ING Bank, FSB v. Tanev

2014 IL App (2d) 131225, 384 Ill. Dec. 616

• Court: Appellate Court of Illinois
• Decided: August 5, 2014
• Docket: 2-13-1225
• Status: Unpublished

Opinion

2014 IL App (2d) 131225 No. 2-13-1225 Opinion filed August 5, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

ING BANK, FSB, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellee, ) ) v. ) No. 10-CH-5375 ) BOJIDAR TANEV, ) Honorable ) Mitchell L. Hoffman, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice McLaren concurred in the judgment and opinion.

OPINION

¶1 In this foreclosure action, defendant, Bojidar Tanev, challenges the trial court’s order

vacating, due to a bidding error, a judicial sale (in which plaintiff, ING Bank, FSB, was the

successful bidder and which resulted in a surplus) and permitting a second sale (in which

plaintiff was again the successful bidder but which resulted in a deficiency). In addition,

defendant appeals the court’s order granting plaintiff leave to file a second amended report of

sale. For the following reasons, we affirm.

¶2 I. BACKGROUND

¶3 On September 22, 2010, plaintiff filed a complaint seeking to foreclose on a mortgage

executed by defendant, in relation to defendant’s property in Libertyville. Although he was 2014 IL App (2d) 131225

served with a summons, defendant did not appear. On April 12, 2011, the court entered a default

judgment of foreclosure and sale in the amount of $283,816.50.

¶4 On July 14, 2011, after due notice, a judicial sale was held. Plaintiff submitted an

opening bid of $376,000 and was the successful bidder. Although various status orders in the

record reflect plaintiff’s subsequent appearance for “presentation of motion to confirm sale,” no

such motion appears in the record. Accordingly, it appears that neither plaintiff nor defendant

moved to confirm the July 14, 2011, judicial sale.

¶5 On September 28, 2011, defendant filed for bankruptcy.

¶6 On January 10, 2012, plaintiff moved to vacate the judicial sale. Again, no motion to

confirm was pending. Plaintiff represented that it had “erred in its bidding instructions submitted

to counsel, resulting in an incorrect amount being bid at the sale.” Defendant does not dispute

that he received notice of the motion. He did not respond or appear at the hearing on the motion

and, on January 27, 2012, the court granted the motion and vacated the sale.

¶7 On February 23, 2012, after due notice, a second judicial sale was held. Plaintiff was

again the successful bidder, this time bidding $286,436.

¶8 Plaintiff moved to confirm the second sale. On March 9, 2012, the motion to confirm the

sale was set for a hearing, and defendant appeared for the first time and responded to the motion.

In his response, defendant argued that: (1) the first sale should not have been vacated; and (2) the

second sale should not be confirmed, because there were deficiencies in the preparation and

filing of sheriff’s reports (including that the report of sale contained blank lines for the amount of

the bid and the deficiency). Defendant asserted collusion between plaintiff and the sheriff’s

office. Therefore, on November 14, 2012, the court granted defendant 45 days to depose the

selling officer and to investigate facts surrounding the second sale and any relevant documents.

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Also on November 14, 2012, the court granted plaintiff leave to file a second amended report of

sale, which reflected the bid and deficiency amounts. Defendant did not depose anyone within

the 45-day period, and the court found that he waived the right to do so. The court ultimately

determined that defendant’s allegations of collusion were unfounded. 1

¶9 On April 15, 2013, defendant moved to vacate the January 27, 2012, order (vacating the

first sale) and to confirm the first sale. Defendant argued that a court may not refuse to

“confirm” a properly conducted sale based on one party’s unilateral mistake (i.e., plaintiff’s

bidding error). On April 18, 2013, after a hearing, the court denied defendant’s motion. The

court found relevant that no motion to confirm the first sale was filed before the motion to

vacate. Further, the court found that waiver was at issue because defendant was given notice of

the motion to vacate the first sale but he never appeared or responded. Finally the court noted

that it did not modify the first sale but, rather, vacated it entirely and a new sale was held. The

court also rejected defendant’s arguments concerning alleged deficiencies in the sheriff’s reports

and it confirmed the second sale.

1 The court stated:

“[Y]ou were alleging something that caused me great concern. You were alleging

collusion actually between *** this law firm and the sheriff. As a result of that I made

sure that the sheriff was notified of the allegation. I gave you leave to take whatever

discovery you wanted to pursue that rather disturbing allegation, you didn’t conduct

much of any discovery, you didn’t uncover anything new, and you really didn’t show me

any evidence that there was any collusion whatsoever. So as far as I’m concerned[,] it

was just speculation on your part and a fair [sic] conclusion with no support.”

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¶ 10 On May 23, 2013, defendant moved to reconsider the April 18, 2013, order. On October

16, 2013, after a hearing, the court denied defendant’s motion. Defendant appeals.

¶ 11 II. ANALYSIS

¶ 12 We first address plaintiff’s argument that defendant lacks standing to pursue this appeal.

Plaintiff argues that defendant’s arguments are all premised on an assumption that he was

harmed when the first sale (resulting in a surplus) was vacated and the second sale (resulting in a

deficiency) was confirmed. Plaintiff notes that, after the first sale, defendant filed for bankruptcy

protection. Thus, it argues, defendant would not have received any benefit if the first sale had

been confirmed, because any surplus would have been an asset of the bankruptcy estate and any

claim to that surplus would need to be pursued by a trustee. Further, plaintiff argues that

defendant is not liable for any deficiency from the second sale. Plaintiff concludes that

defendant has suffered no injury in fact and therefore lacks standing to appeal the trial court’s

decisions.

¶ 13 Plaintiff acknowledges that it did not raise the standing argument before the trial court

and that standing is considered an affirmative defense that is forfeited if not raised in a timely

manner. See 735 ILCS 5/2-613(d) (West 2012); In re Estate of Henry, 396 Ill. App. 3d 88, 93

(2009). However, plaintiff asserts that standing affects justiciability and that we should consider

its argument because forfeiture is a limitation upon the parties, not the courts. Henry, 396 Ill.

App. 3d at 93-94. Nevertheless, we find plaintiff’s standing argument forfeited here.

¶ 14 In Henry, despite forfeiture, the court addressed a standing argument; however, it did so

because all facts necessary to resolve the issue were before it. Id. Here, there is apparently no

dispute that defendant filed for bankruptcy. Plaintiff notes, however, that the bankruptcy case

was terminated before the first sale was vacated. It does not cite the record to support this

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proposition (and we found only a bare assertion to that effect, in plaintiff’s reply in support of a

motion), but it does not address whether, if, in fact, the bankruptcy case was terminated before

the first sale was vacated, defendant might now have standing to pursue the resulting surplus. As

defendant filed no reply brief on appeal, we do not have argument from him on the standing

issue. Accordingly, where it is not clear that we possess sufficient facts or argument to properly

address it, we decline to reach the merits of plaintiff’s standing argument and we honor the

forfeiture.

¶ 15 Turning to the merits of the appeal, we address first defendant’s contention that the trial

court erred in granting plaintiff’s motion to vacate the first sale. Defendant argues that the court

did not have authority to vacate the sale because of plaintiff’s mistaken bid. He asserts that a

judicial sale must be confirmed if the only argument against confirming it is a unilateral mistake

by one of the interested parties and, similarly, that a party may not seek a second sale to protect

itself from its own negligence. Defendant argues that the court erred in finding that he forfeited

his “rights” to a surplus by failing to object to plaintiff’s motion to vacate the first sale. We

disagree.

¶ 16 Section 15-1508 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS

5/15-1508 (West 2012)) imposes upon courts various obligations in confirming judicial sales.

See Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008). Nevertheless, section 15-1508’s

obligations are not triggered until a motion to confirm the sale is filed by one of the parties. 2 Id.

2 Section 15-1508(b) provides: “(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 was not given, (ii) the terms of sale were

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Specifically, “[u]nder the terms of the statute, a court *** has mandatory obligations to (a)

conduct a hearing on confirmation of a judicial sale where a motion to confirm has been made

and notice has been given, and, (b) following the hearing, to confirm the sale unless it finds that

any of the four specified exceptions are present.” Id. However, “[t]he exercise of discretion in

applying section 15-1508(b) is necessary only when the requirements of that law have become

operative. Under the terms of the statute, they do not become operative until they have been

invoked by a motion requesting confirmation of the sale.” Id. at 179. Accordingly, a judicial

sale is not final until it is confirmed by the trial court, after a hearing following a motion for such

a hearing. See Citicorp Savings of Illinois v. First Chicago Trust Co. of Illinois, 269 Ill. App. 3d

293, 300 (1995). Prior to a motion to confirm, “[t]he highest bid at a judicial sale is merely an

irrevocable offer to buy the subject property, the acceptance of which does not take place until

the court confirms the sale, before which there is no true sale in any legal sense.” Fleet

Mortgage Corp. v. Deale, 287 Ill. App. 3d 385, 388 (1997); see also Household Bank, 229 Ill. 2d

at 181.

¶ 17 Here, the record reflects that neither party filed a motion to confirm the first sale (again,

section 15-1508(b) simply provides that a hearing will be held “[u]pon motion,” without

specifying who must file said motion) and, therefore, section 15-1508 was not triggered. Given

that section 15-1508’s limited bases for refusing to confirm a sale are not at issue here, the

question is simply whether the trial court had authority to vacate (as opposed to refuse to

confirm) the first sale. Nevertheless, defendant essentially argues that the trial court was

unconscionable, (iii) the sale was conducted fraudulently, or (iv) justice was otherwise not done,

the court shall then enter an order confirming the sale.” (Emphasis added.) 735 ILCS 5/15-

1508(b) (West 2012).

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obligated to confirm the first sale, even absent a motion to do so. Specifically, he asserts that the

court did not have authority to vacate the sale and order a resale in order to “correct a mistaken

sale bid.” We initially note that this argument rests on an invalid premise, because the court here

did not “correct a mistaken sale bid.” The court vacated the first sale upon plaintiff’s motion. In

fact, the important distinction is made apparent in a case upon which defendant heavily relies.

¶ 18 In Grubert v. Cosmopolitan National Bank of Chicago, 269 Ill. App. 3d 408 (1995), the

trial court was presented with a motion to confirm a judicial sale (unlike with the first sale here).

It entered an order confirming the sale, but, in doing so, it reduced the bid to an amount that the

plaintiff alleged comported with the parties’ agreement after the sale. The appellate court held

that section 15-1508 does not authorize a trial court to simply revise a bid amount when

confirming a sale, noting that such actions could undermine the finality of a properly conducted

sale. Id. at 411. However, critically, the appellate court remanded for the trial court to hold an

evidentiary hearing and noted that, if the trial court found that the amended bid amount did, in

fact, comport with the parties’ agreement, then the court could hold them to that agreement, i.e.,

change the bid amount. Id. at 412.

¶ 19 Thus, defendant’s reliance on Grubert is misplaced. Again, as there was no pending

motion to confirm the first sale here, the parameters of section 15-1508, which prohibited the

trial court from modifying the bid in Grubert, are not at issue here. Further, the trial court here

did not modify the bid but rather vacated the nonfinal, unconfirmed sale outright, and,

subsequently, a second sale was conducted. Thus, the court here did not “correct” a mistaken

bid. Accordingly, if Grubert is at all instructive here, it is because the decision reflects that a

judicial sale is not necessarily absolutely fixed and unchangeable. As Grubert does not stand for

the proposition that a trial court is obligated to confirm a judicial sale and, again, as case law

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holds that a judicial sale is not final until confirmed (Citicorp Savings, 269 Ill. App. 3d at 300), it

does not convince us that the court here erred.

¶ 20 In fact, our supreme court’s decision in Household Bank, also a foreclosure case, reflects

that a trial court is not obligated to confirm a judicial sale and may, instead, vacate it when the

party who initiated the foreclosure decides not to pursue it. In Household Bank, the plaintiff

moved to confirm a judicial sale but then withdrew the motion and moved to vacate the sale.

The supreme court held that, even where it adversely affected third-party interests, the trial court

did not err in granting the motion to vacate. Household Bank, 229 Ill. 2d at 179-80. Therefore,

defendant’s argument that the trial court here was somehow obligated to confirm the first sale, or

was precluded from vacating it, must fail.

¶ 21 Defendant also relies heavily on an aged supreme court case, Abbott v. Beebe, 226 Ill.

417, 420 (1907), where the court stated: “Courts will not refuse to confirm a judicial sale or

order a re-sale on the motion of an interested party, merely to protect him against the result of his

own negligence, where he is under no disability to protect his own rights at such sale.”

Defendant argues that the court here erred in ordering a resale to protect plaintiff from its

negligence in communicating incorrect bid instructions to its counsel. While the language

defendant cites appears, at first blush, to support his argument, closer inspection reflects that

defendant’s reliance on Abbott is misplaced. First, Abbott did not involve a foreclosure or the

Foreclosure Law. Rather, in Abbott, heirs to a property were aware that it would be sold at a

judicial sale, but they made no effort to delay the sale or facilitate an increase in bid prices. The

trial court later refused to confirm the sale, because the heirs objected that the bids were too low.

The Abbott court ruled that low bids could not, alone, serve to defeat a judicial sale, particularly

where the heirs had notice of the sale but did nothing to prevent the outcome. Id. at 421. As

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such, the court’s concern in Abbott, as applied here, actually works against defendant. Indeed,

the relevant failure to act here must be attributed to defendant, who received notice of the first

sheriff’s sale and notice of plaintiff’s motion to vacate the sale, but did nothing.

¶ 22 Second, while it is true that the Abbott court noted that stability in judicial sales is

necessary to induce persons to become purchasers and that, therefore, sales should “not be

disturbed for slight causes” (internal quotation marks omitted) (id. at 420), we disagree that the

sale here was disturbed for a slight cause or that, ultimately, the court’s decision to grant

plaintiff’s motion constitutes an abuse of discretion. See Northwest Diversified, Inc. v. Mauer,

341 Ill. App. 3d 27, 33 (2003) (generally, a court’s decision on a motion to vacate a judicial sale

is reviewed for an abuse of discretion). Specifically, we cannot find that the court abused its

discretion where: (1) plaintiff, the purchaser and only party to appear on record, moved to vacate

the sale, not to amend it; (2) plaintiff alleged that its bid instructions to counsel were in error; (3)

there was no pending motion to confirm the sale; and (4) despite notice, defendant did not appear

or object to plaintiff’s motion to vacate.

¶ 23 Defendant asserts that he was not required to act to avoid waiving his “right” to a surplus.

Not only does he cite no authority for this proposition, but he ignores that courts routinely find

that parties have intentionally relinquished known rights through their inactions. See, e.g., Quick

& Reilly, Inc. v. Zielinski, 306 Ill. App. 3d 93, 99 (1999) (“waiver may be inferred when a party

intentionally relinquishes a known right, either expressly, as by objection, or by conduct, such as

silence, inconsistent with an intent to enforce that right”). We further note that, although

defendant asserts that the law does not require him to “do anything” to claim a surplus and that

therefore the court erroneously found that he waived his right to a surplus, defendant incorrectly

frames the issue. The court did not find that defendant waived his right to a surplus. Rather, the

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court determined that defendant waived his right to object to plaintiff’s motion to vacate the sale.

In other words, even if defendant was not required to do anything to claim a surplus, his silence

and inaction when that surplus was jeopardized by a motion to vacate the sale resulted in a

waiver thereafter of the right to object to that motion. In sum, the trial court did not err in

vacating the sale.

¶ 24 Defendant’s additional arguments on appeal pertain to the sheriff’s allegedly deficient

actions. To the extent that the arguments pertain to deficiencies in the documents filed after the

first sale, we reject them because that sale was vacated. To the extent that the arguments pertain

to the second sale, we reject them because defendant cites no authority for the proposition that

technical defects in the documents would require us to vacate a sale. Ill. S. Ct. R. 341(h) (eff.

Feb. 6, 2013); Vilardo v. Barrington Community School District 220, 406 Ill. App. 3d 713, 720

(2010) (undeveloped arguments, or contentions with some argument but no authority, are

forfeited). Moreover, those technical defects were corrected with amended reports. To the

extent that defendant challenges the trial court’s decisions to allow plaintiff to file the amended

reports and allegedly “late” documents, those claims either are forfeited for failure to raise them

below (e.g., defendant’s contention that the court allowed plaintiff to file a second amended

report of sale without establishing good cause for the delay in doing so) or simply do not

establish an abuse of discretion. See Martinez v. River Park Place, LLC, 2012 IL App (1st)

111478, ¶ 29 (“It is well settled that issues not raised in the trial court are deemed forfeited and

may not be raised for the first time on appeal.”). Finally, while defendant again raises vague

suggestions of collusion between plaintiff and the sheriff’s office, he was provided ample

opportunity to support his claims, failed to do so, and, therefore, has not established that the

court abused its discretion in rejecting those claims.

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¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, the judgment of the circuit court of Lake County is affirmed.

¶ 27 Affirmed.

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