OneWest Bank, FSB v. Hawthorne
985 N.E.2d 1057
Ill. App. Ct.2013Background
- OneWest Bank filed a mortgage foreclosure against Kim Downs, a co-owner, with service by publication after attempts at personal service failed.
- A default judgment for foreclosure and sale was entered on June 24, 2010, and the judgment was deemed final and appealable.
- Downs filed pro se motions to vacate the default, which were heard in 2011 but denied; Downs subsequently appeared through counsel on related motions.
- A public auction occurred on April 25, 2011, with the Bank purchasing the property for the debt amount; sale was approved May 19, 2011.
- A consent order dated April 13, 2011, with the Office of Thrift Supervision, mandated review of foreclosure actions and to verify note/mortgage ownership and timing of sales with loan modifications.
- Downs filed a 2-1401 petition in September 2011 seeking relief from judgment; the circuit court denied, and the appellate court affirmed jurisdiction and the denial, concluding no meritorious defense or due diligence was shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Downs timely and properly sought relief under 2-1401 | Hawthorne contends the petition was second/successive and untimely. | Downs argues amended motions related to the sale were timely and properly filed. | No jurisdictional defect; petition timely and properly considered. |
| Whether Downs showed a meritorious defense to foreclosure | Bank asserts defenses missing standing issues were not proven. | Downs contends defective documentation deprived Bank of standing. | No meritorious defense shown; documentation issues not proven for this mortgage. |
| Whether Downs acted with due diligence prior to judgment | Delay and failure to appear pre-judgment undermines diligence. | Downs lacked counsel and timely pursuit; excusable delay due to complex proceedings. | Due diligence not demonstrated; failure to raise defenses pre-judgment was not excusable. |
| Whether the amended motion to reconsider was timely and properly treated | Amended motion was untimely and should have been treated as a 2-1401 petition. | Amendment was timely as an extension of the May 25, 2011 motion. | Amendment timely; proper treatment preserved jurisdiction. |
| Whether the consent order affected the 2-1401 petition | Consent decree discovery supports relief from judgment. | Consent decree postdates judgment; not a basis to vacate. | Consent order does not create a meritorious defense or justify relief. |
Key Cases Cited
- In re Marriage of Verdung, 126 Ill. 2d 542 (1989) (final and appealable status when judgment includes no just reason for delay)
- Malkin v. Malkin, 301 Ill. App. 3d 303 (1998) (due diligence and excusable neglect required for 2-1401 relief)
- Smith v. Airoom, Inc., 114 Ill. 2d 209 (1986) (due diligence and meritorious defense requirements for 2-1401 petitions)
- Physicians Ins. Exch. v. Jennings, 316 Ill. App. 3d 443 (2000) (peculiar facts to establish meritorious defense require specific allegations)
- Protein Partners, LLP v. Lincoln Provision, Inc., 407 Ill. App. 3d 709 (2010) (treatment of postjudgment petitions as 2-1401 filings caveat)