Nationstar Mortgage, LLC v. Johnson , 2019 IL App (2d) 180400-U ( 2019 )

2019 IL App (2d) 180400-UNo. 2-18-0400
Order filed December 5, 2019
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
NATIONSTAR MORTGAGE, LLC, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee, )
)
v. ) No. 11-CH-1221
)
RACHEL L. JOHNSON; CARRIE D. )
TEAGER; MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC., as )
Nominee for Lehman Brothers Bank, FSB; )
PORTFOLIO RECOVERY ASSOCIATES, )
LLC; UNKNOWN OWNERS; NON- )
RECORD CLAIMANTS; and UNKOWN )
OCCUPANTS, )
)
Defendants )
) Honorable
(Rachel L. Johnson and Carrie D. Teager, ) James D. Orel,
Defendants-Appellants). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BRIDGES delivered the judgment of the court.
Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in granting summary judgment for Nationstar or in
approving the foreclosure sale. It also did not abuse its discretion in denying
defendants’ request for a continuance. Defendants forfeited their argument that the
trial court was biased against them, and the record also did not support their
argument. Therefore, we affirmed.
2019 IL App (2d) 180400-U¶2 In this residential mortgage foreclosure case, defendants, Rachel L. Johnson and Carrie D.
Teager, appeal from the trial court’s rulings (1) granting summary judgment in favor of plaintiff,
Nationstar Mortgage, LLC, (Nationstar) and (2) approving the foreclosure sale. Defendants raise
numerous arguments related to the standing of Nationstar and its predecessor, and they also argue
that their due process rights were violated and that the trial judge was biased against them. We
affirm.
¶3 I. BACKGROUND
¶4 According to defendants, they originally purchased their home in Naperville in 1996.
Lehman Brothers Banks, FSB, loaned defendants $788,000 on March 28, 2007, secured by a
mortgage on the real estate. Aurora Loan Services, LLC (ALS), was the loan’s servicer and filed
a complaint to foreclose the mortgage about two years later, on February 2, 2009. Defendants
replied and raised affirmative defenses, and they also filed a counterclaim. The complaint was
dismissed on October 6, 2009, pursuant to a release and settlement agreement involving a loan
modification. The agreement included the following paragraph, entitled “Borrowers’ Releases”:
“Upon the execution of this Agreement and the related Loan Modification
Agreement and without need for further documentation, the Borrowers and each of them
release and forever discharge [ALS], as well as any and all of its affiliates, assignors,
assignees, *** predecessors, successors ***, and all other persons or entities with any past,
present or future legal interest in, connection to, ownership of, purchase of, assignment of,
servicing of, or origination of the Subject Loan *** from any and all manner of claims,
actions, causes of action, rights, judgments, debts, contracts, promises, allegations,
demands, obligations, duties, suits, expenses, assessments, penalties, charges, injuries,
losses, costs, damages and liabilities, including but not limited to those claims that were
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2019 IL App (2d) 180400-Uasserted or that could have been asserted in their allegations, of every kind and manner
whatsoever concerning, regarding or arising in any way out of the Subject Loan, which
the Borrowers and each of them at any time had or at the time of their execution of this
Agreement have against [ALS] and/or any or all of the other Released Parties, whether now
known, claimed, asserted, suspected or discoverable by the Borrowers and each of them,
and/or their attorneys ***.” (Emphasis added.)
The trial court order stated that the complaint was dismissed without prejudice; defendants’
counterclaim was dismissed with prejudice; and “all claims or defenses of Defendants [were]
released and forever barred.”
¶5 ALS filed a second complaint to foreclose the 2007 mortgage on March 8, 2011, alleging
that defendants had defaulted on August 1, 2010. On June 30, 2011, ALS filed a motion for
judgment of foreclosure and order for sale, and a motion for default. Defendants subsequently
appeared pro se and filed an answer and affirmative defenses. ALS moved to strike the affirmative
defenses on August 26, 2011, citing the settlement agreement.
¶6 An attorney entered an appearance for defendants on October 4, 2011, and was permitted
to withdraw the pro se answer and affirmative defenses. The trial court’s order stated that
defendants were not to file any affirmative defenses without first seeking leave of the court.
¶7 On November 15, 2011, defendants filed a motion to dismiss the complaint, alleging that
ALS lacked standing to sue because it was not the owner of the note that the mortgage secured
(Note). In its response, ALS argued that it had standing to foreclose as the holder of the Note
endorsed in blank, and as the mortgagee of record. The trial court denied defendants’ motion to
dismiss on January 10, 2012. At the hearing, the trial court stated that there was a low hurdle for a
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2019 IL App (2d) 180400-Uforeclosing bank to defeat a motion to dismiss based on a lack of standing, but it suggested that
ALS bring the original note to court for inspection at the time of judgment.
¶8 On February 8, 2012, without leave of court, defendants filed an answer and affirmative
defenses, asserting lack of standing and unclean hands. On January 10, 2013, Nationstar was
substituted as plaintiff, with defendants stating that they had no objection.
¶9 Nationstar filed a motion for summary judgment on August 2, 2013. It argued that ALS
had standing to bring the action as the holder of the Note that was payable to the bearer, and as the
mortgagee of record. Nationstar argued that, as the current holder of the Note, it was now entitled
to enforce the Note. It further argued that defendants had no defense of unclean hands.
¶ 10 On August 14, 2013, defendant filed a motion to compel regarding redacted portions of
documents provided to them in discovery. The trial court granted the motion on October 8, 2013,
ordering that Nationstar provide a compliant privilege log. During the hearing, it noted that
defendants had pending affirmative defenses that were not stricken.
¶ 11 On January 8, 2014, defendants filed objections to Nationstar’s privilege log. A hearing on
the objections took place on April 21, 2014. The trial court discussed the history of the case stating:
“And I did get a full set of the pleadings and I went through the case and I had some
observations. There had been a previous case, and that previous case regarding the subject
property was disposed of with an order that indicated Defendants’ counterclaim is
dismissed with prejudice and all claims or defenses of Defendants are released and forever
barred. And then from subsequent pleadings I see there was a settlement agreement; there
was a release; there was a loan modification with a modified interest rate of 3 percent; and
then *** there was a default on the loan modification. There was a new foreclosure suit
filed, and Defendants again filed—despite the agreement, filed affirmative defenses. Then
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2019 IL App (2d) 180400-Uon October 17, 2011, a motion to strike those was to be heard and there was a withdrawal
of the answer and affirmative defenses. And in that order, Defendants shall not file any
affirmative defenses without first seeking leave of court.”
The trial court questioned how the case got to the point where there were affirmative defenses filed
without first seeking leave of the court, and now they had discovery issues.
¶ 12 Defense counsel stated that the affirmative defenses were based on actions occurring after
the settlement. The trial court disagreed, stating:
“Not standing. And not only was standing not an exception to that, but the
modification agreement was with Aurora Loan Services on top of it, which was the original
Plaintiff who filed the case. So how do we get to a standing issue in a case where the
Defendant entered into a loan modification with Aurora Loan Services, released any claims
they had, and has a bar from filing an affirmative defense because of the *** preceding
events that led up to this?”
Defense counsel stated that when he filed the affirmative defenses, ALS answered and did not
raise objections to them. Nationstar’s counsel stated that its position was that the issue was
appropriate for summary judgment, but that the hearing on that motion was put off pending
discovery disputes.
¶ 13 The trial court then stated that ALS may have thought that it was more expeditious to reply
and file a motion for summary judgment then to brief a motion to strike. It continued:
“Now, on the 2009 [case] *** Judge Cerne was the judge; so I wasn’t aware of that
until I reviewed the history of this. *** These defenses were released, and I see there was
a loan modification entered into with Aurora Loan Services. So the Court, on its own
motion, is striking the affirmative defenses and is not going to uphold the Defendants’
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2019 IL App (2d) 180400-Urequest for further discovery on this. This is a very clear-cut—$788,000 loan, a very clear-
cut situation where in the initial case Defendant filed a counterclaim—And I know [defense
counsel] wasn’t involved in all this, nor was this Court, nor was [Nationstar’s] counsel,
*** but there was an agreement that was supposed to bar the very thing that’s going on
here, which is another round of defenses asserted and motions. And it’s certainly not right
for the Defendant who enters into a modification with a 3-percent interest rate—certainly
a very charitable interest rate in this or any market—to then come in—with Aurora Loan
Services *** despite the releases which are evidenced in the order, the settlement
agreement, to then come in and contest standing and then to assert as part of their pleadings
that the Plaintiff somehow did something wrong in attaching the settlement agreement that
allowed for all of this.
So on this record the Court, on its own motion, is striking the affirmative defenses
based on the court orders as well as the release and settlement agreement and is ***
overruling the Defendants’ objections to the Plaintiff’s supplemental privilege log; and that
will be the disposition of the motion for today.”
¶ 14 Nationstar stated that, in light of the trial court’s ruling, it would need to file an updated
affidavit for its summary judgment motion. The trial court agreed and further stated that defense
counsel could respond to whether the amounts were correct. Nationstar filed a loss mitigation
affidavit on November 20, 2014.
¶ 15 Defendants were given leave to file a response to the motion for summary judgment
instanter on February 3, 2015. They admitted that the Note was endorsed in blank, creating the
presumption that the possessor of the Note was a holder in due course. However, they argued that
Nationstar was clearly not a holder in due course because it took possession of the Note during a
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2019 IL App (2d) 180400-Uforeclosure action, when the Note was already in default. Defendants argued that there was also
no evidence as to when ALS purportedly became a holder in due course or otherwise came into
possession of the Note. Defendants argued that they learned through discovery that the owner of
the Note was allegedly Wells Fargo as a trustee of a trust, but documents showed that the Note
was not properly and timely transferred to the trust in accordance with the trust’s provisions.
Defendants argued that, therefore, Lehman Brothers Holding, Inc., which had filed for bankruptcy,
still owned the Note. Defendant maintained that the trial court should deny Nationstar’s motion
for summary judgment because significant facts existed as to the identity of the Note’s owner, who
could not be the entity on whose behalf Nationstar claimed to be acting. Defendant’s attached to
their response an affidavit and exhibits of John Moran, a forensic document examiner, who opined
that the trust did not own the Note.
¶ 16 Nationstar argued in its reply in support of its motion for summary judgment that
defendants’ arguments were legally meritless; that they impermissibly sought to relitigate their
stricken affirmative defense of standing; that defendants lacked standing to challenge the validity
of the assignments; that the bankruptcy of Lehman Brothers Holding, Inc., was irrelevant; and that
Moran’s affidavit should be stricken because it did not comply with Illinois Supreme Court Rule
191 (eff. Jan. 4, 2013).
¶ 17 A hearing on the motion for summary judgment took place on May 12, 2015. At the
beginning of the hearing, Nationstar’s counsel stated that he produced the original Note to defense
counsel shortly before the hearing. Defense counsel stated, “It appears to be the original.” The trial
court asked to see it and read it into the record. It then granted summary judgment for Nationstar,
stating:
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2019 IL App (2d) 180400-U“There were affirmative defenses [that] previously raised standing which is
obviated by a Note endorsed in blank which is bearer paper, and plaintiff is the bearer.
The unclean hands affirmative defense and arguments related to a settlement
agreement that had a confidentiality provision, but there’s always a glaring exception to
that, that is, if there is, in fact, a breach and the plaintiff has to proceed, they have by
necessity the right to produce that document. So that’s not going to hold up this proceeding.
The other alleged defenses are not viable defenses on this cause of action which is
a 2007 loan and then there was a 2009 dismissal of the case per a loan modification. And
for whatever reason, even though the loan modification reduced the rate to three percent,
there was a default under the loan modification.
So on this record, there’s no issue of material fact. Plaintiff is entitled to Judgment
as a matter of law.”
Johnson requested leave to ask a question, and then asked about the effect of the forensic audit
revealing that the Note was not included in the trust’s assets. The trial court stated that the Note
was endorsed in blank and was bearer paper, and because Nationstar was the bearer of the Note, it
was the party entitled to move forward on the Note. The trial court entered a judgment for
foreclosure and order of sale.
¶ 18 Defendants filed a motion to reconsider on June 15, 2015, through additional counsel. They
argued that Nationstar lacked standing to foreclose because the trust’s interest in the mortgage was
acquired through an illegal mortgage transaction, in violation of the Residential Mortgage License
Act of 1987 (205 ILCS 635/1-1 et seq. (West 2014)), and Illinois courts were prohibited from
enforcing illegal transactions and contracts. They argued that, for the same reason, the doctrine of
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2019 IL App (2d) 180400-Uunclean hands applied. Last, they argued that the trial court erred by failing to ask the defendants
themselves if they had the opportunity to review the document purporting to be the original Note.
¶ 19 The trial court denied the motion to reconsider on October 5, 2015, stating that standing as
an affirmative defense had been stricken, and the original Note was produced in open court and
was endorsed in blank.
¶ 20 A judicial sale was scheduled for December 3, 2015. On December 1, 2015, defendant filed
an emergency motion to stay the sale, alleging that they had applied for a loan modification. The
record contains a docket entry for the following day which states that no action was taken. The
judicial sale was later rescheduled to March 15, 2016. Defendants’ counsel was granted leave to
withdraw on March 7, 2016, and defendants were given 21 days in which to file an appearance
pro se or through new counsel. The trial court denied an oral motion to stay the sale.
¶ 21 The judicial sale was rescheduled many times, with the ultimate sale date on March 27,
2018. The prior day, defendants filed a pro se motion to stay the foreclosure sale. A ruling on the
motion is not contained in the record. The sale took place as scheduled. The bid price was
$989,008.58, leaving a deficiency of $353,903.94.
¶ 22 Nationstar filed a motion for an order approving the sale on April 30, 2018. The motion
was heard on May 7, 2018. Defendants appeared pro se and asked for time to respond. They said
that they had just received notice of the motion two business days before the hearing 1 and had not
had a chance to respond. The trial court stated that the case was from 2011 and asked if defendants
were surprised that there was a motion for an order to confirm the sale. Johnson stated that she
was planning to file a motion to vacate the sale because Nationstar did not have the right to the
1
May 7, 2018, was a Monday.
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2019 IL App (2d) 180400-UNote that was in its possession. The trial court asked if defendants previously had counsel and
what had happened in the case. Defendants said that they had counsel and that there was a grant
of summary judgment. The trial court asked if defendants wanted to make a record of anything,
and Johnson said that they wanted to respond because there were issues of material fact. The trial
court stated that question had already been decided in summary judgment, and it granted the
motion for an order confirming the sale. Johnson said that she would appeal, and then asked: “May
I ask why you are avoiding our rights and not allowing us to get another attorney?” The trial court
responded “Your case has been heard, ma’am. Thank you.”
¶ 23 Defendants timely appealed and have filed pro se briefs.
¶ 24 II. ANALYSIS
¶ 25 Defendants’ notice of appeal states that they are appealing from the trial court’s orders of
May 12, 2015 (its ruling on the motion for summary judgment) and May 7, 2018 (its order
approving the sale). Correspondingly, they state in their brief that they are contesting the trial
court’s ruling for summary judgment, and they also state that their due process rights were violated
during the May 7, 2018, hearing and at other times.
¶ 26 In specifying the issues presented for review in their brief, defendants list 15 issues largely
related to ALS’s and Nationstar’s standing to litigate the action, and 2 issues regarding the alleged
violations of their due process. We summarize defendants’ arguments as they are presented in the
argument section of their brief.
¶ 27 Defendant’s first argument stems from Nationstar’s answer in discovery that Wells Fargo
owned the Note as the trustee of a trust. Defendants contend that reasonable inferences within the
record support the conclusion that the trust does not own the Note. Defendants argue that the Trust
lacked standing to foreclose because (1) the Note does not meet Security and Exchange
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2019 IL App (2d) 180400-UCommission and Internal Revenue Service requirements to be owned by the trust; and (2) the
transfer of the Note was void because (a) there was no evidence that the trust purchased,
transferred, registered, or deposited the mortgage, (b) the transfer violated Real Estate Mortgage
Investment Conduit (REMIC) requirements, and (3) defendants have rights as homeowners to
challenge the “Trust PSA.” Relatedly, defendants argue that forensic evidence within the record
supports the conclusion that the trust does not own the Note, in that the Note is not a REMIC-
qualified mortgage, and there was a lack of qualifying dates, indorsements, unbroken chain of title,
and trustee acceptance.
¶ 28 Defendants further argue that the trial court erred in granting Nationstar summary
judgment, because genuine issues of material fact exist. They maintain that: (1) the trial improperly
awarded summary judgment to Nationstar based on possession of the Note alone; (2) the trial court
did not compel production of the original Note during proceedings, thereby failing to conclusively
refute issues of standing; and (3) there was a genuine issue of material fact regarding what entity
held and owned the mortgage.
¶ 29 In a similar vein, defendants argue that the record shows that standing was never truly
established. They argue that ALS lacked standing to file the March 8, 2011, foreclosure complaint
because: it failed to produce the original Note, raising questions about a possible fraudulent act;
the assignment of the mortgage to ALS was invalid due to the Lehman Brothers bankruptcy;
MERS lists “Aurora Commercial Corp,” rather than “Aurora Loan Services,” as the Note’s
servicer; and MERS held no financial interest in the Note and could not have accepted or assigned
the mortgage from or to ALS. Defendants argue because ALS lacked standing, Nationstar could
not inherit its standing, and Nationstar could not represent the trust as the Note’s owner, as the
Trust never owned the Note. Defendants argue that reasonable inferences within the record support
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2019 IL App (2d) 180400-Uthe conclusion that multiple failures of chain of title exist, and the process validating standing to
foreclose was flawed from beginning to end.
¶ 30 Nationstar responds that no genuine issue of material fact existed and that it was entitled
to summary judgment. Nationstar points out that defendants do not dispute that they defaulted on
the loan, nor do they contest the amount due under the Note. Nationstar agues that defendants
challenge its standing, but they are barred from doing so based on the release defendants signed to
settle and dismiss the 2009 foreclosure case. Nationstar maintains that in the release, defendants
released ALS and its successors from any and all claims “of every kind and manner whatsoever”
that were asserted or could have been asserted against ALS in the 2009 foreclosure, which would
include the affirmative defense of standing.
¶ 31 Nationstar argues that defendants’ standing argument is also barred by res judicata, in that
defendants’ counterclaim and all their defenses that they asserted in the 2009 foreclosure were
dismissed with prejudice. Nationstar maintains that a dismissal with prejudice following a
settlement is an adjudication on the merits for purposes of res judicata. See Camper v. Burnside
Construction Co., 2013 IL App (1st) 121589, ¶ 34 (an order dismissing an action with prejudice
generally constitutes a final judgment on the merits for res judicata purposes). Nationstar argues
that the adjudication on the merits, coupled with the fact that the same parties and same issues
were being litigated in the 2011 foreclosure, triggered res judicata. See Nowak v. St. Rita High
School, 197 Ill. 2d 381, 390 (2001). Nationstar contends that because the affirmative defense of
standing could have been raised in the 2009 foreclosure, it was barred by res judicata when the
2011 foreclosure complaint was filed by the same plaintiff.
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2019 IL App (2d) 180400-U¶ 32 Nationstar further argues that defendants do not seek review of the trial court’s dismissal
of their affirmative defenses on April 21, 2014, which adjudicated the question of standing, so
defendants could not relitigate that issue through a response to summary judgment.
¶ 33 Nationstar argues that even if defendants properly argued standing at the summary
judgment stage, there was still no error because Nationstar possessed a Note endorsed in blank.
Nationstar argues that its possession of the Note and mortgage was sufficient to confer standing,
and that the identity of the owner of the Note, the validity of assignments, and the alleged
noncompliance with the pooling and servicing agreement for the trust have no bearing on standing.
¶ 34 We agree with Nationstar that defendants may not rely on Nationstar’s alleged lack of
standing as a basis for asserting that the trial court erred in granting Nationstar summary judgment.
First, it is clear from defendants’ notice of appeal and briefs that they are contesting the trial court’s
ruling on summary judgment and its subsequent order approving the sale. However, the trial
court’s rulings on the issue of standing predate its ruling on the motion for summary judgment.
Specifically, on April 21, 2014, the trial court struck defendants’ affirmative defenses based on its
October 4, 2011, order stating that defendants were not to file any affirmative defenses without
first obtaining leave of the court, and based on the release and settlement agreement. Defendants
do not argue that the trial court erred in striking their affirmative defenses, which included
standing.
¶ 35 Defendants’ failure to argue that the trial court erred in striking their affirmative defenses
results in forfeiture of the issue on review. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (points
not argued are forfeited). That is, a reviewing court is not a repository into which an appellant may
dump the burden of argument and research, nor is it our obligation to act as an advocate, and the
failure to clearly define issues and support them with authority results in forfeiture of the argument.
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2019 IL App (2d) 180400-UAtlas v. Mayer Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33. We recognize that
defendants are appealing pro se and may not have realized that they needed to challenge the trial
court’s April 21, 2014, ruling. However, pro se litigants are not entitled to more lenient treatment
than attorneys. Gillard v. Northwestern Memorial Hospital, 2019 IL App (1st) 182348, ¶ 45.
Parties who chose to represent themselves in Illinois courts must comply with the same rules as
licensed attorneys, and they are held to the same standards. Holzrichter v. Yorath, 2013 IL App
(1st) 110287, ¶ 78. Because defendants do not challenge the trial court’s ruling striking their
affirmative defenses, which included standing, they may not rely on the issue of standing to assert
that an issue of material fact precludes summary judgment.
¶ 36 Even if, arguendo, defendants properly challenged the trial court’s April 21, 2014, order,
we would still affirm its ruling. Whether the trial court erred in striking affirmative defenses is an
issue that we review de novo. See Storino, Ramello & Drukin v. Rackow, 2015 IL App (1st)
142961, ¶ 35 (trial court’s decision to grant or deny a motion to strike is reviewed de novo). The
trial court based its ruling in part on the fact that the October 4, 2011, order prohibited defendants
from filing affirmative defenses without leave of the court. Defendants have not challenged the
October 4, 2011, ruling, nor did they seek leave to refile their affirmative defenses.
¶ 37 Based on our resolution, we do not address Nationstar’s arguments that defendants are
barred from contesting standing due to res judicata and the release and settlement agreement, and
that it proved standing through possession of the Note endorsed in blank.
¶ 38 We now turn to the order that defendants did appeal, being the trial court’s grant of
summary judgment. Summary judgment is appropriate only where the pleadings, depositions,
admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party,
show that there is no genuine issue of material fact and that the moving party is entitled to judgment
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2019 IL App (2d) 180400-Uas a matter of law. 735 ILCS 5/2-1005(c) (West 2018). We review de novo a trial court’s ruling on
a motion for summary judgment. Nichols v. Fahrenkamp, 2019 IL 123990, ¶ 13.
¶ 39 As discussed, defendants may not rely on an alleged lack of standing to contest the trial
court’s grant of summary judgment for Nationstar, because defendants have not argued that the
trial court erred in striking their affirmative defense of standing. As all of defendants’ arguments
on appeal challenging the trial court’s grant of summary judgment relate to standing to litigate the
foreclosure action, we affirm the trial court’s grant of summary judgment for Nationstar.
¶ 40 Defendants additionally argue that they were denied due process by the trial court’s refusal
to grant them a continuance at the May 7, 2018, hearing on Nationstar’s motion for an order
approving the judicial sale. Defendants argued at the hearing that they had received notice of the
hearing only two business days prior and wanted time to respond to the motion and to obtain an
attorney. Defendants argue that the “hostility of the trial court in this hearing was shocking and
the atmosphere was one of intimidation and shutting down any question regarding the sale as
quickly as possible.” Defendants maintain that during the final and most critical hearing of the
case, and with little notice as to the particulars of the motion, the trial court denied them the
opportunity to consider their options, research the motion, verify its amounts and claims, and to
secure counsel. Defendants point out that section 15-1508(b) the Illinois Mortgage Foreclosure
Law states that the trial court should not confirm the sale if it was conducted fraudulently or justice
was not otherwise done. 735 ILCS 5/15-1508(b) (West 2018). They argue that “evidence existed
concerning the validity of the Note, the ownership of the Note and unbroken chain of title that
could have satisfied these requirements,” but they were denied their chance to make this argument
before the trial court. They cite Powell v. Alabama, 287 U.S. 45, 69 (1932), where the Supreme
Court stated: “If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to
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2019 IL App (2d) 180400-Uhear a party by counsel, employed by and appearing for him, it reasonably may not be doubted
that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional
sense.”
¶ 41 Procedural due process involves the constitutional adequacy of the procedures used to deny
a person’s life, liberty, or property interests. Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶
31. “Due process entails an orderly proceeding wherein a person is served with notice and has an
opportunity to be heard and to present his or her objections, at a meaningful time and in a
meaningful manner, in a hearing appropriate to the nature of the case.” Id. We review de novo a
claim regarding a violation of procedural due process. Id.¶ 42 Defendants’ argument also involves a request for a continuance. A litigant does not have
an absolute right to a continuance, and whether to grant or deny a motion for a continuance is
within the trial court’s sound discretion. Andersonville South Condominium Ass’n v. Federal
National Mortgage Co., 2017 IL App (1st) 161875, ¶ 28. A trial court abuses its discretion only
where its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would take
the same view. Id.¶ 43 We conclude that defendants’ procedural due process rights were not violated. Defendants
received notice of the judicial sale scheduled on March 27, 2018, as shown by their pro se motion
to stay the sale. They were not successful in obtaining a stay, as the sale took place as scheduled.
Thereafter, Nationstar filed a motion for an order approving the sale on April 30, 2018, and
defendants received notice of the May 7, 2018, hearing. Although they argue that they had only
two business days’ notice, the actual sale of the property had taken place over one month before,
so a confirmation of the sale was the next step in the foreclosure process and should not have come
as a surprise to defendants. This is especially true considering that the litigation had been ongoing
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2019 IL App (2d) 180400-Usince 2011. At the hearing itself, the trial court allowed defendants to speak and make a record of
their objections. Accordingly, defendants sufficiently received notice and had an opportunity to be
heard and present their objections.
¶ 44 We additionally conclude that the trial court did not abuse its discretion in denying
defendants’ implicit request for a continuance. At the hearing, defendants stated that they wanted
time to present their objections to Nationstar’s standing, and they again assert on appeal that they
were denied the opportunity to argue standing at the hearing. However, as discussed, the trial court
had already adjudicated the question of standing by striking defendants’ affirmative defenses.
Further, after a motion to confirm the sale has been filed, it is not sufficient under the Foreclosure
Law to raise a meritorious defense to the complaint. Wells Fargo Bank, N.A. v. McCluskey, 2013
IL 115469, ¶ 26. Defendants also argue that they were not allowed time to obtain an attorney, but
they did not even request time to retain an attorney until after the trial court orally granted the
motion to confirm the sale. Moreover, defendants were represented by counsel during much of the
proceedings. Counsel withdrew in March 2016, and defendants thereafter had ample time to secure
new counsel, including after being notified of the judicial sale scheduled on March 27, 2018.
Powell does not assist defendants, as that case “determined that a due process violation occurs
only when a state or federal court arbitrarily refuses to hear from privately retained counsel in a
criminal or civil case.” People v. Gawlak, 2019 Il 123182, ¶ 33 (citing Powell, 287 U.S. at 69). As
stated, here defendants were represented by counsel during years of litigation, and they had ample
time to retain new counsel. Further, the trial court did not arbitrarily refuse to hear from their
counsel during the May 7, 2018, hearing. Accordingly, Powell does not apply.
¶ 45 Last, defendants argue that the trial court demonstrated a persistent bias against them
during the foreclosure proceedings. Defendants argued that the comments made by the trial court
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2019 IL App (2d) 180400-Uthroughout the proceedings reveal an assumption that because the new mortgage rate that
defendants had been given was favorable, they should not have defaulted. Defendants refer to the
trial court’s statements on April 21, 2014, repeatedly referring to the 3% interest rate in the loan
modification and defendant’s default.
¶ 46 Defendants did not raise the issue of the trial judge’s alleged bias during the proceedings
below, such as through a motion for a substitution of judges, and therefore have forfeited this issue
on appeal. Gean v. State Farm Mutual Automobile Insurance Co., 2019 IL App (1st) 180935, ¶ 19
(issues not raised in the trial court are forfeited and may not be raised for the first time on appeal).
Even otherwise, defendants’ argument is without merit. A trial judge is presumed to be impartial,
and the party alleging prejudice has the burden of overcoming this presumption. Thomas v.
Weatherguard Construction Co., 2018 IL App (1st) 171238, ¶ 47. A judge’s rulings alone will
rarely constitute a valid basis for a claim of judicial bias or partiality. Id. ¶ 48. Even judicial
remarks during a trial that are critical or disapproving of, or hostile to, counsel, the parties, or their
cases, generally are not sufficient for a bias or partiality challenge. Id. ¶ 49. Instead, the remarks
must reveal a bias stemming from an extrajudicial source or reveal such a high degree of favoritism
or antagonism such that a fair judgment is impossible. Id.
¶ 47 Here, defendants do not allege that the trial judge was biased or prejudiced against them
due to an outside source. Instead, they rely on his remarks during the hearings, particularly the
hearing on April 21, 2014, when he struck their affirmative defenses. We have reviewed the report
of proceedings, 2 and it is clear that the trial court based its ruling on the settlement agreement.
2
Excerpts from that hearing date are set forth earlier in our disposition. See supra ¶¶ 11-
13.
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2019 IL App (2d) 180400-UAlthough it commented on the low interest rate in the loan modification, these were superfluous
remarks that were not hostile to defendants and did not factor into its ruling. We also note that the
trial court’s striking of the affirmative defenses came several years after the action began, which
would indicate a lack of hostility towards defendants, and that the litigation continued for several
years afterwards. We have additionally considered the trial court’s April 21, 2014, ruling under de
novo review and determined that we would have affirmed the order even if defendants had not
forfeited review of that ruling (see supra ¶ 36). Accordingly, defendants’ argument is without
merit.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the judgement of the Du Page County circuit court.
¶ 50 Affirmed.
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