Wells Fargo Bank, N.A. v. McCluskey
2012 IL App (2d) 110961
| Ill. App. Ct. | 2012Background
- Defendant Katie McCluskey signed a $330,186 promissory note to Wells Fargo Bank, N.A. on Sept 28, 2009, secured by a mortgage on her Naperville home.
- Defendant defaulted on November 1, 2009 and did not make any payments after April 2010.
- Plaintiff filed a foreclosure action on July 14, 2010; defendant was served and default judgment entered after a hearing.
- February 24, 2011, defendant sought an emergency stay under 735 ILCS 5/2-1301(e) to vacate the default and halt the sheriff’s sale; an agreed order was reached delaying the sale about 75 days.
- May 12, 2011, sheriff’s sale occurred with Wells Fargo the successful bidder; June 7, 2011 defendant filed a second 2-1301(e) motion to vacate the default judgment.
- Trial court denied the second motion August 30, 2011, citing that defendant had waived the right by withdrawing the first motion in exchange for the stay; appeal followed, with remand requested for discretionary ruling on the second motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second 2-1301(e) motion was timely after the sale | Barnes controls; post-sale motions are barred by §15-1508(b). | Roberts allows consideration of post-sale 2-1301(e) motions; timeliness should be judged on merits not sale date. | The court allowed consideration of the second motion on remand; not barred by timing. |
| Whether withdrawal of the first stay/2-1301(e) motion constituted a waiver of the right to file a second motion | Waiver occurred; defendant traded waiver for 75-day stay. | No clear term showing waiver; waiver must be clearly inferred and not present here. | Waiver not clearly inferred; trial court erred in denying second motion on waiver grounds. |
| Whether the trial court abused its discretion by denying the second motion on waiver grounds | Discretion limited by waiver and lack of merit in second motion. | Discretion exists to consider meritorious defenses even after sale; justice requires review. | Trial court erred by not exercising discretion; remanded to consider merits. |
Key Cases Cited
- Mortgage Elec. Registration Sys., Inc. v. Barnes, 406 Ill. App. 3d 1 (2010) (Foreclosure-law provisions can be inconsistent with 2-1301(e); limits on post-sale relief)
- Roberts v. Merchants Bank, 292 Ill. App. 3d 925 (1997) (Trial court may consider 2-1301(e) relief after sale when meritorious defenses exist)
- In re Ward, 282 Ill. App. 3d 423 (1996) (Burden on movant to show grounds to vacate judgment)
- McCloud v. Rodriguez, 304 Ill. App. 3d 652 (1999) (Judicial duty to ensure justice in rulings)
- Olsen v. Staniak, 260 Ill. App. 3d 856 (1994) (Agreed orders require clear, definite terms)
- Exchange Nat’l Bank of Chicago v. Sampson, 186 Ill. App. 3d 969 (1989) (Contract principles apply to agreed orders)
- Besic v. Lattof Chevrolet, Inc., 2012 IL App (1st) 103185 (2012) (Discretion to rule on motions; must exercise discretion)
- Moffitt v. Illinois Power Co., 248 Ill. App. 3d 752 (1993) (Trial court must exercise discretion, not default to jurisdictional bar)