CitiMortgage, Inc. v. Hoeft
39 N.E.3d 240
Ill. App. Ct.2015Background
- CitiMortgage filed to foreclose a mortgage on the Hoefts’ home after missed payments; the mortgage contained a standard acceleration clause requiring a pre-acceleration notice specifying the default, cure action, cure date (≥30 days), and that failure to cure may result in acceleration and foreclosure.
- CitiMortgage sent a November 11, 2010 acceleration letter that: stated the loan was in default; specified a cure amount of $5,620.70 (including late charges and expenses) and a cure deadline of 12/11/10; and added that "any additional monthly payments and late charges that fall due by 12/11/10 must also be paid."
- The Hoefts moved to dismiss under 735 ILCS 5/2-619(a)(9), arguing the letter failed to specify the extent of the default and the exact cure amount because of the ambiguous clause about additional amounts due during the cure period.
- The trial court denied the 2-619 motion, struck the Hoefts’ affirmative defense challenging the notice, granted CitiMortgage summary judgment, and confirmed the foreclosure sale; the Hoefts appealed, but in this appeal they challenge only the denial of the 2-619 dismissal.
- The appellate court considered procedural objections (appealability and forfeiture) and then addressed whether the acceleration letter complied with the mortgage’s requirements.
Issues
| Issue | Plaintiff's Argument (CitiMortgage) | Defendant's Argument (Hoeft) | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction to review denial of 2-619 motion when not listed in notice of appeal | Denial was a step toward the final foreclosure judgment and sale, so included in appeal of final orders | Denial not listed in notice of appeal, so not properly before court | Denial was reviewable: interlocutory order that led to final judgment is included in appeal |
| Whether Hoefts forfeited acceleration-notice challenges by varying arguments below and on appeal | Hoefts’ various objections all raised the same core complaint (letter left cure amount indeterminate) | Hoefts argued the letter did not disclose exact cure amount because of "additional amounts" clause | No forfeiture; core argument preserved and reviewable |
| Whether the acceleration letter complied with the mortgage’s required contents (default, action to cure, cure date, warning of acceleration) | The letter satisfied the mortgage: it identified default, gave a monetary cure amount (to the penny), set a ≥30‑day cure date, and warned of acceleration; minor, inevitable variability in additional amounts during cure period does not render notice invalid | The clause requiring payment of any additional monthly payments and late charges due during the cure window made the required cure amount indeterminate and thus noncompliant | Letter was sufficient; denial of 2-619 motion proper (letter met mortgage requirements) |
Key Cases Cited
- Knapp v. Bulun, 392 Ill. App. 3d 1018 (Ill. App. Ct.) (an appeal from final judgment draws into issue prior interlocutory orders that produced the final judgment)
- Cabinet Service Tile, Inc. v. Schroeder, 255 Ill. App. 3d 865 (Ill. App. Ct.) (denial of motion to dismiss generally is not a final appealable order)
- Neiman v. Economy Preferred Insurance Co., 357 Ill. App. 3d 786 (Ill. App. Ct.) (an order not listed in the notice of appeal may be reviewed if it was a step in the procedural progression to the judgment appealed)
- DeLuna v. Burciaga, 223 Ill. 2d 49 (Ill. 2006) (standard of review for denial of a section 2-619(a)(9) motion: de novo)
- In re Desiree O., 381 Ill. App. 3d 854 (Ill. App. Ct.) (appellate courts construe notices of appeal liberally)