DLJ Mortgage Capital, Inc. v. Frederick
12 N.E.3d 778
Ill. App. Ct.2014Background
- DLJ filed a mortgage foreclosure complaint against Calvita Frederick in February 2006, alleging it was the holder/owner (or agent/nominee) of the note and mortgage; the note was endorsed in blank.
- After a vacated default judgment and pleadings, DLJ moved for summary judgment with an affidavit attesting it was the holder/owner and producing the note; Frederick did not submit counter-affidavits. The court entered summary judgment and a judgment of foreclosure in February 2007.
- A judicial sale occurred (May/June 2007), an order approving the sale was briefly vacated, and further litigations followed; a renewed judicial sale was held June 7, 2012, with DLJ as the successful bidder.
- The trial court entered an order approving and confirming the sale and order of possession on September 24, 2012. Frederick moved to vacate the order of possession; the motion was denied and she appealed.
- On appeal Frederick argued DLJ lacked standing (assignment went to Fairbanks, not DLJ), seeking reversal of summary judgment and vacatur of the sale; she did not challenge the confirmation order on appeal or allege fraud in the sale proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DLJ had standing to bring the foreclosure | DLJ asserted it was the holder/owner (or agent/nominee) of the note and mortgage and produced affidavit and endorsed note supporting summary judgment | Frederick argued the assignment made the mortgage holder Fairbanks, so DLJ lacked standing to foreclose | Court affirmed summary judgment and foreclosure because Frederick waited until after confirmation of sale to raise the merits; she failed to challenge the confirmation or allege fraud and is limited to statutory grounds to set aside the sale |
| Whether the judicial sale and confirmation can be attacked by raising merits of foreclosure after confirmation | DLJ relied on Foreclosure Law procedures limiting post-sale challenges to specified grounds | Frederick sought to invalidate sale by attacking the underlying foreclosure judgment (standing) rather than the confirmation proceedings | Court held that after confirmation a borrower may not attack the merits of the foreclosure; relief is limited to section 15‑1508(b) grounds (notice, unconscionable terms, fraud, or that justice was not done) |
| Whether Frederick showed a statutory ground (e.g., unconscionability or fraud) to vacate the sale | DLJ and court pointed to the confirmation order finding proper notice and a fair sale | Frederick claimed she was misled about the sale date and lacked representation at the sale | Court found no record support for misleading conduct or continuance and noted Frederick did not challenge confirmation; her unconscionability claim failed |
| Whether absence of a transcript affects review of trial-court factual findings | DLJ relied on presumption that trial court findings are correct absent record | Frederick failed to provide trial transcripts or agreed statement as required | Court applied the Foutch presumption and declined to review factual findings lacking a record |
Key Cases Cited
- Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469 (Ill. 2013) (after judicial sale and motion to confirm, borrower may only attack sale under Foreclosure Law grounds)
- Mortgage Electronic Registration Sys., Inc. v. Barnes, 406 Ill. App. 3d 1 (Ill. App. Ct. 2010) (Foreclosure Law controls over inconsistent statutory provisions)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (Ill. 1984) (absent record, appellate court presumes trial court had sufficient factual basis)
- In re Marriage of Gulla, 234 Ill. 2d 414 (Ill. 2009) (issue tied to circuit court’s factual findings cannot be reviewed without a report of proceedings)