Deutsche Bank National Trust Co. v. Ivicic
46 N.E.3d 395
Ill. App. Ct.2016Background
- Deutsche Bank filed a foreclosure complaint; a sheriff’s sale was scheduled, canceled once, then held January 23, 2014.
- Steve Dweydari was the high bidder at the January 23 sale (one dollar over bank’s opening bid).
- Deutsche Bank moved to vacate the sale, stating papers submitted to the sheriff related to a canceled June 4, 2013 sale and thus the opening bid/notice information were inaccurate; the trial court granted the motion.
- Dweydari moved to intervene, to reconsider vacation of the sale, and for Rule 137 sanctions against the Law Offices of Ira T. Nevel, LLC, for filing a false/frivolous pleading. The trial court initially denied intervention and reconsideration but set a sanctions hearing.
- At the sanctions hearing the trial court sua sponte entered a nunc pro tunc order granting intervention and then awarded Dweydari $4,500 in attorney fees under Rule 137. Nevel appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of trial court’s nunc pro tunc order granting intervention after it was denied | Trial court’s record and proceedings showed it always intended to allow intervention; nunc pro tunc corrects omissions | Trial court had denied intervention; nunc pro tunc cannot be used to alter a prior judicial decision | Nunc pro tunc was improperly used to change the court’s prior denial; the order granting intervention was invalid |
| Appropriateness of Rule 137 sanctions against Nevel | Motion to vacate was based on a factual mistake and on controlling law (Household Bank); pleadings were reasonably grounded | Dweydari argued pleadings were false, contradictory, and forced extra proceedings/fees | Trial court abused its discretion in imposing sanctions; Rule 137 requires strict proof and written pleading violations—sanctions reversed |
Key Cases Cited
- Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (2008) (plaintiff ordinarily controls whether to seek vacatur of a sale)
- Gill v. Gill, 56 Ill. 2d 139 (1973) (nunc pro tunc corrects omissions of record for what was actually rendered)
- Dauderman v. Dauderman, 130 Ill. App. 2d 807 (1970) (nunc pro tunc not available to alter a judicial decision)
- Z.R.L. Corp. v. Great Central Insurance Co., 201 Ill. App. 3d 843 (1990) (nunc pro tunc corrects clerical omissions, not deliberate judicial decisions)
- Brody v. Hess, 75 Ill. App. 3d 402 (1979) (illustration of proper nunc pro tunc where record shows clerical omission)
- Beck v. Stepp, 144 Ill. 2d 232 (1991) (nunc pro tunc cannot be used to reverse a court’s prior decision)