Nationwide Advantage Mortgage Company v. Ortiz
2012 IL App (1st) 112755
| Ill. App. Ct. | 2012Background
- Mortgage foreclosure action filed Oct 14, 2009 by Nationwide Advantage Mortgage Co. against Miguel Ortiz; plaintiff sought possession and foreclosure under the Illinois Mortgage Foreclosure Law.
- Judgment for foreclosure and sale was entered Mar 10, 2010; defendant later moved to withdraw his answer and to dismiss for lack of standing.
- Trial court dismissed for lack of standing after finding the note assignment to plaintiff occurred after filing; Barnes (2010) held standing defenses cannot be raised post-judgment.
- Plaintiff moved to reconsider; Barnes was considered and vacated the dismissal; the trial court reversed and later denied reconsideration.
- Sale occurred Jul 12, 2010; sale was confirmed Aug 17, 2011, after multiple motions and reconsiderations, with defendant appealing the sale confirmation and reconsideration denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant forfeited lack of standing defense | Ortiz failed to raise standing before judgment | Ortiz had standing defense despite timing | Yes, forfeited; Barnes controls |
| Whether the trial court correctly confirmed the judicial sale | Sale should be confirmed under statute absent fraud or injustice | Sale price unconscionable or unfairly conducted | Yes, sale properly confirmed |
Key Cases Cited
- Barnes, Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1 (2010) (forfeiture of standing defense when raised after foreclosure judgment)
- Glisson v. City of Marion, 188 Ill. 2d 211 (1999) (standing requires injury and cognizable interest)
- Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988) (lack of standing is an affirmative defense to be raised timely)
- Moehle v. Chrysler Motors Corp., 93 Ill. 2d 299 (1982) (stare decisis and public policy considerations in departure from precedent)
- Loeb v. Stern, 198 Ill. 371 (1902) (sale price adequacy generally conclusive absent fraud or irregularity)
- Lyons Savings & Loan Ass’n v. Gash Associates, 189 Ill. App. 3d 684 (1989) (mere inadequacy of price not sufficient to set aside judicial sale)
- Illinois law cited in context of Barnes v. Barnes, 406 Ill. App. 3d 1 (2010) (reiterates timing rule for raising standing defense)