U.S. Bank, N.A. v. Coe
98 N.E.3d 399
Ill. App. Ct.2018Background
- In April 2012 U.S. Bank filed foreclosure against Derrick Coe and Kimberly Wilson for a single-family owner-occupied property.
- Section 15-1502.5 (the Homeowner Protection Act) required lenders to send a pre-foreclosure "grace period" notice to qualifying borrowers; defendants asserted they never received such notice.
- Defendants moved to dismiss for failure to provide the grace period notice; the trial court denied the motion and later confirmed the foreclosure sale on June 8, 2016.
- The Act contained an express repeal provision and was repealed effective July 1, 2016; defendants appealed July 7, 2016.
- Defendants relied on this court’s prior decision in Bank of America, N.A. v. Adeyiga that, absent record evidence a grace period notice was sent, remand for an evidentiary hearing is required.
- The appellate court considered whether the statutory repeal extinguished defendants’ claim under the Act and whether sanctions were warranted for pursuing the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repeal of §15-1502.5 extinguishes defendants’ claim that no grace period notice was sent | The Act was expressly repealed July 1, 2016, so no relief under it can be granted after repeal | Defendants contend the notice requirement created a vested right/due-process protection that survives repeal | Repeal extinguished the statutory remedy; because §15-1502.5 was a special remedial statute without a saving clause, defendants cannot obtain relief under it after repeal |
| Whether failure to send grace period notice creates a vested right preventing repeal from divesting relief | N/A (plaintiff urges application of repeal rules and precedent) | The notice requirement is non-waivable and implicates due process; thus defendants had a vested right | Court held the Act was a special statutory remedy, not a vested right; repeal validly terminated pending claims |
| Whether Adeyiga requires remand despite repeal | The statutory repeal supersedes Adeyiga; without the Act no remand under it is available | Adeyiga controls where statute still in force; defendants rely on it for remand | Adeyiga does not rescue the claim once the underlying statute has been repealed; no remand available |
| Whether appellate sanctions under Ill. S. Ct. R. 375 are appropriate | The appeal was frivolous and not in good faith because the repeal provision had existed since enactment and defendants relied solely on a repealed statute | Defendants proceeded in good faith given novelty of the statutory provision and Adeyiga precedent | Court declined sanctions, finding the appeal not so frivolous as to warrant them in the exercise of discretion |
Key Cases Cited
- Shelton v. City of Chicago, 42 Ill. 2d 468 (Ill. 1969) (express repeal of special remedial statutes defeats pending statutory causes of action)
- Isenstein v. Rosewell, 106 Ill. 2d 301 (Ill. 1985) (absent saving clause, repeal destroys future effect of remedial statute and divests right to proceed)
- People ex rel. Eitel v. Lindheimer, 371 Ill. 367 (Ill. 1939) (unconditional repeal of special remedial statute stops pending actions where repeal finds them)
- City of Chicago v. Degitis, 383 Ill. 171 (Ill. 1943) (repealed statute has no further force or effect absent substitution)
- Vance v. Rankin, 194 Ill. 625 (Ill. 1902) (appellate court must apply law in effect at time of decision when statute has been repealed)
- Lincoln Community High School Dist. No. 404 v. Elkhart Community High School Dist. No. 406, 414 Ill. 466 (Ill. 1953) (repeal can bar relief even if judgment entered and case is on appeal)