Fifth Third Bank v. Gould
2024 IL App (1st) 231994-U
| Ill. App. Ct. | 2024Background
- Martha Gould's home was foreclosed on by Fifth Third Bank, which initiated proceedings after she and her co-borrower missed four mortgage payments.
- Martha claimed to have submitted a complete loss mitigation (mortgage modification) application to Fifth Third Bank before the judicial sale, entitling her to protection under federal Regulation X.
- Fifth Third claimed Martha's application was never complete despite several communications requesting additional documentation.
- The property was sold at a judicial sale with Fifth Third as the highest bidder; Martha objected, arguing the sale was premature due to the pending loss mitigation application.
- The Cook County Circuit Court confirmed the judicial sale and denied Martha’s motion to reconsider; Martha appealed, asserting procedural injustice under Illinois foreclosure law and violation of federal regulations.
- There is no transcript or detailed record of proceedings from the confirmation hearing, limiting appellate review to the written order and documentary evidence submitted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether justice was done in confirming judicial sale under 735 ILCS 5/15-1508(b)(iv) | Fifth Third complied with all sale procedures; Martha’s application was never complete; no injustice. | Martha: Sale proceeded despite complete loss mitigation application & no proper denial, violating Regulation X and due process. | Affirmed sale: Record inadequate to show abuse of discretion; presumed circuit court acted lawfully. |
| Violation of Regulation X, 12 C.F.R. § 1024.41(g) (“dual-tracking”) | No violation because Martha never submitted a complete application; all regulatory obligations were satisfied. | Martha: Complete application submitted; bank ignored federal protection against foreclosure during review. | Affirmed for the bank: Insufficient record to overturn trial court discretion; no error shown. |
| Adequacy of record for appellate review | N/A | Martha: Written order insufficient; underlying facts support her claim; lack of hearing transcript should not bar review. | Against Martha: Without hearing transcript, appellate court presumes trial court’s factual findings and legal rationale are correct. |
| Need for evidentiary hearing on loss mitigation application completeness | N/A | Martha did not request an evidentiary hearing or argue for one on appeal. | No sua sponte hearing required; lack of request means no error in this omission. |
Key Cases Cited
- Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469 (Defines when "justice was otherwise not done" under Illinois foreclosure law and limits grounds for vacating judicial sales)
- Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (Clarifies circuit court’s discretion regarding confirmation of judicial sales)
- Corral v. Mervis Industries, Inc., 217 Ill. 2d 144 (Appellant’s burden to provide sufficient record for appellate review)