CitiMortgage, Inc. v. Bermudez
6 N.E.3d 268
Ill. App. Ct.2014Background
- CitiMortgage filed foreclosure in Oct 2009; defendants did not answer and default judgment and sale were entered while they were pursuing a HAMP trial period plan (TPP).
- CitiMortgage sent a December 14, 2009 TPP offer; defendants signed TPPs and made at least one payment but failed to supply fully executed documentation (missing signed hardship affidavit page, incomplete/incorrect Form 4506-T for each borrower, missing P&L for self‑employed borrower).
- Foreclosure sale occurred Feb 3, 2011; CitiMortgage moved to confirm sale and obtain possession; defendants filed a motion to set aside the sale under 735 ILCS 5/15-1508(d-5) asserting they had applied for HAMP and the sale violated HAMP requirements.
- Defendants' supporting exhibits included unsigned or unsworn copies of documents; affidavits by Acevedo and their counsel lacked authentication that attached documents were true copies and contained some hearsay/conclusory statements.
- Trial court struck defendants’ late reply and parts of counsel’s affidavit, denied extension and discovery, denied motion to set aside sale, and confirmed the sale; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (CitiMortgage) | Defendant's Argument (Bermudez/Acevedo) | Held |
|---|---|---|---|
| Whether defendants "applied for assistance" under HAMP such that 735 ILCS 5/15-1508(d-5) requires setting aside the sale | Defendants failed to submit a complete HAMP application (missing signed hardship affidavit page, separate 4506-Ts, P&L); therefore they did not apply and section (d-5) does not apply | They made TPP payments, signed TPP agreements, and attempted to furnish documents; "applied" need not mean a complete application — more likely than not they applied | Held for CitiMortgage: defendants failed to prove by a preponderance that they applied under HAMP; appellate court affirms confirmation of sale |
| Whether the sale occurred in "material violation" of HAMP (notice requirements re: incomplete-information) | Waived or inapplicable because defendants didn’t raise compliant issue timely and they failed the threshold show‑up under (d-5) | CitiMortgage failed to give required incomplete-information notices under HAMP before terminating TPP and selling | Held for CitiMortgage: issue waived (raised first in stricken late reply) and court need not reach merits because defendants failed to prove they applied under HAMP |
| Whether trial court abused discretion in denying extension of time to file reply and striking late filings | Opposed extension; movants offered no affidavit showing good cause and filed late, months after due date | Counsel was overloaded with other matters and obtained opposing counsel’s informal accommodation; denial prejudiced defendants | Held for CitiMortgage: trial court did not abuse discretion; Rule 183 requires good cause, not mere lack of prejudice |
| Whether trial court abused discretion in denying limited discovery to obtain applicable HAMP Guide version | Defendants had access to the correct Guide (CitiMortgage produced it later); discovery unnecessary and untimely | Needed Guide to show Freddie Mac/GSE directives and support (d-5) arguments | Held for CitiMortgage: denial not an abuse of discretion given record and that the applicable Guide was before the court |
Key Cases Cited
- Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (Ill. 2008) (standard of review for judicial-sale confirmation is abuse of discretion)
- Marquette Nat. Bank v. B.J. Dodge Fiat, Inc., 131 Ill. App. 3d 356 (Ill. App. 1985) (affidavits must not be conclusory to establish purported facts)
- Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314 (Ill. 2003) (appellant must provide sufficiently complete record to challenge trial-court rulings)
- Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012) (context on HAMP TPP obligations and prior assumptions about compliance)