Deutsche Bank National Trust v. Snick ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Deutsche Bank National Trust Co. v. Snick, 2011 IL App (3d) 100436
Appellate Court DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture
Caption Trustee Under the Indenture Relating to IMH Assets, Plaintiff-Appellee,
v. KARI B. SNICK, Defendant-Appellant (Thomas Schnurpfeil;
Mortgage Electronic Registration Systems, Inc.; IMPAC Funding
Corporation, d/b/a IMPAC Lending Group; Meadow Creek Community
Association, Inc.; Unknown Owners; and Nonrecord Claimants,
Defendants).
District & No. Third District
Docket No. 3-10-0436
Filed October 21, 2011
Rehearing denied November 15, 2011
Held On appeal from an order approving a judicial sale, the appellate court
(Note: This syllabus held that the trial court’s order was not an abuse of discretion, since
constitutes no part of defendant did not provide any basis under section 15-1508 of the
the opinion of the court Mortgage Foreclosure Law to refuse confirmation of the sale.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Will County, No. 07-CH-676; the Hon.
Review Richard J. Siegel, Judge, presiding.
Judgment Affirmed.
Counsel on Harvey Wright, of South Holland, for appellant.
Appeal
Mariclare O’Connor and Brooks Brehme, both of Codilis & Associates,
P.C., of Burr Ridge, for appellee.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Presiding Justice Carter and Justice Lytton concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff Deutsche Bank National Trust Company (the Bank) filed a complaint to
foreclose a mortgage against defendant Kari Snick and others. A default judgment of
foreclosure was entered against Snick. More than two years later, after several motions to
stay a judicial sale, the trial court entered an order approving the sale of the property. Snick
appeals from the trial court’s order approving the sale and also from the subsequent denial
of Snick’s motion to reconsider the approval of the sale. We affirm.
¶2 FACTS
¶3 The Bank filed its complaint to foreclose a $750,000 mortgage on March 1, 2007. The
complaint alleged that the Bank was bringing the foreclosure action as the legal holder of the
indebtedness or as the servicing agent for the legal holder of the indebtedness. The complaint
further alleged that Snick was the mortgagor and that Snick was in default. The mortgage and
the note, defining Snick as the borrower, were attached to the complaint. The lender was
defined in the mortgage as IMPAC Funding Corporation.
¶4 Although an attorney entered a general appearance on Snick’s behalf, Snick did not
answer the complaint, and the judgment for foreclosure and sale was entered upon the Bank’s
motion for a default judgment. The affidavit in support of the motion was signed by an
attorney of GMAC Mortgage, LLC, as the servicer on behalf of the Bank. The default
judgment was entered on June 18, 2007, and included a clause providing:
“This is a final and appealable order and there is no just cause for delaying the
enforcement of this judgment or appeal therefrom.”
¶5 Thereafter, on five occasions between October 31, 2007 and December 16, 2009, Snick
filed emergency motions to stay the sale of the subject property. One motion was stricken,
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three were granted, and the final motion was denied on December 16, 2009. The property
was sold at a sheriff’s sale, and the Bank filed a motion for an order approving the sale. On
February 3, 2010, Snick filed a response to the Bank’s motion, challenging the Bank’s
standing for the first time. The trial court found that the issue of standing was not timely
raised, and it entered an order confirming the sale. Thereafter, Snick filed a motion pursuant
to section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2008)) to vacate
the order approving the sale, which was denied by the trial court. Snick appealed.
¶6 ANALYSIS
¶7 Snick contends that the trial court erred in refusing to consider her challenge to the
Bank’s motion for an order approving the sale, arguing that the issue of standing was timely
raised. The Bank contends that standing was an issue that should have been raised prior to
the entry of the judgment of foreclosure and that Snick was not entitled to relief from the
judgment of foreclosure under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-
1401 (West 2008)) because it was a final and appealable order.
¶8 When a trial court enters a judgment that does not dispose of an entire action, but makes
an express written finding that there is no just reason for delaying enforcement or appeal, the
judgment is final and appealable. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010); see In re Marriage
of Verdung, 126 Ill. 2d 542 (1989); cf. Santana v. Zipperstein, 142 Ill. App. 3d 386 (1986)
(an order of foreclosure was final but not appealable, and thus modifiable, where the trial
court had not made the finding that there was no just cause for delaying enforcement or
appeal). In this case, the default judgment of foreclosure was a final and appealable order
when it was entered on June 18, 2007, because the trial court specifically made the finding
pursuant to Rule 304(a) that there was no just reason for delaying enforcement of the appeal.
¶9 In any event, the lack of standing is an affirmative defense, which is waived if not raised
in a timely fashion. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988);
Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1 (2010). In this
case, the Bank’s foreclosure complaint complied with the requirements of section 15-1504(a)
of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1504(a) (West 2008)), alleging that
the Bank was the legal holder of the indebtedness or the servicing agent for the legal holder
of the indebtedness, and attaching a copy of the note and mortgage. Snick failed to answer
the complaint and was defaulted. By her default, Snick admitted the well-pleaded allegations
of the complaint, including the allegation that Bank held an interest in the subject property.
See Mortgage Electronic Registration Systems, Inc., 406 Ill. App. 3d at 7. Thereafter, Snick
participated in the court proceedings by filing several motions to stay the sale of the subject
property. At no time did Snick raise the issue of standing until her objection to the Bank’s
motion for an order approving the sale of the property, which was almost three years after
the entry of the judgment of foreclosure. We find that Snick waived the issue of the Bank’s
standing by failing to raise the issue while, at the same time, participating and accepting the
benefits of the court proceedings.
¶ 10 Snick did not appeal the judgment of foreclosure; she only challenged the order
approving the sale. Section 15-1508(b) of the Code of Civil Procedure limits a trial court’s
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discretion to refuse confirmation of a judicial sale to the four grounds specified in the statute.
735 ILCS 5/15-1508 (West 2008); Mortgage Electronic Registration Systems, Inc. v. Barnes,
406 Ill. App. 3d 1 (2010). Section 15-1508(b) provides:
“Unless the court finds that (I) a notice required in accordance with subsection (c) of
Section 15-1507 [(735 ILCS 5/15-1507)] was not given, (ii) the terms of sale were
unconscionable, (iii) the sale was conducted fraudulently or (iv) that justice was
otherwise not done, the court shall then enter an order confirming the sale.” 735 ILCS
5/15-1508(b) (West 2008).
¶ 11 Although Snick limited her appeal to the order approving the sale, she does not contend
that the trial court made any of the findings required by section 15-1508. Instead, she argues
that the Bank lacked standing, an argument that we have already found waived. Since Snick
did not give the trial court any basis to refuse confirmation of the sale under section 15-1508,
we conclude that the trial court did not abuse its discretion in approving the judicial sale.
¶ 12 CONCLUSION
¶ 13 The judgment of the circuit court of Will County is affirmed.
¶ 14 Affirmed.
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