CitiMortgage, Inc. v. Moran ( 2014 )

Illinois Official Reports
Appellate Court
CitiMortgage, Inc. v. Moran, 2014 IL App (1st) 132430
Appellate Court CITIMORTGAGE, INC., as Assignee of Union Federal Bank of
Caption Indianapolis, Plaintiff-Appellee, v. JOHN B. MORAN, Defendant-
Appellant (John J. Reid III, Camille Reid, and the United States of
America, Defendants).
District & No. First District, Fifth Division
Docket No. 1-13-2430
Filed August 29, 2014
Rehearing denied April 3, 2015
Held In a mortgage foreclosure action, the trial court did not abuse its
(Note: This syllabus discretion by entering a default judgment against defendant while his
constitutes no part of the motion to dismiss was pending but never set for a hearing, denying his
opinion of the court but motion to reconsider and to vacate the order of default, and in
has been prepared by the confirming the foreclosure sale and denying defendant’s motion to
Reporter of Decisions vacate the confirmation, since the record showed defendant failed to
for the convenience of exercise diligence, he had no meritorious claims, and plaintiff suffered
the reader.) substantial hardship as a result of defendant’s unreasonable
protraction of the litigation.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-41637; the
Review Hon. Jesse G. Reyes, Judge, presiding.
Judgment Affirmed.
Counsel on Theodore A. Woerthwein, John Miller, and Ashley Schwartz, all of
Appeal Woerthwein & Miller, of Chicago, for appellant.
Ira T. Nevel and Greg Elsnic, both of Law Offices of Ira T. Nevel,
LLC, of Chicago, for appellee.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justices Palmer and Taylor concurred in the judgment and opinion.
OPINION
¶1 CitiMortgage, Inc., filed a complaint against John B. Moran (Moran), 1 John J. Reid III,
and Camille Reid, seeking to foreclose a mortgage after they failed to make payments due on
a note given in exchange for a loan from Union Federal Bank of Indianapolis (Bank).
Basically, Moran argues that CitiMortgage did not produce a valid assignment of the note
and mortgage, and claims that the trial court: (1) “lacked the discretion to enter an order of
default against Moran when Moran had a pending motion to dismiss”; (2) erred by not
vacating the order of default; and (3) erroneously confirmed the sale and refused to vacate
the confirmation of the sale. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 Moran filed in his brief before this court a half-page statement of facts giving the dates
that he filed a motion to dismiss, that CitiMortgage presented its motions for a default order
and to deny Moran’s motion to dismiss, that the order of default was entered, that Moran
filed a motion to vacate and the trial court denied the motion, that the trial court confirmed
the sale, and that the trial court denied Moran’s motion to reconsider the confirmation of the
sale. Moran failed to provide this court with a transcript of proceedings or a bystander’s
report. CitiMortgage in its response brief filed no statement of facts. The background of this
case will be taken from the complaint filed by CitiMortgage and the pleadings.
¶4 On August 24, 2001, the Reid defendants and Moran borrowed $281,327 from the Bank
secured by a mortgage on residential property. The Bank assigned the note and mortgage to a
nominee of CitiMortgage, Inc.
¶5 On September 24, 2010, CitiMortgage filed a complaint to foreclose the mortgage against
defendants alleging that they were in default in the amount of $243,363.18 in unpaid
principal and interest. The complaint states that a “copy of the assignment of the Mortgage
and Note is attached.” In the record on appeal, there is an assignment of the note and
1
Moran is the only defendant who appealed.
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mortgage from the Bank to a nominee of CitiMortgage, all of which was attached to the
complaint. The assignment states that Union Federal Bank “does convey, grant, sell, assign,
transfer and set over the described mortgage/deed of trust together with certain note(s)
described therein” to Mortgage Electronic Registration Systems, Inc., “as nominee for
CitiMortgage.”
¶6 On December 21, 2010, CitiMortgage filed a motion for an order of default against
defendants for their failure to appear or otherwise plead. However, the record on appeal does
not contain a resolution of that motion.
¶7 On June 30, 2011, CitiMortgage filed another motion for an order of default against
defendants for their failure to appear or otherwise plead. Moran was granted until August 15,
2011, to file an appearance, answer or otherwise plead, but he did not file his appearance
until August 17, 2011, and did so without leave of court.
¶8 On August 19, 2011, Moran filed a motion to dismiss the foreclosure complaint for lack
of standing pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS
5/2-619 (West 2010)), claiming that (1) CitiMortgage did not loan money to him and (2) that
he received no assignment from Union Federal Bank because CitiMortgage did not have a
valid assignment. However, Moran did not set the motion for a hearing.
¶9 On March 9, 2012, CitiMortgage moved for a hearing on Moran’s motion to dismiss,
claiming that Moran failed to call his motion for hearing within the designated time period
under Rule 2.3 of the circuit court of Cook County rules. Rule 2.3 of the circuit court of
Cook County places “[t]he burden of calling for hearing any motion previously filed *** on
the party making the motion. If any such motion is not called for hearing within 90 days from
the date it is filed, the court may enter an order overruling or denying the motion by reason of
the delay.” Cook Co. Cir. Ct. R. 2.3 (eff. July 1, 1976).
¶ 10 On May 4, 2012, the trial court entered an order of default against defendants and entered
an order of foreclosure and sale. The record contains no evidence that Moran’s motion to
dismiss was adjudicated.
¶ 11 On June 4, 2012, Moran filed a motion to reconsider the default order and a motion to
vacate the default under section 2-1301 of the Illinois Code of Civil Procedure (735 ILCS
5/2-1301 (West 2010)). Moran claimed that the trial court erroneously entered a default when
his motion to dismiss was pending and that he was entitled to the opportunity to answer the
complaint if the trial court denied his motion. The trial court denied the motion to reconsider
and vacate on July 17, 2012.
¶ 12 On August 20, 2012, CitiMortgage filed a motion for an order confirming the sale, which
occurred at a public auction on August 8, 2012, and for an order of possession against
defendants. CitiMortgage was the highest bidder at the public auction and purchased the
property for $298,064.52. On October 9, 2012, Moran filed a response to CitiMortgage’s
motion to confirm the sale, contesting the validity of the assignment and claiming that the
“assignee of the Mortgage attached to the Complaint *** is [Mortgage Electronic
Registration Systems],” not CitiMortgage.
¶ 13 On October 30, 2012, the trial court entered an order confirming the sale and possession
to CitiMortgage and found that all claims of the defendants were terminated under section
15-1509(c) of the Illinois Code of Civil Procedure (735 ILCS 5/15-1509(c) (West 2010)).
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¶ 14 On November 27, 2012, Moran filed a motion to reconsider the order confirming the sale,
contesting the validity of the assignment and claiming that the “assignment is not to
[CitiMortgage] but to [Mortgage Electronic Registration Systems] as nominee for Plaintiff.”
Moran also admitted in his motion to reconsider the order confirming the sale that
CitiMortgage “pled in Paragraph 3(n) of the Complaint that it is the holder of the Note ***
by virtue of an assignment attached to the Complaint as Exhibit C.” The trial court denied
this motion on June 28, 2013. This appeal follows.
¶ 15 ANALYSIS
¶ 16 On appeal, Moran seeks reversal of: (1) the order of default entered on May 4, 2012; (2)
the denial on July 17, 2012, of his motion to reconsider and vacate the order of default; (3)
the confirmation of the sale on October 30, 2012; and (4) the denial on June 28, 2013, of his
motion to reconsider the confirmation of the sale. He argues that the trial court erred: (1)
because it lacked discretion to enter an order of default against him due to his pending
motion to dismiss, (2) by not vacating the order of default, and (3) by erroneously confirming
the sale and then not vacating it.
¶ 17 I. Jurisdiction
¶ 18 “[T]he order confirming the sale *** operates as the final and appealable order in a
foreclosure case.” EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11. “At the hearing [to
confirm the sale], a defendant may contest the sale’s validity, though on limited grounds.
[Citation.] Only after confirmation of the sale and payment of the purchase price may the
purchaser obtain a deed.” EMC Mortgage Corp., 2012 IL 113419, ¶ 40.
¶ 19 Moran appeals from the denial of his motion to reconsider the confirmation of sale
pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994), which provides that “[e]very
final judgment of a circuit court in a civil case is appealable as of right.”
¶ 20 Therefore, this court has jurisdiction pursuant to Illinois Supreme Court Rule 301 to
review (see DLJ Mortgage Capital, Inc. v. Frederick, 2014 IL App (1st) 123176, ¶¶ 1-3): (1)
the order of default entered on May 4, 2012; (2) the denial on July 17, 2012, of Moran’s
motion to reconsider and vacate the order of default; (3) the confirmation of the sale on
October 30, 2012; and (4) the denial on June 28, 2013, of Moran’s motion to reconsider the
confirmation of the sale.
¶ 21 II. Standard of Review
¶ 22 Moran contests the trial court’s order of default and order of confirmation. We review the
entry of the order of default for abuse of discretion or denial of substantial justice. Jackson v.
Bailey, 384 Ill. App. 3d 546, 548 (2008). “[A]n order of default is simply an interlocutory
order that precludes the defaulting party from making any additional defenses to liability but
in itself determines no rights or remedies.” Fidelity National Title Insurance Co. of New York
v. Westhaven Properties Partnership, 386 Ill. App. 3d 201, 211 (2007). An order of default
“may be entered for want of an appearance, or for failure to plead” (735 ILCS 5/2-1301(d)
(West 2010)) and is within the sound discretion of the circuit court to enter (Wilkin Insulation
Co. v. Holtz, 186 Ill. App. 3d 151, 155 (1989)).
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¶ 23 Courts have applied different standards when reviewing a vacation of an order of default.
In Jackson, we held that “[w]hether to grant or deny a motion under section 2-1301 is within
the sound discretion of the trial court, and its decision will not be reversed absent an abuse of
discretion or a denial of substantial justice.” Jackson, 384 Ill. App. 3d at 548. Similarly, in
Venzor v. Carmen’s Pizza Corp., 235 Ill. App. 3d 1053, 1056 (1992), the court pointed out
that the appellate court has used three different standards of review in vacating default
judgments: (1) abuse of discretion, (2) denial of substantial justice, and (3) abuse of
discretion, contingent on the denial of substantial justice.
¶ 24 An abuse of discretion occurs when “the ruling is arbitrary, fanciful, or unreasonable, or
when no reasonable person would take the same view.” Bovay v. Sears, Roebuck & Co., 2013
IL App (1st) 120789, ¶ 26. In determining substantial justice, courts evaluate “the lack of
diligence[,] *** the absence of a meritorious defense[,] *** [and] the severity of the penalty
resulting from the entry of a default order and the relative hardships on the parties arising
from a grant or denial of default.” Northern Trust Co. v. American National Bank & Trust
Co. of Chicago, 265 Ill. App. 3d 406, 412 (1994).
¶ 25 We also review the entry of the order of confirmation for abuse of discretion. Household
Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008). An order of confirmation completes a sale
of property. Household Bank, FSB, 229 Ill. 2d at 181. “The highest bid received by a sheriff
at a judicial foreclosure sale is merely an irrevocable offer to purchase the property. The offer
is not deemed to have been accepted and the sale is not complete until it has been confirmed
by the circuit court.” Household Bank, FSB, 229 Ill. 2d at 181. No matter what standard of
review we use, our decision will be the same.
¶ 26 III. Entry of the Default Order
¶ 27 A. Default Order
¶ 28 Moran first argues that the trial court lacked the discretion to enter a default order when
his motion to dismiss was pending. He relies solely on Bland v. Lowery, 43 Ill. App. 3d 413,
419 (1976), to argue that a motion is a pleading for section 2-1301 purposes and that filing a
motion precludes an entry of a default order. However, Bland is not on point under the facts
of this case.
¶ 29 In the case at bar, Moran filed a motion to dismiss that was not ruled upon; however, in
Bland, the trial court considered and granted the defendants’ motion to dismiss. Bland, 43 Ill.
App. 3d at 415. In Bland, the defendants filed their motion to dismiss after the 30-day time
period prescribed for pleading, and the trial court granted the defendants’ motion to dismiss
and denied the plaintiffs’ motion for a default judgment. Bland, 43 Ill. App. 3d at 418-19. On
appeal, the appellate court found that the trial court did not abuse its discretion in denying the
plaintiffs’ motion for a default judgment because “a default can be entered only for want of
an appearance or failure to plead. Both defendants filed appearances and pleaded more than
five months prior to the motion for [a] default judgment.” Bland, 43 Ill. App. 3d at 419.
¶ 30 However, Bland is instructive in that it recognizes the validity of the defendants’ motion
to dismiss that was filed after the time period prescribed for pleading. “If a defendant is
served with process and fails to enter an appearance, file pleadings or make any other
response to plaintiff’s complaint, the plaintiff may move for entry of a default judgment
pursuant to section 2-1301 of the Code (735 ILCS 5/2-1301 (West 2008)).” American Service
Insurance Co. v. City of Chicago, 404 Ill. App. 3d 769, 778 (2010). In the case at bar, Moran
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filed an appearance on August 17, 2011, two days late without leave of court, and then filed a
motion to dismiss on August 19, 2011, in response to CitiMortgage’s complaint, but never
set the motion for hearing.
¶ 31 B. Motion to Dismiss
¶ 32 To determine whether to reverse the order of default, we must evaluate the merits of
Moran’s motion to dismiss. We only reverse the entry of the order of default if the trial court
should have granted Moran’s motion to dismiss. See Borowiec v. Gateway 2000, Inc., 209 Ill.
2d 376, 383 (2004).
¶ 33 CitiMortgage claims that we should presume that the trial court denied Moran’s motion
to dismiss because Moran failed to call his motion for hearing within the designated time
period under Rule 2.3 of the circuit court of Cook County rules. Rule 2.3 of the circuit court
of Cook County places “[t]he burden of calling for hearing any motion previously filed ***
on the party making the motion. If any such motion is not called for hearing within 90 days
from the date it is filed, the court may enter an order overruling or denying the motion by
reason of the delay.” Cook Co. Cir. Ct. R. 2.3 (eff. July 1, 1976). When the record is
incomplete, a reviewing court presumes that the trial court acts “in conformity with the law.”
(Internal quotation marks omitted.) Webster v. Hartman, 195 Ill. 2d 426, 432 (2001).
¶ 34 However, in Marshall E. Winokur, Ltd. v. Shane, 89 Ill. App. 3d 551, 553-54 (1980), the
plaintiff failed to call his posttrial motion for a hearing within 90 days after it was filed, as
required under Rule 2.3 of the circuit court of Cook County rules. We found that “Supreme
Court Rule 184 specifically provides that either party may call a motion for disposition
before or after the expiration of the filing period. [Citations.] Failure on the part of plaintiff to
call a motion for a hearing in no way impaired the validity of the motion. *** [P]laintiff is
entitled to have a hearing on his [posttrial] motion.” Marshall E. Winokur, Ltd., 89 Ill. App.
3d at 553-54.
¶ 35 Thus, Moran’s failure to call his motion for a hearing within the requisite time period did
not preclude the trial court from hearing his motion to dismiss. Marshall E. Winokur, Ltd., 89
Ill. App. 3d at 553-54. We continue on to an evaluation of the merits of Moran’s motion to
dismiss.
¶ 36 Moran filed a motion to dismiss the foreclosure complaint for lack of standing pursuant
to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)),
claiming that (1) CitiMortgage was not the real party in interest and (2) had no assignment
from Union Federal Bank. Moran claims that CitiMortgage “filed suit without attaching an
assignment from the mortgagor to the Plaintiff. [CitiMortgage] argues that there is absolutely
nothing in the complaint either by way of exhibits or pleading that connects the mortgagor
*** with [CitiMortgage, Inc.,] or with the loan trust *** on behalf of which [CitiMortgage,
Inc.,] apparently claims to be acting.”
¶ 37 However, CitiMortgage’s complaint states that a “copy of the assignment of the
Mortgage and Note is attached” and titled Exhibit C. In the record, there is an assignment of
the mortgage and note from Union Federal Bank to a nominee of CitiMortgage. Additionally,
in Moran’s motion to reconsider the order confirming the sale, he admitted that CitiMortgage
“pled in Paragraph 3(n) of the Complaint that it is the holder of the Note *** by virtue of an
assignment attached to the Complaint as Exhibit C.”
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¶ 38 So first we must decide whether Moran’s motion to dismiss should have been granted.
Moran’s motion is predicated on the claim that CitiMortgage did not have a valid assignment
of the note and mortgage and as a result, had no standing to bring the suit. Lack of standing is
an affirmative defense, and as such, it was Moran’s burden to prove CitiMortgage did not
have standing. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010). It is not
CitiMortgage’s burden to prove it does have standing. Wexler v. Wirtz Corp., 211 Ill. 2d 18,
22 (2004); Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6
(2010).
¶ 39 The record shows the note and mortgage, together with the endorsement indicated.2
¶ 40 In the modern banking world, few loans remain with the original lender. Banks freely
buy, sell, and transfer mortgage loans. Still more loans are transferred because banks
themselves merge with other banks or fail and are taken over by an existing financial
institution selected by the Federal Deposit Insurance Corporation. Simply put, the Illinois
Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq. (West 2010)) does not require the
plaintiff to submit any specific documentation demonstrating that it owns the note or the right
to foreclose on the mortgage, other than the copy of the mortgage and note attached to the
complaint. Under section 3-301 of the Uniform Commercial Code (810 ILCS 5/3-301 (West
2010)), the party holding the note is presumed to own it.
¶ 41 Illinois law allows servicers and agents to be foreclosure plaintiffs on behalf of the actual
mortgage holder. Deutsche Bank National Trust Co. v. Gilbert, 2012 IL App (2d) 120164,
¶ 15. The assignment of the mortgage and note here shows that it was assigned to Mortgage
Electronic Registration Systems, Inc., as nominee for CitiMortgage. Black’s Law Dictionary
1149 (9th ed. 2009) defines “nominee” as either “[a] person designated to act in place of
another” or “[a] party who holds bare legal title for the benefit of others.” As a result, there is
evidence that CitiMortgage was assigned the mortgage. But most importantly, when the trial
court held hearings on Moran’s motion to vacate, it is reasonable to conclude that the trial
court reviewed that note and the mortgage in its decision-making process. Since Moran failed
to provide this court with a transcript of the proceedings, Supreme Court Rule 323 required
the filing of either a bystander’s report or an agreed statement of facts. Midstate Siding &
Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003). In the absence of a complete record, the
reviewing court must presume that the trial court acted correctly and in conformity with the
law. Webster v. Hartman, 195 Ill. 2d 426, 433 (2001). Any doubts resulting from the
incompleteness of the record must be resolved against Moran. Foutch v. O’Bryant, 99 Ill. 2d
389, 392 (1984). As a result, Moran’s motion to dismiss had no merit.
¶ 42 IV. Vacation of an Order of Default
¶ 43 Additionally, Moran argues that the trial court failed to do substantial justice by not
vacating the order of default. Although the record on appeal does not contain the trial court’s
reasoning for denying Moran’s motion to vacate the order of default, we nevertheless review
the trial court’s decision for abuse of discretion and substantial justice (Jackson, 384 Ill. App.
3d at 548), evaluating “[(1)] the lack of diligence by the defaulter, [(2)] the absence of a
2
Illinois Supreme Court Rule 113(b) (eff. May 1, 2013), now requires that the copy of the note
attached to the complaint must be the note as it currently exists, together with endorsements and
allonges.
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meritorious defense by the defaulter, [and (3)] the severity of the penalty resulting from the
entry of a default order and the relative hardships on the parties arising from a grant or denial
of default.” Northern Trust Co., 265 Ill. App. 3d at 412.
¶ 44 The first factor is Moran’s lack of diligence. In Wilkin Insulation Co., we found that
default judgment was appropriate because “defendant not only failed to answer plaintiff’s
original complaint within the time prescribed by statute but also failed to comply with
numerous court orders extending the time within which to answer or otherwise plead.” Wilkin
Insulation Co., 186 Ill. App. 3d at 156-57. For instance, “defendant’s only response to
plaintiff’s original complaint was by way of a motion” “filed without notice or leave of court
approximately eight months after the suit was brought, more than four months after
plaintiff’s first motion for default judgment and nearly 30 days after the trial court had
sua sponte entered default judgment against him for failing to comply with previous orders
which granted his requests for additional time to answer.” Wilkin Insulation Co., 186 Ill.
App. 3d at 157.
¶ 45 In the case at bar, Moran has exhibited a similar lack of diligence. In Wilkin, the
“defendant’s only response to plaintiff’s original complaint was *** a motion” “filed ***
approximately eight months after the suit was brought, more than four months after
plaintiff’s first motion for default judgment.” 186 Ill. App. 3d at 157. Similarly, Moran filed
his appearance two days late without leave of court and a motion to dismiss approximately
eight months after plaintiff filed its first motion for an order of default. Additionally, like the
defendant in Wilkin, Moran failed to comply with the court’s 28-day order to file an
appearance and answer or otherwise plead by August 15, 2011. Moran filed his appearance
on August 17, 2011, and filed a motion to dismiss on August 19, 2011, but never set the
motion for hearing. Thus, Moran has shown a lack of diligence.
¶ 46 The second factor is the absence of a meritorious defense. On August 19, 2011, Moran
filed a motion to dismiss the foreclosure complaint for lack of standing pursuant to section
2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), claiming that
(1) CitiMortgage did not loan money to Moran and (2) had no assignment from Union
Federal Bank to CitiMortgage. Moran claimed that CitiMortgage “filed suit without attaching
an assignment from the mortgagor to the Plaintiff.” However, CitiMortgage’s complaint
states that a “copy of the assignment of the Mortgage and Note is attached.” In the record on
appeal, there is an assignment from Union Federal Bank to a nominee of CitiMortgage. As
we have previously explained, Moran failed to provide enough of a record in this court to
show that CitiMortgage was not the assignee of the note and mortgage. In addition, the
mortgage and note attached to the complaint, together with the assignment, shows that
CitiMortgage was the assignee of both the mortgage and the note. Therefore, Moran had no
meritorious defense.
¶ 47 The third factor is the penalty and hardship to the parties resulting from the entry of a
default order. In Wilkin, we found that the plaintiff experienced substantial hardship because
the “[d]efendant’s unreasonable protraction of this litigation compelled plaintiff to expend
significant amounts of time and to incur considerable expense in pursuit of a relatively small
claim.” Wilkin Insulation Co., 186 Ill. App. 3d at 158.
¶ 48 In the case at bar, CitiMortgage argues that Moran’s lack of diligence has caused it
hardship. Like the plaintiff in Wilkin, CitiMortgage filed its complaint on September 24,
2010, and has expended time and expense in this protracted litigation. CitiMortgage alleges
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in its appellee’s brief that Moran’s default in payment “required [it] to advance funds to pay
for property taxes and hazard insurance.”
¶ 49 Moran claims that the entry of the default imposes a hardship on Moran, preventing the
adjudication on his motion to dismiss. However, as we have explained, his motion to dismiss
is without merit. Thus, this factor weighs against vacating the order of default.
¶ 50 Weighing the relevant factors shows that the trial court did not abuse its discretion or
deny substantial justice by denying the motion to vacate the default.
¶ 51 V. Confirmation of the Sale
¶ 52 Section 15-1508(b) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1508(b)
(West 2010)) governs a trial court’s discretion to vacate the sale. Wells Fargo Bank, N.A. v.
McCluskey, 2013 IL 115469, ¶ 18. “Pursuant to section 15-1508(b), upon motion and notice,
the court shall confirm the sale unless the court finds that: (i) proper notice of the sale was
not given; (ii) the terms of the sale were unconscionable; (iii) the sale was conducted
fraudulently; or (iv) justice was otherwise not done. 735 ILCS 5/15-1508(b) (West 2010).”
(Emphasis omitted.) Wells Fargo Bank, N.A., 2013 IL 115469, ¶ 18. Section 15-1508(b)
confers broad discretion on circuit courts, and a reviewing court will not overturn a lower
court’s decision approving or disapproving a judicial sale absent an abuse of discretion.
Household Bank, FSB, 229 Ill. 2d at 178.
¶ 53 Moran claims that the trial court erred in confirming the sale of property. He argues that
justice was not done pursuant to section 15-1508(b)(iv), claiming that he lacked sufficient
time to respond to the complaint’s allegations when the trial court granted a default despite
his pending motion to dismiss. “To vacate both the sale and the underlying default judgment
of foreclosure, the borrower must not only have a meritorious defense to the underlying
judgment, but must establish under section 15-1508(b)(iv) that justice was not otherwise
done because either the lender, through fraud or misrepresentation, prevented the borrower
from raising his meritorious defenses to the complaint at an earlier time in the proceedings,
or the borrower has equitable defenses that reveal he was otherwise prevented from
protecting his property interests.” Wells Fargo Bank, N.A., 2013 IL 115469, ¶ 26. Moran has
not made these arguments.
¶ 54 In the case at bar, Moran has not presented evidence to show that he was prevented from
raising a meritorious defense to the complaint at an earlier time through fraud or
misrepresentation or that he was otherwise prevented from protecting his property interests.
Justice was done pursuant to section 15-1508(b) and the trial court did not abuse its
discretion in confirming the sale.
¶ 55 CONCLUSION
¶ 56 In sum, under the particular facts and circumstances of this case, it was within the trial
court’s discretion (1) to enter an order of default against Moran while his motion to dismiss
was filed and not set for a hearing, (2) to deny his motion to reconsider and to vacate the
order of default, and (3) to confirm the sale of property and to deny its vacatur.
¶ 57 Affirmed.
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