2011 IL App (3d) 100436
Ill. App. Ct.2011Background
- Plaintiff Deutsche Bank foreclosed a $750,000 mortgage on Snick’s property; complaint alleged Bank as legal holder or servicing agent for the indebtedness.
- Snick did not answer; default judgment of foreclosure and sale entered June 18, 2007 with a Rule 304(a) finding of no just cause for delaying enforcement or appeal.
- Between 2007 and 2009 Snick filed five emergency motions to stay the sale; some were granted, others denied.
- Property eventually sold at sheriff’s sale; Bank moved for order approving sale; Snick later challenged standing for the first time in 2010.
- Trial court found standing issue not timely raised; Snick sought relief under 735 ILCS 5/2-1203 to vacate sale approval; appeal followed.
- Appellate court affirmed the sale approval, holding Snick waived standing defense and that sale should be confirmed under Section 15-1508 absent required findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether standing was timely raised or waived | Bank maintains standing issue was waived by Snick’s default and late challenge. | Snick contends standing should be reviewable; Bank lacked standing as a defense. | Standing waived; no merit to challenge |
| Whether the judgment of foreclosure was final and appealable | Judgment was final and appealable under Rule 304(a). | Not argued; focus on standing. | Judgment was final and appealable under Rule 304(a) |
| Whether the trial court abused discretion in approving sale absent 15-1508 findings | Court properly approved sale; 15-1508 limitations not met by Snick's argument. | Trial court should have refused confirmation if due process issues or standing disputes persisted. | No abuse; court could confirm sale without additional 15-1508 findings |
Key Cases Cited
- In re Marriage of Verdung, 126 Ill.2d 542 (1989) (Rule 304(a) finality considerations for appeals)
- Santana v. Zipperstein, 142 Ill.App.3d 386 (1986) (foreclosure order final but appealable status depends on Rule 304(a))
- Greer v. Illinois Housing Development Authority, 122 Ill.2d 462 (1988) (waiver of affirmative defenses if not timely raised)
- Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill.App.3d 1 (2010) (standing as an affirmative defense that can be waived)