Wilmington Trust, National Ass'n v. Synosure Direct, Inc.

2025 IL App (1st) 242573-U

• Court: Appellate Court of Illinois
• Decided: December 23, 2025
• Docket: 1-24-2573
• Status: Unpublished

Opinion

2025 IL App (1st) 242573-U No. 1-24-2573 Order filed December 23, 2025 Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ WILMINGTON TRUST, NATIONAL ASSOCIATION, ) Appeal from the not in its individual capacity, but solely as Trustee of ) Circuit Court of MFRA Trust 2016-1, ) Cook County. ) Plaintiff-Appellee, ) No. 21 CH 03047 ) v. ) Honorable ) Lloyd Brooks, SYNOSURE DIRECT, INC., JEAMS E. POTTS, ) Judge, Presiding. UNKNOWN OWNERS & NON-RECORD ) CLAIMANTS, ) ) Defendants ) (Synosure Direct, Inc.- Defendant-Appellant). )

JUSTICE ODEN JOHNSON delivered the judgment of the court. Presding Justice Mitchell and Justice Tailor concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the circuit court denying defendant’s motion to vacate the default foreclosure judgment where section 15-1509(c) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1509(c) (West 2024)) bars defendant’s claim because it was filed after the judicial sale of the real estate was confirmed. No. 1-24-2573

¶2 Defendant Synosure Direct, Inc. (Synosure) appeals from an order of the circuit court of

Cook County denying its motion to vacate a default foreclosure judgment and related relief. On

appeal, defendant contends that the circuit court erred in denying its motion to vacate because

plaintiff Wilmington Trust, National Association’s, not in its individual capacity but solely as

Trustee of MFRA Trust 2016-1 (Wilmington Trust), complaint failed to state a claim of

foreclosure. For the reasons that follow, we affirm.

¶3 BACKGROUND

¶4 On June 22, 2021, Wilmington Trust filed a three-count foreclosure complaint against

Synosure and codefendant Jeames E. Potts (Potts) seeking foreclosure and a judicial sale of

property located at 136 West 122nd Street in Chicago, monetary judgment, and judgment against

Potts for amounts alleged to be due and owing under his personal guaranty. While Synosure alleges

that there was no promissory note attached to the complaint, Wilmington Trust states that there

was an incomplete copy of the note attached to the complaint. Potts is not a party to this appeal.

¶5 On February 22, 2023, Synosure filed its appearance through its attorney but did not file a

responsive pleading to the complaint. On April 5, 2023, Wilmington Trust filed its motion for a

default judgment against Synosure. On April 27, 2023, Wilmington Trust filed Warrant Green’s

affidavit pursuant to Supreme Court Rule 113 (Ill. S. Ct. R. 113 (eff. Oct. 1, 2021) in which he

attested to the loan documents, the origination and assignment of the loan, the default of the subject

loan, and the amount due and owing under the loan.

¶6 On May 5, 2023, a new attorney appeared on Synosure’s behalf at the hearing on

Wilmington Trust’s default motion. Synosure was granted time to respond to the default motion

or otherwise plead in response to the complaint. However, Synosure did not file a responsive

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pleading within the allotted time, and on May 30, 2023, the circuit court entered and continued

Wilmington Trust’s default motion. On July 14, 2023, a different attorney filed an appearance for

Synosure but did not file a response to the foreclosure complaint.

¶7 On September 1, 2023, the circuit court granted Wilmington Trust’s motion for default and

entered a default judgment against Synosure and an order for judgment of foreclosure and sale. A

judicial sale of the property was scheduled for December 5, 2023. However, on December 1, 2023,

Synosure filed a motion to vacate titled “Emergency Motion to Vacate or Stay Order Approving

the Appointment of Selling Officer, Judgment of Foreclosure and Sale and for Judgment against

Defendants, and for Default,” seeking to vacate the circuit court’s September 1, 2023, orders and

to stay the December 5, 2023, judicial sale. Synosure’s supporting affidavit stated that it wanted

to stay the sale because it had a contract for sale of the property and would generate proceeds to

Wilmington Trust in excess of what they bid at the judicial sale. The circuit court granted

Synosure’s motion to stay the December 5, 2023, judicial sale.

¶8 A second judicial sale of the property was subsequently scheduled for February 6, 2024.

On February 2, 2024, Synosure filed its second motion to vacate titled “Emergency Motion to

Vacate or Stay Order Approving the Appointment of Selling Officer, Judgment of Foreclosure and

Sale against Defendants, and for Default,” again seeking to vacate the circuit court’s September 1,

2023, orders and to stay the February 6, 2024, judicial sale. Synosure’s supporting affidavit was

essentially the same as the affidavit attached to its initial motion to vacate and additionally stated

that it had requested a payoff statement from Wilmington Trust. On February 6, 2024, the circuit

court denied Synosure’s motion to stay the judicial sale, and the property was sold at judicial sale.

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Wilmington Trust was the successful bidder at the sale with a winning bid of $115,000 resulting

in a deficiency of $40,505.84.

¶9 On February 14, 2024, Wilmington Trust filed its motion to confirm the sale. On April 8,

2024, Synosure filed its response to Wilmington Trust’s motion to confirm the sale, alleging that

Wilmington Trust never provided it with a payoff letter for the subject loan, that Synosure had

purchase offers that were considerably higher than the amount owed on the property at the time,

and that confirming the sale would yield an unfair result to Synosure as it had repeatedly attempted

to make Wilmington Trust whole and satisfy the judgment. On April 19, 2024, Wilmington Trust

filed its reply in support of its motion to confirm sale and asserted that Synosure had not stated a

valid basis for objection to confirmation of the judicial sale. On August 6, 2024, the circuit court

granted Wilmington Trust’s motion to confirm the sale and approved the judicial sale. On August

20, 2024, the judicial deed was executed.

¶ 10 On September 4, 2024, a different attorney filed an appearance for Synosure and filed a

motion to vacate the default judgment and judgment of foreclosure that was entered on September

1, 2023. Synosure claimed that Wilmington Trust never established a prima facie case for

mortgage foreclosure because it did not attach a copy of the note to its complaint and never

introduced evidence of the note. Synosure’s motion did not make any argument regarding Rule

113 or the applicability of section 2-1508(b)(iv) of the Illinois Mortgage Foreclosure Law

(Foreclosure Law) (735 ILCS 5/15-1508(b)(iv) (West 2024)) and Wells Fargo Bank, N.A. v.

McCluskey, 2013 IL 115469.

¶ 11 On October 29, 2024, Wilmington Trust filed its response to Synosure’s motion to vacate

and asserted that the motion to vacate was barred by section 15-1509(c) of the Foreclosure Law

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(735 ILCS 5/15-1509(c) (West 2024)) because title vested by deed on August 20, 2024, prior to

the filing of Synosure’s motion to vacate and because a meritorious defense alone is insufficient

to vacate judgment and sale pursuant to section 15-1508(b)(iv) and McCluskey.

¶ 12 On November 26, 2024, Synosure filed its reply brief and argued that Wilmington Trust’s

complaint failed to state a cause of action for mortgage foreclosure, which can be raised at any

time, even for the first time on appeal, and cannot be waived. Additionally, Synosure argued that

its motion to vacate for failure to state a cause of action was not barred by section 15-1509(c)

because the circuit court still had jurisdiction since the judicial deed was issued before the time to

appeal the circuit court’s order confirming sale had expired.

¶ 13 On December 18, 2024, the circuit court entered an order that denied Synosure’s motion

to vacate for the reasons stated on the record. However, the appellate record does not contain a

report of proceedings or bystander’s report for the September 1, 2024, hearing on Synosure’s

motion. Synosure’s notice of appeal was filed on December 23, 2024.

¶ 14 ANALYSIS

¶ 15 Synosure raises but one issue on appeal: whether the circuit court erred in denying its

motion to vacate the default judgment, judgment of foreclosure and related relief because

Wilmington Trust’s complaint failed to state a claim for foreclosure. Synosure admits that its

motion to vacate the default, filed on September 4, 2024, was filed after the judicial sale of the

property took place and after that judicial sale was confirmed. However, Synosure contends that

Wilmington Trust’s failure to state a claim for foreclosure in its complaint can never be waived by

a defendant, and thus the circuit court incorrectly believed that Synosure waived this issue.

Synosure asserts that the standard of review is abuse of discretion. Essentially, Synosure’s

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argument is that the defense of a plaintiff’s failure to state a cause of action supersedes the

provisions of the Foreclosure Law.

¶ 16 As noted above, Synosure did not include a report of proceedings or bystander’s report

from the hearing on its motion to vacate. Illinois Supreme Court Rule 321 (eff. Oct. 1, 2021)

provides that the record on appeal shall include any report of proceedings. The appellant has the

burden of presenting a sufficiently complete record to support her claim of error and any doubts

arising from the incompleteness of the record will be resolved against him. Foutch v. O’Bryant,

99 Ill. 2d 389, 391-92 (1984). Where the record is incomplete or does not demonstrate the alleged

error, a court of review will not speculate as to what errors may have occurred below. Id. An issue

relating to a circuit court’s factual findings and basis for its legal conclusions cannot be reviewed

absent a report or record of the proceedings. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156-

57 (2005). To the extent that respondent’s issues on appeal challenge any of the circuit court’s

factual findings and the basis for its legal conclusions, we must presume that the circuit court’s

decision is supported by the facts and evidence presented to it during the hearing conducted below.

¶ 17 Generally, the issue of whether a plaintiff fails to state a cause of action is raised in a motion

to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615

(West 2024)). However, in this case, Synosure did not file a motion to dismiss the complaint;

rather, it filed a motion to vacate a default judgment, which is governed by section 2-1301(e) of

the Code (735 ILCS 5/2-1301(e) (West 2024)). Therefore, resolution of this issue involves the

relationship between section 2-1301(e) of the Code and sections 15-1508 and 15-1509 of the

Foreclosure Law. The issue is one of statutory construction, which we review de novo. McCluskey,

2013 IL 115469, ¶ 10.

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¶ 18 Section 2-1301(e) is generally available to seek relief from any nonfinal order of default or

default judgment or from a final default judgment within 30 days of its entry. 735 ILCS 5/2-

1301(e) (West 2024). In the context of a mortgage foreclosure proceeding, it is well settled that in

the absence of a Rule 304(a) finding in the judgment of foreclosure, it is the order confirming the

sale, rather than the judgment of foreclosure, that operates as the final and appealable order in a

foreclosure case. EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11. Accordingly, a motion to

vacate a default judgment of foreclosure brought before the order confirming the sale or within 30

days thereafter would be timely. In this case, the motion to confirm sale was granted on August 6,

2024, and the judicial deed was executed on August 20, 2024. Synosure filed its motion to vacate

on September 4, 2024, which was 29 days after the sale was confirmed. Thus, the motion would

appear to be timely pursuant to Section 2-1301(e).

¶ 19 That does not end the discussion, however. Allowing such a motion in the context of a

mortgage foreclosure case, even if timely, is inconsistent with the procedures set forth in the

Foreclosure Law, particularly sections 15-1508(b), which governs the confirmation of judicial

sales, and 15-1509(c), which specifically bars claims after title has vested by judicial deed. 735

ICLS 5/15-1508(b), 15-1509(c) (West 2024).

¶ 20 Section 15-1508(b) provides that,

“Upon motion and notice in accordance with court rules applicable to motions

generally, which motions 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 [of the sale] * * * was not given,

(ii) the terms of the sale were unconscionable, (iii) the sale was conducted fraudulently or

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(iv) justice was otherwise not done, the court shall then enter an order confirming the sale.”

735 ILCS 5/15-1508(b) (West 2024).

¶ 21 Synosure rests its argument on subsection (iv) of section 15-1508(b) as support for its

conclusion that the affirmative defense of a plaintiff’s failure to state a cause of action can be raised

at any time. However, in this case, there are additional facts that Synosure completely ignores in

its argument. In this case, not only had the sale been confirmed, but the judicial deed had been

executed prior to the filing of Synosure’s September 4, 2024, motion to vacate the default.

Therefore, we must also look to the provisions of section 15-1509(c) of the Foreclosure Law.

¶ 22 Section 15-1509(c) provides that the vesting of title by deed “shall be an entire bar of * *

* all claims of parties to the foreclosure.” 735 ILCS 5/15-1509(c) (West 2024). “This court has

previously found that language to be ‘clear and unambiguous.’ ” Taylor v. Bayview Loan Services,

LLC, 2019 IL App (1st) 172652, ¶ 12 (quoting U.S. Bank National Ass’n v. Prabhakaran, 2013 IL

App (1st) 111224, ¶ 30)). There are, however, two exceptions to section 15-1509(c)’s bar: (1)

where a party seeks to challenge the judgment as void due to lack of subject-matter jurisdiction

and (2) where a party may seek relief in the form of claiming an interest in the proceeds of the

sale. Taylor, 2019 IL App (1st) 172652, ¶ 12.

¶ 23 In the case at bar, Synosure did not make any argument in its opening brief with respect to

section 15-1509(c) and makes such argument for the first time in its reply brief where it maintains

that it can address the implications of the statute because it can always respond to arguments raised

by the appellee. Substantively, Synosure contends that its motion to vacate was not barred by

section 15-1509(c) because the plain language of that section bars “claims” and not “motions.” We

disagree.

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¶ 24 First, we note that, despite Synosure’s clever play on words and creative interpretation of

section 15-1509(c), it is clear that the section applies in this case. We note that Synosure’s

argument that it did not waive the issue of whether Wilmington Trust’s complaint failed to state a

claim, while couched in a motion, is indeed a claim that the foreclosure default judgment is invalid.

Thus, this argument is without merit.

¶ 25 Further, we note that similar issues have been considered by this court in applying section

15-1509(c). In Taylor, this court considered whether section 15-1509(c) barred the plaintiff’s

complaint for wrongful foreclosure based on lack of standing against the bank. Taylor, 2019 IL

App (1st) 172652, ¶ 11. This court considered and rejected the plaintiffs’ argument that the

contested order was void, and further that they extensively litigated the bank’s standing throughout

the proceedings, which provided more than a “mere opportunity” to challenge the fraud they

believed occurred when the foreclosure court entered the order in question. Id. ¶ 17. This court

also found that our case law is clear: an effort to challenge orders in an underlying foreclosure

action after the order approving the sale has been entered must follow the Foreclosure Law. Id.

See also McCluskey, McCluskey, 2013 IL 115469, ¶ 2; Prabhakaran, 2013 IL App (1st) 111224,

¶¶ 29-30.

¶ 26 Similarly, in Adler v. Bayview Loan Servicing, LLC, 2020 IL App (2d) 191019, ¶ 1, this

court considered whether section 15-1509(c) barred plaintiffs’ claims under the Real Estate

Settlement Procedures Act of 1974, as amended (RESPA) (12 U.S.C. § 2605 (2019); 12 C.F.R. §§

1024.36, 1024.41 (2014)) and the Consumer Fraud and Deceptive Business Practices Act (Fraud

Act) (815 ILCS 505/2 (West 2014)) alleging that the bank and Bayview engaged in misconduct

arising out of the foreclosure proceeding. The Adler plaintiffs argued that section 15-1509(c)

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barred only subsequent attacks on the foreclosure judgment. Id. ¶ 17. This court determined that

the legislature intended section 15-1509(c) to preclude all claims of parties to the foreclosure

related to the mortgage or the subject property, except for claims regarding the interest in the

proceeds of a judicial sale. Id. ¶ 25. As noted by the Adler court, “the asserted unfairness of this

interpretation is belied by the various provisions in section 15-1508 for addressing ‘injustice’

issues that might arise in the course of foreclosure proceedings.” Id. Indeed, in this case, like in

Adler, Synosure had ample time to challenge the foreclosure complaint. However, the record

indicates that it never filed an answer to the complaint, despite being represented by multiple

attorneys during the foreclosure proceeding prior to the judicial sale. Indeed, the first pleading

filed by Synosure was not filed until three months after the default judgment was entered and just

four days prior to the scheduled judicial sale (the first emergency motion to stay the judicial sale),

and this issue was not raised at that time. The circuit court granted that motion and stayed the sale

until February 1, 2024, and the subsequent sale was scheduled for February 6, 2024. On February

2, 2024, Synosure filed its second emergency motion to stay the judicial sale, which was denied.

The property was then sold at judicial sale on February 6, 2024, and Wilmington Trust filed a

motion to confirm the sale on February 14, 2024, which occurred on August 6, 2024. It was not

until September 4, 2024, that Synosure filed a motion to vacate the default foreclosure judgment

that was entered on September 1, 2023, more than a year earlier. We note that the proper time to

raise the issues Synosure now seeks to litigate was in fact between the judgment of foreclosure

and the confirmation of the sale, as contemplated in section 15-1508. To the extent that Synosure

did not pursue these claims as contemplated, they are claim-barred pursuant to section 15-1509(c).

See Adler, 2020 IL App (2d) 191019, ¶ 25.

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¶ 27 CONCLUSION

¶ 28 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 29 Affirmed.

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