2014 IL App (1st) 123176
SECOND DIVISION May 27, 2014
No. 1-12-3176
DLJ MORTGAGE CAPITAL, INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 06 CH 2321 ) CALVITA J. FREDERICK, ) Honorable ) Darryl Simko, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Pierce and Liu concurred in the judgment and opinion.
OPINION
¶1 Defendant, Calvita J. Frederick, appeals the order of the circuit court granting summary
judgment in favor of plaintiff, DLJ Mortgage Capital, Inc. (DLJ), on plaintiff's foreclosure
complaint. On appeal, Ms. Frederick challenges the merits of the foreclosure complaint rather
than the confirmation of sale pursuant to the Illinois Mortgage Foreclosure Law (735 ILCS
5/15-1507(c) (West 2010)) (Foreclosure Law). She does not challenge the trial court's
determination that the sale proceeded properly. For that and the following reasons, we affirm.
¶2 JURISDICTION
¶3 The trial court granted summary judgment and entered a judgment of foreclosure on
February 6, 2007. On September 24, 2012, the trial court entered an order approving and
confirming the sale and order of possession. Ms. Frederick filed a motion to vacate the order of
possession which was denied on October 23, 2012. She filed her notice of appeal on October No. 1-12-3176
24, 2012. This court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303
governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R.
303 (eff. May 30, 2008).
¶4 BACKGROUND
¶5 DLJ filed a complaint to foreclose a mortgage against Ms. Frederick and other defendants
not pertinent in this appeal, on February 3, 2006. In its complaint, DLJ alleged that it was the
legal holder or agent or nominee of the legal holder of the indebtedness and the owner or agent
or nominee of the mortgage given as security for the indebtedness. The mortgage and note
were executed by American National Bank & Trust Company of Chicago, and the note was
endorsed in blank. On May 1, 2006, the trial court entered an order of default against Ms.
Frederick and a judgment of foreclosure and sale against all defendants. Ms. Frederick's
attorney filed a motion to vacate the judgment of foreclosure and sale, and the trial court vacated
the judgment on June 7, 2006. On July 31, 2006, Ms. Frederick filed an answer to DLJ's
foreclosure complaint in which she stated that she has insufficient information and therefore
neither admits nor denies that DLJ is the legal holder, agent or nominee of the legal holder of the
indebtedness, or that DLJ is the owner or agent or nominee of the owner of the mortgage.
¶6 DLJ filed a motion for summary judgment and attached as support the supplemental
affidavit of Jeannelle Gray, along with a copy of the note indorsed in blank. Gray's affidavit
stated in part that DLJ was the current holder and owner of the note and mortgage, that the 2004
assignment of the mortgage was to Fairbanks as servicing agent for DLJ, and the last payment
received was more than six years ago. Ms. Frederick did not respond to the motion, nor did she
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submit affidavits to counter Gray's affidavit. The trial court granted summary judgment in
favor of DLJ and entered a judgment of foreclosure and sale on February 6, 2007.
¶7 The sale was conducted on May 10, 2007, and the trial court entered an order approving
the sale on June 18, 2007. That same day, Ms. Frederick filed a petition to vacate the sale and a
motion to disaffirm the sale. In the motion to disaffirm, Ms. Frederick stated that she was the
mortgagor and DLJ was the proper holder of the mortgage. The trial court vacated the order
approving the sale on September 11, 2007.
¶8 In November 2007, Ms. Frederick filed several actions for injunction and emergency
temporary restraining order in which she stated that DLJ was the holder of her mortgage. The
trial court entered orders on the motions, no appeals were taken from the orders, and one of the
cases was removed to federal court. Five years later, after the federal court proceedings had
terminated, Ms. Frederick filed an emergency motion to stay the sale, which the trial court
granted until June 7, 2012. The sale proceeded on June 7, 2012 and DLJ emerged as the
successful bidder. The trial court entered an order approving the report of sale and distribution,
confirming the sale and order of possession on September 24, 2012. The order stated that all
notices required by statute were given, "said sale was fairly and properly made," the sale
"proceeded in accordance with the terms of" the court's judgment, and that "justice was done."
¶9 On October 23, 2012, Ms. Frederick filed a motion to vacate and/or modify the order of
possession, claiming that the sale was unconscionable because she allegedly received word that
the sale would not be proceeding on May 10, 2007, so she did not have someone at the sale
representing her. Nothing in the record indicated the sale was being continued. Furthermore,
Ms. Frederick's right of redemption had passed. The trial court denied the motion to disaffirm
the sale. Ms. Frederick filed this timely appeal.
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¶ 10 ANALYSIS
¶ 11 On appeal, Ms. Frederick contends that this court should reverse the summary judgment
granted on the foreclosure complaint and vacate the sale, because DLJ had no standing to bring
the complaint in the first place. She argues that the mortgage assignment was made to
Fairbanks and not to DLJ. 1 We must note that Ms. Frederick's right of redemption had passed
and the judicial sale took place on June 7, 2012. On DLJ's motion, the trial court approved and
confirmed the sale, and entered an order of possession on September 24, 2012. Our supreme
court recently addressed the issue of challenging the merits of the underlying judgment of
foreclosure after the trial court's approval and confirmation of the sale in Wells Fargo Bank, N.A.
v. McCluskey, 2013 IL 115469.
¶ 12 In McCluskey, the defendant filed a motion to vacate the default judgment 10 months
after the judgment of foreclosure, and after the holding of the judicial sale of the property.
McCluskey, 2013 IL 115469, ¶ 5. In her motion, defendant alleged that plaintiff's affidavit in
support of foreclosure was insufficient and that plaintiff lacked standing to bring the foreclosure
suit. Id. Following a hearing, the trial court denied the motion to vacate. It then entered an
order confirming the judicial sale and finding that all notices were given, the sale was fairly and
properly made, the sale proceeded in accordance with the court's judgment, and justice was done.
Defendant filed her notice of appeal in which she challenged the denial of her motion to vacate
1 Ms. Frederick failed to include a transcript of the proceedings before the trial court, or a bystanders report, or agreed statement of facts as required by Illinois Supreme Court Rule 323 (eff. Dec. 13, 2005). "An issue relating to a circuit court's factual findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record of the proceeding." (Internal quotation marks omitted.) In re Marriage of Gulla, 234 Ill. 2d 414, 422 (2009).
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2014 IL App (1st) 123176
SECOND DIVISION May 27, 2014
No. 1-12-3176
DLJ MORTGAGE CAPITAL, INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 06 CH 2321 ) CALVITA J. FREDERICK, ) Honorable ) Darryl Simko, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Pierce and Liu concurred in the judgment and opinion.
OPINION
¶1 Defendant, Calvita J. Frederick, appeals the order of the circuit court granting summary
judgment in favor of plaintiff, DLJ Mortgage Capital, Inc. (DLJ), on plaintiff's foreclosure
complaint. On appeal, Ms. Frederick challenges the merits of the foreclosure complaint rather
than the confirmation of sale pursuant to the Illinois Mortgage Foreclosure Law (735 ILCS
5/15-1507(c) (West 2010)) (Foreclosure Law). She does not challenge the trial court's
determination that the sale proceeded properly. For that and the following reasons, we affirm.
¶2 JURISDICTION
¶3 The trial court granted summary judgment and entered a judgment of foreclosure on
February 6, 2007. On September 24, 2012, the trial court entered an order approving and
confirming the sale and order of possession. Ms. Frederick filed a motion to vacate the order of
possession which was denied on October 23, 2012. She filed her notice of appeal on October No. 1-12-3176
24, 2012. This court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303
governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R.
303 (eff. May 30, 2008).
¶4 BACKGROUND
¶5 DLJ filed a complaint to foreclose a mortgage against Ms. Frederick and other defendants
not pertinent in this appeal, on February 3, 2006. In its complaint, DLJ alleged that it was the
legal holder or agent or nominee of the legal holder of the indebtedness and the owner or agent
or nominee of the mortgage given as security for the indebtedness. The mortgage and note
were executed by American National Bank & Trust Company of Chicago, and the note was
endorsed in blank. On May 1, 2006, the trial court entered an order of default against Ms.
Frederick and a judgment of foreclosure and sale against all defendants. Ms. Frederick's
attorney filed a motion to vacate the judgment of foreclosure and sale, and the trial court vacated
the judgment on June 7, 2006. On July 31, 2006, Ms. Frederick filed an answer to DLJ's
foreclosure complaint in which she stated that she has insufficient information and therefore
neither admits nor denies that DLJ is the legal holder, agent or nominee of the legal holder of the
indebtedness, or that DLJ is the owner or agent or nominee of the owner of the mortgage.
¶6 DLJ filed a motion for summary judgment and attached as support the supplemental
affidavit of Jeannelle Gray, along with a copy of the note indorsed in blank. Gray's affidavit
stated in part that DLJ was the current holder and owner of the note and mortgage, that the 2004
assignment of the mortgage was to Fairbanks as servicing agent for DLJ, and the last payment
received was more than six years ago. Ms. Frederick did not respond to the motion, nor did she
-2- No. 1-12-3176
submit affidavits to counter Gray's affidavit. The trial court granted summary judgment in
favor of DLJ and entered a judgment of foreclosure and sale on February 6, 2007.
¶7 The sale was conducted on May 10, 2007, and the trial court entered an order approving
the sale on June 18, 2007. That same day, Ms. Frederick filed a petition to vacate the sale and a
motion to disaffirm the sale. In the motion to disaffirm, Ms. Frederick stated that she was the
mortgagor and DLJ was the proper holder of the mortgage. The trial court vacated the order
approving the sale on September 11, 2007.
¶8 In November 2007, Ms. Frederick filed several actions for injunction and emergency
temporary restraining order in which she stated that DLJ was the holder of her mortgage. The
trial court entered orders on the motions, no appeals were taken from the orders, and one of the
cases was removed to federal court. Five years later, after the federal court proceedings had
terminated, Ms. Frederick filed an emergency motion to stay the sale, which the trial court
granted until June 7, 2012. The sale proceeded on June 7, 2012 and DLJ emerged as the
successful bidder. The trial court entered an order approving the report of sale and distribution,
confirming the sale and order of possession on September 24, 2012. The order stated that all
notices required by statute were given, "said sale was fairly and properly made," the sale
"proceeded in accordance with the terms of" the court's judgment, and that "justice was done."
¶9 On October 23, 2012, Ms. Frederick filed a motion to vacate and/or modify the order of
possession, claiming that the sale was unconscionable because she allegedly received word that
the sale would not be proceeding on May 10, 2007, so she did not have someone at the sale
representing her. Nothing in the record indicated the sale was being continued. Furthermore,
Ms. Frederick's right of redemption had passed. The trial court denied the motion to disaffirm
the sale. Ms. Frederick filed this timely appeal.
-3- No. 1-12-3176
¶ 10 ANALYSIS
¶ 11 On appeal, Ms. Frederick contends that this court should reverse the summary judgment
granted on the foreclosure complaint and vacate the sale, because DLJ had no standing to bring
the complaint in the first place. She argues that the mortgage assignment was made to
Fairbanks and not to DLJ. 1 We must note that Ms. Frederick's right of redemption had passed
and the judicial sale took place on June 7, 2012. On DLJ's motion, the trial court approved and
confirmed the sale, and entered an order of possession on September 24, 2012. Our supreme
court recently addressed the issue of challenging the merits of the underlying judgment of
foreclosure after the trial court's approval and confirmation of the sale in Wells Fargo Bank, N.A.
v. McCluskey, 2013 IL 115469.
¶ 12 In McCluskey, the defendant filed a motion to vacate the default judgment 10 months
after the judgment of foreclosure, and after the holding of the judicial sale of the property.
McCluskey, 2013 IL 115469, ¶ 5. In her motion, defendant alleged that plaintiff's affidavit in
support of foreclosure was insufficient and that plaintiff lacked standing to bring the foreclosure
suit. Id. Following a hearing, the trial court denied the motion to vacate. It then entered an
order confirming the judicial sale and finding that all notices were given, the sale was fairly and
properly made, the sale proceeded in accordance with the court's judgment, and justice was done.
Defendant filed her notice of appeal in which she challenged the denial of her motion to vacate
1 Ms. Frederick failed to include a transcript of the proceedings before the trial court, or a bystanders report, or agreed statement of facts as required by Illinois Supreme Court Rule 323 (eff. Dec. 13, 2005). "An issue relating to a circuit court's factual findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record of the proceeding." (Internal quotation marks omitted.) In re Marriage of Gulla, 234 Ill. 2d 414, 422 (2009). Without a record of the proceeding, we must presume that the court below had a sufficient factual basis for its determination and that it conforms with the law. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). We address her contentions on appeal under this limitation.
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the default judgment. She did not, however, challenge the order confirming the sale of the
property. Id. at ¶ 6.
¶ 13 Our supreme court determined that to allow a party to challenge a default judgment
through a motion to vacate, after the judicial sale has taken place, is inconsistent with the
procedures set forth in the Foreclosure Law. Id. ¶ 25. The court cited to Mortgage Electronic
Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 4-5 (2010), in which this court held that
the Foreclosure Law takes precedence over any inconsistent statutory provisions.
¶ 14 In making this determination, the supreme court examined the procedures under the
Foreclosure Law. The Foreclosure Law sets forth "a carefully crafted procedural process" that
balances the interests of the lender with the competing interests of the borrower. McCluskey,
2013 IL 115469, ¶ 24. Each step of the foreclosure process terminates legal and equitable
interests in the property while also providing protections to the borrower's equity in the property,
including an allotted time for reinstatement of the mortgage, equitable and statutory rights of
redemption and notice of judicial sale. When the trial court enters a judgment of foreclosure,
the process "culminates in the confirmation of [the] sale and possession of the property." Id.
¶ 15 "Under the Foreclosure Law, after a judicial sale and a motion to confirm the sale has
been filed, the court's discretion to vacate the sale is governed by the mandatory provisions of
section 15-1508(b)." Id. Section 15-1508(b) states that the court shall confirm the sale unless
it finds that (1) proper notice was not given; (2) terms of the sale were unconscionable; (3) the
sale was conducted fraudulently; or (4) justice was otherwise not done. 735 ILCS 5/15-1508(b)
(West 2010). The supreme court noted that section 15-1508(b) did not expressly define what
constitutes an injustice, but the court reasoned that the section appeared "to merely codify the
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long-standing discretion of the courts of equity to refuse to confirm a judicial sale."
McCluskey, 2013 IL 115469, ¶ 19.
¶ 16 After a motion to confirm the sale has been filed, "the court has discretion to see that
justice has been done, but the balance of interests has shifted between the parties." Id. ¶ 25.
Therefore, it is not sufficient at this stage of the process "to merely raise a meritorious defense to
the" underlying foreclosure complaint. Id. ¶ 26. Our supreme court held that "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. ¶ 27. Therefore, "a party seeking to set aside the sale at
that point is limited to the three specified grounds related to defects in the sale proceedings, or to
the fourth ground, that "justice was otherwise not done." (Internal quotation marks omitted.) Id.
¶ 18. To show that justice was not otherwise done, a party must establish that the lender,
through fraud or misrepresentation, prevented the borrower from raising the meritorious defense
to the complaint, or the borrower was otherwise prevented from protecting his property interests.
Id. ¶ 25. The court reasoned that to hold otherwise would be inconsistent with the need for
stability in the process and "would allow the borrower to circumvent the time limitations for
redemption and reinstatement." Id.
¶ 17 Here, Ms. Frederick alleged in her motion to disaffirm the sale that the sale was
unconscionable because she believed she was misled about the date of the sale. However,
nothing in the record shows that the sale was to take place at another date, or that Ms. Frederick
was misled into thinking that the sale was to be continued. Furthermore, as discussed above,
we have no record of the proceedings before the trial court. Without a record of the
proceedings, we must presume that the court below had a sufficient factual basis for its
-6- No. 1-12-3176
determination and that it conforms with the law. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92
(1984).
¶ 18 More importantly, on appeal Ms. Frederick does not challenge the trial court's
determination that the sale proceeded properly. Instead, she argues that DLJ had no standing to
bring the foreclosure complaint in the first place. Ms. Frederick's redemption period has passed,
the judicial sale has taken place, and the trial court confirmed the sale upon a motion filed by DLJ.
As our supreme court held in McCluskey, a party seeking to set aside the sale at this point "is
limited to the three specified grounds related to defects in the sale proceedings," or to allege that
justice was otherwise not done. McCluskey, 2013 IL 115469, ¶ 18. As to the three grounds, the
trial court below found that all notices required by statute were given, "said sale was fairly and
properly made," the sale "proceeded in accordance with the terms of" the court's judgment, and
that "justice was done." Rather than challenge the order confirming the sale on appeal, or
allege fraud, Ms. Frederick instead raises an allegedly meritorious defense to the underlying
foreclosure judgment. Such an argument is insufficient once the trial court enters an order
confirming the judicial sale. See Id. ¶¶ 26-27. Therefore, the trial court's order approving and
confirming the sale, as well as the underlying judgment of foreclosure, will stand.
¶ 19 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 20 Affirmed.
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