Northwest Diversified, Inc. v. Mauer

791 N.E.2d 1162, 341 Ill. App. 3d 27, 274 Ill. Dec. 751, 2003 Ill. App. LEXIS 658
Appellate Court of Illinois·Decided June 3, 2003·No. 1-02-0811·Published·Cited by 28 cases

Opinion

JUSTICE BURKE

delivered the opinion of the court:

Levy sale purchaser La Salle Bank N.A. (La Salle) appeals from an order of the circuit court granting defendant Halina Hauer’s motion to set aside a real estate sale and to extend the redemption period. On appeal, La Salle contends that the trial court erred in setting aside a sheriffs sale of the property because no irregularity occurred in the sale; in particular, there was evidence, through an office custom and practice, demonstrating that Mauer received a copy of an appraisal of the property and a 60-day notice required by section 12 — 911 of the Code of Civil Procedure (Code) (735 ILCS 5/12 — 911 (West 1998)). For the reasons set forth below, we affirm.

STATEMENT OF FACTS

On August 5, 1997, Felicjan Niemiec obtained an ex parte default judgment against Mauer stemming from a loan Niemiec had made to Mauer. On November 4, the trial court issued an order requiring Mauer to make installment payments of $200 per month to Niemiec. On April 24, 1998, Niemiec filed a motion requesting a hen on Mauer’s home located at 8005 North New England, Niles, Illinois, due to Mauer’s failure to make the installment payments as required. On May 30, Niemiec assigned her judgment to Northwest Diversified, Inc. (Northwest). On June 29, Northwest issued a direction to levy against Mauer’s home. On July 8, the Cook County sheriffs office (the sheriff) served the levy upon Mauer by substituted service upon Jerzy Nowicki. 1 Personal service upon Mauer was attempted three times and the sheriff was finally successful in serving her on September 3. Thereafter, pursuant to statute, three commissioners were summoned to appraise Mauer’s property. The appraisal indicates that the property was valued at more than $15,000. 2 On December 2, Mauer’s home was sold at a sheriffs sale to Northwest for $10,124, and the sheriff issued a certificate of sale to Northwest.

On June 14, 2000, Northwest assigned the certificate of sheriffs sale to La Salle. On June 15, because the period for redemption had expired, a sheriffs deed was issued to La Salle. On July 13, Mauer filed a motion to set aside the sale of real estate and to extend the period of redemption. Mauer alleged that the sale should be set aside because she had never been served with the levy, a copy of the certificate of sale, or the appraisal and 60-day notice as required by section 12 — 911 of the Code. According to Mauer’s motion, she was unaware of any events in connection with the sale of her home until June 16, 2000, when she received a demand for possession with a copy of the sheriffs deed from La Salle’s attorney. Mauer further alleged that the home was undersold at the sheriffs sale since she, in approximately 1988, paid $141,000 for it and, as of July 2000, it had an appraised value of $250,000. Mauer also alleged that she and her husband, Jerzy Nowicki, were entitled to a homestead exemption since they resided in the home. It was Mauer’s contention that the sale should be vacated because Illinois law is clear that where the sale was to pay a debt, there were irregularities in the sale, and the home was undersold, the redemption period may be extended. Attached to Mauer’s motion was her affidavit, in which she averred that she had never been served with the levy, appraisal or 60-day notice, the notice of sale, the certificate of sale, or the certification of redemption, or given notice that the property would be sold.

In their reply to Mauer’s motion to set aside the sale, La Salle and Northwest merely admitted or denied the allegations of the motion; they did not set forth any legal argument. Thereafter, Mauer replied, stating that La Salle and Northwest failed to present any evidence or argument to dispute the allegations in her motion and, therefore, her motion should be granted.

On October 19, 2000, pursuant to the trial court’s order, the sheriff filed an appearance as well as a response to Mauer’s motion to set aside the sale. The sheriff denied that Mauer was not served with the levy, which was confirmed by the affidavit of Maureen Moore, attached to the sheriff’s response. The sheriff further argued that it was not his duty to serve a copy of the certificate of sale upon Mauer and, therefore, admitted that he had not done so. Lastly, the sheriff admitted that he had not personally served Mauer with a copy of the appraisal and 60-day notice.

On October 31, 2001, Northwest filed a supplemental response to Mauer’s motion to set aside the sale, contending that Mauer was twice served with the levy, once personally and once by substituted service. Northwest further argued that Mauer had been served with the appraisal and 60-day notice. Attached to its response was the affidavit of Carmen Zinke. According to Zinke, from 1998 until 2001, it was the practice and procedure of the real estate and judicial sales division of the sheriffs office to mail every debtor the notice required by section 12 — 911. Zinke further stated that it was not the practice or procedure of the department to keep a copy of the notices mailed until sometime in 2000.

On November 6, the trial court granted Mauer’s motion to set aside the sale and ordered the June 15, 2000, sheriffs deed null and void. The court ordered La Salle or Northwest to provide Mauer with the payoff judgment amount by November 20. On November 21, Mauer filed a motion for a rule to show cause and for sanctions against La Salle and Northwest because no payoff amount had been provided to her.

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Northwest Diversified, Inc. v. Mauer, 791 N.E.2d 1162, 341 Ill. App. 3d 27, 274 Ill. Dec. 751, 2003 Ill. App. LEXIS 658 (Ill. Ct. App. 2003).

791 N.E.2d 1162 (Northwest Diversified, Inc. v. Mauer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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