CitiMortgage, Inc. v. Moran
2014 IL App (1st) 132430
Ill. App. Ct.2014Background
- In 2001 Moran and the Reids borrowed $281,327 from Union Federal Bank, secured by a residential mortgage; the bank later assigned the mortgage/note to Mortgage Electronic Registration Systems (MERS) as nominee for CitiMortgage.
- CitiMortgage sued to foreclose in September 2010, attaching an assignment to its complaint; it moved for default after defendants failed to appear/plead.
- Moran filed a late appearance (two days after a court deadline) and then a section 2-619 motion to dismiss for lack of standing (claiming CitiMortgage lacked a valid assignment), but he never timely called the motion for hearing.
- The trial court entered an order of default and an order of foreclosure and sale; Moran’s motions to vacate the default and to reconsider were denied.
- CitiMortgage purchased the property at auction and the trial court confirmed the sale; Moran’s motion to reconsider confirmation was denied, and he appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of default while 2-619 motion pending | Court may enter default where defendant failed to appear/plead and did not pursue hearing | Motion to dismiss is a pleading that precludes default (relying on Bland) | Default was proper: Moran filed late appearance, never set motion for hearing, and record showed no bar to default |
| Merits of motion to dismiss for lack of standing | CitiMortgage attached assignment and note to complaint; holder presumptively owns note | CitiMortgage lacked a valid assignment and thus standing | Motion to dismiss lacked merit: assignment and note in record supported CitiMortgage's position |
| Vacation of default under §2‑1301 | Default should stand given defendant’s delay and hardship to plaintiff | Defendant argued substantial injustice and meritorious defense | Denial to vacate was not an abuse of discretion: Moran showed lack of diligence and no meritorious defense |
| Confirmation/vacatur of judicial sale under §15‑1508(b) | Sale should be confirmed; defendant failed to show fraud, unconscionability, improper notice, or that justice was not done | Sale should be vacated because default prevented adjudication of defenses | Confirmation affirmed: Moran failed to show fraud/misconduct or equitable grounds to vacate sale |
Key Cases Cited
- EMC Mortgage Corp. v. Kemp, 2012 IL 113419 (ill. 2012) (order confirming sale is final, appealable and limits grounds to contest sale at confirmation)
- Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (Ill. 2008) (confirmation completes judicial sale; appellate review is for abuse of discretion)
- Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469 (Ill. 2013) (court will confirm sale unless notice, unconscionability, fraud, or justice not done; broad discretion under §15‑1508(b))
- Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376 (Ill. 2004) (motion to dismiss standards; reversal of default only if motion to dismiss should have been granted)