Deutsche Bank National v. Burtley

• Court: Appellate Court of Illinois
• Decided: December 26, 2006
• Docket: 1-04-3470 Rel
• Status: Published

Opinion

FIRST DIVISION DECEMBER 26, 2006

No. 1-04-3470

DEUTSCHE BANK NATIONAL, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) ANTHONY BURTLEY, ) No. 02 CH 17665 ) Defendant-Appellant, ) ) The Honorable (Nenad Bozilovic and ) Aaron Jaffe, Anthony Diaz, Intervening Appellees). ) Judge Presiding

JUSTICE GARCIA delivered the opinion of the court.

The plaintiff, Deutsche Bank National, filed its second

foreclosure action against the defendant, Anthony Burtley, on

September 27, 2002, in the Cook County circuit court. The

circuit court entered an order confirming the sale of Burtley’s

property on June 1, 2004. Burtley then filed an amended motion

to vacate, which the trial court denied. Burtley appeals,

contending the trial court erred when it denied his amended

motion to vacate without conducting an evidentiary hearing.

Burtley also contends that the trial court erred in confirming

the sale of the property because the trial court lacked personal

jurisdiction over him. For the following reasons, we affirm the No. 1-04-3470

decision of the trial court.

BACKGROUND

On June 26, 2000, Burtley borrowed $180,000 on a mortgage of

his property at 4016 South Indiana Avenue, Chicago, Illinois,

from the Ames Fund Corporation. Deutsche Bank eventually

acquired the mortgage. In March 2001, Deutsche Bank filed a

foreclosure complaint regarding that mortgage. To avoid

foreclosure, on April 26, 2002, Burtley made a payment of

$47,587.14 for monthly payments due between October 2000 and

April 2002. On May 7, 2002, Burtley made his monthly payment in

the amount of $2,083.01, which was returned as not paid for

insufficient funds on May 15, 2002. On May 17, 2002, Burtley

made his monthly payment for May 2002 in the amount of $2,187.16,

including late fees. On June 17, 2002, Burtley made his monthly

payment on his mortgage for June 2002 in the amount of $3,104.00,

which was returned as not paid for insufficient funds on June 24,

2002.

On July 2, 2002, Deutsche Bank sent a "default letter" to

Burtley, notifying him of his missed payment for June 2002.

Burtley, however, made no further payments on the mortgage.

On September 27, 2002, Deutsche Bank filed a second

complaint for foreclosure under case number 02 CH 17665, which is

the subject of this appeal.

On December 17, 2002, the trial court entered an order

giving Anthony Burtley until January 14, 2003, to file an

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appearance and otherwise plead to the complaint. On January 21,

2003, with defendant Burtley appearing pro se, the court entered

and continued the plaintiff's motions for default and for

judgment of foreclosure.

On March 4, 2003, the trial court entered a default order

based on defendant Burtley's failure to plead to the foreclosure

complaint. The certificate of service filed on March 4, 2003,

shows Anthony R. Burtley was served on October 13, 2002. The

trial court also entered a judgment for foreclosure and sale with

an expiration date of July 5, 2003, of the rights of redemption.

On June 20, 2003, a notice of public sale was sent to

defendant Burtley, among others, that a sale of the foreclosure

property would proceed on July 7, 2003, with a judgment amount of

$215,477.31.

On July 3, 2003, defendant Burtley filed his "Emergency

Motion" to stay the sale of the property contending that he would

soon have the funds to satisfy the mortgage. The motion was

heard and denied on July 7, 2003. Thereafter, a second notice of

public sale was issued with a sale date of October 27, 2003. A

third notice of public sale was issued with a sale date of

February 9, 2004. On February 6, 2004, defendant Burtley filed a

motion to stay the sale contending that he had a buyer for the

property.

On February 9, 2004, the trial court entered an order

staying the sale and setting a status date of February 20, 2004,

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based on a real estate sale contract Burtley presented in open

court with a selling price of $301,000 and a closing date of

February 17, 2004. The order noted that defendant Burtley waived

republication of the sale. On February 20, 2003, an order was

entered continuing the stay through March 2, 2003, with a status

date of March 3, 2004, based on Burtley's representation that the

sale of the property had been reset to February 27, 2003. On

March 3, 2004, an order was entered staying the sale of the

property through March 11, 2003, with a status date of March 16,

2003, with defendant Burtley once again waiving republication of

the sale. On March 16, 2003, with defendant Burtley present, the

stay of the sale was continued to March 30, 2004, with a status

hearing on that date. This time defendant Burtley objected to

the waiving of the publication of sale notice.

On March 30, 2004, with defendant Burtley present, the trial

court denied any further stay of the sale and ordered that the

sale go forward on April 9, 2004, "as scheduled." The court

noted that the real estate sale contract defendant Burtley

presented on that date (apparently different from the one

presented on February 9, 2004) was for an amount "substantially

less" than the payoff amount.

On April 8, 2004, defendant Burtley filed a motion to stay

the sale of the property contending there was "no publication on

file." On April 9, 2004, the trial court denied the defendant's

motion and allowed the sale to go forward without republication.

4 No. 1-04-3470

On April 28, 2004, defendant Burtley presented his motion to

vacate the sale of the property, which the trial court denied.

On June 1, 2004, the trial court entered an order approving

the foreclosure report of sale and distribution and an order of

possession.

On June 30, 2004, defendant Burtley filed a motion

contending that he was never properly served with the foreclosure

complaint and therefore the trial court did not have jurisdiction

over his person. The motion sought dismissal of the foreclosure

suit. In a second motion filed that same day, defendant Burtley

alleged that the purchaser at the sale wrongfully entered the

property on June 25, 2004, and he was damaged thereby.

On July 1, 2004, counsel filed an appearance on behalf of

Burtley along with a motion to vacate the confirmation of sale

order entered on June 1, 2004. On the same date, the trial court

entered an order granting counsel leave to file his appearance on

behalf of Burtley and denying his motion to dismiss based on a

lack of personal jurisdiction and his motion for damages based on

the allegedly wrongful entry to the property.

On July 15, 2004, Burtley's counsel on appeal was granted

leave to substitute his appearance for Burtley's initial counsel

and granted leave to file an amended motion to vacate the sale

with a ruling set for September 22, 2004. Through counsel,

Burtley filed his motion entitled "Amended Motion to Stay and

Vacate Order Confirming Sale and Possession" on August 4, 2004.

5 No. 1-04-3470

In Deutsche Bank's response, filed on September 7, 2004, Deutsche

Bank asserted that Burtley had filed two bankruptcy petitions to

stave off the foreclosure, both of which were dismissed. Exhibit

K to Deutsche Bank's response is a "broker price opinion" setting

the market value of the property at $169,000 with a qualification

that it is "hard to determine repair cost without viewing

inside." Following the intervention of the buyer at the

foreclosure sale, a hearing was held October 1, 2004, on

Burtley's amended motion to vacate sale.

On October 29, 2004, the trial court entered an order

denying Burtley's motion to stay and vacate the order confirming

the sale and possession after "having heard oral argument and

considered all briefs presented" by the parties, ruling that it

found "no reason *** justice would require the sale to be

vacated."

On December 3, 2004, Burtley was granted leave to file a

late notice of appeal and "granted a stay of enforcement of

judgment and possession."

ANALYSIS

I. Standard of Review

We first address the parties’ disagreement concerning our

standard of review.

Deutsche Bank contends that the standard of review is

whether the trial court abused its discretion by failing to

promote substantial justice between the parties when it denied

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Burtley’s motion to vacate without an evidentiary hearing. In

support of its position, Deutsche Bank cites Mann v. Upjohn Co.,

324 Ill. App. 3d 367, 377 (2001), and Northern Trust Co. v.

American National Bank & Trust Co. of Chicago, 265 Ill. App. 3d

406, 412 (1994).

Burtley responds in his reply brief that this court should

review the trial court’s decision using either a de novo standard

of review or what he labels an "ends of justice" standard of

review. To support his position that we should apply a de novo

standard of review, Burtley states that a court applies a de novo

standard of review when the court reviews a motion to dismiss,

(Owens v. Midwest Tank & Manufacturing Co., 192 Ill. App. 3d

1039, 1042 (1989)), or a motion for summary judgment (Continental

Casualty Co. v. McDowell & Colantoni, Ltd., 282 Ill. App. 3d 236,

241 (1996)). To support his claim that we should apply an "ends

of justice" standard of review, Burtley cites to certain language

in Baltz v. McCormack, 66 Ill. App. 3d 76 (1978), and People ex rel Reid v. Adkins, 48 Ill. 2d 402, 406 (1971).

We agree with Deutsche Bank. We review a trial court's

decision to deny a motion to vacate for an abuse of discretion.

In our review, we determine whether the trial court's decision to

deny a motion to vacate "was a fair and just result, which did

not deny [the moving party] substantial justice." Mann v. Upjohn, 324 Ill. App. 2d at 377. A de novo standard of review

does not apply in this case because this case involves a motion

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to vacate, not a motion to dismiss or a motion for summary

judgment. We also question whether the language in Baltz and

Adkins relied upon by Burtley was meant to establish an "ends of

justice" standard of review as he contends. While the Baltz and

Adkins courts expressed an overriding concern on whether the

trial court's ruling did substantial justice between the parties,

we do not interpret the courts' use of that language as creating

a distinct standard of review. In the three cases cited by the

parties, review of the trial court's exercise of its discretion

was viewed in the context of whether each ruling did substantial

justice between the parties. This was the overriding concern in

ruling on the motion to set aside a default in Adkins, 48 Ill. 2d

at 406, and in Baltz, 66 Ill. App. 3d at 76-77, as it was in

Upjohn, 324 Ill. App. 3d at 377. But see Venzor v. Carmen's

Pizza Corp., 235 Ill. App. 3d 1053, 1057 (1992) ("trial court's

refusal to vacate a default judgment may be reversed because of a

denial of substantial justice or because of an abuse of discretion" (emphasis in original)).

Therefore, under the facts presented here, we review the

trial court’s decision to deny Burtley's motion to vacate the

sale without an evidentiary hearing under an abuse of discretion

standard.

II. Motion to Vacate

Claims regarding foreclosure actions are governed by the

Illinois Mortgage Foreclosure Law (the Mortgage Law) (735 ILCS

8 No. 1-04-3470

5/15-1501 et seq. (West 2004)). In 1987, the Illinois General

Assembly amended the prior Mortgage Law to its current form.

Section 15-1508(b) of the Mortgage Law (735 ILCS 5/15-1508(b)

(West 2004)) contains an express provision for hearings:

"(b) Hearing. 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 [735 ILCS 5/15-1507]

was not given, (ii) the terms of sale were

unconscionable, (iii) the sale was conducted

fraudulently or (iv) that justice was otherwise not

done, the court shall then enter an order confirming

the sale."

The Illinois General Assembly intended this new language "to

create a new, but limited, level of inquiry" into foreclosure

sales. Resolution Trust Corp. v. Holtzman, 248 Ill. App. 3d 105, 114 (1993); see also Merchants Bank v. Roberts, 292 Ill. App. 3d 925, 931 (1997). The Illinois General Assembly did not, however,

intend to require an extended evidentiary hearing after each

sheriff’s sale. Holtzman, 248 Ill. App. 3d at 115; Roberts, 292

Ill. App. 3d at 931. While the provision provides for a hearing,

the extent of the hearing afforded a mortgagor is left to the

sound discretion of the circuit court. Holtzman, 248 Ill. App.

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3d at 115.

As best we can make out, Burtley contends that the trial

court erred in denying his motion to vacate without holding an

evidentiary hearing because during such a hearing he would have

been able to demonstrate that the terms of the sale were

unconscionable and that justice was not done between the parties.

As to the first contention, it appears to be based on the sale

price of $166,000 as opposed to the value he placed on the

property of "more than double what the third-party paid for the

property." His second contention appears to be based on his

claim that "Defendant has through affidavit contested the

judgment and sale of the property, stating that he was not in

default at the time Plaintiff initiated it[s] complaint and that

Plaintiff forced Defendant into default by falsely stating that

Defendant owed an additional $13,000 within 60 days after

Defendant tendered to Plaintiff $47,597.14."

In response, Deutsche Bank contends that the court should

affirm the trial court’s decision because Burtley's first claim

amounts to no more than a contention that the sale price was

insufficient, implicitly disputing Burtley's contention that the

terms of the sale were unconscionable. Deutsche Bank does not

respond to Burtley's second contention.

Based on the record before us as we have set out in the

Background section of this decision and the less-than-clear state

of Burtley's briefs, we find no reason to address at length

10 No. 1-04-3470

Burtley's second contention. (The less-than-clear state of

Burtley's briefs also explains Deutsche Bank's failure to

specifically address this contention.)

In his affidavit, Burtley seeks to join the two foreclosure

proceedings to support his contention that justice was not done

between the parties. What occurred during the 2001 foreclosure

proceeding that resulted in a lump-sum payment by Burtley to

Deutsche Bank is not contained in the record before us. While

Burtley contends that during "an evidentiary hearing on

Defendant's motion to vacate, Defendant would have been able to

further substantiate the facts in his affidavit with testimony

and other evidence," there is a complete failure to set out what

"facts in his affidavit" he would be able to substantiate and

what would constitute the "other evidence" he claims he would

have been able to present. Nor does he tell us how those

"substantiated facts" or "other evidence" would have made a

difference in the outcome of this case. Burtley's bald

assertions strike us as reminiscent of his claims and the tactics

he employed during the two years the 2002 foreclosure complaint

was pending before the circuit court. There is an abject failure

in Burtley's brief to articulate an argument for reversal on this

basis with supporting authority as required by Supreme Court Rule

341(e)(7) (188 Ill. 2d R. 341(e)(7)). See In re Tinya W., 328 Ill. App. 3d 405 (2002). We need not address Burtley's second

contention any further.

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As to his first contention, Burtley seeks to place his claim

within the provision that a court may decline to confirm the sale

if "the terms of the sale [are] unconscionable." This provision

appears to be founded on the discretion the courts of equity long

have had. "[C]ourts have the discretion to disapprove a judicial

sale 'where the amount bid is so grossly inadequate that it

shocks the conscience of a court of equity.'" Holtzman, 248 Ill.

App. 3d at 113, quoting Levy v. Broadway-Carmen Building Corp.,

366 Ill. 279, 288 (1937). While a circuit court may decline to

confirm a sale if the terms of the sale are unconscionable, the

foreclosure price need not match the actual or estimated value of

the property. World Savings & Loan Ass'n v. Amerus Bank, 317

Ill. App. 3d 772, 780-81 (2000). "[M]ere inadequacy of price

alone is not sufficient cause for setting aside a judicial sale."

Illini Federal Savings & Loan Association v. Doering, 162 Ill.

App. 3d 768, 771 (1987). "This rule is premised on the policy

which provides stability and permanency to judicial sales and on

the well-established acknowledgment that property does not bring

its full value at forced sales and that the price depends on many

circumstances for which the debtor must expect to suffer a loss."

Amerus Bank, 317 Ill. App. 3d at 780. In the current case, Burtley mortgaged his property in the

amount of $180,000 in 2000. Judgment of foreclosure was entered

in favor of Deutsche Bank in the amount of $215,193.31, of which

$179,118.02 was the principal balance. The property sold for

12 No. 1-04-3470

$166,000 at the sheriff’s sale. Each party submitted conflicting

reports about the value of the property. Deutsche Bank submitted

a broker’s appraisal, valuing the property at $169,000. The

broker's appraisal dated January 7, 2004, was qualified by the

notation that the price was determined without "viewing inside."

Burtley, of course, had access to the interior of the building

and could have obtained an appraisal based on the exterior and

interior. Instead, Burtley submitted listing prices of

properties in the area without making a direct comparison between

those listings and the foreclosure property. In effect, Burtley

sought to rely on the listings without demonstrating that they

were "comparable" to the foreclosure property. Burtley also

submitted an affidavit stating that he valued his property at

twice the $166,000 it sold for at the foreclosure sale. Of

course, the issue is not what Burtley valued the property at, but

what a party was willing to pay at a foreclosure sale. At a

forced sale, a "debtor must expect to suffer a loss." Amerus Bank, 317 Ill. App. 3d at 780.

We reject Burtley's contention that the sale price of the

property was so low as to warrant an evidentiary hearing. "To

determine the extent of the hearing to be afforded the mortgagor,

the court should look to the defendant's petition or motion, and

if there is an allegation of a current appraisal or other current

indicia of value which is so measurably different than the sale

price as to be unconscionable, then a hearing should be afforded

13 No. 1-04-3470

the defendant." Holtzman, 248 Ill. App. 3d at 115. The

defendant offers no more than his opinion that the value of the

property was double the sale price. Of course, we are well aware

that the circuit court extended Burtley every reasonable

opportunity (and perhaps beyond) to sell the property outside

the foreclosure sale and he was unable to do so. The record

reveals that at one point Burtley presented a real estate sale

contract for a price "substantially less" than their mortgage

amount, which, if nothing else, undermines Burtley's self-serving

opinion at to the value of the property. His numerous empty

claims of being able to privately sell the property or of soon

having the funds to pay off the mortgage are also not lost on us.

The trial court was well within its sound discretion, in

determining that the hearing it afforded Burtley was all that he

was entitled to.

III. Personal Jurisdiction over Burtley

Without any factual support, Burtley contends that

"Plaintiff treated the subject foreclosure as if it were a

continuation of the prior complaint that had been dismissed as a

result of Defendant reinstating the loan." Deutsche Bank

responds that Burtley has waived the personal jurisdiction issue

on appeal because he failed to raise this issue in his notice of

appeal, he failed to preserve it in his motion to vacate sale, he

submitted himself to the trial court's jurisdiction by filing an

appearance and his amended motion to vacate sale, and he was duly

14 No. 1-04-3470

served.

Burtley's notice of appeal only seeks reversal of "the order

entered on October 29, 2004, denying Petitioner's motion to

vacate confirmation of sale and possession" or, in the

alternative, a remand for further proceedings before the circuit

court. The order of October 29, 2004, did not address the

circuit court's exercise of jurisdiction over Burtley's person.

The "'appellate court has jurisdiction only of those matters

which are raised in the notice of appeal.'" Steinberg v. System

Software Associates, Inc., 306 Ill. App. 3d 157, 166 (1999),

quoting Lewanski v. Lewanski, 59 Ill. App. 3d 805, 815 (1978).

The issue of personal jurisdiction was not properly raised in the

notice of appeal.

Even if a liberal reading of the notice of appeal

(Steinberg, 306 Ill. App. 3d at 166) should lead us to a contrary

decision, by the time the circuit court denied Burtley's last

request for a stay (by our count his thirteenth appearance),

personal jurisdiction over Burtley was no longer a question. See

Pecoraro v. Kesner, 217 Ill. App. 3d 1039, 1043-44 (1991) (conduct of party may invoke the court's jurisdiction).

Even if Burtley's pro se involvement in this case from

December 17, 2002, through June 30, 2004, was not sufficient to

invoke the circuit court's jurisdiction, upon counsel's filing of

the motions to vacate, without filing a motion to challenge

jurisdiction, "all objections to the court's jurisdiction over

15 No. 1-04-3470

the party's person" were waived. 735 ILCS 5/2-301(a-5) (West

2004).

Even if waiver were not to be found, the certificate of

service in the record reflects that Burtley was duly served. In

his briefs, Burtley makes no direct challenge to this claimed

service.

On the record before us, the inexorable conclusion is that

the trial court properly exercised jurisdiction over Burtley.

CONCLUSION

For the foregoing reasons the judgment of the trial court is

affirmed and the previously entered stay is vacated.

Affirmed.

McBRIDE, P.J., and CAHILL, J., concur.