff failed to provide them with a grace period notice under the Act ( 735 ILCS 5/15–1502.5 (West 2012) ). Defendants rely heavily on this court's decision in Adeyiga , wherein we held that absent any evidence in the record that a grace period notice was sent prior to the filing of the complaint, the matter must be remanded to the circuit court for an evidentiary hearing. Adeyiga , 2014 IL App (1st) 131252, ¶ 5, 390 Ill.Dec. 431, 29 N.E.3d 60. In response, plaintiff concedes there is no evidence in the record that a grace period notice was sent, but asserts that because the Act was repealed on July 1, 2016, defendants' appeal is extinguished. The threshold issue in this case is thus whether the repeal of the Act extinguishes defendants' claim. For the reasons set forth below, we conclude that defendants are not entitled to relief under the Act.

¶ 7 The interpretation of a statute is a question of law, subject to de novo review. Id. ¶ 97. The fundamental principle of statutory construction is to determine and give effect to the intent of the legislature. Id. ¶ 98. The best means of determining legislative intent is through the statutory language. Banco Popular North America v. Gizynski , 2015 IL App (1st) 142871, ¶ 47, 395 Ill.Dec. 738, 39 N.E.3d 205. When the language of an enactment is clear, it will be given effect without resort to other interpretative aids. Wells Fargo Bank, N.A. v. Simpson , 2015 IL App (1st) 142925, ¶ 48, 394 Ill.Dec. 333, 36 N.E.3d 266.

¶ 8 The provision of the Act at issue here states: "This Section is repealed July 1, 2016." 735 ILCS 5/15–1502.5(k) (West Supp. 2013).²

¶ 9 Our long-standing case law provides that where there is an express repeal of a statute, and nothing is substituted for the former act, the repealed statute will be construed as having no more force or effect. City of Chicago v. Degitis , 383 Ill. 171, 175, 48 N.E.2d 930 (1943) ; Randall v. Wal–Mart Stores, Inc. , 284 Ill. App. 3d 970, 973, 220 Ill.Dec. 540, 673 N.E.2d 452 (1996). "In the absence of a general saving clause or a saving clause within the repealing act, the effect of the repeal of a statute ‘is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed.’ " Isenstein v. Rosewell , 106 Ill. 2d 301, 310, 88 Ill.Dec. 15, 478 N.E.2d 330 (1985) (quoting 1A C. Dallas Sands, Sutherland Statutes and Statutory Construction § 23.33, at 279 (4th ed. 1972)); see Holcomb v. Boynton , 151 Ill. 294, 297, 37 N.E. 1031 (1894) ("Where a statute is repealed without such saving clause it must be considered, except as to proceedings passed and closed, as if it had never existed."). As a result, if final relief under the repealed statute has not been granted, it may not be granted after the repeal. Shelton v. City of Chicago , 42 Ill. 2d 468, 473–74, 248 N.E.2d 121 (1969). This is so even if judgment has been entered in the circuit court and the cause is pending on appeal. Lincoln Community High School District No. 404 v. Elkhart Community High School District No. 406 , 414 Ill. 466, 468, 111 N.E.2d 532 (1953). Where a statute has been repealed, the appellate court must dispose of the case based on the law in effect at the time of its decision. Vance v. Rankin , 194 Ill. 625, 627–28, 62 N.E. 807 (1902).³

¶ 10 We find the cases of Shelton and Isenstein v. Rosewell , 106 Ill. 2d 301, 88 Ill.Dec. 15, 478 N.E.2d 330 (1985), to be instructive in this instance. In Shelton , the plaintiffs filed two personal injury actions against the city of Chicago and the county of Cook seeking damages they suffered as a result of mob action, a statutory remedy. Shelton , 42 Ill. 2d at 469, 248 N.E.2d 121. In each case, the city of Chicago and the county of Cook filed motions to dismiss the complaint which alleged, among other grounds, that the statutes upon which the actions were based had been repealed. Id. at 470, 248 N.E.2d 121. The trial court denied the motions to dismiss but certified the following pertinent question, which was considered by our supreme court: "Whether acts passed by the 1967 Legislature, Act 815 and Act 1283, repeal both Section 25–3 of the Criminal Code of 1961 as amended [citation] (applicable to the County) and Section 1–4–8 of the Illinois Municipal Code [citation] (applicable to the City) and retroactively defeat this cause of action, which arose and was filed in this Court prior to the enactment of this 1967 legislation." (Emphases and internal quotation marks omitted.) Id. at 471, 248 N.E.2d 121.

¶ 11 In considering this question, our supreme court explained that, in 1967, the General Assembly enacted statutes which expressly repealed the two statutes cited and upon which liability in the underlying cases was predicated. Id. Upon review, our supreme court concluded that "the legislative purpose to repeal the statutes upon which these actions are based is unmistakable" where the statutes were so expressly repealed and the General Assembly included an "emergency clause" reasserting the repeal Id. at 471–72, 248 N.E.2d 121. The court further reasoned that the plaintiffs had no vested right where the statutes involved a special remedy and did not contain an element of contract or suggestion that the plaintiffs acted in reliance upon the repealed statutes. Id. at 474, 248 N.E.2d 121. The court thus concluded, "[t]he legislature, which for a time had permitted a remedy against subordinate governmental units for damage resulting from mob violence, has withdrawn that remedy." Id.

¶ 12 Similarly, in Isenstein , the plaintiffs filed class action suits challenging the authority of the defendants (which included the Cook County assessor and treasurer) to assess and collect certain rollback taxes for tax years 1977 and thereafter. Isenstein , 106 Ill. 2d at 303, 88 Ill.Dec. 15, 478 N.E.2d 330. The circuit court ultimately entered summary judgment for the plaintiffs and ruled that they were entitled to a refund of all rollback taxes for the pertinent years together with interest. Id. at 304, 88 Ill.Dec. 15, 478 N.E.2d 330. These rulings were based on the circuit court's finding that certain sections of the Revenue Act were repealed by implication in August 1977 and effectively replaced by another statute on the same date, which did not contain a rollback provision. Id. Thus, the circuit court concluded that since the new statute did not contain any rollback provision, the rollback taxes for 1977 and subsequent years were unauthorized by law. Id. The defendants appealed, and the appellate court affirmed, holding that the express repeal of these sections terminated any right the defendants had to assert a rollback tax. Id. at 304–05, 88 Ill.Dec. 15, 478 N.E.2d 330. The defendants then appealed to the supreme court arguing that the statute in question contained a general saving clause, which preserved their power to assert rollback taxes as to all pending proceedings. Id. at 310, 88 Ill.Dec. 15, ...