2015 IL App (1st) 142053
Ill. App. Ct.2015Background
- BAC Home Loans Servicing, LP filed a mortgage foreclosure complaint in Sept. 2010 against Michael and Ligia Popa for a 2007 mortgage on a Glencoe condominium; BAC alleged default beginning May 2010.
- Mortgage and note were attached; MERS was mortgagee as nominee for Countrywide; an assignment to BAC was recorded before Sept. 15, 2010.
- BAC moved for summary judgment; two mailed notices set a Dec. 17, 2013 hearing. The circuit court entered summary judgment and a foreclosure judgment on Dec. 17, 2013.
- Michael moved to vacate the summary-judgment order asserting improper notice (attorney of record not served; mail size/timing); court denied the motion.
- After a Mar. 19, 2014 sheriff’s sale, BAC moved to confirm the sale including postjudgment advances, taxes, and interest computed at the statutory rate (9%); the court confirmed the sale and ordered possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment should be vacated for defective notice and denial of due process | BAC contends notice was properly mailed to defendants in compliance with Cook County Rule 2.1 and Supreme Court Rule 11; attorney of record was suspended and thus not entitled to service | Michael argues notice was not sent to attorney of record, envelope was oversized causing delayed receipt, and mailing method was defective — denying due process | Court: No abuse of discretion. Service by mail to defendants complied with rules; attorney was suspended and could not represent them; presumed delivery of properly mailed notice defeats vacatur. |
| Whether confirmation of sale must be vacated because BAC included taxes/advances in report of sale | BAC contends advances, taxes, and postjudgment interest at the statutory rate are recoverable under the Foreclosure Law and Code | Defendants assert BAC improperly included taxes and should have used contract (note) interest rate (6.5%), not statutory rate (9%) | Court: Affirmed confirmation. Defendants forfeited detailed argument on taxes; statutory scheme (Foreclosure Law §15‑1504(e)(3) and §15‑1220 with Code §2‑1303) supports entitlement to statutory judgment interest from date of foreclosure judgment and recoverable advances. |
Key Cases Cited
- Krautsack v. Anderson, 223 Ill. 2d 541 (2006) (cardinal rule of statutory interpretation; give plain language effect)
- Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (2008) (appellate review of confirmation of sale is abuse-of-discretion)
- Poilevey v. Spivack, 368 Ill. App. 3d 412 (2006) (merger doctrine: contract merges into judgment)
- Aldrich v. Sharp, 4 Ill. 260 (1841) (early articulation that judgment controls post-judgment interest after foreclosure decree)
- Board of Education of Park Forest Heights School District No. 163 v. State Teacher Certification Board, 363 Ill. App. 3d 433 (2006) (different statutory language implies different legislative intent)
- Longo v. Global Auto Recycling, Inc., 318 Ill. App. 3d 1028 (2000) (postjudgment interest principles in non-foreclosure context)