2015 IL App (1st) 133898
SECOND DIVISION February 17, 2015
No. 1-13-3898
BEAL BANK, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) ROSA BARRIE, ) ) No. 12 CH 41250 Defendant-Appellant ) ) ) (LPP Mortgage, Ltd., ) Honorable ) Darryl B. Simko, Plaintiff). ) Judge Presiding.
JUSTICE LIU delivered the judgment of the court, with opinion. Presiding Justice Simon and Justice Neville concurred in the judgment and opinion.
OPINION ¶1 Defendant, Rosa Barrie (Barrie), pro se, appeals from orders of the circuit court of Cook
County denying her motion under section 2-1301 of the Code of Civil Procedure (735 ILCS 5/2-
1301 (West 2012)) to vacate a default judgment in a mortgage foreclosure action and confirming
the judicial sale. In her motion to vacate, Barrie argued that plaintiff, LPP Mortgage, Ltd. (LPP),
failed to send a grace period notice in compliance with section 15-1502.5 of the Illinois
Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1502.5 (West 2012)) and lacked
standing to bring the suit. She also raises the argument, on appeal, that the circuit court lacked
subject matter jurisdiction. We affirm. 1-13-3898
¶2 BACKGROUND
¶3 In October 2002, Barrie executed a promissory note and mortgage on a residential
property in favor of the lender and grantee, New Century Mortgage Corporation (New Century). 1
LPP subsequently acquired the note and mortgage. On November 14, 2012, LPP filed the
underlying action, alleging that Barrie had defaulted on her monthly payment obligations under
the note as of May 1, 2012. The City of Country Club Hills was named as a defendant for
purposes of determining the priority of any subordinate liens against the property.
¶4 Barrie appeared in court on January 14, 2013 for the initial case management status
hearing. She was given until February 11, 2013 to file her appearance and to answer or otherwise
plead. Barrie failed to file either an appearance or any pleading until after the judicial sale of the
subject property.
¶5 A. Default Order and Judgment of Foreclosure and Sale
¶6 LPP filed a motion for default and judgment of foreclosure and sale on February 11,
2013. On March 8, 2013, the court entered an order of default against Barrie and the City of
Country Club Hills and a judgment of foreclosure and sale. The judgment was based upon the
amounts stated in LLP's prove-up affidavit, which was attached to the motion. Barrie was given
90 days from the date of the judgment to exercise her right of redemption.
¶7 B. Motion to Confirm Sale
¶8 The property was sold at a judicial sale on September 3, 2013. Beal Bank, as the
assignee of LPP's interests in the note and mortgage, made a full credit bid and purchased the
property. 2 On September 11, Beal Bank filed its motion to confirm the sale.
1 The mortgage and various assignments of the mortgage identify the location of the property as "Maple Street." Other documents, including the modification executed on October 26, 2002, refer to "Maple Avenue." The discrepancy does not affect our disposition. 2 On May 7, 2013, the circuit court granted LLP's motion to substitute Beal Bank as the plaintiff, based 2 1-13-3898
¶9 Five days before the scheduled hearing on the motion to confirm the sale, Barrie's
attorney filed his appearance in the case. According to the record, counsel's appearance was filed
on September 26, 2013. However, a copy of the appearance was not served on Beal Bank's
counsel until the next day (a Friday)—four days before the scheduled hearing.
¶ 10 C. Motion to Vacate Default Judgment
¶ 11 On October 11, 2014, a month after the motion to confirm was filed and more than two
weeks after her counsel first filed his appearance, Barrie filed her combined section 2-1301
motion to vacate the default and judgment and response to the motion to confirm. Barrie
contended that the March 8 default order and judgment should be vacated because she had
meritorious defenses to the lawsuit. She alleged that LPP (i) failed to send her the grace period
notice required by section 15-1502.5 of the Foreclosure Law and (ii) lacked standing to bring the
suit.
¶ 12 Barrie acknowledged that a notice of default dated June 7, 2012 had been sent to her by a
party identified as MGCMortgage, Inc. (MGCMortgage), but she contended that this notice
failed to comply with the specific language mandated under section 15-1502.5 for the statutory
grace period notice. She further asserted that LPP lacked standing at the time it filed the suit
because there was an insufficient chain of title establishing it as the mortgagee. Lastly, she
asserted that confirmation of the sale would result in an injustice pursuant to section 15-1508(b)
of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 2012)).
¶ 13 On November 12, the circuit court denied Barrie's motion to vacate and granted Beal
Bank's motion to confirm the sale.
¶ 14 Barrie timely appealed from the order confirming the sale. We therefore have jurisdiction
on evidence of the assignments from LPP to Beal Nevada Corporation and Beal Bank.
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pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. May 30, 2008).
¶ 15 ANALYSIS
¶ 16 A. Subject Matter Jurisdiction
¶ 17 Defendant first contends that the circuit court lacked subject matter jurisdiction over this
cause. The record indicates that defendant's jurisdictional objection is being presented for the
first time on appeal; however, it is well settled that a party may raise a lack of subject matter
jurisdiction at any time. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d
325, 333-34 (2002). The issue of whether subject matter jurisdiction exists is a legal question,
which we review de novo. In re Luis R., 239 Ill. 2d 295, 299 (2010).
¶ 18 Barrie's pro se appellate brief does not fully elaborate on the rationale for her claim that
the cause was not "justiciable." Nonetheless, we will address the argument in her brief that
appears to be related to her claim of a lack of subject matter jurisdiction. Barrie contends that a
document entitled "Title Summary" supports her claim that a party named Dovenmuehle
Mortgage, Inc. (Dovenmuehle), was the owner of the subject mortgage "[l]iterally 12 days before
Plaintiff filed the non-verified foreclosure complaint." Barrie maintains that no "interest was ever
transferred to LPP" and that all orders entered by the circuit court are therefore "void for lack of
justiciability."
¶ 19 "Subject matter jurisdiction refers to the court's power to hear and determine cases of the
general class to which the proceeding in question belongs." (Internal quotation marks omitted.)
Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 27 (quoting In re
M.W., 232 Ill. 2d 408, 415 (2009)). "Under the Illinois Constitution of 1970, the circuit courts
have original jurisdiction of all justiciable matters except where [the supreme] court has
exclusive and original jurisdiction relating to the redistricting of the General Assembly and the
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ability of the Governor to serve or resume office." Id. (citing Ill. Const. 1970, art. VI, § 9).
¶ 20 Our supreme court has explained what constitutes a justiciable matter:
"Generally speaking, a 'justiciable matter' is 'a controversy
appropriate for review by the court, in that it is definite and
concrete, as opposed to hypothetical or moot, touching upon the
legal relations of parties having adverse legal interests.' [Citation.]
To invoke a circuit court's subject matter jurisdiction, a petition or
complaint need only 'alleg[e] the existence of a justiciable matter.'
[Citation.] Indeed, even a defectively stated claim is sufficient to
invoke the court's subject matter jurisdiction, as '[s]ubject matter
jurisdiction does not depend upon the legal sufficiency of the
pleadings.' [Citation.] In other words, the only consideration is
whether the alleged claim falls within the general class of cases
that the court has the inherent power to hear and determine. If it
does, then subject matter jurisdiction is present." (Emphasis in
original.) Luis R., 239 Ill. 2d at 301.
¶ 21 Here, there can be no dispute that the circuit court had the power to hear and enter
dispositions on the foreclosure complaint brought by LPP. See 735 ILCS 5/15-1101 et seq.
(West 2012). To the extent Barrie asserts that the court lacked subject matter jurisdiction
because LPP's complaint was legally deficient at the time it was filed, purportedly because it did
not hold the mortgage, we disagree. Based upon our reading of Luis R, legal deficiencies in an
action, alone, are not enough to divest a court of subject matter jurisdiction. As our supreme
court stated, "the only consideration is whether the alleged claim falls within the general class of
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cases that the court has the inherent power to hear and determine." (Emphasis in original.) Luis
R., 239 Ill. 2d at 301. Under the circumstances, we reject Barrie's claim that the circuit court
lacked subject matter jurisdiction. See id.
¶ 22 B. Motion to Vacate Default and Judgment
¶ 23 Barrie contends that the circuit court also abused its discretion in denying her motion to
vacate the judgment of foreclosure and sale. We review the circuit court's denial of a motion to
vacate for an abuse of discretion. Standard Bank & Trust Co. v. Madonia, 2011 IL App (1st)
103516, ¶ 8; Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008) (noting that "[a] court's
decision to confirm or reject a judicial sale under [section 15-1508 of the Foreclosure Law] will
not be disturbed absent an abuse of *** discretion").
¶ 24 Beal Bank maintains that Barrie's motion to vacate was untimely under Wells Fargo
Bank, N.A. v. McCluskey, 2013 IL 115469. Additionally, it argues that Barrie failed to satisfy
any of the grounds stated in section 15-1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b)
(West 2012)) that allow a court to set aside a judicial sale or to deny confirmation of the sale.
¶ 25 In McCluskey, our supreme court held that "up until a motion to confirm the judicial sale
is filed, a borrower may seek to vacate a default judgment of foreclosure under the standards set
forth in section 2-1301(e)." McCluskey, 2013 IL 115469, ¶ 27. "However, after a motion to
confirm the judicial sale has been filed, a borrower seeking to set aside a default judgment of
foreclosure may only do so by filing objections to the confirmation of the sale under the
provisions of section 15-1508(b)." Id.
¶ 26 Beal Bank filed its motion to confirm the sale on September 11, 2013. Barrie did not file
her section 2-1301 motion to vacate the default judgment until October 11, 2013, 30 days later.
Under McCluskey, once Beal Bank filed its motion to confirm the sale, Barrie's request for relief
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from the sale and any default judgment was limited to the grounds set forth in section 15-
1508(b). We therefore address whether there is a basis to deny confirmation under this section.
¶ 27 C. Relief Under Section 15-1508(b)
¶ 28 Section 15-1508(b) of the Foreclosure Law provides, in relevant part:
"Upon motion and notice in accordance with court rules applicable
to motions generally, which motion shall not be made prior to sale,
the court shall conduct a hearing to confirm the sale. Unless the
court finds that (i) a notice required in accordance with subsection
(c) of Section 15-1507 was not given, (ii) the terms of sale were
unconscionable, (iii) the sale was conducted fraudulently, or (iv)
justice was otherwise not done, the court shall then enter an order
confirming the sale." 735 ILCS 5/15-1508(b) (West 2012).
It is clear from the plain language of this section that the court is required to confirm a sale upon
a hearing unless it finds that at least one of the foregoing four grounds for denial exists.
Accordingly, the party seeking to avoid confirmation of the sale has the burden of showing why
the circumstances of the case fall within section 15-1508(b).
¶ 29 Here, Barrie did not offer the circuit court any evidence demonstrating that Beal Bank
failed to give requisite notice of the sale under section 15-1507, that the terms of the September
3, 2013 sale were unconscionable, or that the sale was conducted fraudulently, pursuant to
section 15-1508(b)(i), (ii), and (iii). Instead, in response to the motion to confirm, Barrie alleges
that "injustice is present here" because "the record reveals that Plaintiff unequivocally failed to
give statutory grace period notice." We therefore consider Barrie's argument within the
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framework of section 15-1508(b)(iv) only, which requires a showing that "justice was not
otherwise done." 735 ILCS 5/15-1508(b)(iv) (West 2012).
¶ 30 Our supreme court has explained that, once a motion to confirm has been filed, a
borrower seeking relief from a default judgment and sale pursuant to section 15-1508(b)(iv) must
demonstrate "either the lender, through fraud or misrepresentation, prevented the borrower from
raising his meritorious defenses to the complaint at an earlier time in the proceedings, or the
borrower has equitable defenses that reveal he was otherwise prevented from protecting his
property interests." McCluskey, 2013 IL 115469, ¶ 26.
¶ 31 Barrie cites to the recent decision of Bank of America, N.A. v. Adeyiga, 2014 IL App (1st)
131252, in support of her claim that justice was not otherwise done. In Adeyiga, a mortgage
foreclosure case, the plaintiff moved for summary judgment after one of the defendants filed an
answer. Adeyiga, 2014 IL App (1st) 131252, ¶¶ 14, 20. The defendants filed a response to the
summary judgment motion and a section 2-619 motion to dismiss the complaint, alleging "that
the Bank had not met its burden of proof to show that it had mailed a grace period notice prior to
the filing of the complaint." Id. ¶ 26. Attached to the defendants' pleading were affidavits in
which they averred that they did not receive the statutory grace period notice required under
section 15-1502.5 of the Foreclosure Law. Id. The plaintiff, in reply, did not deny that it failed to
send the grace period notice; instead, it argued that the defendants had admitted to receiving the
grace period notice where they did not raise the failure to send such notice as an affirmative
defense. Id. ¶ 31.
¶ 32 Ultimately, the circuit court denied the defendants' motion to dismiss, and awarded the
plaintiff summary judgment and judgment of foreclosure and sale. Id. ¶ 33. The court found that
where the plaintiff used the "form complaint" provided for in section 15-1504(a) of the
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Foreclosure Law, "the complaint included the 'deemed' allegation that 'other notices required to
be given' had been given." Id. ¶ 36. The defendants appealed, arguing that the circuit court erred
in finding that they had admitted receiving a grace period notice merely because they did not
deny it in their answer. Id. ¶ 84.
¶ 33 The reviewing panel in Adeyiga undertook an extensive analysis of the relevant statutory
provisions and agreed with the defendants' argument. Id. ¶¶ 97-112. It concluded that "the trial
court erred as a matter of law when it deemed that [the defendants] admitted to receiving the
grace period notice, even though the Bank never showed evidence that it mailed or served a
notice." Id. ¶ 112. Consequently, the cause was remanded for an evidentiary hearing so that the
circuit court could determine whether the statutory grace period notice was sent by the Bank and
whether the Bank waited the requisite amount of time before filing suit. Id.
¶ 34 We find the procedural posture of the instant case to be significantly different from that
of Adeyiga. In Adeyiga, the defendants raised their grace period notice defense prior to the entry
of a judgment of foreclosure and sale, sale of the property, expiration of the redemption period
following sale, and most crucially, before a motion to confirm the sale was filed. One of the
defendants in Adeyiga filed his appearance and answer within 14 days of being served with the
complaint and summons, and filed his amended answer, affirmative defenses and counterclaim a
little over a month later. Id. ¶¶ 14-15. The defendants raised their grace period notice challenge
within 60 days after the plaintiff filed it motion for summary judgment, in both their response to
the motion and their motion to dismiss the complaint. Id. ¶¶ 25-26. In all instances, the
defendants sought relief before the plaintiff filed its motion to confirm the sale.
¶ 35 In contrast, here, Barrie did not raise her grace period notice defense at any time during
the underlying proceedings until a month after Beal Bank filed its motion to confirm the sale.
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Further, unlike the defendants in Adeyiga, Barrie did not participate in her own case by filing an
appearance or any pleading between January 14, 2013, the date she attended the initial case
management hearing, until October 11, 2013, a month after Beal Bank filed its motion to confirm
the sale. Therefore, our review of the circuit court's orders is confined to an analysis of whether
the court abused its discretion when it confirmed the sale pursuant to section 15-1508(b).
¶ 36 Barrie has not pointed to anything in the record to demonstrate that there was any fraud
or misrepresentation that prevented her from raising her defenses earlier, or that an equitable
defense exists because she was otherwise prevented from protecting her property interests.
McCluskey, 2013 IL 115469, ¶ 26. She has not shown that there was any fraud in this case
where she merely alleged that the bank failed to send grace period notice. She has also not shown
that she has an equitable defense because lack of grace period notice represents a statutory, rather
than equitable, defense. Under the circumstances, we find Adeyiga distinguishable and conclude
that the alleged lack of grace period notice did not satisfy the grounds of section 15-1508(b).
¶ 37 We note that the Adeyiga decision contains language suggesting that where the plaintiff
failed to send the grace period notice more than 30 days prior to filing suit, "mortgagors have
been 'prevented from protecting their property interests,' and justice has not been done under
subsection 15-1508(b)(iv) of the Foreclosure Law." Adeyiga, 2014 IL App (1st) 131252, ¶ 124.
Our supreme court has expressly ruled that "[a]fter a motion to confirm the sale has been filed, it
is not sufficient under section 15-1508(b)(iv) to merely raise a meritorious defense to the
complaint." McCluskey, 2013 IL 115469, ¶ 26. We offer no opinion as to whether Adeyiga is
properly aligned with McCluskey regarding the interpretation of section 15-1508(b)(iv), which
requires a showing that "justice was not otherwise done." Instead, we adhere to the analysis set
forth in McCluskey, and find that section 15-1508(b)(iv) is not satisfied because Barrie presented
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no arguments as to any fraud or misrepresentation that prevented her from raising her defenses
earlier, nor did she assert any equitable defenses that reveal she was prevented from protecting
her property interests. Id.
¶ 38 We further find no merit in Barrie's claim that LPP lacked standing at the time it filed the
complaint. The record shows that copies of two recorded assignments were attached to LPP's
motion for default and judgment of foreclosure and sale at the time it filed its motion. The
assignments indicate that the subject mortgage was assigned by New Century to Deutsche Bank
Structured Products (DBSP), and then later assigned by DBSP to LPP.
¶ 39 Lack of standing is an affirmative defense that must be pleaded in the answer or
responsive pleading. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010) (noting
that "lack of standing is an affirmative defense, which is the defendant's burden to plead and
prove"). Moreover, "lack of standing in a civil case is an affirmative defense, which will be
waived if not raised in a timely fashion in the trial court." Greer v. Illinois Housing
Development Authority, 122 Ill. 2d 462, 508 (1988). Barrie failed to file any answer, responsive
pleading or affirmative defenses in the lawsuit. She never raised a challenge to standing until
after Beal Bank filed its motion to confirm the sale. Barrie's untimely standing claim is waived.
Even if this argument was not waived, it would still fail under section 15-1508(b). Her claim
that LPP lacked standing is nothing more than an allegedly meritorious defense that, by itself,
does not satisfy any of the grounds of section 15-1508(b). DLJ Mortgage Capital, Inc. v.
Frederick, 2014 IL App (1st) 123176, ¶ 18.
¶ 40 CONCLUSION
¶ 41 For the reasons stated, we affirm the judgment of the circuit court.
¶ 42 Affirmed.